Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25954/94

by E. T.

against Hungary

The European Commission of Human Rights sitting in private on

20 May 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 January 1994 by

E. T. against Hungary and registered on 15 December 1994 under file

No. 25954/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born out of wedlock on 13 April 1992, is of

Romanian origin. When lodging her application, she lived in the United

States of America with adoptive parents. Before the Commission, she is

represented by Mr. J. Davies, the Director of the Hungarian branch of

the Solomon Foundation. The Foundation appears to arrange adoptions

from several countries to the United States, and has organised inter

alia the adoption in question. Mr. Davies was appointed by the

applicant's adoptive parents on 9 December 1993.

A. Particular circumstances of the case

The facts, as they have been submitted by the applicant, may be

summarised as follows.

In October 1992 the applicant, accompanied by her natural mother,

her only parent known, left Romania and entered Hungary.

On 15 October 1992 her natural mother recorded a declaration with

a Hungarian notary public according to which she irrevocably agreed to

her daughter's adoption by Mr. and Mrs. T., a couple of US nationality,

allowing her to emigrate to the United States. The adoption was

organised by Mr. Davies. Subsequently her natural mother left Hungary.

The applicant was provisionally taken care of by foster parents paid

for by the prospective adoptive parents.

In April 1993 the General Administrative Bureau of the Szeged

Mayor's Office (Szeged Megyei Jogú Város Polgármesteri Hivatal

Általános Igazgatási Iroda) decided that the applicant be provisionally

placed under state custody and be committed to the Csongrád County

Child and Youth Protection Institute (Csongrád Megyei Gyermek- és

Ifjúságvédo Intézet). The Bureau considered that this measure was

necessary, pursuant to Section 10 of the Rules on the Protection of

Minors (Decree No. 51/1986. /XI.26./ MT), in order to protect the

applicant's interests. The Office noted that the applicant's natural

mother had left Hungary and, in the absence of the prospective adoptive

parents, the applicant had no legal representative. The decision was

enforced immediately.

Mr. Davies' appeal on behalf of the applicant was allegedly

rejected by the General Administrative Bureau of the Szeged Mayor's

Office on the ground that he had no legal interest in the matter of the

applicant. His request that a special guardian be appointed to

represent the interests of the applicant and to lodge an appeal on her

behalf was allegedly also rejected. According to Mr. Davies, his

request for a copy of the custody decision was to no avail.

In July 1993 the General Administrative Bureau of the Szeged

Mayor's Office terminated the state custody. The Bureau, referring to

Section 11(3) of the Rules on the Protection of Minors, noted that the

Hungarian Ministry of Social Welfare had meanwhile communicated the

issue of the applicant's and other Romanian children's adoption to

Romania, and the Embassy of Romania had agreed on the adoption scheme

and the emigration of the children concerned.

The applicant thereupon was handed over to her adoptive parents

in the United States.

B. Relevant domestic law

Sections 10 and 11 of the Rules on the Protection of Minors

concern the provisional committals to institutions and the placement

of minors.

Section 10 provides as follows:

"(1) A minor shall be provisionally committed to the

nearest Institute for the Protection of Children and Youth by the

guardianship authority ..., the court, the police, the

prosecutor's office, the governor of the prison or the

administrative organ of the communal council, if an immediate

measure is necessary in order to avoid a serious risk to the

minor's well-being.

(2) The authority concerned shall provide for the transfer

of the minor to the Institute for the Protection of Children and

Youth, and shall notify the competent guardianship authority

accordingly. A minor under 3 years of age shall be transferred

to the nearest nursery home, and both the Institute for the

Protection of Children and Youth and the competent guardianship

authority shall be simultaneously notified about this measure.

(3) The decision ordering the provisional committal may be

executed immediately."

Section 11 reads as follows:

"(1) If the guardianship authority, following the

provisional committal order, establishes that there are reasons

warranting the termination of the parental custody, it shall

initiate an action against the parent(s) in order to terminate

custody.

(2) If the termination of custody does not appear

necessary, the guardianship authority may take the following

measures in order to protect the minor's interests:

a) place the minor in institution care, or

b) place the minor provisionally with the other parent or

with another suitable person.

(3) If the measures under (1) and (2) above are not

necessary, the guardianship authority shall terminate the

provisional committal."

COMPLAINTS

The applicant complains that the decision taken by the General

Administrative Bureau of the Szeged Mayor's Office in April 1993 to

place her under state custody and to commit her to a children's home

violated her right to liberty under Article 5 para. 1 of the

Convention. She further claims that this measure violated her right to

respect for her private and family life as guaranteed under Article 8.

She also submits that this measure amounted to inhuman and degrading

treatment, contrary to Article 3 of the Convention. She further

complains under Article 6 that she was denied a public hearing to

challenge the impugned decision. She finally complains under Article

2 of Protocol No. 4 that, as a consequence of the measure concerned,

she was prevented from leaving Hungary.

THE LAW

1. The applicant raises several complaints in respect of her

placement under guardianship and confinement to a public children's

home, which terminated in July 1993. The applicant did not specify the

exact date. She lodged her application with the Commission on

5 January 1994. The question, therefore, arises whether she complied

with the period of six months under Article 26 (Art. 26) of the

Convention. The Commission is, however, not obliged to resolve this

matter, as the application is anyway inadmissible for the following

reasons.

2. The applicant complains that her placement under state custody

and confinement to a public children's home amounted to a violation of

her right to liberty under Article 5 para. 1 (Art. 5-1) of the

Convention.

Article 5 para. 1 (Art. 5-1), as far as relevant, provides as

follows:

"Everyone has the right to liberty and security of person. No

one shall be deprived of his liberty save in the following cases

and in accordance with a procedure prescribed by law:

...

d. the detention of a minor by lawful order for the

purpose of educational supervision or his lawful detention for

the purpose of bringing him before the competent legal

authority;"

The Commission notes that in April 1993 the applicant, then one

year old, was staying in Hungary with paid foster parents with a view

to her adoption and emigration to join her future adoptive parents in

the United States. This adoption was, like other adoptions of Romanian

children, organised by Mr. Davies of the Solomon Foundation. The

impugned decision ordered that the applicant be provisionally committed

to the Csongrád County Child and Youth Protection Institute, where she

stayed for about three months.

The Commission recalls that the protection afforded by Article 5

(Art. 5) also covers minors (Eur. Court H.R., Nielsen judgment of

28 November 1988, Series A no. 144, p. 22, para. 58). However, in the

particular circumstances of the case, the Commission finds that the

applicant's committal to the Csongrád County Child and Youth Protection

Institute did not amount to a deprivation of her liberty within the

meaning of Article 5 para. 1 (Art. 5-1).

The applicant's submissions do not, therefore, disclose any

appearance of a violation of her right to liberty under Article 5

para. 1 (Art. 5-1).

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2).

3. The applicant further complains that the decision of April 1993

to place her under state custody violated her right to respect for her

private and family life. She relies on Article 8 (Art. 8) of the

Convention, which provides as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Commission notes that at the relevant time the applicant,

while awaiting the conclusion of her adoption proceedings and her

emigration to join her future adoptive parents in the United States,

had been placed with paid foster parents in Hungary. The question

arises whether the decision of April 1993 amounted to an interference

with her right to respect for her private and family life within the

meaning of Article 8 para. 1 (Art. 8-1).

However, the Commission does not have to resolve this matter, as,

even assuming such an interference, it was justified under Article 8

para. 2 (Art. 8-2) for the following reasons.

The Commission notes that the measure in question was based on

Section 10 of the Rules on the Protection of Minors. The decision

concerned was taken in accordance with this legal provision, a

circumstance not contested by the applicant.

The Commission further finds that the relevant Hungarian law was

aimed at protecting "health or morals" and "the rights and freedoms"

of children. There is nothing to suggest that it was applied for any

other purpose in the present case. In this respect the Commission notes

in particular that the aim of the impugned measure was to protect the

applicant's interests pending clarification of the circumstances of her

adoption and envisaged emigration.

It remains to be examined whether the interference complained of

was "necessary in a democratic society" in order to pursue this aim.

The notion of necessity implies that the interference must be

proportionate to the legitimate aid pursued; in determining whether an

interference is "necessary in a democratic society", the Court will

take into account that a margin of appreciation is to be left to the

Contracting States (Eur. Court H.R., Rieme judgment of 22 April 1992,

Series A no. 226, p. 71, para. 69).

The Commission, referring to its earlier findings, notes in

particular that the applicant's temporary placement under state custody

was ordered on the ground that the applicant's natural mother had left

Hungary after having signed the adoption papers. In the absence of the

prospective adoptive parents, the applicant had no legal

representative. The applicant was still in a transitory legal situation

and stayed with paid foster parents. At the same time, numerous similar

adoption transactions, organised by the Solomon Foundation, were taking

place.

In this situation, the Hungarian authorities could reasonably

find it necessary to take the provisional measure in question in order

to investigate the matter together with the Romanian authorities. The

state custody lasted for some three months and was terminated as soon

as the investigation was completed.

In these circumstances the Commission finds that the interference

was necessary for the aforesaid legitimate aim and, considering its

provisional nature and short duration, also proportionate to this aim.

Consequently, there is no appearance of a violation of the

applicant's right to respect for her private life.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para 2 (Art. 27-2) of the

Convention.

4. As regards the remainder of the applicant's complaints, the

Commission, having regard to the material before it, finds that they

do not disclose any appearance of a violation of the rights and

freedoms set out in the Convention or its Protocols.

It follows that this part of the application must be rejected in

accordance with Article 27 (Art. 27) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (S. TRECHSEL)

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