AS TO THE ADMISSIBILITY OF

                      Application No. 21647/93

                      by Géza SZEGO

                      against Hungary

     The European Commission of Human Rights (First Chamber) sitting

in private on 16 January 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 20 January 1993

by Géza SZEGO against Hungary and registered on 8 April 1993 under file

No. 21647/93;

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

of Procedure of the Commission;

     Having regard to the Commission's decision of 1 December 1993 to

communicate the application as regards the applicant's complaint under

Article 8 para. 1 of the Convention and to declare the remainder of the

application inadmissible.

     Having regard to the observations submitted by the respondent

Government on 18 March 1994; and the applicant's letter of 8 May 1994

and the observations in reply submitted by his representative on

10 December 1994;

     Having regard to the Government's further submissions of

25 January and 18 May 1995;

     Having deliberated;

     Decides as follows:

THE FACTS

     The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

     The applicant, born in 1954, is a Hungarian national and resident

in Budapest.  He is an engineer by profession. As from

22 September 1994 he has been represented by Mr. L. Németh, a lawyer

practising in Budapest.

A.   Particular circumstances of the case

     On 3 November 1984 the applicant married B.G.  On 6 June 1985

B.G. gave birth to a daughter (Zs.), on 31 October 1986 to a son (M.).

     On 24 November 1987 B.G. instituted divorce proceedings.  She

claimed - inter alia - that not the applicant but D.B. was the natural

father of both children.  The applicant also claimed the right of

custody over both children.

     On 22 May 1990 the Buda Central District Court (Budai Központi

Kerületi Bíróság) pronounced the divorce.  The District Court, having

taken expert evidence, declared that the applicant was not the natural

father of Zs., but of M.  The Court transferred the right of custody

over M. to B.G. and granted the applicant a right of access every

second weekend and during the school holidays.

     On 28 January 1992 the Metropolitan Court (Fovárosi Bíróság),

upon the applicant's appeal against the decision of 22 May 1990,

amended the judgment as regards the applicant's right of access to M.

during the initial four months.  The remainder of the appeal was

dismissed.

     Accordingly, as from 1 February 1992, the applicant was entitled

to have access to M. by way of collecting him from B.G.'s flat every

second Saturday at 9 a.m.  Until 1 August 1992 he was to return M. at

5 p.m. the same day, however, after this date the applicant was to

return him only on Sundays at 5 p.m.  Furthermore, the applicant was

entitled to have access to M. for half of the child's school holidays.

If he had no access to M. on a weekend for any reason other than

through his own fault he should have access the next weekend instead.

     In its reasoning, the Metropolitan Court considered that B.G. was

opposed to access and that the applicant was also suitable to exercise

the right of custody.  However, the Court found that it was in M.'s

interest to be in B.G.'s custody.

     On 11 February 1992 the applicant informed the Dazed Local

Authority Mayor's Office (Dazed Községi Önkormányzat Polgármesteri

Hivatal) that on 8 February 1992 he attempted to collect M. from B.G.'s

flat but that D.B. prevented him from doing so and let him have access

to M. only in the flat for a while.  He asked for the help of the local

authority in order to have access to his son and to institute family

law proceedings in order to transfer custody to him.

     On 20 February 1992 the local authority organised a meeting

between the parties.  They agreed that B.G. would guarantee the access

but only between 10 a.m. and 1 p.m. every second Saturday.  B.G. also

insisted that the applicant should not take M. to his own flat but he

should exercise his right to visit in the village of Dazed where she

lived.

     On 13 March 1992 the notary of the local authority wrote a letter

to B.G. warning her that in case of failure to comply with the

agreement of 20 February 1992, enforcement measures would have to be

taken.

     On 24 March 1992 the applicant informed the public guardianship

department of the local authority that, despite the agreement of

20 February 1992, he still had no access to M.  He claimed again that

the local authority should institute family law proceedings in order

to transfer custody to him.  He also filed an opinion of a well-known

Hungarian psychologist to substantiate his claims.

     On 2 April 1992 the local authority organised a further meeting

between the parties, including D.B.  As B.G. had failed to comply with

the previous agreement, the applicant insisted on access to M. as

ordered by the court.  B.G. and D.B. very reluctantly accepted to

guarantee the applicant's access to M.  According to the minutes of

this meeting, signed by the applicant, three visits had taken place in

the period between 20 February and 2 April 1992.  This is contested by

the applicant.

     On 4 April 1992 the applicant had access to M. in accordance with

the court judgment.

     On 20 April 1992 the applicant informed the local authority that

on 18 April 1992 he had again been prevented from having access to M.

in that B.G. and D.B. had informed him that M. did not want to join

him, because they were about to travel and were already packing their

suitcases.  The applicant also stated that B.G. and D.B. had told M.

in his presence - inter alia - that the applicant had lied and had

molested them.  The applicant further submitted that B.G. had

physically attacked him and that D.B. had intended to throw water over

him.   He had therefore decided to leave the flat.   The applicant

renewed his request with the local authority to enforce the court

judgment.  No reply was given to him.

     On 28 April 1992 the applicant informed the Administrative

Department of the Budapest Commissioner of the Republic's Office

(Budapesti Köztársasági Megbízotti Hivatal Igazgatási Hatósági Osztály)

that, apart from the visit of 4 April 1992, he had not had any access

to M.  He urged intervention to enforce the court judgment.  No reply

was given to him.

     On 4 May 1992 the applicant again informed the local authority

that B.G. was still hindering his access to M. and claimed urgent

intervention to enforce the court judgment.  No reply was given to him.

     On 5 May 1992 the applicant lodged an application with the

Administrative Department of the Budapest Commissioner of the

Republic's Office requesting that the notary of the local authority be

excluded from the enforcement proceedings.   He claimed that the notary

was biased and did in fact very little to enforce the court judgment.

     On 10 May 1992 the applicant informed the local authority that

on 9 May 1992 B.G. had again prevented him from having access to M. and

that he had again been attacked by her.  He urged the local authority

to intervene.  No reply was given to him.

     On 18 May 1992 the applicant informed the local authority that

on 16 May 1992 D.B. had hindered his access to M.  He urged again the

local authority's intervention.  No reply was given to him.

     On 31 May 1992 the applicant informed the local authority that

on 24 May 1992 B.G. and her family had changed their abode and

requested to be informed about their new address.  A copy of this

letter was sent also to the Administrative Department of the Budapest

Commissioner of the Republic's Office.

     On 1 June 1992 this Administrative Department informed the

applicant about B.G.'s new address and advised him that, therefore, in

the future the Budapest XX. District Local Authority Major's Office

(Budapesti XX. kerület Polgármesteri Hivatal) had jurisdiction in the

case and, therefore, it was no longer necessary to exclude the notary

of the Diosd Local Authority from the enforcement proceedings.

     On 9 June 1992 the Diosd Local Authority also informed the

applicant about B.G.'s new address.

     In Summer 1992 the applicant claimed the assistance of the

Budapest XX. District Local Authority Major's Office.  The

administrator of the Local Authority thereupon wrote a letter to B.G.

in which she was warned that she should comply with the court judgment.

An agreement was also made with the parties that the applicant would

meet M. in a child care institute because he was said to be afraid of

going to the applicant's flat.  It appears that the applicant met M.

once at the institute concerned, and that after this meeting B.G.

claimed that M. did not want to meet the applicant.

     On 17 October 1992 the same administrator accompanied the

applicant and noted that the applicant was in effect denied access to

M.  The applicant was allowed to visit M. for a while in B.G.'s flat

only and M. told him that he did not want to join him.  A video

recording was made by B.G. of the visit.

     On 17 November 1992 the administrator accompanied the applicant

again.  This time M. was ill, but B.G. had failed to inform the

applicant thereof.  The applicant had no access to M.

     On 16 January 1993 the administrator again accompanied the

applicant.  B.G. was not at home.  D.B. told the applicant that M. did

not want to see him.  This was confirmed by M.  The applicant had no

access to M.

     On 12 March 1993 the Budapest XX. District Local Authority

imposed a fine of 5,000 Hungarian forints upon B.G. for failure to

comply with the court judgment regarding the applicant's right of

access to M.  On 4 May 1993 the Administrative Department of the

Budapest Commissioner of the Republic's Office rejected B.G.'s appeal.

Her further appeal was dismissed by the Ministry of Public Welfare

(Népjóléti Miniszterium) on 12 November 1993.  The fine was enforced

in January 1994.

     In February 1994 the Budapest XX. District Local Authority

imposed a fine of 10,000 Hungarian forints upon B.G. for her continued

failure to comply with the court judgment.  Upon the B.G.'s appeal, the

Administrative Department of the Budapest Commissioner of the

Republic's Office reduced the amount to 5,000 Hungarian forints.

     On 12 July 1994 the Budapest XX. District Local Authority imposed

another fine of 10,000 Hungarian forints upon B.G. for her continued

failure to comply with the court judgment.  The Authority noted that

through B.G.'s fault the applicant had not been able to have access to

his son M. throughout 1993.

     On 5 November 1994 the Budapest XX. District Local Authority

appointed a person to assist the applicant in implementing his right

of access to M.  According to a report of this person, B.G. and D.B.

reacted aggressively when he and the applicant wanted to fetch M. for

the regular visit and M. had stated in a stereotype manner that he did

not wish to see the applicant.  The report concluded that it appeared

that B.G. and D.B. would render any visits between the applicant and

M. impossible.

     On 31 March 1995 the Administrative Department of the Budapest

Commissioner of the Republic's Office dismissed B.G.'s appeal.  The

Administrative Department considered that the applicant's right of

access had been deliberately regulated to the effect that he was

entitled to take M. away from his home.  The Department noted that B.G.

had prevented the applicant for many years from exercising his right

of access.  The Department also stated that B.G.'s appeal submissions

according to which M., although encouraged by B.G., opposed for years

leaving his home together with the applicant, could give rise to

serious problems in M.'s education which might necessitate - in the

absence of any favourable changes within a reasonable lapse of time -

that further measures be taken by the competent guardianship authority,

which might ultimately result in court proceedings to change M.'s place

of residence.  The Department based its decision on S. 92 of the Act

on Family, Marriage and Guardianship as well as on SS. 66 and 82 of the

Code of Administrative Procedure.

B.   Relevant domestic law

     Questions of guardianship and access to children are governed by

the Act I of 1952 on Family, Marriage and Guardianship.

     According to S. 70, a minor shall be under parental supervision

or under guardianship.  S. 72 para. 1 provides that, as a rule,

parental supervision is jointly exercised by the parents.  According

to its paragraph 2, if the parents do not live together and the minor

is, in agreement between the parents or by virtue of a court decision,

placed with one of the parents, the parental supervision is exercised

by the parent with whom the child has been placed.

     S. 92 provides that the parent living separately from the child

has the right and obligation to maintain relations with his child, and

to hold regular contacts with his child.  The parent or other person

taking care of the child is obliged to ensure the undisturbed

maintenance of these relations.  The guardianship authority is to

provide for the enforcement of the court decision concerning the access

to the child.

     Pursuant to S. 47 of the Act II of 1972 on Courts, the Hungarian

Supreme Court has the power to issue guiding principles and directive

decisions when such guidance on a particular point of law is needed in

the interest of the unity of the case-law.  Such guiding principles and

directive decisions are binding upon all courts (S. 48).

     As regards the right of access to children placed with one

parent, the relevant part of Directive Decision No. 17 may be

summarised as follows:  The placement of a child with one of his/her

parents does not affect the right and the obligation of the other

parent to regularly visit the child, to express his/her love and to

maintain close relations with his/her child.  The parent who, without

reason, obstructs the child from the communication with the other

parent, and turns the child against him/her, gravely violates the

interests of the child.  The emotional balance of the child is thereby

adversely and unpredictably affected and it can even result in the

child turning against both his/her parents.  Such deeply condemnable

conduct of the parent affects harmfully the development of the child

and gives every reason to draw the conclusion that this parent is not

suitable to take care of the child, and could eventually lead to

changing the placement of the child.

COMPLAINTS

     The applicant's remaining complaint relates to the lack of

enforcement by the public authorities of the court judgment concerning

his access to his son M.  The applicant He invokes Article 8 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 20 January 1993 and registered

on 8 April 1993.

     On 1 December 1993 the Commission decided to communicate the

applicant's complaint about the absence of enforcement of his right of

access to his son to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.  The remainder of the

application was declared inadmissible.

     The Government submitted written observations on 18 March 1994.

     On 13 April 1994 the applicant was granted legal aid.

     The applicant filed personal submissions on 8 May 1994.  The

observations in reply submitted by his representative were dated on

10 December 1994.  The Government filed further submissions on

25 January and 18 May 1995.

THE LAW

     The applicant complains about the continuing lack of access to

his son M.  and about the lack of enforcement of the court judgment

which provides for access to M.  He invokes Article 8 para. 1

(Art. 8-1) of the Convention.

     Article 8 (Art. 8), as far as relevant, reads as follows:

     "1.   Everyone has the right to respect for his ... family life,

     ...

     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 ... for the

     protection of the rights and freedoms of others."

a.   The Government maintains that the Commission has no competence

ratione temporis to examine the applicant's complaint to the extent

that it relates to the period prior to 5 November 1992.

     The Commission observes that since the Convention entered into

force with respect to Hungary on 22 November 1992, it will limit its

examination of the present case to the facts occurring after that date,

and events prior to it will be taken into account merely as a

background (cf. Eur. Court H.R., Hokkanen judgment of 23 September

1994, Series A no. 299-A, p. 19, para. 53).

b.   The Government further maintain that the applicant failed to

exhaust the remedies available to him under Hungarian law, as required

under Article 26 (Art. 26) of the Convention.  The Government submit

that the applicant failed to bring court proceedings against B.G. with

a view to changing the decision on the placement of his son M.

     The applicant objects to this view and refers in particular to

the length of such proceedings and the lapse of time during which he

would not be able to have access to M.

     According to Article 26 (Art. 26) of the Convention, the

Commission may only deal with the matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law, and within a period of six months from the date on

which the final decision was taken.

     In the present case, the applicant repeatedly addressed to the

local authority which is competent under the Act on Marriage, Family

and Guardianship for the enforcement of court decisions regarding the

access to children.

     The Commission recalls that the rule of exhaustion of domestic

remedies dispenses the States from answering before an international

body for their acts before they have had an opportunity to put matters

right through their own legal system.  However, international law, to

which Article 26 (Art. 26) makes express reference, demands recourse

solely to such remedies as are both available to the persons concerned

and sufficient (cf. Eur. Court H.R., De Wilde, Ooms and Versyp judgment

of 18 June 1971, Series A no. 12, p. 29, para. 50, and p. 33, para.

60).

     The Commission considers that the enforcement proceedings pursued

by the applicant constituted an effective and sufficient remedy under

Hungarian law with regard to the complaint of continued lack of access

to his son, which he raises before the Commission under Article 8

para. 1 (Art. 8-1) of the Convention.  Court proceedings with a view

to changing the placement of a child, as suggested by the respondent

Government, cannot be regarded as a remedy for the lack of access to

his son.

     The condition under Article 26 (Art. 26) of the Convention that

domestic remedies must be exhausted has, therefore, been met.

c.   As regards the substance of the applicant's complaint, the

respondent Government submit that the applicant's submissions regarding

the period between the entry into force of the Convention with regard

to Hungary and the date when he lodged his application are insufficient

to conclude that his right to respect for his family life has been

breached.  In any event, they consider that the Hungarian guardianship

authorities took appropriate measures with a view to enforcing the

applicant's right of access to M. in accordance with the court

decisions of 1992, in particular by imposing fines upon B.G.  Having

regard to the well-being of the child and taking into account the

principle of proportionality, no stronger means of coercion could be

employed.

     The applicant submits that over the past years the authorities

did not succeed in enforcing his access rights.

     The Commission recalls that the essential object of Article 8

(Art. 8) is to protect the individual against arbitrary interference

by the public authorities.  There may in addition be positive

obligations inherent in an effective "respect" for family life.  Whilst

the boundaries between the State's positive and negative obligations

do not lend themselves to precise definition, the applicable principles

are similar.  In particular, in both contexts regard must be had to the

fair balance that has to be struck between the competing interests of

the individual and the community as a whole, and in both contexts the

State is recognised as enjoying a certain margin of appreciation (cf.

Eur. Court H.R., Hokkanen judgment, loc. cit., p. 20, para. 55).

     When children have been taken into public care and care measures

have been implemented, or where the care has been provisionally

transferred to a third person, Article 8 (Art. 8) includes a right for

the parent to have measures taken with a view to his or her being

reunited with the child and an obligation for the national authorities

to take such action (Eur. Court H.R., Hokkanen judgment, loc. cit., p.

20, para. 55).

     However, the obligation of the national authorities to take such

measures is not absolute, since the reunion of a parent with a child

who has lived for some time with other persons may not be able to take

place immediately and may require preparatory measures being taken to

this effect.  The nature and extent of such preparation depends on the

circumstances of each case, but the understanding and co-operation of

all concerned will always be an important ingredient.  Whilst national

authorities will have to do their utmost to facilitate such co-

operation, any obligation to apply coercion in this area must be

limited since the interests as well as the rights and freedoms of all

concerned must be taken into account, and more particularly the best

interests of the child and his or her rights under Article 8 (Art. 8)

of the Convention (cf. Hokkanen judgment, loc. cit., p. 22, para. 58).

     The Commission finds that similar considerations apply to a case

such as the present one where one parent complains about the lack of

access to a child living with the other parent.

     Accordingly, the Commission has to examine whether the national

authorities have taken all such necessary steps to enforce the

applicant's access right as can reasonably be demanded in the

circumstances of the present case.  In this respect, the Commission

observes that its review does not only relate to facts that have taken

place before the date of introduction of the present Application, but

covers the continuing situation of the applicant's lack of access to

his son (cf. Eur. Court H.R., Neumeister judgment of 27 June 1968,

Series A no. 8, p. 38, para. 7).

     As regards the background of the present case, the Commission

notes that the applicant was, following his divorce in 1990, granted

a right of regular access to his son who was placed with his mother

G.B.  The court decision on the terms of his right of access became

final in January 1992.  It appears that problems as to the

implementation of these access rights arose as early as from February

1992, and the applicant repeatedly asked for the help of the competent

local authority.

     The Budapest XX. District Local Authority Major's Office,

competent as from summer 1992, took various measures to enforce the

applicant's right of access.  In particular, on 17 November 1992 and

again on 16 January 1993, an administrator of the Local Authority

continued the practice started on two earlier occasions to accompany

the applicant on the days fixed for the child's visits.  The

applicant's right of access could thereby nevertheless not be

implemented.

     As a next step, the Local Authority, in decisions of 12 March

1993, February 1994 and July 1994, imposed fines amounting to 5,000 and

10,000 Hungarian forints, respectively, upon B.G. for failure to comply

with the court judgment regarding the applicant's right of access to

M.  On 5 November 1994 the Budapest XX. District Local Authority

designated a person to assist the applicant in the exercise of his

access rights.  Finally, on 31 March 1995 the Administrative Department

of the Budapest Commissioner of the Republic's Office, when dismissing

B.G.'s appeal against the fine of July 1994, envisaged that, in the

absence of any favourable changes within a reasonable lapse of time,

further measures be taken by the competent guardianship authority which

might ultimately result in court proceedings to change M.'s place of

residence.

     In these circumstances, the Commission is satisfied that the

competent authorities, bearing in mind the competing interests and the

difficulties in reconciling the applicant's and B.G's opposing

positions, made reasonable efforts to enforce the applicant's right of

access to his son, as determined in the court judgment of January 1992.

In particular, the guardianship authorities had recourse to various

measures in order to afford the applicant practical assistance on the

occasion of visiting days, and to compel M.'s mother B.G. by means of

repetitive fines to comply with her obligations under the said

judgment.  The Commission also notes the Administrative Department's

decision  of 31 March 1995 which envisages further coercive measures.

     Accordingly, the Commission, having regard to the margin of

appreciation enjoyed by the competent Hungarian authorities, finds no

appearance of a violation of the applicant's right to respect for his

family life under Article 8 (Art. 8) of the Convention.

     It follows that the application is manifestly ill-founded within

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

     For these reasons, the Commission, by a majority,

     DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

       (M.F. BUQUICCHIO)                          (C.L. ROZAKIS)