AS TO THE ADMISSIBILITY OF

                      Application No. 22206/93

                      by Tamas and Heidi LANG-LÜSSI

                      against Switzerland

      The European Commission of Human Rights (Second Chamber) sitting

in private on 6 September 1995, the following members being present:

           MM.   H. DANELIUS, President

                 S. TRECHSEL

           Mrs.  G.H. THUNE

           MM.   G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

           Ms.   M.-T. SCHOEPFER, 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 15 June 1993 by

Tamas and Heidi Lang-Lüssi against Switzerland and registered on

12 July 1993 under file No. 22206/93;

      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 facts of the case, as submitted by the applicants, may be

summarised as follows.

      The applicants are a married couple residing at Guttannen in

Switzerland.  They have Swiss and apparently also Hungarian

citizenship.  The first applicant, born in 1939, is a parson.  The

second applicant, born in 1944, is a housewife.  Before the Commission

they are represented by Mr P. Nobel, a lawyer practising in Zürich.

      The applicants married in 1973.  Their only son, born in 1975,

died in 1989 as a result of an accident.

      In 1989 the applicants expressed interest in adopting a child.

Two expert opinions prepared in 1990 stated that the applicants were

suitable in this respect.  At that time, the applicants refused an

offer by the Colombian authorities to adopt a nine year old boy.

      The applicants then contacted a Brazilian adoption agency.  When

the second applicant heard that X., a girl born in 1988, was free for

adoption in Sao Paulo, the second applicant travelled to Brazil in

February 1991.

      On 5 March 1991 the first applicant requested the Cantonal Youth

Office (Jugendamt) of the Canton of Bern to authorise the placing of

X. in their care for purposes of adoption (zur Aufnahme zwecks

Adoption).  The Youth Office informed the applicants that further

inquiries would be necessary in view of the age difference between

parents and child.

      On 27 March 1991 the Brazilian authorities authorised the

applicants' adoption of X.  It appears that the Hungarian authorities

also granted such an authorisation.

      On 4 April 1991 the applicants travelled with X. from Brazil to

Switzerland.

      On 12 April 1991 the Youth Office ordered the applicants to place

X. elsewhere.

      The applicants filed a complaint before the Administrative Court

(Verwaltungsgericht) of the Canton of Bern.  As the result of a

friendly settlement, X. was provisionally placed in the V. family.

      The Youth Office then requested the Adoption Counselling Service

of the Caritative Women's Association (Beratungsstelle für Adoption des

Schweizerischen gemeinnützigen Frauenvereins) to examine the situation.

In its report of 24 July 1991 the Counselling Service concluded that

X. should not be placed with the applicants.  The Counselling Service

referred in particular to the difference of age between X. and the

applicants; the motives given by the applicants for adoption; the

difficulties which could be expected during puberty; and the health

problems of the second applicant who suffered from adiposity.

      As a result, the Youth Office on 6 September 1991 refused to

authorise the placing of X. in the applicants' care for the purpose of

adoption.  The Youth Office relied in particular on the Federal

Ordinance on the placing of foster children (Eidgenössische Verordnung

über die Aufnahme von Pflegekindern).  According to Section 5 of this

Ordinance, a child may only be placed in a foster family if the

personality, health and educational abilities of the foster parents

ensure good care and education of the child; placing a child in a

foster family for the purpose of adoption may only be authorised if it

is to be expected that adoption will later be authorised.

      The applicants' appeal against this decision was dismissed by the

Directorate of Justice (Justizdirektion) of the Canton of Bern on

18 November 1991.

      Their further appeal was dismissed by the Administrative Court

on 19 February 1992.  The Court found that there was a difference in

age of 50 and 44 years between X. and the first and the second

applicant, respectively.  While the applicants were currently in a

situation where they could raise X., it was open to doubt in the

Court's opinion whether they would offer the necessary adaptability

once X. entered puberty.  There was further a risk that X., who would

have been a single child, would grow up overly protected and spoiled.

The manner in which the applicants had dealt with the authorities

although they should have known that they could not necessarily bring

X. to Switzerland, did not demonstrate parental love; rather, the

applicants had put their own interests before those of the child.

      The applicants then filed an administrative law appeal

(Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht)

dismissed on 20 January 1993.

      In its decision the Court first dealt with the applicants'

complaints under Swiss law and the Convention that the facts had been

incorrectly and insufficiently determined and that the Administrative

Court had abused its margin of appreciation.  The Court considered that

the proceedings at issue had a direct influence on the constitution and

continuation of a family (Begründung und Bestand von familienrecht-

lichen Verhältnissen) and therefore concerned the determination of the

applicants' civil rights and obligations within the meaning of Article

6 para. 1 of the Convention for which reason this provision was

applicable.  The judgment continues:

      "In the present case the question of an authorisation to

      place the child in care for purposes of a subsequent

      adoption was decided in first instance by the Cantonal

      Youth Office and upon appeal by the Cantonal Directorate of

      Justice.  These authorities are administrative bodies and

      do not meet the requirements of Article 6 para. 1 of the

      Convention; the cantonal Administrative Court could itself

      only examine the contested decision from a legal, not from

      a factual point of view, and there was not even a control

      of appreciation.  The administrative law appeal to the

      Federal Court also does not permit a full control of the

      determination of the facts and therefore of the

      appreciation of evidence, if the appeal is directed against

      the decision of a cantonal court.

           According to Section 108 para. 2 of the Organisation

      of Justice Act the administrative law appeal must contain

      inter alia the request and the grounds therefor.  According

      to the Federal Court's case-law, no strict requirements

      should be made in this respect ... Nevertheless, it must

      transpire from the grounds given which aspects of the

      contested decision are being criticised ... In the present

      case the facts are contested; however, the applicants have

      not criticised with one word the proceedings in which the

      decisions were taken, and in particular they have nowhere

      requested proceedings complying with Article 6 para. 1 of

      the Convention.  As there is absolutely no such ground

      mentioned in the appeal, the cantonal proceedings shall not

      be examined as to their compliance with Article 6 para. 1

      of the Convention."

      "Im vorliegenden Fall wurde die Frage der Aufnahmebewilli-

      gung des Kindes zur Pflege zwecks späterer Adoption erstin-

      stanzlich vom kantonalen Jugendamt, auf Beschwerde hin von

      der kantonalen Justizdirektion entschieden.  Diese Behörden

      genügen als Verwaltungsbehörden den Anforderungen von Art.

      6 Abs. 1 EMRK nicht; das kantonale Verwaltungsgericht

      konnte seinerseits den angefochtenen Entscheid nur in

      rechtlicher, nicht aber in tatsächlicher Hinsicht überprü-

      fen, wobei sogar die Ermessenskontrolle entfiel.  Auch die

      Verwaltungsgerichtsbeschwerde an das Bundesgericht erlaubt

      keine volle Kontrolle der Sachverhaltsfeststellungen und

      damit auch der Beweiswürdigung, wenn sie gegen den Ent-

      scheid eines kantonalen Gerichts eingereicht wurde.

           Gemäss Art. 108 Abs. 2 OG hat eine Verwaltungs-

      gerichtsbeschwerde u.a. die Begehren und deren Begründung

      zu enthalten.  An diese sind nach bundesgerichtlicher

      Rechtsprechung keine strenge Anforderungen zu stellen ...

      Immerhin muss die Begründung erkennen lassen, weshalb und

      in welchen Punkten der angefochtene Entscheid beanstandet

      wird ...  Im vorliegenden Fall ist der Sachverhalt

      umstritten;  die Beschwerdeführer haben aber das Verfahren,

      in dem die Entscheide getroffen wurden, mit keinem Wort

      beanstandet und haben insbesondere ein Art. 6 Abs. 1 EMRK

      entsprechendes Verfahren nirgends gefordert.  Mangels

      jeglicher diesbezüglicher Begründung in der Beschwerde ist

      das kantonale Verfahren nicht auf seine Verträglichkeit mit

      Art. 6 Ziff. 1 EMRK zu überprüfen."

      Insofar as the applicants had submitted new factual information

after filing their administrative law appeal, the Court found that it

was not competent to admit this information which "in any event, as

shall still be shown, was not relevant for the decision" (es wäre im

übrigen, wie noch zu zeigen ist, auch nicht entscheiderheblich).

      Insofar as the applicants complained that they had not been able

to consult one particular report prepared by Mrs V., the Court noted

that the Administrative Court had also not been aware of the file; the

Court also ordered the report to be taken out of its own file.

      The Court then dealt with the applicants' complaint that the

Administrative Court had not sufficiently considered the opinion of a

Guardianship Office; that the first applicant was a Hungarian citizen

and had been born in Hungary; and that the Hungarian authorities had

also dealt with the applicants' request for adoption.  The Court noted

in particular that neither the applicants nor X. lived in Hungary, and

that the applicants were Swiss citizens residing in Switzerland.

Insofar as the applicants maintained that according to Brazilian law

X. was their adoptive child, the Federal Court found that Swiss law did

not attach weight to whether the home country of the adopted child had

already authorised the child's adoption.  The applicants were moreover

themselves responsible for the fact that the legal situation of X. was

unsatisfactory, as they had brought X. into Switzerland despite a

warning by the Youth Office, and without possessing any official

authorisation by the Swiss authorities.  They had then instituted

adoption proceedings both in Brazil and in Hungary, though these

decisions were not accepted in Switzerland.

      The Federal Court further dealt with the applicants' complaint

of a breach of Article 8 of the Convention, inter alia in that the

Administrative Court had abused its discretion and that one particular

report was useless and could not serve as a basis for a decision.  The

Court found that the report at issue was not the only element on which

the Administrative Court had relied when concluding that a relationship

between X. and the applicants would not serve the child's interests.

The Court considered that the notion of the child's interests had to

be interpreted according to Swiss conditions, and it did not suffice

to conclude that the child was better off merely because it had Swiss

adoptive parents.  The Federal Court found that the Administrative

Court had carefully examined the applicants' personalities, their age

and health situation, their views, their relationship to X., and also

the situation in the future.

COMPLAINTS

1.    Under Article 6 para. 1 of the Convention the applicants complain

that the various authorities dealing with their case could only examine

it from a legal, not a factual point of view.

2.    Under Article 8 of the Convention the applicants complain that

they have been separated from X., and that the Swiss authorities have

not recognised the adoptions granted under Hungarian and Brazilian law.

THE LAW

1.    Under Article 6 para. 1 (Art. 6-1) of the Convention the

applicants complain that the various authorities dealing with their

case could only examine it from a legal, not a factual point of view.

      Article 6 para. 1 (Art. 6-1) of the Convention states, insofar

as relevant:

      "In the determination of his civil rights and obligations ...

everyone is entitled to a ... hearing ... by (a) tribunal ..."

      The Commission recalls the case-law of the Convention organs

according to which the Convention calls at least for one of the

following systems: either the jurisdictional organs themselves comply

with the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention, or they do not so comply, but are subject to subsequent

control by a judicial body that has full jurisdiction and does provide

the guarantees of Article 6 para. 1 (Art. 6-1) (see Eur. Court H.R.,

Albert and Le Compte judgment of 10 February 1983, Series A no. 58, p.

16, para. 29: Zumtobel judgment of 21 September 1993, Series A no. 268,

p. 13, para. 29).

a)    The Commission considers that the proceedings at issue,

concerning the adoption of X., had a direct influence on the

constitution and continuation of a family and therefore concerned the

determination of the applicants' civil rights and obligations within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

b)    The Commission observes that the Federal Court in its decision

of 20 January 1993 identified in the present case the issue of a lack

of access to court.  However, it decided not to resolve the issue as

the applicants had failed to raise any such complaint in their

administrative law appeal before the Federal Court.  The applicants

have not therefore complied with the requirement as to the exhaustion

of domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention.

      This part of the application must therefore be rejected in

accordance with Article 27 para. 3 (Art. 27-3) of the Convention.

2.    Under Article 8 (Art. 8) of the Convention the applicants

complain that they have been separated from X., and that the Swiss

authorities have not recognised the adoptions granted under Hungarian

and Brazilian law.

      Article 8 (Art. 8) of the Convention states, insofar as relevant:

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

      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 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."

      An issue arises whether the authorities' refusal to place X. in

the applicants' care for the purpose of adoption amounted to an

interference with their right to respect for their private and family

life within the meaning of Article 8 (Art. 8) of the Convention.  The

Commission need not resolve this issue since such an interference would

in any event have been justified within the meaning of Article 8 para.

2 (Art. 8-2) of the Convention.

      Thus, when refusing to place X. in the applicants' care for the

purpose of adoption, the Swiss authorities relied on the Federal

Ordinance on the placing of foster children which mentions the

conditions for the placing of a child in a foster family in particular

for the purpose of adoption.  The interference was therefore "in

accordance with the law" within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.

      The Commission further accepts that the authorities' refusal to

place X. in the applicants' care served "the protection of health (and)

of the rights and freedoms of others", in particular of the child,

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

      Moreover, when considering whether or not to place X. in the

applicants' care, the Swiss authorities considered the different

interests at stake.  Thus, they examined, with reference to an expert

opinion, the applicants' personalities, their age and health situation,

their views, their relationship with X. and the situation in the

future.  As a result, they found that the adoption would not be in the

interests of the child.

      The Commission further notes that the Swiss authorities were

aware that the applicants' adoption had been accepted by both the

Brazilian and the Hungarian authorities.  However, the Federal Court

found in its decision of 20 January 1993 that as the applicants were

Swiss citizens and lived in Switzerland the child's interests had to

be interpreted according to Swiss conditions, and that it did not

suffice to conclude that the child was better off merely because it had

Swiss adoptive parents.

      In the Commission's opinion, it cannot be said that the decision

of the Swiss authorities went beyond the margin of appreciation left

to national authorities.  The interference with the applicants' right

to respect for private and family life could therefore reasonably be

considered "necessary in a democratic society" within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention.

      It follows that the remainder of the application is also

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 APPLICATION INADMISSIBLE.

Secretary to the Second Chamber       President of the Second Chamber

     (M.-T. SCHOEPFER)                         (H. DANELIUS)