Lexploria

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 1 December 1993, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

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 report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Hungarian national born in 1954 and resident

in Budapest.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

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 the father of both children is not her

husband (the applicant), but D.B., a Catholic priest with whom she has

had continuous sexual relationship since 1978. The applicant also

claimed the custody of both children.

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

Kerületi Bíróság) pronounced the divorce. Custody of M. was given to

B.G. and the court ordered specific access to M. for the applicant.

It ascertained on the basis of a report of an institute of medical

experts that the father of Zs. is not the applicant, but D.B. The

applicant is, however, the father of M. The applicant appealed to the

Metropolitan Court.

On 8 November 1991 the Constitutional Court (Magyar Köztársaság

Alkotmánybírósága) declared unconstitutional a regulation which allowed

legal representatives to challenge the paternity of children without

any time limit. That decision was to take effect from 30 March 1992.

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

judgment. It changed only slightly the first instance judgment. The

changes concerned mainly the initial 4 months of the applicant's access

to M.

From 1 February 1992 the applicant was 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. The applicant was to have access to M. also for half

of the child`s school holidays. The judgment also provides that if the

applicant 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.

Although the court was aware that B.G. was opposed to access and

in spite of the fact that the applicant was also suitable to have

custody, the court was of the opinion that it was in M`s interest to

be in B.G.`s custody. The Court further considered that despite the

above decision of the Constitutional Court in the present case the

challenging of paternity was the children's real interest.

On 11 February 1992 the applicant informed the Diósd Local

Authority Mayor`s Office (Diósd 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

accessto 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 Diósd where she

lived.

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

to B.G. in which she warned her that, as she had failed to guarantee

to the applicant even limited access to M. notwithstanding the

agreement of 20 February 1992, she would have to enforce it by legal

measures.

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 enclosed 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.

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

the court judgment. However, B.G. disturbed them at a busstop nearby

her flat, when he returned the child.

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..

B.G. and D.B. informed him that M. did not want to join him. They were

about to travel and were already packing their suitcases. B.G. and

D.B. told M. in the presence of the applicant - inter alia - that the

applicant lied and had molested them. B.G. physically attacked the

applicant. D.B. announced that he would not attack the applicant but

would throw water over him and went to the bathroom for water. As all

these matters occurred in the presence of M. the applicant decided to

leave the flat. He requested the local authority again to enforce the

court judgment. No reply was given to him.

On 23 April 1992 the applicant`s petition to the president of the

Supreme Court (Legfelsobb Bíróság elnöke) to protest on legal grounds

(törvenyességi óvás iránti kérelem) against the judgment of the

Metropolitan Court was rejected.

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 29 April 1992 the Constitutional Court rejected the

applicant`s petition to overrule the court judgment, declaring that it

had no jurisdiction to do so.

On 4 May 1992 the applicant again informed the local authority

that B.G. was still hindering 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. again prevented him from having access to M. and

that he was again subject to an attack by B.G. 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. 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 he

wanted to know 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. As a consequence

the administrator of the local authority first 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 to have access to him because he was

said to be afraid of going to the applicant`s flat. However, this

happened only once as 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. He 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 18 December 1992 the applicant lodged a petition with the

Attorney General (Legfobb Ügyész) in which he requested him to protest

on legal grounds against the judgment of the Budapest Metropolitan

Court.

On 12 January 1993 the General Supervisory and Civil Law

Department of the Attorney General`s Office (Legfobb Ügyészség

Általános Felügyeleti és Polgári Jogi Foosztály) refused the petition

claiming that with effect from 1 January 1993 the Attorney General`s

right to protest on legal grounds has been abolished and there had been

no time before this date to deal with the petition.

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 also by M. The applicant had

no access to M.

On 12 March 1993 the Budapest XX. district Local Authority fined

B.G. for not complying with the court judgment. The amount of the fine

was 5000 Hungarian forints.

On 4 May 1993 B.G.`s appeal to the Administrative Department of

the Budapest Commissioner of the Republic`s Office was rejected. She

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

to force him. She expressed the opinion that it was against M`s

interests to have access to the applicant. She suggested that the

applicant have access to M. in her flat.

B. Relevant domestic law and practice

Under Hungarian law until 31 December 1992 everyone had the

right, without any time limit, to lodge a petition with the President

of the Supreme Court (Legfelsobb Bíróság) and/or with the Attorney

General (Legfobb Ügyész) in which they could be requested to protest

on legal grounds against a final decision (jogeros ítélet). The

petitioner had no direct right to protest on legal grounds and such

petitions could be repeated without any limit in number. The President

of the Supreme Court and the Attorney General had an absolute

discretion whether to institute a protest on legal grounds. If the

President of the Supreme Court or the Attorney General did decide to

protest on legal grounds against the final decision the Supreme Court

reconsidered the case with the right to modify or quash the decision

and also to reject the protest. The Constitutional Court declared the

institution of protest on legal grounds unconstitutional, and abolished

it, with effect from 1 January 1993.

COMPLAINTS

Under Article 8 of the Convention the applicant complains about

the lack of enforcement by the public authorities of the court judgment

concerning his access to his son M.

The applicant, invoking Article 6 of the Convention, also

complains generally about the court decisions in the present case,

concerning child custody, which allegedly ignored the decision of the

Constitutional Court of 8 November 1991. In this respect he also

complains about the Attorney General's refusal of his petition.

The applicant claims that the judgments concerning the child

custody were discriminatory. He invokes Article 14 of the Convention.

Finally, under Article 5 of Protocol No. 7 he also complains

about the court judgments which allegedly discriminated against him in

relation to his former wife, B.G.

THE LAW

1. The applicant complains about the court judgments and about the

lack of success of the remedies he tried to use claiming that the court

decisions were unfair and that he was discriminated against. He

alleges violations of Articles 6 and 14 (Art. 6, 14) of the Convention

and Article 5 of Protocol No. 7 (P7-5).

The Commission recalls that according to the generally recognised

principles of international law, for all Contracting Parties, the

Convention governs only those facts which arose after it came into

force in respect of the Party concerned. In the applicant`s case the

date of the final judicial decision is 28 January 1992, i.e. before 5

November 1992, which is the date of the entry into force of the

Convention with respect to Hungary.

It is true that on 18 December 1992, that is after ratification,

the applicant lodged a petition with the Attorney General to protest

on legal grounds. This petition was refused on 12 January 1993.

The question therefore arises whether the facts that the

applicant lodged the above petition with the Attorney General, and that

the decision in relation to this matter was taken subsequent to the

ratification would nevertheless bring the matter within the

Commission`s competence ratione temporis.

The Commission recalls that according to its constant

jurisprudence a petition, to a person or to a public authority which

is not under a duty, but only has a discretionary power to remedy a

situation, cannot be regarded as an effective remedy under Article 26

(Art. 26) of the Convention (see e.g. No. 8395/78, Dec. 16.12.81,

D.R. 27 pp. 50,52 or No. 8950/80, Dec. 16.5.84, D.R. 37 pp. 5,12-13).

It notes that under Hungarian law the President of the Supreme

Court and the Attorney General had an absolute discretion whether to

institute a protest on legal grounds. It follows that such a petition

is not capable of constituting an effective remedy within the meaning

of Article 26 (Art. 26) of the Convention. It cannot therefore affect

the date of the final decision.

Accordingly, all the applicant`s complaints in this respect fall

within the period prior to the entry into force of the Convention in

respect of Hungary. This part of the application is, therefore,

incompatible ratione temporis with the provisions of the Convention

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

To the extent that the applicant complains about the Attorney

General's decision of 12 January 1993, the Commission notes that this

decision was given after the Hungarian ratification. However, the

decision of the Attorney General was a mere refusal of the applicant's

petition on the ground that his right to protest on legal grounds no

longer existed. Accordingly, this complaint does not raise any issues

under Article 6 (Art. 6) of the Convention. This part of the

application is, therefore, manifestly ill-founded within the meaning

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

2. The applicant also complains about the continuing lack of access

to his son, M. He complains, invoking Article 8 (Art. 8) of the

Convention, about the lack of enforcement of the court judgment which

provides for access to M. The Commission considers that it cannot, on

the basis of the file, determine the question of the admissibility of

this complaint without the observations of both parties.

The Commission therefore considers this part of the application

must be adjourned.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN the examination of the applicant`s complaint

concerning the lack of enforcement of the judgment which granted

him access to his son.

DECLARES INADMISSIBLE the remainder of the application

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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SZEGO v. HUNGARY

SZEGO v. HUNGARY

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