CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      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)