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Law - ECHR judgements
EUROPEAN COURT OF HUMAN RIGHTS
JUDGMENT
STRASBOURG
11 October 2001
THIS CASE WAS REFERRED TO THE GRAND
CHAMBER,
WHICH DELIVERED JUDGMENT IN THE CASE ON
08/07/2003
This judgment will become final in the circumstances set out
in Article 44 § 2 of the Convention. It may be subject
to editorial revision.
In the case of Sommerfeld v. Germany,
The European Court of Human Rights (Fourth Section), sitting
as a Chamber composed of:
Mr A. Pastor Ridruejo, President,
Mr G. Ress,
Mr L. Caflisch,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs N. Vajic,
Mr M. Pellonpää, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on 20 September 2001,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (no. 31871/96) against
the Federal Republic of Germany lodged with the European Commission
of Human Rights (“the Commission”) under former
Article 25 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by
a German national, Manfred Sommerfeld (“the applicant”),
on 7 June 1995.
2. The applicant, who had been granted legal aid, was represented
before the Court by Mrs S. Hierstetter, a lawyer practising
in Munich. The German Government (“the Government”)
were represented by their Agents, Mrs H. Voelskow-Thies, Ministerialdirigentin,
of the Federal Ministry of Justice, at the initial stage of
the proceedings, and subsequently by Mr K. Stoltenberg, Ministerialdirigent,
also of the Federal Ministry of Justice.
3. The applicant alleged, in particular, that the German court
decisions dismissing his request for access to his daughter,
born out of wedlock, amounted to a breach of his right to
respect for his family life and that he was a victim of discriminatory
treatment in this respect. He further complained about a breach
of his right to a fair hearing. He invoked Articles 6, 8 and
14 of the Convention.
4. The application was transmitted to the Court on 1 November
1998, when Protocol No. 11 to the Convention came into force
(Article 5 § 2 of Protocol No. 11).
5. The application was allocated to the Fourth Section of
the Court (Rule 52 § 1 of the Rules of Court). Within
that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided
in Rule 26 § 1 of the Rules of Court.
6. By a decision of 12 December 2000 the Chamber declared
the application partly admissible.
7. The applicant and the Government each filed observations
on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant, born in 1953, is the father of the child
M., born out of wedlock on 25 January 1981. The applicant
recognised his paternity of M.
9. The applicant and the child’s mother lived together
at the time of the child’s birth. They separated in
September 1986. The child’s mother prohibited any contacts
between the applicant and the child. The applicant still met
M. several times at school until such contacts were no longer
possible. Subsequently the child’s mother married Mr
W., the father of her child A., born in August 1985, W. being
the common family name.
A. The first request for visiting arrangements
10. On 2 October 1990 the applicant applied to the Rostock
District Court for a decision granting him a right of access
(Umgangsregelung) to his daughter. Having heard the persons
concerned, the Rostock Youth Office advised against a right
of access. The Youth Office submitted that M. had established
a close relationship with Mr. W. which would be adversely
affected by contacts between M. and her natural father. It
also stated that M., when heard in the absence of her mother,
had indicated that she was not keen to see the applicant and
was suffering from his continuing efforts for access.
11. On 27 June 1991 M., then ten years old, was heard by the
competent District Court Judge. She stated that the fact that
the applicant was always standing at the fence of the schoolyard
disturbed her and that she did not wish to visit the applicant
even if access should be ordered by the court.
12. At a court hearing on 31 July 1991, the applicant and
the child’s mother declared that they would attempt
to settle the question of a visiting arrangement with the
assistance of the Youth Office.
On 30 September 1991 the Youth Office informed the District
Court that no agreement could be achieved and that M. had
stated that she did not wish to see the applicant.
13. On 12 December 1991 the court ordered a psychological
expert opinion. On 9 April 1992, in one-page submissions,
the psychologist of the Rostock Health Services (Gesundheitsamt)
stated that, as the contacts between the applicant and M.
were disrupted for six years, no diagnosis of their actual
relationship appeared possible. The psychologist considered
that M. did not wish any personal contacts with the applicant
who should give her the necessary time to take up contacts
on her own motion. The psychologist noted that she had arranged
a meeting between the applicant and M. which, however, had
been cancelled by M.’s stepfather.
14. On 24 June 1992 the competent District Court Judge heard
the applicant and M. in the presence of the psychological
expert. M. having repeatedly stated that she did not wish
to have contacts with the applicant, the latter affirmed that
he would withdraw his request for a right of access.
The applicant withdrew his request on 1 July 1992.
B. The second request for a right of access
15. On 13 September 1993 the applicant again applied to the
District Court for a right of access to his daughter.
16. On 15 February 1994 the District Court Judge heard the
thirteen-year-old M. who stated that she did not wish to talk
to the applicant or accept presents from him and that he should
no longer bother her. She also said that she had a father
whom she loved though it was not her natural father. The court
held a hearing with the applicant and the child’s mother
on 26 April 1994.
17. On 1 June 1994 the District Court dismissed the applicant’s
request.
The District Court noted the comments filed by the Rostock
Youth Office as well as the parents’ and the child’s
statements in court. The Court had also regard to the comments
filed by the Youth Office in April 1991 and by the psychologist
of April 1992, both in the context of the first set of access
proceedings.
The District Court found that the applicant was not entitled
to have access to his daughter. Referring to section 1711
of the Civil Code, the Court observed that the mother, in
the exercise of her right to custody, determined the child’s
relations with third persons, and that therefore her will
was decisive. The father could only be granted a right of
access by court order, if this was in the interest of the
child. According to the District Court’s findings, in
particular M.’s statements in 1992 and February 1994,
these conditions were not met. The District Court considered
that M., then thirteen years old and capable of forming her
own will, unequivocally refused contacts with her natural
father. In the District Court’s view, it was not in
M.’s interest to enforce contacts contrary to her will,
as her mental and psychological well-being would be endangered
thereby. The applicant’s argument that contacts with
the natural father were generally in a child’s interest
was rejected.
18. On 17 June 1994 the Rostock Regional Court dismissed the
applicant’s appeal.
Endorsing the District Court’s findings, the Regional
Court found that contacts were not in the child’s interest.
It regarded as decisive that for many years the now thirteen-year-old
girl had clearly refused contacts with her father. The applicant
should accept his adolescent daughter’s will in his
own and her interest. Only if he would stop to inflict himself
on her, contacts might eventually be possible. The court further
observed that contacts between the applicant and M. could
hardly be enforced against her will.
On 22 July 1994 the applicant filed a constitutional complaint
with the Federal Constitutional Court.
On 19 January 1996 a panel of three judges of the First Chamber
of the Federal Constitutional Court refused to entertain the
applicant’s complaint.
II. RELEVANT DOMESTIC LAW
A. Legislation on family matters currently in force
19. The statutory provisions on custody and access are to
be found in the German Civil Code. They have been amended
on several occasions and many were repealed by the amended
Law on Family Matters (Reform zum Kindschaftsrecht) of 16
December 1997 (Federal Gazette 1997, p. 2942), which came
into force on 1 July 1998.
20. Section 1626 § 1 reads as follows (the Court’s
translation):
“The father and the mother have the right and the duty
to exercise parental authority (elterliche Sorge) over a minor
child. The parental authority includes the custody (Personensorge)
and the care of property (Vermögenssorge) of the child.”
21. Pursuant to section 1626 a § 1, as amended, the parents
of a minor child born out of wedlock jointly exercise custody
if they make a declaration to that effect (declaration on
joint custody) or if they marry. According to Section 1684,
as amended, a child is entitled to have access to both parents;
each parent is obliged to have contact with, and entitled
to have access to, the child. Moreover, the parents must not
do anything that would harm the child’s relationship
with the other parent or seriously interfere with the child’s
upbringing. The family courts can determine the scope of the
right of access and prescribe more specific rules for its
exercise, also with regard to third parties; and they may
order the parties to fulfil their obligations towards the
child. The family courts can, however, restrict or suspend
that right if such a measure is necessary for the child’s
welfare. A decision restricting or suspending that right for
a lengthy period or permanently may only be taken if otherwise
the child’s well-being would be endangered. The family
courts may order that the right of access exercised in the
presence of a third party, such as a Youth Office authority
or an association.
B. Legislation on family matters in force at
the material time
22. Before the entry into force of the amended Law on Family
Matters, the relevant provision of the Civil Code concerning
custody and access for a child born in wedlock was worded
as follows (the Court’s translation):
Section 1634
“1. A parent not having custody has the right to personal
contact with the child. The parent not having custody and
the person having custody must not do anything that would
harm the child’s relationship with others or seriously
interfere with the child’s upbringing.
2. The family court can determine the scope of that right
and can prescribe more specific rules for its exercise, also
with regard to third parties; as long as no decision is made,
the right, under section 1632 § 2, of the parent not
having custody may be exercised throughout the period of contact.
The family court can restrict or suspend that right if such
a measure is necessary for the child’s welfare.
3. A parent not having custody who has a legitimate interest
in obtaining information about the child’s personal
circumstances may request such information from the person
having custody in so far as this is in keeping with the child’s
interests. The guardianship court shall rule on any dispute
over the right to information.
4. Where both parents have custody and are separated not merely
temporarily, the foregoing provisions shall apply mutatis
mutandis.”
23. The relevant provisions of the Civil Code concerning custody
of and access to a child born out of wedlock were worded as
follows (the Court’s translation):
Section 1705
“Custody over a minor child born out of wedlock is exercised
by the child’s mother...”
Section 1711
“1. The person having custody of the child shall determine
the father’s right of access to the child. Section 1634
§ 1, second sentence, applies by analogy.
2. If it is in the child’s interests to have personal
contact with the father, the guardianship court can decide
that the father has a right to personal contact. Section 1634
§ 2 applies by analogy. The guardianship court can change
its decision at any time.
3. The right to request information about the child’s
personal circumstances is set out in Section 1634 § 3.
4. Where appropriate, the youth office shall mediate between
the father and the person who exercises the right of custody.”
C. The Act on Non-Contentious Proceedings
24. Like proceedings in other family matters, proceedings
under former section 1711 § 2 of the Civil Code were
governed by the Act on Non-Contentious Proceedings (Gesetz
über die Angelegenheiten der freiwilligen Gerichtsbarkeit).
25. According to section 12 of that Act, the court shall,
ex officio, take the measures of investigation that are necessary
to establish the relevant facts and take the evidence that
appears appropriate.
26. In proceedings regarding access, the competent youth office
has to be heard prior to the decision (section 49(1) (k)).
27. As regards the hearing of parents in custody proceedings,
section 50a (1) stipulates that the court shall hear the parents
in proceedings concerning custody or the administration of
the child’s assets. In matters relating to custody,
the court shall, as a rule, hear the parents personally. In
cases concerning placement into public care, the parents shall
always be heard. According to paragraph 2 of section 50a,
a parent not having custody shall be heard except where it
appears that such a hearing would not contribute to the clarification
of the matter.
28. Section 63 provides for a right of a further appeal challenging
the first appeal decision. Section 63a of that Act as in force
at the material time excluded this right in proceedings concerning
a natural father’s access to his child born out of wedlock.
This provision has been repealed by the Law on Family Matters
of 1997.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
29. The applicant complained that German court decisions dismissing
his second request for access to his child, born out of wedlock,
amounted to a breach of Article 8 of the Convention, the relevant
part of which provides:
“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 health or morals, or for the protection
of the rights and freedoms of others.”
A. The parties’ submissions
30. The applicant submitted that contacts between him and
his daughter would have been in the child’s interest.
The mother had alienated M. He maintained that the submissions
which the psychologist of the Rostock Youth Office had sent
to the Rostock District Court did not constitute an expert
opinion. He also criticised the lack of expert advice by a
family psychologist.
31. The Government admitted that the relationship between
the applicant and his daughter came within the notion of family
life under Article 8 § 1. However, in their submission,
the statutory regulations on the right of access of fathers
to their children born out of wedlock did not, as such, amount
to an interference with the rights under that provision.
The Government conceded that the German court decisions in
the applicant’s case, which were based on this legislation,
amounted to an interference with the applicant’s right
under Article 8 § 1. In their view, this interference
was in accordance with German law and served to protect the
interests of the applicant’s child. Moreover, the interference
complained of was necessary in a democratic society within
the meaning of Article 8 § 2. In this respect, the Government
submitted that the child’s best interests were the principle
guiding the German courts.
B. The Court’s assessment
1. Whether there was an interference with the applicant’s
right to respect for his family life
32. The Court recalls that the notion of family under this
provision is not confined to marriage-based relationships
and may encompass other de facto "family" ties where
the parties are living together out of wedlock. A child born
out of such a relationship is ipso jure part of that "family"
unit from the moment and by the very fact of his birth. Thus
there exists between the child and his parents a bond amounting
to family life (see the Keegan
v. Ireland judgment of 26 May 1994, Series A
no. 290, pp. 18-19, § 44).
Furthermore, the mutual enjoyment by parent and child of each
other’s company constitutes a fundamental element of
family life, even if the relationship between the parents
has broken down, and domestic measures hindering such enjoyment
amount to an interference with the right protected by Article
8 of the Convention (see, amongst others, the Johansen v.
Norway judgment of 7 August 1996, Reports of Judgments and
Decisions 1996-III, pp. 1001-1002, § 52, and Elsholz
v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII).
33. In the present case, the applicant lived with his child
from her birth in January 1981 to September 1986. The subsequent
decisions refusing the applicant access to his child therefore
interfered with the exercise of his right to respect for his
family life as guaranteed by paragraph 1 of Article 8 of the
Convention.
34. In these circumstances, the Court considers that there
is no need to examine whether or not section 1711 of the Civil
Code as such constituted an interference with the applicant’s
right to respect for his family life.
2. Whether the interference was justified
35. The interference mentioned in the preceding paragraph
constitutes a violation of Article 8 unless it is “in
accordance with the law”, pursues an aim or aims that
are legitimate under paragraph 2 of this provision and can
be regarded as “necessary in a democratic society”.
a. “In accordance with the law”
36. The relevant decisions had a basis in national law, namely,
section 1711 § 2 of the Civil Code as in force at the
relevant time.
b. Legitimate aim
37. In the Court’s view the court decisions of which
the applicant complained were aimed at protecting the “health
or morals” and the “rights and freedoms”
of the child. Accordingly they pursued legitimate aims within
the meaning of paragraph 2 of Article 8.
c. “Necessary in a democratic society”
38. In determining whether the impugned measure was “necessary
in a democratic society”, the Court has to consider
whether, in the light of the case as a whole, the reasons
adduced to justify this measure were relevant and sufficient
for the purposes of paragraph 2 of Article 8 of the Convention.
Undoubtedly, consideration of what lies in the best interest
of the child is of crucial importance in every case of this
kind. Moreover, it must be borne in mind that the national
authorities have the benefit of direct contact with all the
persons concerned. It follows from these considerations that
the Court’s task is not to substitute itself for the
domestic authorities in the exercise of their responsibilities
regarding custody and access issues, but rather to review,
in the light of the Convention, the decisions taken by those
authorities in the exercise of their power of appreciation
(see the Hokkanen v. Finland judgment of 23 September 1994,
Series A no. 299-A, p. 20, § 55, and, mutatis mutandis,
Elsholz v. Germany cited above, § 48).
39. The margin of appreciation to be accorded to the competent
national authorities will vary in accordance with the nature
of the issues and the importance of the interests at stake.
Thus, the Court recognises that the authorities enjoy a wide
margin of appreciation, in particular when assessing the necessity
of taking a child into care.
However, a stricter scrutiny is called for in respect of any
further limitations, such as restrictions placed by those
authorities on parental rights of access, and of any legal
safeguards designed to secure an effective protection of the
right of parents and children to respect for their family
life. Such further limitations entail the danger that the
family relations between the parents and a young child would
be effectively curtailed (see Elsholz v. Germany cited above,
§ 49).
40. The Court further recalls that a fair balance must be
struck between the interests of the child and those of the
parent and that in doing so particular importance must be
attached to the best interests of the child which, depending
on their nature and seriousness, may override those of the
parent. In particular, the parent cannot be entitled under
Article 8 of the Convention to have such measures taken as
would harm the child’s health and development (see Elsholz
v. Germany cited above, § 50; and T.P. and K.M. v. the
United Kingdom, no. 28945/95, § 71, ECHR-..).
41. In the present case, the District Court, when refusing
the applicant’s request for a visiting arrangement,
relied on the statements made by child, questioned by the
District Court in 1994 at the age of thirteen and, in a preceding
set of access proceedings, at the age of ten. It had also
heard the applicant and the child’s mother. Equally
considering comments filed by the local Youth Office and material
obtained in the first set of access proceedings, the District
Court found that contacts were not in the child’s interest.
The Regional Court endorsed the District Court’s findings.
42. The Court does not doubt that these reasons were relevant.
However, it must determine whether, having regard to the particular
circumstances of the case and notably the importance of the
decisions to be taken, the applicant has been involved in
the decision-making process, seen as a whole, to a degree
sufficient to provide him with the requisite protection of
his interests (see the W. v. the United Kingdom judgment of
8 July 1987, Series A no. 121, p. 29, § 64; Elsholz v.
Germany cited above, § 52; and T.P. and K.M. v. the United
Kingdom cited above, § 72).
43. The Court notes that District Court heard the child and
the parents and had regard to material obtained in a first
set of access proceedings, inter alia, comments filed by a
psychologist of the local health services of April 1992. The
Court considers that, given the psychologist’s rather
superficial submissions in the first set of proceedings, the
lapse of time and bearing in mind what was at stake in the
proceedings, namely, the relations between a father and his
child, the District Court should not have been satisfied with
hearing only the child as to her wishes on the matter without
having at its disposal psychological expert evidence in order
to evaluate the child’s seemingly firm wishes. Correct
and complete information on the child’s relationship
with the applicant as the parent seeking access to the child
is an indispensable prerequisite for establishing a child’s
true wishes and thereby striking a fair balance between the
interests at stake. The Court further recalls that the Regional
Court, which had full power to review all issues relating
to the request for access, endorsed the District Court findings
on the basis of the file.
44. In the Court’s opinion, the German courts’
failure to order a psychological report on the possibilities
of establishing contacts between the child and the applicant
reveals an insufficient involvement of the applicant in the
decision-making process.
45. Having regard to all circumstances, the Court concludes
that the national authorities overstepped their margin of
appreciation, thereby violating the applicant’s rights
under Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION,
TAKEN TOGETHER WITH ARTICLE 8
46. The applicant further complained that he had been a victim
of discriminatory treatment in breach of Article 14 of the
Convention read in conjunction with Article 8. Article 14
provides:
“The enjoyment of the rights and freedoms set forth
in [the] Convention shall be secured without discrimination
on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association
with a national minority, property, birth or other status.”
47. The applicant refers to the difficulties in proving that
contacts with the natural father are in the child’s
interest. He further submits that section 63a of the Act on
Non-Contentious Proceedings, as in force at the material time,
excluded a further appeal after the first appeal against the
refusal of access had failed.
48. The Government maintained that neither the statutory regulations
on the right of access to children born out of wedlock in
themselves, nor their application in the particular case,
discriminated against the applicant in the enjoyment of his
right to respect for his family life.
The Government recalled the Commission’s decisions according
to which the provisions of section 1711 of the Civil Code
did not entail any discrimination contrary to Article 14 (application
no. 9588/81, decision of 15 March 1984; application no. 9530/81,
decision of 14 May 1984, both unpublished). The consideration
that fathers of children born out of wedlock often were not
interested in contacts with their children and might leave
a non-marital family at any time, and that it was normally
in the child’s interest to entrust the mother with custody
and access, still applied, even if the number of non-marital
families had increased. Section 1711 § 2 of the Civil
Code struck a reasonable balance between the competing interests
involved in all these cases.
In this context, the Government observed that the amended
Law on Family Matters did not alter this assessment.
49. The Court has held in an earlier case that it was not
necessary to consider whether the former German legislation
as such, namely, section 1711 § 2 of the Civil Code,
made an unjustifiable distinction between fathers of children
born out of wedlock and divorced fathers, such as to be discriminatory
within the meaning of Article 14, since the application of
this provision in the case in question did not appear to have
led to a different approach than would have ensued in the
case of a divorced couple (see Elsholz v. Germany cited above,
§ 59).
50. The Court notes that in the present case, both the District
Court and the Regional Court expressly stated that access
could only be granted if in the interest of the child, as
required under section 1711 of the Civil Code in force at
the relevant time. Without having recourse to psychological
expertise, they relied on the statements made by the child
in court and concluded that access would have to be enforced
against her will and could not, therefore, be in her interest.
51. The approach taken by the German courts in the present
case reflects the underlying legislation which put fathers
of children born out of wedlock in a different, less favourable
position than divorced fathers. Unlike the latter, natural
fathers had no right of access to their children and the mother’s
refusal of access could only be overridden by a court when
access was “in the interest of the child”. Under
such rules and circumstances, there was evidently a heavy
burden of proof on the side of a father of a child born out
of wedlock. The crucial point is that the courts did not regard
contacts between child and natural father prima facie as in
the child’s interest, a court decision granting access
being the exception to the general statutory rule that the
mother determined the child’s relations with the father.
Even if the District Court’s decision contains the formulation
that there was a risk to the child’s mental and psychological
well-being if she had to take up contact with the applicant
against her wish, the mother’s initial prohibition of
further contacts and her influence on the child remained decisive.
Accordingly, there is sufficient reason to conclude that the
applicant as a natural father was treated less favourably
than a divorced father in proceedings to suspend his existing
right of access
52. In this context, the Court has also considered the applicant’s
argument as to a procedural difference, namely, the exclusion
of a further appeal under the Act on Non-Contentious Proceedings
in the version in force at the relevant time.
53. For the purposes of Article 14 a difference in treatment
is discriminatory if it has no objective and reasonable justification,
that is if it does not pursue a legitimate aim or if there
is not a reasonable relationship of proportionality between
the means employed and the aim sought to be realised. Moreover,
the Contracting States enjoy a margin of appreciation in assessing
whether and to what extent differences in otherwise similar
situations justify a different treatment (see Camp and Bourimi
v. the Netherlands, no. 28369/95, § 37, ECHR 2000-X).
54. According to the Court’s case-law, very weighty
reasons need to be put forward before a difference in treatment
on the ground of birth out of wedlock can be regarded as compatible
with the Convention (see the Camp and Bourimi v. the Netherlands
cited above, § 38).
55. In the present case, the Court is not persuaded by the
Government’s arguments, which are based on general considerations
that fathers of children born out of wedlock lack interest
in contacts with their children and might leave a non-marital
relationship at any time.
56. Such considerations did not apply in the applicant’s
case. He had acknowledged paternity and had in fact been living
with the mother at the child’s birth in 1981. Their
relationship only broke several years later when the child
was more than five years old. More important, he had continued
to show concrete interest in contacts with her for sincere
motives.
57. As the Government rightly pointed out, the number of non-marital
families had increased. When deciding the applicant’s
case, the Regional Court stated the urgent need for a legislative
reform. Complaints challenging the constitutionality of this
legislation were pending with the Federal Constitutional Court.
The amended Law on Family Matters eventually entered into
force in July 1998.
The Court wishes to make it clear that these amendments cannot
in themselves be taken as demonstrating that the previous
rules were contrary to the Convention. They do however show
that the aim of the legislation in question, namely the protection
of the interests of children and their parents, could also
have been achieved without distinction on the ground of birth
(see, mutatis mutandis, the Inze v. Austria judgment of 28
October 1987, Series A no. 126, p. 18, § 44).
58. The Court therefore concludes that there was a breach
of Article 14 of the Convention, taken together with Article
8.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1
OF THE CONVENTION
59. The applicant alleged that he had been the victim of a
violation of Article 6 § 1 of the Convention, the relevant
part of which reads:
“In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal established by law.”
60. The applicant referred to the lack of an expert opinion
and generally criticised the alleged inefficiency of the court
proceedings in arranging contacts with his child. He further
stated the procedural difference resulting from section 63a
of the Act on Non-Contentious Proceedings, namely the exclusion
of the right to challenge the first appeal decision.
61. The Government submitted that the course of the proceedings
before the competent courts, in particular the taking of evidence
before the Rostock District Court could not be objected to.
Moreover, the absence of a further appeal did not disclose
any appearance of a breach of Article 6 § 1.
62. The Court recalls that the taking and evaluation of evidence
is primarily a matter for regulation by national law and that,
as a general rule, it is for the national courts to assess
the evidence before them. The Court’s task under the
Convention is rather to ascertain whether the proceedings
as a whole, including the way in which evidence was taken,
were fair (see Elsholz v. Germany cited above, § 66).
63. The Court had first regard to its findings with respect
to Article 8 (see paragraphs 44-45 above), in particular to
the lack of a psychological expert opinion.
64. Moreover, the Court reiterates that Article 6 § 1
does not compel the States to set up courts of appeal or of
cassation. Nevertheless, where such courts exist, the guarantees
contained in Article 6 must be complied with, inter alia by
ensuring effective access to the courts so that litigants
may obtain a decision relating to their “civil rights
and obligations” (see, mutatis mutandis, the Delcourt
v. Belgium judgment of 17 January 1970, Series A no. 11 pp.
13-14, § 25, and Kudla v. Poland (GC), no. 30210/96,
§ 122, ECHR 2000-XI; see also García Manibardo
v. Spain, no. 38695/97, § 39, ECHR 2000-II).
65. The Court notes that in proceedings concerning a natural
father’s access to his child born out of wedlock, the
general right of a further appeal against a first appeal decision,
as provided in section 63 of the Act on Non-Contentious Proceedings,
was excluded by operation of law, namely, by section 63a of
that Act as in force at the material time (see paragraph 28
above). Having regard to its findings under Article 14 of
the Convention (see paragraphs 50 and 56 above), the Court
concludes that this limitation on the applicant’s right
of access to a court was not compatible with Article 6 §
1.
66. In these circumstances, the Court finds that the proceedings,
taken as a whole, did not satisfy the requirements of Article
6 § 1. There has thus been a breach of this provision.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
67. Article 41 of the Convention provides:
“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal
law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
68. The applicant sought 65,000 German marks (DEM) in compensation
for non-pecuniary damage, pointing to the distress he had
felt as a result of the separation from his child since 1986.
69. The Government did not comment.
70. The Court considers that the applicant undoubtedly sustained
non-pecuniary damage. While it cannot be said on the evidence
that the applicant would probably have been granted access
to his child had the violations of Articles 6, 8 and 14 of
the Convention not occurred, at least he lost the opportunity
to ensure his interests in the access proceedings. The Court
has found that the applicant was the victim of procedural
defects in these proceedings as well as of discrimination,
both aspects being intimately related to the interference
with one of the most fundamental rights, namely, that of respect
for family life. The Court further notes that since 1986 the
applicant has no longer seen his child. It can reasonably
be presumed that those circumstances taken as a whole have
caused the applicant substantial suffering.
71. The Court thus concludes that the applicant suffered non-pecuniary
damage which is not sufficiently compensated by the finding
of a violation of the Convention. None of the factors cited
above lends itself to precise quantification. Making an assessment
on an equitable basis, as required by Article 41, the Court
awards the applicant DEM 55,000.
B. Costs and expenses
72. The applicant further estimated his expenditure in the
domestic proceedings at DEM 5,000 for costs and expenses before
the German courts. He submitted that receipts were no longer
available.
73. If the Court finds that there has been a violation of
the Convention, it may award the applicant the costs and expenses
incurred before the national courts for the prevention or
redress of the violation (see the Hertel v. Switzerland judgment
of 25 August 1998, Reports 1998-VI, p. 2334, § 63). In
the instant case, having regard to the subject-matter of the
proceedings before the German courts and what was at stake
in them, the applicant is entitled to request payment of the
costs and expenses incurred before these courts to the extent
that these costs and expenses are shown to have been actually
and necessarily incurred and are reasonable as to quantum
(cf., mutatis mutandis, Elsholz v. Germany cited above, §
73).
74. The applicant, who had been granted legal aid, did not
claim additional costs and expenses incurred in the proceedings
before the Convention organs. In the absence of any receipts
or other supporting documents, the Court is not persuaded
that the applicant incurred costs and expenses in the estimated
amount. Deciding on an equitable basis, the Court awards him
the sum of DEM 2,500.
C. Default interest
75. According to the information available to the Court, the
statutory rate of interest applicable in Germany at the date
of adoption of the present judgment is 8,62 % per annum.
FOR THESE REASONS, THE COURT
1. Holds by five votes to two that there has been a violation
of Article 8 of the Convention;
2. Holds by five votes to two that there has been a violation
of Article 14 of the Convention, taken together with Article
8;
3. Holds by six votes to one that there has been a violation
of Article 6 § 1 of the Convention;
4. Holds by five votes to two
(a) that the respondent State is to pay the applicant, within
three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention;
(i) 55,000 (fifty five thousand) German marks in respect of
non-pecuniary damage;
(ii) 2,500 (two thousand five hundred) German marks in respect
of costs and expenses, together with any value-added tax that
may be chargeable;
(b) that simple interest at an annual rate of 8,62 % shall
be payable from the expiry of the above-mentioned three months
until settlement;
5. Dismisses unanimously the remainder of the applicant’s
claims for just satisfaction.
Done in English, and notified in writing on 11 October 2001,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Antonio Pastor Ridruejo
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the partly dissenting
opinion of Mrs Vajic and the dissenting opinion of Mr Pellonpää
are annexed to this judgment.
A.P.R.
V.B.
PARTLY DISSENTING OPINION OF JUDGE VAJIC
1. Unfortunately, I am unable to share the opinion of the
majority that there has been a violation of Article 8 in the
present case.
In addition, in view of the Court’s judgment in Elsholz
v. Germany (cited in paragraph 38 of the present judgment)
I am unable to share the opinion of the majority as to the
violation of Article 8 in conjunction with Article 14 of the
Convention.
Concerning both violations I agree with the views which Judge
Pellonpää has expressed in his dissenting opinion.
2. I have with some hesitation voted with the majority in
favour of a finding that the applicant’s rights under
Article 6 of the Convention were violated in the present case.
I see considerable force in the view of Judge Pellonpää
that the problem that raises Section 63a of the Act on Non-Contentious
Proceedings, as in force at the relevant time (see paragraph
28) is one of discrimination rather than access to court and
could therefore have been dealt with under Article 6 read
in conjunction with Article 14.
I accept, however, that the problem can also be looked at
as one of unreasonable limitation on access to court. In other
words, the exclusion of a general right of a further appeal
by operation of law (in the version of the law in force at
the relevant time), limited the applicant’s right of
access to court to such an extent that it amounted to a violation
of Article 6 of the Convention.
DISSENTING OPINION OF JUDGE PELLONPÄÄ
I am unable to subscribe to the opinion of the Chamber that
there has been a violation of Article 8, both read alone and
in conjunction with Article 14.
I agree with the general principles put forward in paragraph
38 of the Judgment, namely that “it must be borne in
mind that the national authorities have the benefit of direct
contact with all the persons concerned “ and that “the
Court’s task is not to substitute itself for the domestic
authorities in the exercise of their responsibilities regarding
custody and access issues...” Application of these principles
to the circumstances of the present case, however, in my view
should not lead to the finding of a violation.
The majority has based the violation of Article 8 on the ground
that, in the proceedings concerning the the applicant’s
second request for a right of access, “the District
Court should not have been satisfied with hearing only the
child as to her wishes on the matter without having at its
disposal psychological expert evidence in order to evaluate
the child’s seemingly firm wishes” (paragraph
43). In the Court’s view, ” the German courts’
failure to order a psychological report on the possibilities
of establishing contact between child and the applicant reveals
an insufficient involvement of the applicant in the decision-making
process” (paragraph 44). There appears to be no other
major criticism of the domestic proceedings.
This is not surprising, as the proceedings prima facie appear
to have been in full conformity with the procedural requirements
of Article 8 (and even with the requirements of Article 6
which, as a rule, are stricter). Thus, in connection with
the first request for visiting arrangements, the competent
Judge heard the child twice. After the second hearing (24
June 1992), in which also the applicant and the court appointed
psychological expert also participated, the applicant withdrew
his request.
In connection with second set of proceedings the District
Court Judge again heard the child (15 February 1994), now
thirteen years of age, who expressed her firm wish not to
see the applicant. In addition, the Court held a hearing with
the applicant and the child’s mother (26 April 1994).
The Court in addition took into account comments filed by
the Rostock Youth Office both in connection with these proceedings
and the first set of proceedings, as well as the psychological
expert opinion filed in the first proceedings two years earlier.
No new expert opinion was ordered by the court.
In June 1994 the Rostock Regional Court dismissed the applicant’s
appeal against the District Court’s decision.
I respectfully disagree with the majority’s conclusion
that the German courts’ failure to seek a fresh expert
opinion in the second set of the proceedings violated Article
8 of the Convention. Considering that the child had by that
time reached the relatively mature age of 13 - a fact duly
emphasized by both the District Court and the Regional Court
-, the District Court could legitimately rely on the direct
impressions received from the meeting with her, as well as
on all the other evidence available. There seems to be nothing
indicating why the Regional Court should have departed from
the assessment made by the District Court. For the European
Court of Human Rights to say in these circumstances that the
national court should have sought new expert advice (which
not even the applicant had apparently requested it to seek),
runs counter to the above-mentioned principle “that
the Court’s task is not to substitute itself for the
domestic authorities”. In the circumstances of the present
case the conclusion that “the national authorities overstepped
their margin of appreciation” (paragraph 45) amounts
to leaving practically no margin of appreciation at all to
the domestic courts which, after all, are in a much better
position than this Court to make the type of sensitive decisions
as the one at issue here.
I also disagree with the conclusion that there has been a
violation of Article 14, in conjunction with Article 8. The
Chamber attempts to make a distinction between this case and
the case of Elsholz v. Germany (cited in paragraph 38 of the
present judgment), in which the application of Section 1711
§ 2 of the Civil Code “did not appear to have led
to a different approach than would have ensued in the case
of a divorced couple” (paragraph 49 of the present judgment).
I am not convinced by the alleged distinguishing features.
In paragraph 50 it is emphasized “that, in the present
case, both the District Court and the Regional Court expressly
stated that access could only be granted if in the interest
of the child ...” In so far as this appears to be given
as a distinguishing element, I note that similar statements
are also to be found in the decisions of the District Court
and Regional Court in the Elsholz case (see paragraphs 13
and 18 of the Elsholz judgment). According to paragraph 51
of the present judgment the “crucial point is that the
courts did not regard contacts between child and natural father
prima facie as in the child’s interest, a court decision
granting access being the exception to the general statutory
rule that the mother determined the child’s relations
with the father.” I fail to see that the approach of
the domestic courts on this point was in any relevant manner
different in Elsholz, in which the District Court stated that
the provisions “concerning the father’s right
to personal contact with his child born out of wedlock ...
was conceived of as an exemption clause which had to be construed
strictly” (paragraph 13 of the Elsholz judgment).
In the Elsholz case the Court, when coming to its conclusion
of a non-violation of Article 14 emphasized that the “risk
of the child’s welfare was ... the paramount consideration”
(paragraph 60) in the national decisions. Therefore it could
not “be said ... that a divorced father would have been
treated more favourably” (paragraph 61). The interests
of the child, however, seem to have been a paramount consideration
in the present case as well. The District Court, for example,
strongly emphasized that her mental and psychological well-being
would be endangered if there was any forced contact between
her and the applicant (see paragraph 17).
Although there may have been some differences between the
domestic court decisions in the two cases, those differences
in my view were not of such a nature as to justify a violation
in one and a non-violation in the other. Like in Elsholz,
the present applicant has not shown that, in a parallel situation,
a divorced father would have been treated more favourably.
I have also voted against the violation of Article 6. I do
recognize that Section 63a of the Act on Non-Contentious Proceedings,
as in force at the relevant time (see paragraph 28), was problematic
from the point of view of the Convention. In my view the problem
was, however, one of discrimination rather than access to
court to be analysed under Article 6 alone. Therefore, I would
have been able to vote for a violation of Article 6 read in
conjunction with Article 14. Indeed, the situation is almost
a classic example of discrimination as envisaged in the locus
classicus on the subject, the Belgian Linguistic case (judgment
of 23 July 1968, Series A, no 6), in which the Court stated
:
“to recall a further example [of discrimination]....
Article 6 does not compel States to institute a system of
appeal courts. A State which does set up such Courts consequently
goes beyond its obligations under Article 6. However, it would
violate that Article, read in conjunction with Article 14,
were it to debar certain persons from these remedies without
a legitimate reason while making them available to others
in respect of the same type of actions” (p. 33).
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