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Law - Somerfield v Germany - press release
Respondent Germany
Conclusion Violation of Art. 8 ; Violation of Art. 14+8 ;
Violation of Art. 6-1 ; Non-pecuniary damage - financial award
; Costs and expenses partial award - domestic proceedings
Keywords RESPECT FOR FAMILY LIFE ; INTERFERENCE {ART 8} ;
PROTECTION OF HEALTH {ART 8} ; PROTECTION OF MORALS {ART 8}
; PROTECTION OF THE RIGHTS AND FREEDOMS OF OTHERS {ART 8}
; NECESSARY IN A DEMOCRATIC SOCIETY {ART 8} ; MARGIN OF APPRECIATION
; DISCRIMINATION ; OTHER STATUS ; ACCESS TO COURT ; CIVIL
PROCEEDINGS
Press release issued by the Registrar
CHAMBER JUDGMENTS IN THE CASES OF SAHIN v. GERMANY, SOMMERFELD
v. GERMANY, and HOFFMANN v. GERMANY
The European Court of Human Rights has today notified in writing
judgments in the cases of: Sahin v. Germany (application no.
30943/96), Sommerfeld v. Germany (no. 31871/96) and Hoffmann
v. Germany (no. 34045/96), none of which is final [ fn ].
(The judgments are available only in English.)
The European Court of Human Rights held, by five votes to
two, that there had been:
a violation of Article 8 (right to respect for family life)
of the European Convention on Human Rights in Sahin v. Germany
and Sommerfeld v. Germany;
no violation of Article 8 in Hoffmann v. Germany;
a violation of Article 14 (prohibition of discrimination)
taken together with Article 8 in all three cases;
a violation of Article 6 (right to a fair hearing) in Sommerfeld
v. Germany and Hoffmann v. Germany.
Under Article 41 (just satisfaction) of the Convention, the
applicants were awarded the following amounts in German Marks
(DEM): Non-pecuniary damage costs and expenses
(1) Sahin v. Germany DEM 50,000 DEM 8,000
(2) Sommerfeld v. Germany DEM 55,000 DEM 2,500
(3) Hoffmann v. Germany DEM 25,000 DEM 2,500
1. Principal facts
The applicants, Asim Sahin , Manfred Sommerfeld, and Friedhelm
Hoffmann are all German nationals;
Mr Sahin was a Turkish national at the time of the events
complained of but subsequently obtained German nationality.
They were born respectively in 1950, 1953 and 1954. All three
had children born out of wedlock concerning whom they were
refused access by the German courts.
2. Procedure and composition of the Court
The applications were lodged with the European Commission
of Human Rights on 16 June 1993, 7 June 1995 and 15 July 1996
respectively and transmitted to the European Court of Human
Rights on 1 November 1998.
On 12 December 2000 the first two cases were declared partly
admissible and Hoffmann v. Germany was declared admissible.
Judgment was given by a Chamber of seven judges, composed
as follows:
Antonio Pastor Ridruejo (Spanish), President,
Georg Ress (German),
Lucius Caflisch (Swiss),
Ireneu Cabral Barreto (Portuguese),
Volodymyr Butkevych (Ukrainian),
Nina Vajic (Croatian),
Matti Pellonpää (Finnish), judges,
and also Vincent Berger, Section Registrar.
The applicants alleged that the German courts' decisions to
dismiss their requests for access to their children breached
Article 8. They also complained of discrimination, relying
on Article 14 taken together with Article 8.
In Sommerfeld v. Germany and Hoffmann v. Germany the applicants
further claimed, relying on Article 6, that they were denied
a fair hearing.
Decision of the Court
In Sahin v. Germany, the competent national courts, when refusing
the applicant's request for a visiting arrangement, relied
on the statements made by the applicant and the child's mother,
witnesses and the comments of the Wiesbaden Youth Office and
on expert advice, took into account the strained relations
between the parents and found that contacts were not in the
child's interest.
The Court did not doubt that these reasons were relevant.
However, in the Court's opinion, the German courts' failure
to hear the child revealed that the applicant was not sufficiently
involved in the access proceedings. It was essential that
the competent courts gave careful consideration to what lay
in the best interests of the child after having had direct
contact with the child. The Regional Court should not have
been satisfied with the expert's vague statements about the
risks inherent in questioning the child without even contemplating
the possibility of taking special arrangements in view of
the child's young age. In this context, the Court attached
importance to the fact that the expert indicated that she
had not asked the child about her father. Correct and complete
information on the child's relationship with the applicant
as the parent seeking access to the child was an indispensable
prerequisite for establishing a child's true wishes and thereby
striking a fair balance between the interests at stake.
In Sommerfeld v. Germany the Court observed that the District
Court, when refusing the applicant's request for a visiting
arrangement, relied on the statements made by the 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. Also
considering comments filed by the local Youth Office and material
obtained in the first set of access proceedings, the District
Court found that contact was not in the child's interest.
The Regional Court endorsed the District Court's findings.
The Court did not doubt that these reasons were relevant.
However, it noted that District Court heard the child and
the parents and had regard to material obtained in a first
set of access proceedings, including comments filed by a psychologist
of the local health services of April 1992. The Court considered
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 only hearing 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 was an indispensable prerequisite for establishing
a child's true wishes and thereby striking a fair balance
between the interests at stake. The Court further recalled
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. 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 revealed that the applicant was not
sufficiently involved in the decision-making process.
In Hoffmann v. Germany the Court noted that the competent
national courts, when setting aside the applicant's right
of access, relied on the statements made by the applicant
and the child's mother, the comments of the Mülheim Youth
Office and the local Diakonisches Werk, and in particular
on the statements made by the child, questioned by the District
Court at the age of about seven, as well as on expert advice.
The courts took into account the strained relations between
the parents and found that any further contact would adversely
affect the child.
The Court did not doubt that these reasons were relevant.
However, the Court recalled that the District Court had regard
to several reports on the question of contacts between the
applicant and his child J., one of them being based on the
experience of meetings between the applicant and J. in a child
guidance centre. The applicant, represented by counsel, had
the opportunity to comment on those reports. In the Court's
opinion, the applicant was thereby sufficiently involved in
the decision-making process. The German courts arrived at
the contested decision after weighing up the various competing
interests in issue. Having regard to all circumstances, the
Court found that the German courts were entitled to consider
the refusal of access to be necessary and that their reasons
for so concluding were "sufficient". Article 14
In all three cases, the Court noted that Germany's laws on
custody and access were amended by the Law on Family Matters
of 16 December 1997 (which came into effect on I July 1998)
which entitles both the father and mother of a minor child
born out of wedlock to have access to their child. These amendments
demonstrated that the aims of the German laws applicable at
the time of the events in the three cases in question (which
occurred prior to 1998) - namely to protect the interests
of children and their parents - could have been achieved without
making a distinction on the grounds of whether the child concerned
was born in or out of wedlock.
In Sommerfeld v. Germany and Hoffmann v. Germany the Court
noted that in proceedings concerning a natural father's access
to his child born out of wedlock, there was no general right
of a further appeal against a first appeal decision. The Court
concluded that this limitation on the applicant's right of
access to a court was not compatible with Article 6. Judge
Pellonpää expressed a dissenting opinion in each
case and Judge Vajic expressed a joint dissenting opinion
in Sahin v. Germany and a separate partially dissenting opinion
in Sommerfeld v. Germany and Hoffmann v. Germany, which are
annexed to the judgments.
***
The Court's judgments are accessible on its Internet site
(http://www.echr.coe.int).
Registry of the European Court of Human Rights
F - 67075 Strasbourg Cedex
Contacts: Roderick Liddell (telephone: (0)3 88 41 24 92)
Emma Hellyer (telephone: (0)3 90 21 42 15)
Fax: (0)3 88 41 27 91
The European Court of Human Rights was set up in Strasbourg
in 1959 to deal with alleged violations of the 1950 European
Convention on Human Rights. On 1 November 1998 a full-time
Court was established, replacing the original two-tier system
of a part-time Commission and Court. [ fn ] Under Article
43 of the European Convention on Human Rights, within three
months from the date of a Chamber judgment, any party to the
case may, in exceptional cases, request that the case be referred
to the 17-member Grand Chamber of the Court. In that event,
a panel of five judges considers whether the case raises a
serious question affecting the interpretation or application
of the Convention or its Protocols, or a serious issue of
general importance, in which case the Grand Chamber will deliver
a final judgment. If no such question or issue arises, the
panel will reject the request, at which point the judgment
becomes final. Otherwise Chamber judgments become final on
the expiry of the three-month period or earlier if the parties
declare that they do not intend to make a request to refer.
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