AS TO THE ADMISSIBILITY OF
Application No. 29567/95
by Bernhardt AIGNER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 16 October 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
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 23 November 1995
by Bernhardt AIGNER against Germany and registered on 19 December 1995
under file No. 29567/95;
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, born in 1954, is a German national and resident
in Augsburg. He is medical practitioner by profession. In the
proceedings before the Commission, he is represented by Mr. T. Budde,
a lawyer practising in Reutlingen.
A. Particular circumstances of the case
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant had a relationship with Ms. T.L., a Finnish
national, from which a girl, Marjut, was born in 1985. Marjut has
Finnish nationality. The applicant recognised his paternity of Marjut.
On 17 August 1990 the applicant and Ms. T.L. had a notary
legalise an agreement between them according to which, in case of
termination of their relationship, Marjut should live with the
applicant. According to the applicant's and her mother's statements,
Marjut had been living in their common household in Tübingen since her
birth, she had been visiting a German kindergarten and only spoke
German. Furthermore, Ms. T.L. was very engaged in her profession, and
to pursue a profession was more important to her than to the applicant.
The certified document further contained the applicant's request,
addressed to the District Court (Amtsgericht), acting as guardianship
court (Vormundschaftsgericht) in Augsburg, the applicant's main place
of residence, for Marjut's legitimation (Ehelicherklärung) in
accordance with SS. 1723 et seq. of the Civil Code. Ms. T.L., in her
position both as Marjut's legal representative and her mother declared
her agreement with the said request. According to a final clause of
the certified document, the notary informed the applicant and Ms. T.L.
about the legal implications of the requested legitimation, inter alia,
that Marjut would acquire the position of a legitimate child of the
applicant and that Ms. T.L. would lose her right to custody.
On 8 January 1992 the Augsburg District Court, referring to
SS. 1723 et seq. of the Civil Code (Bürgerliches Gesetzbuch), granted
the applicant's request for Marjut's legitimation. The District Court,
having heard the applicant and Marjut, found that they had a natural
and loving relationship. Moreover, according to the applicant's
statements, he had occasionally taken care of Marjut. The District
Court further noted the certified statements according to which the
mother was very engaged in her professional activities. According to
the District Court, Ms. T.L. had refused to be heard on the matter.
The District Court considered that, in these circumstances, the
legitimation was in the interest of Marjut's well-being, and that there
was no indication of any serious objections.
On 16 January 1992 the Augsburg District Court, upon the request
of Ms. T.L., issued a preliminary injunction, according to which the
applicant's right to determine Marjut's place of residence was
provisionally withdrawn and transferred to Ms. T.L.
In its reasoning the District Court observed that, when deciding
upon the applicant's request for Marjut's legitimation, it had assumed
that such a decision corresponded to the genuine intentions of both the
mother and the father. The Court noted inter alia that the applicant,
when presenting Marjut in court on 7 January 1992, had stated that the
mother was staying in New York; that Marjut was integrated in Tübingen
and that he did not intend to separate her from her mother. However,
he had concealed the fact that Ms. T.L. had married Mr. W. on
23 December 1991. On 15 January 1992, when Ms. T.L. had learnt about
the legitimation and had reproached him with his conduct, the applicant
had called for an ambulance and had had her taken to a psychiatric
hospital. When she was released shortly afterwards and returned,
Marjut had disappeared. The District Court considered that in these
circumstances the applicant's right to custody was likely to be
withdrawn and transferred to the mother. While this matter remained
to be examined, there was a risk that the applicant might not treat
Marjut appropriately which could only be met by the decision taken.
On 20 January 1992 the applicant lodged an appeal (Beschwerde).
In these and the following court proceedings the applicant was
represented by counsel. Still on 20 January, both parents were heard
personally by the District Court. In the evening, the applicant
brought Marjut to her mother, Ms. T.L.
On 13 February 1992 the Augsburg Regional Court (Landgericht)
dismissed the applicant's appeal (Beschwerde).
The Regional Court, referring to S. 1666a para. 2 and S. 1666
para. 1 of the Civil Code, found that the decision to withdraw,
provisionally, the applicant's right to determine Marjut's place of
residence was necessary to avert a serious danger for her well-being
and that a final decision could not be awaited. The Regional Court
confirmed the findings of the first instance court that the applicant's
right to custody would most likely be withdrawn and transferred back
to Ms. T.L. In this respect, the Regional Court noted the parties'
concurring statements that Marjut's centre of life had been in
Tübingen. The Regional Court further considered that the applicant,
taking into account his professional engagements as a specialist
practising in a hospital, would not be able to take sufficient care of
Marjut. Living together with the applicant, who had previously not
been concerned with her education, would not be in the interest of
Marjut's well-being. The Regional Court found that the relevant facts
had been substantiated. No further investigations were required in
the preliminary injunction proceedings.
On 9 April 1992 the Bavarian Court of Appeal (Bayerisches
Oberstes Landesgericht) dismissed the applicant's further appeal
(weitere Beschwerde).
The Court of Appeal, on the basis of the facts underlying the
decisions taken by the lower instances, as amended in the proceedings
before it, confirmed the lower courts' findings. In this respect, the
Court of Appeal considered in particular the events on 15 January 1992.
Thus, contrary to his statements in the legitimation proceedings, the
applicant had taken Marjut away from home without informing her mother,
Ms. T.L. The Court of Appeal found that the applicant had thereby
interfered with Ms. T.L.'s rights, namely at least her rights to access
and information, even if, in the light of the case-law of the Federal
Constitutional Court (Bundesverfassungsgericht), she had lost her right
to custody. The taking away of a child from its usual surroundings
could amount to an abuse of the right of custody, if it occurred at the
wrong time. This had been the case, as Marjut had so far been living
with her mother most of the time and as the applicant had enforced his
rights immediately after the service of the decision on the
legitimation and without consulting Ms. T.L. The sudden taking away
and the other events on 15 January 1992 which could not be concealed
from the then six-year-old child endangered her well-being.
On 21 December 1993, in the main custody proceedings, the
Tübingen District Court, following a hearing on 6 December 1993,
withdrew the applicant's right to custody over Marjut and transferred
this right to Ms. T.L. The District Court also provisionally withdrew
the applicant's right of access to Marjut until the completion of an
expert opinion regarding the matter.
In its decision, the District Court summarised the relevant facts
regarding the legitimation proceedings, the subsequent events and the
course of the preliminary injunction proceedings. The Court also noted
that it had heard the parties on 7 May 1992 and at the hearing of
6 December 1993, and that Marjut had been heard on 25 June 1992.
As regards the merits, the District Court found that Ms. T.L.'s
request that the right to custody of Marjut be transferred back to her
in accordance with S. 1738 para. 2 of the Civil Code was well-founded.
In this context, the question whether or not, pursuant to the case-law
of the Federal Constitutional Court on the constitutionality of the
legal provisions on legitimation, she had fully lost her right to
custody or retained it notwithstanding the applicant's simultaneous
right to custody could be left open on the ground that in any event the
applicant's right to custody had to be withdrawn for abuse in
accordance with S. 1666 of the Civil Code.
The District Court found that the applicant had obtained his
right to custody of Marjut in an improper way in that he had pursued
the legitimation proceedings without Ms. T.L.'s knowledge and behind
her back. The request for legitimation had been certified at a time
when the parties had a common household and when the applicant, being
unemployed, had more intensively taken care of Marjut. According to
the report of the Tübingen Youth Office of April 1991, filed in the
context of the legitimation proceedings, Ms. T.L. had intended to
obtain for Marjut the position of the applicant's legitimate child, and
that, in case anything should happen to her, Marjut should live with
the applicant. However, she had never thought that the applicant would
exercise the right to custody so as to take Marjut away from her. The
applicant, who had taken up a new job in Starnberg, had himself stated
at the Youth Office that Marjut would certainly remain in her usual
surroundings. Further, in his counsel's written submission of
31 May 1991 it was indicated that Marjut would stay with her mother as
long as he and Ms. T.L. were separated and that the applicant was aware
of the fact that he could not himself take care of the child.
Following her marriage, Ms. T.L. had no longer agreed with Marjut's
legitimation and the applicant had been aware of this. The conclusion
of the legitimation proceedings without her further participation had
taken Ms. T.L. by surprise. While it would have been advisable for her
to have informed the District Court in precise terms, her statements
that she had not thought that the proceedings would be pursued were
conclusive. The applicant however had seized the opportunity of Ms.
T.L.'s absence abroad in order to appear, together with Marjut, before
the District Court and to obtain, with incomplete submissions and false
pretences, the right to custody of Marjut with a view to separating her
from her mother, Ms. T.L. Moreover, he had arranged for Ms. T.L.'s
admission to a psychiatric hospital in Marjut's presence and had
brought Marjut to acquaintances, keeping her whereabouts secret. On
the occasion of Marjut's hearing in June 1992, it appeared that these
events had had a negative impact on her relationship with the
applicant. The course of action taken by the applicant amounted to an
abuse of his right to custody which, therefore, had to be withdrawn.
The transfer of the right to custody to Ms. T.L. was in Marjut's
best interest: it corresponded both with Marjut's wishes, as expressed
upon her hearing in June 1992 and persisting, according to the
observations of the Youth Office at the hearing in December 1993, and
with the necessity to authorise the person taking care of Marjut to
take the daily decisions for the child.
As regards the applicant's request for a right of access to
Marjut pursuant to S. 1634 of the Civil Code, the District Court noted
that the applicant suffered from the separation from the child and that
Ms. T.L. had stated her intentions to establish a regular access.
However, Marjut refused to have any contacts with him. The District
Court observed that, in the course of Marjut's personal hearing in June
1992, she had expressed such a strong emotional resistance to even
seeing the applicant that the applicant's right of access was
provisionally suspended, after having heard the parties who had not
insisted on a formal decision to that effect. As Ms. T.L. had stated,
at the hearing of December 1993, that this resistance on Marjut's part
persisted, no decision on the applicant's right of access to Marjut
could be taken before the conclusion of the expert opinion regarding
this matter. Although Marjut had not been heard by the Court for
eighteen months, her renewed hearing had not been necessary as she had
meanwhile been examined and questioned by the expert and the expert
opinion would soon be available. The provisional withdrawal of the
applicant's right of access for such a short period could not be
regarded as disproportionate.
On 23 September 1994 the Tübingen Regional Court dismissed the
applicant's appeal.
According to the Regional Court, the District Court had correctly
based its decisions on both S. 1666 and S. 1738 of the Civil Code. The
Regional Court further subscribed to the approach taken by the District
Court that the dominant feature was that the applicant had acquired the
right to custody in an extremely improper manner. In this respect the
Regional Court noted the applicant's own statements in the course of
the preparation of the expert opinion of 8 June 1994 that he had known
about the relationship between Ms. T.L. and her husband-to-be and had
deliberately concealed their marriage from the District Court in the
legitimation proceedings, assuming - with good reason - that he would
otherwise not obtain the requested decision. He could also foresee
that Ms. T.L., who had been on her honeymoon, would strongly react to
the loss of her right to custody. While it was true that improper
conduct for the purpose of obtaining the right of custody could not,
as such, amount to an abuse of this right, the applicant's insistence
on this right with the long-term intention to separate Marjut from her
family constituted such an abuse. In any event, the applicant's
subsequent conduct, seen as a whole, justified the impugned decision.
The Regional Court noted in particular the applicant's arrangements,
in Marjut's presence, to have her mother admitted to a psychiatric
hospital as well as the subsequent taking away and hiding of Marjut
who, separated from her mother, had travelled around with the applicant
for several days and had suffered from a serious mental strain. The
applicant's lack of consideration for Marjut's mental well-being was
also shown by the fact that, after having brought her back to her
mother, he had kept part of Marjut's toys in order to demonstrate his
legal position. Similar considerations applied to his conduct
regarding Marjut's identity papers which, following unsuccessful
enforcement proceedings, he had only handed over to the expert
appointed by the District Court in February 1994. The Regional Court
also considered that the fact that the applicant had repeatedly
resorted to criminal charges against Ms. T.L. had further strained the
relations between the parents and worried Marjut.
Accordingly, the District Court had correctly withdrawn the
applicant's - merely formal - right to custody of Marjut and
transferred it to her mother, as Marjut was well integrated in her
mother's new family.
As regards the applicant's right of access to Marjut, the
Regional Court acceded to the findings of the expert in his opinion of
8 June 1994 according to which a temporary suspension of this right was
in the best interest of Marjut who could thereby profit from a
stabilisation of the situation. In this respect, the Court observed
that the main proceedings regarding the applicant's right of access
could be continued following conclusion of the said expert opinion and
therefore the effects of the provisional suspension were limited in
time. When heard on 23 August 1994, Marjut had herself indicated that
she did not wish contacts with the applicant. Such contacts should,
however, be envisaged for the future.
On 23 February 1995 the Stuttgart Court of Appeal dismissed the
applicant's further appeal.
The Court of Appeal, referring to S. 1666 of the Civil Code,
confirmed that the applicant's conduct had amounted to a gross
violation of his right to custody of Marjut. The Court of Appeal
placed less emphasis on the manner in which the applicant had obtained
this right to custody than on his subsequent conduct with a view to
separating Marjut from her usual surroundings. The Court of Appeal
noted that, according to the psychiatric expert opinion, these events
had had such lasting negative consequences for Marjut that
psychotherapy treatment still appeared necessary. The events in
connection with the decision on legitimation were, therefore,
irrelevant and the taking of further evidence in this respect, as
requested by the applicant, was not necessary. The Court of Appeal,
having regard to the conclusive findings of the expert opinion and
Marjut's own statements, also confirmed the provisional suspension of
the applicant's right of access to Marjut. The Court of Appeal also
considered both the withdrawal of the applicant's right to custody and
the provisional suspension of his right of access to Marjut from the
constitutional point of view, finding that there was no violation of
the applicant's natural rights as a parent under the Basic Law.
However, the Court of Appeal also advised both parents to settle
the disputes between them with a view to permitting Marjut to overcome
her problems and to take up contacts with the applicant. Such contacts
were in Marjut's interest and Ms. T.L., in exercising her right to
custody, was obliged to exercise a positive influence on Marjut. Thus
both parents should take the necessary steps to render future contacts
possible.
On 23 May 1995 the Federal Constitutional Court refused to admit
the applicant's constitutional complaint (Verfassungsbeschwerde) on the
ground that the conditions for accepting the complaint for a decision
on its merits were not met.
In its decision, the Federal Constitutional Court found that the
applicant's submissions did not raise any issue of fundamental
importance. In particular, the applicant had failed to show that
S. 1738 para. 2 of the Civil Code could be objected to under
constitutional law or that there were any other fundamental questions
regarding the position of the father of a child born out of wedlock.
Furthermore, there was no reason to review S. 1711 para. 2 of the Civil
Code according to which the father only had a right of access if this
was in the interest of the child concerned, as the impugned decisions
suspending the applicant's right of access were not based on such a
reasoning.
Moreover, according to the Federal Constitutional Court, the
acceptance of the applicant's constitutional complaint was not
necessary for the protection of his fundamental rights. In particular,
the applicant had failed to show in what respect the taking of evidence
by the civil courts could be objected to: he had not submitted which
allegations he had intended to prove, how he had formulated his request
to take further evidence and in which way he had raised this matter in
his appeal with the Court of Appeal. Furthermore, there was no
indication of a violation of his parental rights. In this respect, the
Constitutional Court observed that the impugned decisions served to
resolve a dispute between two parents who both enjoyed the protection
of the Basic Law (Grundgesetz). In this situation, the guiding
principle had to be the well-being of the child. This principle had
been respected by the Court of Appeal. The applicant's submissions,
which did not deal with the expert opinion to which the Court of Appeal
had repeatedly referred, did not disclose any indication that the Court
of Appeal's assessment according to which the applicant's conduct had
enduring adverse effects on the child's well-being could be objected
to from a constitutional point of view.
The decision was served on 30 May 1995.
B. Relevant domestic law
1. Legitimation of a child born out of wedlock
S. 1719 to 1740g of the German Civil Code (Bürgerliches
Gesetzbuch) concern the legitimation (Legitimation) of children born
out of wedlock. SS. 1719 to 1722 govern the legitimation following the
subsequent marriage of their natural parents. SS. 1723 to 1740g
concern the legitimation (Ehelicherklärung) upon the request of the
father or the child.
According to S. 1723, the competent guardianship court grants the
father's request for the legitimation of his child born out of wedlock,
if the legitimation is in the child's best interest and if there are
no serious reasons against it. The legitimation is only permitted with
the consent of the child or, if the child is a minor, the consent of
his or her mother; if the father is married, his spouse's consent is
also required (S. 1726 para. 1). Exceptions to the requirement of the
mother's or the spouse's consent and the conditions for the replacement
of their consent by court order are regulated in S. 1726 para. 3 and
S. 1727, respectively.
S. 1736 provides that upon legitimation the child acquires the
status of a child born in wedlock. The child obtains the father's
family name (S. 1737).
S. 1738 para. 1 provides that, upon the legitimation of the
child, the mother loses her right and obligation to exercise custody.
According to a decision of the Federal Constitutional Court of
7 May 1991 (1 BvL 32/88-BGBl. I S. 1509), this provision is
irreconcilable with Article 6 paras. 2 and 5 of the Basic Law (on the
protection of the parental rights in the care and upbringing of
children and the equality of opportunities between "illegitimate" and
"legitimate" children) to the extent that the mother loses her right
and obligation to exercise custody even in cases where the father and
the mother live in a common household with the child and both parents'
intentions underlying the legitimation are to exercise a joint right
to custody, and if such an arrangement is in the best interest of the
child.
According to S. 1738 para. 2, the guardianship court may transfer
the right to custody back to the mother in case the father's right to
custody is terminated or suspended, or if the father's right to custody
of the child has been withdrawn.
2. Withdrawal of the right to custody
S. 1666 of the Civil Code provides in particular that, if the
physical, mental or psychological well-being of a child is endangered
as a consequence of an abuse of the right of custody, or neglect of the
child, or a failure of the parents arising through no fault of their
own or due to the conduct of a third person, and if the parents are not
willing or are unable to avert the danger, the competent guardianship
court will order the measures necessary to avert the danger concerned.
According to S. 1666a, measures resulting in a separation of the
child from the parental family are only permitted if there are no other
means, including public welfare, to avert the danger. The right of
custody may only be withdrawn if other measures have proved to be
unsuccessful or if it can be assumed that they are not sufficient to
avert the danger.
3. Right of access
Pursuant to S. 1634 of the Civil Code, the parent not holding the
right to custody is entitled to have access to the child. This right
of access may be suspended if such a measure is necessary in the best
interest of the child.
COMPLAINTS
1. The applicant complains about the German court decisions to
withdraw his right to custody of Marjut and provisionally to suspend
his right of access to her. He considers that the courts' assessment
according to which he had abused his right to custody is incorrect, and
that the withdrawal of his right to custody was disproportionate. He
further complains that he has not seen Marjut since 20 January 1992.
He also submits that the fact that he does not have the same
legal position towards Marjut as Marjut's mother violates the principle
of gender equality.
The applicant invokes Article 12 of the Convention and Article 5
of Protocol No. 7.
2. The applicant further complains under Article 6 of the Convention
that the court proceedings were unfair. He submits that the reasoning
in the impugned court decisions is erroneous. He further complains
that the Regional Court and the Court of Appeal refused his request for
the hearing of a witness who could have made statements on the
relationship between himself and Marjut as well as on the general
family situation.
THE LAW
1. The applicant complains about the German court decisions to
withdraw his right to custody of Marjut. He also complains that he has
not seen his daughter since January 1992. The applicant invokes
Article 12 (Art. 12) of the Convention.
Article 12 (Art. 12) of the Convention secures the fundamental
right of a man and a woman to marry and to found a family, subject to
the national laws of the Contracting States.
The Commission finds that the applicant's right to respect of his
family life lies at the heart of his complaints about the court
decisions to withdraw his right to custody of his daughter and the lack
of access to her. The Commission therefore finds it appropriate to
examine the applicant's complaints under Article 8 (Art. 8) of the
Convention.
Article 8 (Art. 8), so far as relevant, provides as follows:
"1. Everyone has the right to respect for his private and
family life, ...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society ... for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission recalls that the notion of "family life" in
Article 8 (Art. 8) is not confined solely to marriage-based
relationships and may encompass other de facto "family ties" where
parties are living together outside marriage. A child born out of such
a relationship is ipso iure part of that "family" unit from the moment
of his or her birth and by the very fact of it. There thus exists
between the child and his or her parents a bond amounting to family
life even if at the time of his or her birth the parents are no longer
co-habiting or if their relation has then ended (cf. Eur. Court HR,
Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, pp. 17-18,
para. 44; Kroon and Others v. the Netherlands judgment of 27 October
1994, Series A no. 297-C, pp. 55-56, para. 30).
In the present case, the relationship between the applicant and
the child's mother lasted for several years after the child's birth in
1985, and they had a common household in 1990 when the applicant's
request for the legitimation of Marjut and her mother's agreement were
recorded by a notary. Moreover, in January 1992 the German courts
granted the applicant's request for the legitimation of Marjut. Their
relationship at the relevant time thus had to be regarded as "family
life" for the purposes of Article 8 (Art. 8). Accordingly, from the
moment of Marjut's birth there existed between the applicant and his
daughter a bond amounting to family life.
The Commission finds that the court decisions withdrawing the
applicant's right of custody of Marjut, which he had obtained as a
consequence of her legitimation, interfered with the applicant's right
to respect for his family life under Article 8 para. 1 (Art. 8-1). As
regards the applicant's complaint about the lack of access to Marjut,
the Commission observes that it is seized with the matter to the extent
that the applicant's submissions refer to the German court decisions
provisionally to suspend his right of access to Marjut pending
completion of an expert opinion which was under preparation for the
purposes of a decision on the merits of his access rights. The
Commission finds that such a provisional suspension order also
interferes with the applicant's right under Article 8 (Art. 8). The
Commission therefore has to examine whether such interferences were
justified under the terms of paragraph 2 of Article 8 (Art. 8-2).
The Commission finds that the German courts' decisions to
withdraw the applicant's right to custody of Marjut and to transfer it
to Marjut's mother were taken in accordance with SS. 1666 and 1738
para. 2 of the German Civil Code in the light of the case-law of the
Federal Constitutional Court. The provisional suspension of his right
of access to Marjut was based on S. 1634 of the Civil Code. The
applicant's submissions do not show any clear non-observance of the
applicable legal provisions. The interference at issue was, therefore,
in accordance with the law within the meaning of Article 8 para. 2
(Art. 8-2).
The Commission further considers that the impugned custody
decisions had a legitimate purpose under paragraph 2 of Article 8,
(Art. 8-2) namely the protection of the rights of others, namely of the
child concerned.
As regards the question whether the interference complained of
was "necessary in a democratic society", the Commission recalls that
the Contracting States enjoy a certain margin of appreciation in
assessing whether such a need for an interference exists, but it goes
hand in hand with European supervision (see, Eur. Court HR, Berrehab
v. the Netherlands judgment of 21 June 1988, Series A no. 138, p. 15,
para. 128; Funke v. France judgment of 25 February 1993, Series A
no. 256-A, p. 24, para. 55).
The Commission observes at the outset that the impugned custody
and access decisions were taken in the context of a controversy between
Marjut's parents with a view to determining the best solution for
Marjut's future upbringing and education.
In the present case, the issues before the German courts were
whether the applicant had abused his right to custody of Marjut, which
he had obtained upon her legitimation in January 1992, and whether it
was in the best interest of Marjut to suspend - provisionally - his
access to her. The German courts, taking the child's well-being as the
guiding principle for their decisions, considered Marjut's personal
situation and living conditions, the applicant's conduct in obtaining
her legitimation and thereby his right to custody and - as decisive
elements - the events on and after 15 January 1992, especially his
behaviour towards Marjut's mother in the presence of Marjut as well as
the taking away and hiding of Marjut, which had enduring adverse
effects on the child's well-being. In their decisions, the courts
relied on the statements of both parents as well as of Marjut, and also
on the findings of a psychiatric expert opinion. Moreover, the courts
carefully balanced the conflicting interests involved and, in
particular the Court of Appeal and the Federal Constitutional Court
considered in detail whether the withdrawal of the applicant's right
to custody and the provisional suspension of his right of access
amounted to a breach of his right to respect of his family life, as
guaranteed by the Basic Law.
Against this background, the Commission finds that the reasons
for the impugned decisions were both relevant and sufficient.
Moreover, having regard to the child's personal situation, there is no
indication of any disproportion between the decisions taken and the
legitimate aim pursued. As regards the applicant's right of access,
the Commission further observes that both the Regional Court and the
Court of Appeal not only stressed the provisional nature of the
suspension, but also drew both parents' attention to the necessity to
render future contacts between the applicant and Marjut possible.
Finally, as to the procedural requirements implicit in Article 8
(Art. 8) (cf. Eur. Court HR, Olsson v. Sweden judgment of 24 March
1988, Series A no. 130, p. 33, para. 71), the Commission finds that the
applicant, assisted by counsel, was involved in the decision-making
process, seen as a whole, to a degree sufficient to provide him with
the requisite protection of his interests. Thus, both parents as well
as the child concerned were heard by the courts in the custody
proceedings and also by the psychiatric expert who prepared an opinion
for the purposes of advising the courts in their assessment of the
relevant facts.
In these circumstances, the German authorities did not exceed
their margin of appreciation when deciding to withdraw the applicant's
right to custody of Marjut and to transfer it to her mother. Likewise,
the provisional suspension of his right of access until termination of
an expert opinion on the issue and the decision in the main proceedings
regarding his right of access cannot be objected to. Consequently,
there is no appearance of a breach of Article 8 (Art. 8).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains that the impugned decisions amount
to discrimination. He invokes Article 5 of Protocol No. 7 (P7-5).
The Commission observes that Protocol No. 7 has not been ratified
by the Federal Republic of Germany.
The Commission has examined the applicant's allegation of sexual
discrimination under Article 14, in conjunction with Article 8
(Art. 14+8), of the Convention.
The Commission, referring to its above findings under Article 8
(Art. 8) of the Convention, considers that the impugned court decisions
were based on a careful examination of the particular circumstances of
the instant case. There is nothing in the case-file to disclose any
difference of treatment on the ground of sex or of any other status.
It follows that this part of the application is likewise
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2).
3. As regards the applicant's complaints under Article 6 of the
Convention about the alleged unfairness of the custody proceedings, the
Commission refers to its above reasoning regarding the procedural
requirements implicit in Article 8 (Art. 8).
It is true that the applicant also complains that, in the custody
proceedings, the courts did not hear a particular witness who should
have made statements as to the good relations between him and Marjut
as well as Marjut's personal situation and development in general.
However, the Commission notes the findings of the Stuttgart Court of
Appeal that, as it placed less emphasis on the manner in which the
applicant had obtained his right to custody than on his subsequent
conduct with a view to separating Marjut from her usual surroundings,
the events in connection with the decision on legitimation were
irrelevant and the taking of further evidence in this respect was not
necessary. Moreover, the Commission notes that Marjut was heard
personally in the court proceedings and a psychiatric expert opinion
was prepared on the relevant question as to what effects the
applicant's conduct had had upon Marjut. In these circumstances, the
applicant has failed to show the relevance of the evidence which could
have been obtained by hearing the witness suggested by him.
Accordingly, the Commission finds no indication that the court
proceedings were unfair contrary to the requirements of Article 6
para. 1 (Art. 6-1).
This part of the application is, therefore, also manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy