Communicated on 26 May 2015
FIFTH SECTION
Application no. 64931/14
Alfred BAUER
against Germany
lodged on 16 September 2014
STATEMENT OF FACTS
1. The applicant, Mr Alfred Bauer, is a German national who lives in Wöllstein. He is represented before the Court by Mr Tegebauer, a lawyer practising in Trier.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
3. Starting in January 2006 the applicant had a relationship with one of his colleagues at work, (hereafter X) whom he had known for years. X was married to another man. She became pregnant and disclosed this to the applicant. The applicant wanted to assume full responsibility as a father and X considered a divorce.
4. In March 2006 the relationship with the applicant ended and X decided to raise the child with her husband. She told the applicant to remain silent about his fatherhood or she would have to abort the foetus. At the same time she promised the applicant repeatedly that she would keep him informed about the child’s development. The applicant agreed to these conditions, in order to prevent an abortion.
5. In November 2006 X gave birth to a daughter (hereafter “the child”). The applicant repeatedly requested access to the child. In February and April 2007 X and her husband informed the applicant via their lawyer that he would not be granted access to the child. The applicant refrained from taking court action. Instead, he contacted the child’s godmother, told her that he was the child’s biological father and thereafter received information and pictures of the child.
6. In March 2010 X discovered that the applicant was in possession of pictures of the child. She forbade the godmother to pass on more information about the child. In April and May 2010 the applicant watched the child twice when she was picked up from the day care centre. Thereafter X filed for a court order to prohibit the applicant from contacting the child or coming closer than within 200 metres of the child’s home and day care centre. The result of these court proceedings has not been submitted.
7. In January 2011, shortly after the Court rendered its judgment in the case of Anayo v. Germany (no. 20578/07, 21 December 2010), the applicant again requested access to the child, in writing. This was refused by the legal parents.
2. Proceedings at issue
8. On 7 April 2011 the applicant filed a request to the Dieburg District Court in order to have access to the child on one Saturday per month. He claimed to be the child’s biological father and offered to prove this allegation by an expert’s report, referring to the Court’s judgment in the case of Anayo.
9. The legal parents disputed that the applicant was the child’s biological father. They further claimed that the applicant had abused his position as X’s supervisor to have sexual contact with her.
10. On 13 May 2011 the District Court rejected the applicant’s request. It held that German law ruled out any contact rights. The applicant was neither a (legal) parent according to Section 1684 of the Civil Code nor had he ever lived in a social and family situation with the child, as provided by Section 1685 of the Civil Code. Referring to the case-law of the Federal Constitutional Court it held that this exclusion of the biological father, who was neither the legal father nor had lived in domestic community with the child, was not unconstitutional. It acknowledged that German legislation conflicted with the Anayo judgment but the relevant provisions of domestic law were clear and could not be interpreted otherwise.
11. On 3 August 2011 the Frankfurt Court of Appeal rejected the applicant’s appeal and widely endorsed the District Court’s reasons. It further held that the case was to be distinguished from the case of Anayo mainly because it had not been established that the applicant was the biological father of the child. It was also questionable whether the relationship, which had lasted only two to three months, was “not merely haphazard” (“nicht rein zufällig”).
12. On 30 August 2011 the applicant lodged an objection alleging a violation of the right to be heard (Anhörungsrüge) because, inter alia, no oral hearing had been held. In subsequent submissions he referred to the judgment of the Court in the case of Schneider v. Germany (no. 17080/07, 15 September 2011).
13. On 8 February 2012 the Court of Appeal rejected the objection on the grounds that, under German law, no oral hearing had to be held. Furthermore, the Court of Appeal could not have taken into account in its decision on 3 August 2011 the judgment in the case of Schneider which had been delivered on 15 September 2011.
14. On 14 March 2012 the applicant filed a constitutional complaint with the Federal Constitutional Court relying on Article 6 of the Basic Law and Article 8 of the Convention.
15. On 18 July 2013 the Federal Constitutional Court informed the applicant that an amendment to the Civil Code had come into force on 13 July 2013. According to the new Section 1686a, access rights could be granted also to biological fathers who had not lived in a social and family relationship with the child. The applicant was asked to declare whether, under these circumstances, he wished to proceed with his constitutional complaint.
16. On 14 August 2013 the applicant replied that he had already filed a new request for access before the courts. However, he still claimed a violation of his right to family life as the courts had delayed his possible access to his child for two years.
17. On 3 August 2014 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint (1 BvR 638/12), without providing reasons.
3. Subsequent developments
18. In May 2014, during new access proceedings an expert reported to the District Court that it was 99.99% probable that the applicant was the child’s biological father. No results of the new proceedings have been submitted.
B. Relevant domestic law
19. The domestic law applicable at the relevant time is referred to in Schneider v. Germany (cited above, §§ 29-37).
20. Article 1685a of the Civil Code came into force in July 2013. It reads as follows:
“(1) As long as the paternity of another man exists, the biological father who has demonstrated a serious interest in the child has
1. a right of access to the child if such access is in the best interests of the child, and
2. a right to be provided with information from each parent regarding the personal circumstances of the child where he has a justified interest and this is not inconsistent with the best interests of the child.
(2) Section 1684 § 2 to § 4 applies with the necessary modifications with regard to the right of access to the child in accordance with subsection (1) no. 1. ...”
COMPLAINTS
21. The applicant complains under Article 8 of the Convention that the domestic courts’ decisions to refuse him access to his daughter violated his right to respect for his private and family life.
The applicant further complains under Articles 6 and 13 of the Convention that the proceedings before the Federal Constitutional Court were not concluded in due time and that Section 97a of the Federal Constitutional Court’s Act did not offer an effective remedy in this respect.
QUESTIONs TO THE PARTIES
Has there been an interference with the applicant’s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
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