Communicated on 4 November 2014
FIFTH SECTION
Application no. 78306/12
Luca CIRILLO against Germany
lodged on 6 December 2012
STATEMENT OF FACTS
1. The applicant, Mr Luca Cirillo, is an Italian national, who was born in 1966 and lives in Brianza. He is represented before the Court by Ms S. Schmidt-Bandelow, a lawyer practising in Berlin.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
3. The applicant and Ms M. K. married in 1995 and subsequently lived in Italy. Their two sons were born in 1996 and 1998.
4. In October 2000 the couple split. The children stayed with the mother.
5. On 30 May 2002 the Monza Court in Italy granted the applicant access rights every second week-end from Friday 6 p.m. to Sunday 7 p.m. and twenty-five days of vacation with his children. The last contact of the applicant with his children took place in October 2002. In the end of 2002 the mother left Italy for Berlin, where she since resides.
6. On 19 February 2003 the applicant lodged a request with the Pankow‑Weissensee District Court to order the child’s return to Italy under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention). On 2 February 2004 the psychological expert Dr W. submitted an expert opinion, stating that the children’s statements on the alleged sexual abuse were not credible. On 1 April 2004 the District Court rejected the applicant’s request under the Hague Convention on the grounds that their forced return would jeopardise the children’s welfare.
2. Contact proceedings
7. On 18 January 2003 the mother filed a request to the Kreuzberg‑Zehlendorf District Court (“the District Court”) to suspend the applicant’s access rights. She alleged that she had been informed that the applicant had sexually abused the children. The District Court commissioned an expert to examine the plausibility of these allegations.
8. On 29 October 2004 the District Court held a hearing.
9. On 10 November 2004 the District Court issued an interim decision providing supervised contacts in order to re-institute contacts with the children, expressly stating that this decision altered the previous contact decision of the Monza Court.
10. In March 2005 the Zehlendorf Youth Office refused to supervise the contacts in view of several pending court proceedings.
11. On 31 August 2005 the District Court held a hearing.
12. On 9 September 2005 the District Court, following recommendations given by the children’s curator ad litem, provisionally suspended the applicant’s access rights in view of the “enormous tensions” between the parents, which put a heavy strain on the children.
13. On 12 September 2005 the District Court commissioned an expert opinion on both parents’ ability to raise the children, without setting a time‑limit.
14. In January 2006 the applicant’s counsel informed the court that the expert had not yet made appointments with the parties. Following this the judge asked the expert speedily to terminate the examination.
15. In April 2006 the mother moved with the children to Iran.
16. On 20 July 2006 the District Court ordered the expert to submit his report by 11 August 2006.
17. On 2 August 2006 the expert W. submitted his expert opinion. Having examined parents and children, the expert considered that both parents were in principle able to raise the children. The expert further concluded that both children suffered from a serious conflict of loyalty caused by their parents’ chronical conflicts. Both children were currently in a stable, but fragile psychological state that necessitated long-term therapeutic treatment allowing them to come to terms with their father. The expert considered that the children’s current refusal to see their father should be taken into account and that the father should only make use of contact rights once the children were ready for this.
18. On 20 July 2006 the District Court informed the children’s mother’s attorney that it intended to grant the applicant sole custody if the mother did not return with the children within two weeks to Germany. Subsequently the mother returned with the children. On 13 October 2006 the District Court issued an interim injunction prohibiting the children’s removal from Germany.
19. On 2 July 2007 and on 1 September 2007 the mother challenged the judge for bias. Both challenges where dismissed.
20. On 12 September 2007 the District Court cancelled the hearing scheduled for 19 October 2007, because the decisions on the challenges for bias were not yet final.
21. On 20 February 2008 the District Court held - after having heard the children separately - a hearing and decided to commission a further expert opinion on the mother’s ability to raise the children in view of her insistent refusal to allow the applicant contact and ordered the expert to submit his opinion by 30 April 2008.
22. On 27 January 2009 the District Court withdrew the commission of the expert on the ground that the expert did not react to the court’s requests to submit the opinion.
23. On 29 April 2009 the Court of Appeal rejected the mother’s complaint against this as being inadmissible.
24. On 25 May 2009 the District Court commissioned the new expert S.
25. On 12 July 2009 the expert S., having examined the parents and the children, submitted his opinion. Both children appeared to be well developed. The expert considered that the children’s refusal to see the applicant had been caused by the mother who had alienated the children from the applicant (“parental alienation syndrome”, “PAS”). This was fuelled by the mother’s conviction that the children had been sexually abused by the applicant. There was, however, no objective indication of such an abuse. The expert concluded that the children’s refusal to see their father had to be respected in the interest of the children’s welfare and that it should not be attempted to change the children’s attitude towards their father by taking pedagogical or psychotherapeutic measures in order not to destabilise them. It should rather be left to the mother’s discretion to seek psychological help in order to change her own stance on the alleged abuse.
26. On 23 September 2009 the District Court held a hearing during which both children were heard in the presence of their curator ad litem.
27. By decision of 1 December 2009 the District Court charged an access custodian with the task of preparing the children for contacts with their father, if needs be by employing therapeutic means. The District Court noted that the mother had prevented contacts since 2002. The children’s refusal to see the applicant showed paranoid tendencies and was based on the alleged abuse. However, there was no indication that such an abuse had taken place. The District Court observed that the expert S. had suggested that contacts should be suspended. However, the District Court, following the curator ad litem’s opinion, considered that the children’s negative father image could jeopardise their future development. It was essential to allow the children to revise this negative image. The court further considered that forced contacts would currently jeopardise the children’s welfare.
28. On 23 December 2009 the applicant lodged a complaint with the Berlin Court of Appeal (Kammergericht).
29. By interim order of 10 May 2010 the Berlin Court of Appeal suspended the execution of the District Court’s decision. The Court of Appeal observed that the District Court could only appoint an access custodian with the task of facilitating contacts if it issued at the same time a decision on access. The custodian did not have the right generally to instigate therapeutic measures.
30. On 5 July 2010 the Court of Appeal informed the applicant’s counsel that it was necessary to hear the parties and the children before reaching a decision on access. The court’s time-schedule did not allow for a hearing date before the month of October.
31. On 13 August 2010 the Court of Appeal informed the applicant’s counsel that the state of affairs did not allow for the granting of contact rights by interim measure. It pointed out that the children, aged 12 and 14, had not had any contact with their father since 2002 and that they refused to see him. The expert heard by the first instance court did not recommend therapeutic measures, but declared that he would re-consider them depending on the children’s developments during their puberty.
32. On 26 October 2010 the Court of Appeal heard the children.
33. On 29 October 2010 the Court of Appeal heard the parents and the expert S., who stated that he did not see any possibility to allow for contacts and that a suspension of two years might be useful. The curator ad litem agreed.
34. By decision of 29 October 2010 the Court of Appeal quashed the District Court’s decision of 2009 and suspended the applicant’s contact rights for two years. The Court of Appeal observed that the children constantly refused to see the applicant. This wish had to be respected in the children’s best interest. There was currently no need for psychotherapy, as the children did not suffer. Their only wish was that the court proceedings ended and that they would “have their peace”. As the expert S. had confirmed during the court hearing, there was a risk that therapy would destabilise the children. The curator ad litem shared this opinion. She considered that the children would break down if confronted with a new reality. This assessment was confirmed by the personal impression the Court of Appeal had gained during the hearing. It became apparent that the whole proceedings put a considerable strain on the children. The Court of Appeal further decided that the applicant remained entitled to write letters to his children and that the mother had to inform him about the children’s personal development.
35. On 3 January 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court.
36. On 29 May 2012 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons.
B. Relevant domestic law
37. Section 1684 of the German Civil Code provides:
Contact of the child with its parents
“(1) The child has the right to contact with each parent; each parent has a duty and a right of contact with the child.
(2) The parents must refrain from everything that renders more difficult the relationship of the child to the other parent or the upbringing. Similar provisions apply if the child is in the charge of another person.
(3) The family court may decide on the scope of the right of contact and make more detailed provisions on its exercise, including provisions affecting third parties. It may enjoin the parties by orders to fulfil the duty defined in subsection (2). If the obligation in accordance with subsection (2) is considerably violated permanently or repeatedly, the family court may also order custodianship for the implementation of access (access custodianship). Access custodianship includes the right to demand surrender of the child to implement access and to determine where the child is to be for the duration of access. The order is to be time-limited ...
(4) The family court may restrict or exclude the right of contact or the enforcement of earlier decisions on the right of contact, to the extent that this is necessary for the best interests of the child. A decision that restricts the right of contact or its enforcement for a long period or permanently may only be made if otherwise the best interests of the child would be endangered. The family court may in particular order that contact may take place only if a third party who is prepared to cooperate is present ...”
38. Section 155 of the Act on Procedure in Family Matters (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit) reads as follows:
“(1) Parent and child matters referring to the child’s place of abode, access rights or the surrender of the child, as well as proceedings based on a threat to the child’s welfare must be conducted as a matter of priority and expediently.
(2) In proceedings pursuant to subsection (1) the court shall discuss the case with the parties at a hearing. The hearing shall take place at the latest one month after the proceedings have been instituted. The court shall hear the Youth Office during this hearing. This hearing may only be postponed for compelling reasons. Proof of the reasons for the need for postponement must be furnished when the request for postponement is made.
(3) ...”
39. Section 89 provides as follows:
Administrative fines (Ordnungsmittel)
“(1) In case of non-compliance with an enforcement order for the surrender of persons and for the regulation of access, the court may impose an administrative fine (Ordnungsgeld) on the obligated party and in the event that the administrative fine cannot be collected it may order arrest for disobedience to court orders (Ordnungshaft). Where the imposition of an administrative fine lacks prospect of success, the court may order arrest. The order is taken by court decision.
(2) The decision ordering the surrender of a person or the regulation of contacts shall indicate the consequences of any non-compliance with the enforcement order.
(3) The amount of an individual administrative fine shall not exceed 25,000 euros...
(4) No administrative measure shall be imposed if the obligated person submits reasons establishing that he cannot be held liable for the non-compliance...”
40. According to section 90 of that same law, decisions on contact rights shall not be executed by use of direct force against a child.
41. The Act on Protracted Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren, henceforth: the Remedy Act) entered into force on 3 December 2011. According to section 198, paragraph 1, of the Courts Constitution Act as amended by the Remedy Act, a party to proceedings who suffers a disadvantage from protracted proceedings is entitled to adequate monetary compensation. A prior objection to delay (Verzögerungsrüge), which has to be raised before the court whose proceedings are allegedly unduly delayed, is a prerequisite for a subsequent compensation claim. According to its Article 23 the Remedy Act applies to pending as well as to terminated proceedings whose duration may still become or has already become the subject of a complaint with this Court. In pending proceedings the objection to delay should be raised without delay, when the Remedy Act entered into force. In these cases the objection preserved a subsequent compensation claim even retroactively. For further details compare Taron v. Germany (dec.), no. 53126/07, §§ 29-26, 29 May 2012).
COMPLAINTS
42. The applicant complains under Articles 8 and 6 of the Convention about the domestic courts’ failure to implement his contact rights and about the excessive length of the proceedings on contact rights. Under Article 6 of the Convention the applicant further complains about a violation of his right to a fair trial, because German courts failed to implement the decision on contact rights issued by the Italian Monza court on 30 May 2002.
QUESTIONS TO THE PARTIES
1. In the light of the Court’s judgment in the Bergmann case (Bergmann v. the Czech Republic, no. 8857/08, §§ 45-46, 27 October 2011), did the applicant exhaust domestic remedies with respect to his complaint against the excessive length of the proceedings on contact rights?
2. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention?
In particular, did the Tempelhof-Kreutzberg District Court process the applicant’s request for contact rights with special diligence?
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