AS TO THE ADMISSIBILITY OF
Application No. 26283/95
by Göran FRESE
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 26 June 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 2 September 1994
by Göran FRESE against Germany and registered on 24 January 1995 under
file No. 26283/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
FACTS
The applicant, born in 1961, is a German national and resident
at Groß Jehser. He is a parson by profession. In the proceedings
before the Commission, he is represented by Mr. G. Rixe, a lawyer
practising in Bielefeld.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
A. Particular circumstances of the case
In 1992 the applicant's wife instituted divorce proceedings
before the Pasewalk District Court (Amtsgericht), claiming that the
marriage had broken down. She requested the right to custody of the
spouses' twin sons, born in wedlock in 1989. The applicant requested
that the right to custody should be exercised by both parents. In
April 1993, they reached an agreement in court as regards the
applicant's right of access to the children.
On 14 June 1993 the Pasewalk District Court granted the divorce
and transferred the right of custody of the sons to the mother. The
Court, following both the mother's request and a report of the Pasewalk
Youth Office, found that this decision was in the best interests of the
children's well-being.
In its decision, the District Court noted that, as conceded by
the applicant, the children had a close and intensive relationship with
their mother who had taken care of them since their birth, and in
particular, after the separation of the spouses. The applicant had
also agreed with the findings of the Youth Office that the children
were properly taken care of by the mother. There were no doubts as to
the capability of the mother to educate the children and to assist and
support them as regards their speech impediments. As to the
applicant's request, the Court considered that the right to custody
could not be exercised by both parents. The Court observed that the
children had good relations with their father who, having regard to his
personality and profession was in a position to assist the mother in
her efforts to support the children. However, the applicant's wife was
not prepared to share the exercise of the right to custody with the
applicant on account of the conflicting views as to the education of
the children and the applicant's psychological problems following the
spouses' separation. In these circumstances, it could not be expected
that the spouses would take a uniform attitude towards the children.
In these and the following proceedings, the applicant was
represented by counsel.
On 8 July 1993 the applicant lodged an appeal against the custody
decision with the Rostock Court of Appeal (Oberlandesgericht). He
submitted that he wished actively to further the children's
development, in particular as regards their speech impediments and that
there were only few problems regarding the spouses' views on the
children's education. Moreover, he had overcome his problems following
their separation.
On 14 July 1993 the applicant's former wife commented on the
applicant's appeal. She repeated her refusal regarding a joint
exercise of the right to custody and claimed that the conflicting views
on the children's education persisted. Moreover, referring to the
applicant's correspondence with her and his conduct in the course of
the hearing at first instance, she claimed that the applicant continued
to be psychologically unstable.
On 29 September 1993 the Rostock Court of Appeal dismissed the
applicant's request for free legal aid for the purposes of the appeal
proceedings. His former wife was granted legal aid. In its decision,
the Court of Appeal found that the applicant's appeal offered no
prospects of success. The Court confirmed the findings of the District
Court that, taking the mother's refusal into account, the right of
custody could not be exercised by both parents following their divorce.
It referred, in this respect, to the relevant case-law of the Federal
Constitutional Court according to which such a decision required an
agreement between the parents on the joint exercise of the right of
custody. Having regard to the statements of the parents at the hearing
at first instance as well as the former wife's submissions to the Court
of Appeal (Vorbringen in der Beschwerdeinstanz), her doubts as to the
applicant's capability to cooperate with regard to the children's
education were obvious.
By letter of 30 September 1993 the applicant's counsel was
requested to indicate whether the applicant wished to pursue his
appeal. On 4 November 1993 his counsel informed the Court that he
upheld his appeal and that he intended to amend his submissions. In
reply, the Court of Appeal informed him that it was envisaged to decide
upon the appeal without hearing the parties again.
On 21 December 1993 the Rostock Court of Appeal dismissed the
applicant's appeal against the judgment of the District Court
concerning the right to custody. The Court concurred with the District
Court in finding that the transfer of the right to custody to the
mother was in the interest of the children's well-being and thus
complied with S. 1671 paras. 1 and 2 of the German Civil Code
(Bürgerliches Gesetzbuch).
The Court of Appeal noted the findings of the District Court and
the parties' arguments. The Court considered in particular that both
parties agreed that they were capable of educating the children, and
in a position to take care of them. In the course of the hearing at
first instance, the applicant had stated that the marriage had broken
down due to the conflicting opinions on the education of their children
which had resulted in his having psychological problems. The agent of
the Pasewalk Youth Office had raised doubts as to a joint right of
custody on the grounds of the divisions between the parents and the
impression that they had not yet overcome all consequences of the
divorce proceedings. Moreover, at that hearing, the parties had agreed
that their children should, as a rule, stay with their mother.
In these circumstances, the Court of Appeal, taking into account
the mother's refusal, confirmed the District Court's decision to refuse
a joint right of custody. The Court of Appeal, referring to the case-
law of the Constitutional Court, found that parents could only educate
their children together if they were willing to cooperate in this
respect. Such cooperation could not be enforced by any state measures.
However, the applicant himself had conceded conflicting views on the
education of the children, and the mother's comments on his appeal,
whether or not her apprehensions regarding the applicant were correct,
showed that she was not prepared to exercise a joint right to custody.
On 19 March 1985 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde).
The Constitutional Court considered that the applicant's
complaint did not raise any issue of fundamental importance, in
particular as regards the refusal of a joint right to custody. In this
respect the Constitutional Court found that the Courts concerned had
taken the particular circumstances of the case into account, in
particular the District Court's opinion that on account of the parents'
controversial opinions on the education of their children no joint
right to custody could be granted.
Furthermore, the Constitutional Court found that the court
decisions that the conditions for granting a joint right of custody
were not met in the instant case did not disregard the parental rights.
To the extent that the applicant's submissions related to the
proceedings before the Court of Appeal, the Constitutional Court
declared his complaints inadmissible for non-exhaustion of the remedies
in the proceedings concerned. Thus the Court of Appeal's decision on
the question of legal aid indicated that the applicant's former wife
had filed submissions in reply to his appeal and informed him on the
prospects of success of the appeal. He could have, therefore,
requested the Court of Appeal to serve the submissions concerned upon
him and he could have subsequently filed any further comments.
Moreover, the Court of Appeal had informed him that it did not intend
to hear the parties again. It would have been for the applicant to
amend his appeal reasoning and to argue that the hearing of the parties
was necessary.
This decision was received by the applicant's counsel on
13 March 1994.
B. Relevant domestic law and practice
S. 1671 paras. 1 and 2 of the Civil Code provide as follows:
"(1) In case of the parents' divorce the competent court
(Familiengericht) decides on which parent should have the right
to custody a common child.
(2) The court takes the decision which is in the interest of
the child's well-being; the child's bonds, especially to its
parents and brothers and sisters, are to be considered."
In a decision of 3 November 1982, the Federal Constitutional
Court declared unconstitutional paragraph 4, first sentence, of
S. 1671, according to which the right to custody had to be transferred
to one of the parents in case of divorce. The Constitutional Court
considered that a joint right to custody was possible in case of
divorce if there is a common proposal by the parents to this effect,
showing their willingness to share the responsibility for their child
after their divorce.
COMPLAINTS
1. The applicant complains, in his own name and also on behalf of
his sons, that the German court decisions awarding the right of custody
over their sons to his former wife, thereby refusing his request for
a joint right of custody, violated their right to respect for their
family life, as guaranteed by Article 8 para. 1 of the Convention. He
considers that a common proposal by the divorced spouses should not be
a condition for the granting of a joint right of custody after divorce.
He also complains that the courts did not fully establish the relevant
facts necessary for a decision on the right of custody over the
children; in particular, neither court heard the children and the Court
of Appeal did not hear the parties.
2. The applicant complains under Article 14, taken in conjunction
with Article 8, of the Convention that the German courts, in requiring
a common proposal of the parents, discriminate against one of the
divorced spouses.
3. The applicant further complains under Article 6 para. 1 of the
Convention that the custody proceedings were unfair. He submits in
particular that the children were not heard, and that the Court of
Appeal omitted a new hearing of the parties. Moreover, his former
wife's submissions of 14 July 1993 had not been served upon him.
THE LAW
1. The applicant has filed the application in his own as well as in
his sons' name.
In principle only a parent who has the custody over his or her
child is able to introduce an application under Article 25 (Art. 25)
of the Convention on behalf of the child (No. 12246/86, Dec. 13.7.87,
D.R. 53 p. 225). In the present case, the right to custody over the
applicant's sons was awarded to his former wife. However, the
Commission is not required to decide whether or not the applicant is
able to lodge his complaints concerning the German courts' decisions
on the grant of custody, and the court proceedings, also on behalf of
his sons, as the application is anyway inadmissible for the following
reasons.
2. The Commission has first examined the applicant's complaints, in
respect of the court decisions on the right of custody, 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 family life of the parents with
their children does not cease following the divorce of a married couple
(cf. Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A
no. 138, p. 14, para. 21).
The Commission finds that the German courts' decisions awarding
the right of custody over the spouses' children solely to their mother
interfered with the applicant's right to family life under Article 8
para. 1 (Art. 8-1) of the Convention. The Commission's therefore has
to examine whether this interference was justified under the terms of
Article 8 para. 2 (Art. 8-2).
The Commission finds that the German courts' decisions to grant
the custody over the applicant's sons to his former wife were taken in
accordance with S. 1671 paras. 1 and 2 of the German Civil Code in the
light of the case-law of the Federal Constitutional Court. The
applicant's submissions do not show that this legal basis was not
adequately accessible or that it was not formulated with sufficient
clarity. 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 the children
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 H.R., Berrehab
judgment of 21 June 1988, Series A no. 138, p. 15, para. 128; Funke
judgment of 25 February 1993, Series A no. 256-A, p. 24, para. 55).
The Commission observes at the outset that the impugned custody
decisions were taken in the context of the parents' divorce with a view
to determining the best solution for their children's future upbringing
and education.
In the present case, the issue before the German courts was
whether or not the divorced spouses should be granted a joint right of
custody, as requested by the applicant, or, whether, as requested by
his former wife, the right of custody should be transferred to her
alone. The applicant had not requested that he should be granted the
sole right of custody. The Commission notes the findings of the German
courts that the transfer of the right of custody to the mother was in
the best interests of the children concerned. The Courts relied in
particular on reports of the competent Youth Office and on the divorced
spouses' statements. The Commission finds no indication that the
custody decisions were not based on due consideration of the interests
of the children. In particular, their refusal of a joint right of
custody was not merely reasoned by the attitude of the applicant's
former wife, but by the spouses' past differences as to the education
of the children which, according to the applicant's statements in the
proceedings at first instance, had resulted in their separation and
divorce. Against this background, the reasons for the impugned
decisions were both relevant and sufficient.
Moreover, as to the procedural requirements implicit in Article 8
(Art. 8) (cf. Eur. Court H.R., Olsson 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.
As regards his specific complaints about the course of the court
proceedings, the Commission notes that the applicant failed to raise
the issue of whether the children should have been heard before the
domestic courts. Moreover, as regards his complaints that the Court
of Appeal failed to serve a relevant document on him and further failed
to hear the parties, the Commission notes that the Federal
Constitutional Court, in its decision of 7 March 1993, refused to
examine these matters on the ground that the applicant had failed to
have recourse to all procedural remedies. Thus, while, following the
Court of Appeal's decision refusing his request for legal aid, he had
been aware of the existence of submissions in reply to his appeal, he
had not asked for a copy of these submissions. Furthermore, despite
the Court of Appeal's information that it intended to render a decision
without again hearing the parties, he had not insisted upon such a
hearing and submitted relevant reasons therefor. In this situation,
the Commission, in accordance with Article 26 (Art. 26) of the
Convention, is not required to examine these arguments.
In these circumstances the German authorities did not exceed
their margin of appreciation when deciding to transfer the right of
custody over the divorced spouses' sons to their mother. 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 court decisions to grant
the right of custody to his former wife amount to discrimination
contrary to 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 (Art. 6)
of the Convention about the alleged unfairness of the proceedings, the
Commission refers to its above reasoning regarding the procedural
requirements implicit in Article 8 (Art. 8). The Commission finds
that, to the extent that it is required to examine the applicant's
complaints, in accordance with Article 26 (Art. 26), there is nothing
to indicate that the court proceedings were in breach 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.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy