FIFTH SECTION
DECISION
Application no. 6068/09
Detlef FÜRSTE
against Germany
The European Court of Human Rights (Fifth Section), sitting on 1 October 2013 as a Committee composed of:
Boštjan M. Zupančič, President,
Angelika Nußberger,
Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 22 January 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Detlef Fürste, is a German national, who was born in 1965 and lives in Bad Oeynhausen. He was represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld.
A. The circumstances of the case
1. Domestic proceedings before this application was lodged
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is the father of a son born out of wedlock in 1998. The applicant and the mother of the child had separated in 1997. The son lived in Löhne with his mother who held sole custody rights, and the applicant had regular access to the child. The applicant’s attempts to obtain the mother’s consent for joint custody failed.
4. In 2008 the applicant lodged an action before the Bad Oeynhausen District Court (Amtsgericht Bad Oeynhausen) in order to prevent the child’s relocation to Kiel. He requested the court in particular to transfer custody rights from the mother to him. He argued that the child’s well-being was endangered by the mother’s psychological problems and her alcoholism. She allegedly had also neglected the child.
5. The Bad Oeynhausen District Court heard the applicant, the child’s mother, the child, the Youth Office and the child’s curator ad litem. On 30 June 2008 it dismissed the applicant’s action. It found that the child’s well-being was not endangered and that the applicant’s concerns were unfounded. It underlined that there was under German law no legal basis to grant the applicant sole custody rights if the child’s mother did not agree.
6. The applicant appealed to the competent court of appeal and lodged a first constitutional complaint directly against the decision of the district court.
7. On 20 November 2008 the Hamm Court of Appeal (Oberlandesgericht Hamm) rejected the appeal as inadmissible as the applicant had no legal standing.
2. Proceedings before the Federal Constitutional Court and subsequent developments
8. On 31 December 2008 the applicant lodged a further constitutional complaint against the domestic courts decisions.
9. On 21 July 2010 the Federal Constitutional Court, deciding on the applicant’s complaint, declared Article 1626a § 1 No. 1 and § 1672 § 1 of the Civil Code unconstitutional. Citing Zaunegger v. Germany, no. 22028/04, 3 December 2009, the Federal Constitutional Court found that the applicant’s rights as a biological father had been violated by the family courts. It remitted the case for new adjudication to the Bad Oeynhausen District Court, but held that the applicant should be reimbursed his necessary costs and expenses.
10. On 21 October 2010 the Bad Oeynhausen District Court transferred custody to the applicant with the consent of the child’s mother. It further adjudicated that no order would be made for legal costs.
11. On 16 February 2011 the applicant’s representative informed the Court that the applicant wanted to withdraw the application as the question at issue had been resolved. He claims under Rule 43 § 4 of the Rules of Court reimbursement of costs and expenses incurred by the proceedings before the Court of 4,472.95 Euros (EUR).
B. Relevant domestic law and practice
12. For a description of the relevant domestic law and practise before the leading judgment of the Federal Constitutional Court of 21 July 2010 in this case, see Zaunegger v. Germany, no. 22028/04, §§ 13 et seq, 3 December 2009.
COMPLAINTS
13. The applicant initially complained under Article 8 taken alone and read in conjunction with Article 14 of the Convention that the decisions of the Bad Oeynhausen District Court and the Hamm Court of Appeal had infringed his right to respect for his family life. In the light of the Federal Constitutional Court’s decision of 21 July 2010, he now wishes to withdraw the application.
14. In addition the applicant claims reimbursement of costs and expenses to a total amount of 4,472.95 Euros (EUR) under Article 41 of the Convention incurred by the proceedings before the Bad Oeynhausen District Court, the Hamm Court of Appeal and this Court. Referring to the cases of Zaunegger, cited above, and Sude v. Germany, (striking out.) no. 38102/04, 7 December 2010, he states that his application was admissible when he introduced it, as the constitutional complaint had not been an effective remedy in comparable cases and he could not know that the constitutional complaint he had lodged nevertheless would become successful.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 8 AND 14 OF THE CONVENTION
15. The Court notes that the applicant wishes to withdraw his complaints as he accepts that the matter has now been resolved. The circumstances therefore lead to the conclusion that the applicant does not intend to pursue his application and that the matter has been resolved (Article 37 § 1 (a) and (b) of the Convention). In addition, there is no reason pertaining to respect for human rights as defined in the Convention or its Protocols that requires it to continue the examination of the application (Article 37 § 1 (c) in fine of the Convention).
16. Accordingly, the case should be struck out of the list.
II. APPLICATION OF RULE 43 § 4 OF THE RULES OF COURT
17. Rule 43 § 4 of the Rules of Court provides:
“When an application has been struck out, the costs shall be at the discretion of the Court. ...”
18. The applicant seeks reimbursement of costs and expenses incurred in attempting to forestall the alleged violations of the Convention in the proceedings before the family courts and before the Court to a total amount of 4,472.95 EUR.
19. The Court reiterates that when making an award under Rule 43 § 4 the general principles governing reimbursement of costs are essentially the same as under Article 41 of the Convention (see Pisano v. Italy (striking out) [GC], no. 36732/97, §§ 53-54, 24 October 2002, Voorhuis v. the Netherlands (dec.), no. 28692/06, 3 March 2009 and Youssef v. the Netherlands (dec.) no. 11936/08, 27 September 2011). In other words, in order to be reimbursed, the costs must relate to the alleged violation, have been actually and necessarily incurred and be reasonable as to quantum.
20. The Court takes note that the Federal Constitutional Court had explicitly ordered the compensation of the applicant’s necessary costs and expenses without limiting the reimbursement to the costs of proceedings before the respective court. Furthermore, the applicant has not demonstrated that this reimbursement of costs had been insufficient. Therefore, the Court perceives no cause to make an additional award in this respect.
21. As to the costs incurred by the applicant in making his application to the Court, the Court notes that when he introduced his case with the Court, the case of Zaunegger, a case that concerned a biological father in a comparable situation to the applicant, had already been declared admissible (see Zaunegger v. Germany, (dec.), no. 22028/04, 1 April 2008). Nothing in that decision suggests that a constitutional complaint was not a remedy to be exhausted for the purposes of Article 35 §1 of the Convention. The applicant’s application to the Court was therefore parallel to the proceedings before the Federal Constitutional Court which he was also bringing and it was inevitable that the Court would await the outcome of the domestic proceedings before processing the applicant’s application. These circumstances do not call for an exercise of the Court’s discretion to make an award of costs under Rule 43 § 4.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Stephen PhillipsBoštjan M. Zupančič
Deputy RegistrarPresident
Full & Egal Universal Law Academy