FIFTH SECTION
DECISION
Application no. 13415/06
by Glenn GEBHARD
against Germany
The European Court of Human Rights (Fifth Section), sitting on 13 May 2008 as a Chamber composed of:
Peer Lorenzen, President,
Karel Jungwiert,
Volodymyr Butkevych,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 6 April 2006,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Glenn Gebhard, is an American national who was born in 1950 and lives in Northridge in California. He was represented before the Court by Mrs K. Niethammer-Jürgens, a lawyer practising in Potsdam.
The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the father of twins born on 30 September 1992 in the United States of America to the applicant and his former wife. The parents separated one year after the children’s birth.
Since 1994 the children are living with their mother in Germany.
Since November 1994 the mother has persistently obstructed the applicant’s access to his children and refused to comply with court orders concerning access rights.
In January 1995 the applicant filed a request with the Frankfurt/Main District Court (Amtsgericht) to be granted access rights.
By court orders of 9 January 1996 and 23 January 1997 the applicant was granted access rights, which were not exercised because of the mother’s resistance.
On 14 November 2000 the Frankfurt Court of Appeal (Landgericht),
by interim order, partially withdrew the mother’s custody rights concerning the applicant’s access rights and transferred them to a lawyer as the children’s curator. The envisaged visiting contacts did not take place because the mother refused to cooperate with the curator.
On 3 September 2002 the Frankfurt Court of Appeal granted the applicant supervised access rights on six weekends. It further transferred custody rights as far as they concerned the father’s access rights to another lawyer as the children’s complementary curator (Ergänzungspfleger).
The envisaged contacts did not take place as the mother refused to hand over the children to the curator, as ordered by the court.
On 31 October 2001 the applicant lodged a request with the Frankfurt District Court to withdraw the mother’s custody rights.
On 18 February 2003 the Frankfurt District Court withdrew custody rights from the mother and transferred them to the Youth Office on the grounds that the mother’s obstructive behaviour as regarded contacts to the applicant jeopardised the children’s welfare.
On 19 March 2004 the Court of Appeal, following expert recommendation, ordered the children’s temporary placement in a therapeutical children’s home in order to prepare contacts with their father and to allow for further examination. During their stay in the children’s home, the applicant visited the twins on eight occasions.
On 19 December 2004 the mother failed to return the children after a visit and went into hiding.
On 28 December 2004 the Court of Appeal withdrew custody rights from the Youth Office and transferred them to a social worker as the children’s curator.
On 11 May 2005 the Court of Appeal, having heard expert opinion, transferred parental authority to the applicant, with the exception of the right to determine the children’s place of residence, which was transferred to the social worker. The Court of Appeal further considered that the social worker and the applicant should agree on access rights.
On 10 October 2005 the Federal Constitutional Court (Bundesverfassungsgericht) refused to admit the applicant’s constitutional complaint.
Since the last-mentioned court decision, the applicant did not have any access to his children.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings from January 1995 to May 2005. He further complained that the family courts failed to make sufficient use of specialised expert advice.
2. The applicant further complained under Article 8 of the Convention about the domestic courts’ failure to enable him to exercise his access rights.
THE LAW
On 7 April 2008 the Court received the following declaration from the Government signed on 1 April 2008:
“I, Mrs Almut Wittling-Vogel, Agent of the Government of the Federal Republic of Germany, declare that the Government of Germany offer to pay ex gratia 25,000 euros to Mr Glenn Gebhard with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
On 31 March 2008 the Court received the following declaration signed by the applicant’s counsel on 28 March 2008:
“I, Mrs Kerstin Niethammer-Jürgens, lawyer, note that the Government of Germany are prepared to pay ex gratia the sum of 25,000 euros to Mr Glenn Gebhard with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against Germany in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 and to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Claudia Westerdiek Peer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy