FIFTH SECTION
DECISION
Application no. 11858/10
Mark KOPPIKAR
against Germany
The European Court of Human Rights (Fifth Section), sitting on 11 December 2012 as a Committee composed of:
André Potocki, President,
Angelika Nußberger,
Aleš Pejchal, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 26 February 2010,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mark Koppikar, is a German national, who was born in 1967 and lives in Kolbermoor. He was represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant assumes that he is the biological father of a girl born in September 2006, with whose mother, Ms S., he had a relationship, which was terminated during Ms S.’s pregnancy.
On 22 February 2007 Mr N., with Ms S.’s consent, acknowledged paternity of the child.
On 3 July 2007 the applicant lodged an action to challenge Mr N.’s paternity and to have his own paternity established. In January 2008 Ms S. and the child moved in with Mr N. On 6 August 2008, Mr N. and Ms S. married.
On 15 January 2009 the Rosenheim District Court, having heard the parties including a curator appointed to represent the child’s interests and relying on expert opinion, rejected the applicant’s request. It noted that it had been proved by expert evidence that the applicant was the child’s biological father. Nevertheless, the applicant was precluded from contesting paternity, because a social and family relationship existed between the child and her legal father, Mr N. The court noted, in particular, that Mr N. had accompanied Ms S. already before she gave birth and had continued to accompany her without interruption until the time of the last court hearing, that is, for more than two years. The expert’s findings confirmed that there was an intensive relationship between Mr N. and the child. Having further regard to the fact that Mr N. and Ms S. had lived together since the beginning of 2008 and married in August 2008, it was to be assumed under section 1600 § 3 (2) of the Civil Code that there existed a social and family relationship between Mr N. and the child. The applicant had not submitted any relevant facts which were capable of rebutting this assumption.
On 26 August 2009 the Munich Court of Appeal rejected the applicant’s appeal. The applicant did not lodge a constitutional complaint as he considered that such a complaint would be devoid of prospect of success.
B. Relevant domestic and comparative law
The relevant domestic and comparative law is summarised in the Court’s judgment in the case of Ahrens v. Germany, no. 45071/09, §§ 22 - 28, 22 March 2012.
COMPLAINTS
The applicant complained under Articles 6 and 8 in conjunction with Article 14 of the Convention about having been excluded from the proceedings on the determination of the child’s paternity and about the domestic courts’ subsequent refusal to allow him to challenge Mr N.’s paternity and to have his own paternity legally established. He further complained about having been denied access to fair proceedings before a court with respect to his paternity claim.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The Court considers that the applicant’s complaint primarily falls to be examined under Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Court reiterates that it has previously found that Article 8 can be interpreted as imposing on the Member States an obligation to examine whether it was in the child’s best interests to allow the biological father to establish a relationship with this child, for example by granting contact rights (see Anayo v. Germany, no. 20578/07, §§ 70-73, 21 December 2010; Schneider v. Germany, no. 17080/07, § 103, 15 September 2011; Ahrens v. Germany, cited above, § 74, 22 March 2012 and Kautzor v. Germany, no. 23338/09, § 76, 22 March 2012).
However, the Court has also found that this does not necessarily imply a duty under the Convention to allow the alleged biological father to challenge the legal father’s status (see Ahrens and Kautzor, both cited above, §§ 74 and 77, respectively). Having regard, in particular, to the lack of a consensus within the Member States and to the wider margin of appreciation to be accorded to the States in matters regarding legal status, the Court considered that the decision whether the alleged biological father should be allowed to challenge paternity under the circumstances of the cases of Ahrens and Kautzor fell within the State’s margin of appreciation (see Ahrens and Kautzor, both cited above, §§ 75 and 78, respectively). The Court considers that the same principles apply in the present case.
Regarding the procedural expediencies under Article 8 of the Convention, the Court observes that the instant proceedings lasted approximately two years and two months for two levels of jurisdiction. Even taking into account what was at stake for the applicant, the Court is satisfied that the domestic courts processed the case with the exceptional diligence due in cases of this kind (compare Ahrens, cited above, § 78 and the case-law cited therein).
It follows from the above consideration that there is no appearance of a violation of Article 8 of the Convention in the present case.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
II. REMAINDER OF THE COMPLAINTS
The applicant also complained about having been denied access to fair proceedings before a court, contrary to Article 6 § 1 of the Convention. Relying on Article 14 in conjunction with Articles 8 and 6 of the Convention, he further complained about having been discriminated against in his capacity as a biological father. However, in the light of all the material in its possession and of its findings in the cases of Ahrens and Kautzor (both cited above, §§ 86-90 and 85-92, respectively,) the Court considers that the applicant’s submissions do not disclose any appearance of a violation of these Convention rights.
It follows that also this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsAndré Potocki
Deputy RegistrarPresident
Full & Egal Universal Law Academy