FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 23556/08
by Gerda LAMBERTZ
against Germany
The European Court of Human Rights (Fifth Section), sitting on 4 October 2011 as a Committee composed of:
Mark Villiger, President,
Isabelle Berro-Lefèvre,
Ann Power-Forde, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 22 May 2008,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Gerda Lambertz, is a German national who was born in 1946 and lives in Brussels.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The background of the application is a conflict of the applicant with her brother concerning access to their father. In the course of this conflict, the applicant’s brother inter alia in January 2000 denied her access to the father’s house and allegedly assaulted her. Subsequent preliminary investigations were discontinued by the Mönchengladbach Public Prosecutor’s Office in May 2000.
On 14 July 2000 the applicant requested the appointment of a custodian for her father. On 14 September 2000 the applicant’s father, born in 1917, gave the applicant’s brother a general power of attorney drawn up before a notary. According to this power of attorney the applicant’s brother was empowered to define the father’s place of residence and social contacts. On 10 January 2001 the Grevenbroich District Court refused to appoint a custodian. The applicant’s appeals were unsuccessful.
On 11 October 2002, mainly in order to have access to her father, the applicant requested the appointment of a custodian according to section 1896 § 3 of the German Civil Code (Bürgerliches Gesetzbuch – see Relevant domestic law, below).
On 14 March 2003 the Grevenbroich District Court rejected the applicant’s action. Beforehand, the custodianship office had heard the applicant’s father and on 10 January 2003 issued a report. The District Court had also heard the applicant’s father. In its reasoning the District Court held that the appointment of a custodian was not necessary. The applicant’s father was fully oriented, able to express his own will and had to be regarded as being of full legal capacity. Moreover, he had not only explicitly stated that he wanted to uphold the power of attorney but also given comprehensible reasons why he did not want any contacts with his daughter. The District Court underlined that even if a custodian was appointed, the latter would have to respect that explicit will of the applicant’s father.
On 24 September 2003 the Mönchengladbach Regional Court dismissed the applicant’s appeal. It confirmed the District Court’s reasoning and pointed out that it was not necessary to obtain an expert opinion as it was obvious from the District Court’s and the custodianship office’s reports of the hearing of the applicant’s father that he was not suffering from a disease affecting his ability to take care of his affairs. In this connection, the District Court stressed that obtaining an expert opinion, in particular the necessary examinations, would considerably interfere with the applicant’s father’s personality rights. Finally, it held that it had already been found in previous proceedings that the given power of attorney was in accordance with the law. On 10 November 2003 the applicant appealed against the decision.
On 17 February 2005 the Düsseldorf Court of Appeal dismissed the applicant’s further appeal on the merits. It mainly confirmed the previous decisions and underlined again that against the background of their findings the District Court and the Regional Court had not been under an obligation to obtain an expert opinion on the applicant’s father’s state of health.
On 14 April 2005 the applicant lodged a constitutional complaint. Several months later the applicant’s father died.
On 18 April 2008 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication without giving any further reasons.
B. Relevant domestic law
Section 1896 § 1 of the German Civil Code (Bürgerliches Gesetzbuch) in force at the relevant time stipulates that if a person of full age, by reason of a mental illness or a physical, mental or psychological handicap, cannot in whole or in part take care of his affairs, the custodianship court, on his application or of its own motion, appoints a custodian for him. According to § 3 the assertion of rights of the person under custodianship vis-à-vis the person authorised by him may also be defined as a group of tasks of the custodian.
COMPLAINTS
The applicant complained under Article 6 of the Convention about the conduct and outcome of the custodianship proceedings, in particular about a violation of her right to be heard as she was not heard in the proceedings and as the domestic courts allegedly based their decisions solely on the report of the custodianship office and the submissions of her brother. She alleged different procedural deficiencies such as the facts that no expert opinion had been obtained on her father’s state of health, that she had not been confronted with her father in the proceedings, that a certain witness had not been heard and that the domestic courts had failed to take into account the case-law of the Court. Furthermore, she claimed that there had been clear indications of a manipulation of her father’s will, that the latter had in fact shown an interest in contacts with her and that the real reasons for his apparent will had not been investigated, that the domestic courts had not taken into account any alternative measures, that there had not been sufficient grounds to restrict the access to her father and that the decisions therefore were disproportionate. The applicant also complained under Article 6 § 3 of the Convention that she was not informed about all the submissions of her brother and was thus unable to defend herself appropriately.
The applicant complained under Article 8 that the domestic courts had denied her access to her father and thus eliminated any contacts between them. She argued that the possibility to exclude access by way of a power of attorney violated her rights under Articles 6 and 8 of the Convention.
The applicant complained under Article 13 of the Convention about the length of the proceedings, namely that despite her father’s old age and his bad state of health it took the Düsseldorf Court of Appeal seventeen months to decide on her appeal and the Federal Constitutional Court three years to decide the constitutional complaint. She pointed out that this prevented her from lodging her application regarding access to her father earlier.
Finally, the applicant complained under Article 14 of the Convention about the conduct and outcome of the preliminary investigations of the Mönchengladbach Public Prosecutor’s Office.
THE LAW
1. The applicant complained under Article 13 of the Convention about the length of the proceedings before the Düsseldorf Court of Appeal and the Federal Constitutional Court. Being the master of the characterisation to be given in law to the facts of the case (see Mullai and Others v. Albania, no. 9074/07, § 73, 23 March 2010), the Court considers that the applicant’s complaint firstly falls to be examined under Article 6 of the Convention, the relevant part of which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court notes at the outset that, in accordance with its established case-law, proceedings can come within the scope of Article 6 § 1 of the Convention even if they take place before a Constitutional Court where, as in the present case, their result is capable of affecting the outcome of the proceedings before the ordinary courts (see, among others, Voggenreiter v. Germany, no. 47169/99, §§ 31-32, ECHR 2004‑I (extracts)). Having regard to the special nature of custodianship proceedings, the question arises whether the proceedings at issue concern the determination of the applicant’s “civil rights” within the meaning of Article 6 § 1. The Court, however, does not find it necessary to rule on this issue since this complaint is in any event inadmissible for the following reasons.
The Court finds that the applicant must be considered as complaining exclusively about the length of the proceedings before the Düsseldorf Court of Appeal and before the Federal Constitutional Court. As regards the former, the period to be examined began on 10 November 2003, when the applicant lodged her appeal, and ended on 17 February 2005, when the Court of Appeal took its decision; it thus lasted slightly more than one year and three months. As regards the latter, that period began on 14 April 2005 and ended on 18 April 2008; it thus lasted slightly more than three years.
The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
In the present case, the Court finds that the length of the proceedings did not exceed the “reasonable time” requirement of Article 6 § 1 of the Convention. The Court is aware that the proceedings at least indirectly concerned the applicant’s contacts with her father being of old age and in a bad state of health and thus were involving an issue of importance for her. However, it clearly follows from the findings of the domestic courts that it was the applicant’s father’s explicit will not to pursue contacts with her and to entrust his son with all decisions in this respect. Hence, the proceedings at stake could not have helped the applicant to obtain access to her father, notably because, as the District Court pointed out, a custodian likewise would have had to respect the applicant’s father’s will. The instance courts, including the Court of Appeal, also dealt with the case without undue delay, namely within some more than two years and four months for three instances. As regards the length of slightly more than three years before the Federal Constitutional Court, it cannot be ignored that its role as guardian of the Constitution makes it particularly necessary for a Constitutional Court sometimes to take into account other considerations than the mere chronological order in which cases are entered on the list, such as the nature of a case and its importance in political and social terms (see Süßmann, cited above, § 56; Gast and Popp, no. 29357/95, § 75; Stephan and Röhrig v. Germany (dec.), no. 3237/06, 12 April 2011 and, most recently, Auerswald v. Germany (dec.), no. 24098/09, 6 September 2011). Against this background, the Court finds that the length of the proceedings before the Federal Constitutional Court in the present circumstances cannot yet be considered as being excessive. The applicants’ complaint therefore is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. The applicant further complained about the length of proceedings under Article 13 of the Convention, which reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court notes that it is doubtful whether the applicant may be regarded as complaining about the lack of an effective remedy in the sense of Article 13 of the Convention and not just about the length of the proceedings. However, the question can be left open, since the complaint is in any event inadmissible for the following reasons.
The Court reiterates that Article 13 is applicable even in the absence of an infringement of the applicant’s Convention rights. However, it applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see, amongst others, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). The Court has found above that the applicants’ complaint under Article 6 § 1 about the length of the proceedings is manifestly ill-founded. The applicant therefore did not have an “arguable claim” for the purposes of Article 13 (see, for example, Samadi v. Germany (dec.), no. 22367/04, 12 February 2008; and Ellersiek v. Germany (dec.), no. 77151/01, 23 June 2005).
It follows that this complaint is likewise manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
3. The applicants further raised the above-mentioned complaints under Articles 6, 8 and 14 of the Convention (see Complaints, above).
In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. If follows that it is also inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsMark Villiger
Deputy RegistrarPresident
Full & Egal Universal Law Academy