AS TO THE ADMISSIBILITY OF
Application No. 29760/96
by Kurt LIEBESKIND
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 17 January 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
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 6 December 1995
by Kurt LIEBESKIND against Germany and registered on 8 January 1996
under file No. 29760/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1946, is a German national and resident
in Erfurt. He is an engineer 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 submitted by the applicant, may be
summarised as follows.
In 1990 the divorce of the applicant's marriage was pronounced
by the Erfurt District Court (Bezirksgericht) and the right to custody
over the spouses' daughter Daniela, born in wedlock in November 1978,
was awarded to her mother. No decision was taken as to the applicant's
right to have access to Daniela. On 12 September 1990 the Erfurt Court
of Appeal (Bezirksgericht, now: Oberlandesgericht) dismissed the
applicant's appeal (Berufung).
On 14 March 1991 the applicant, represented by counsel, applied
for a judicial decision on his right of access to Daniela. His request
was received by the Erfurt District Court on 20 March 1991.
On 22 August 1991 the District Court held a hearing in camera in
the presence of the parties. The Court informed the parties that it
intended to render a decision at the end of the day, but that they were
not required to be present at the pronouncement. The District Court
than dismissed the applicant's request for access to Daniela, pursuant
to S. 1634 of the Civil Code (Bürgerliches Gesetzbuch). According to
this provision, the parent not holding the right to custody is entitled
to have access to the child; however, this right may be suspended if
such a measure is necessary in the best interest of the child. The
Court relied on submissions of the competent Youth Office (Jugendamt)
as well as the hearing of both Daniela's mother and the applicant on
the question of implementing contacts between him and Daniela.
Moreover, the Court took into account Daniela's own statements on the
occasion of a hearing by the Court. The District Court concluded that
contacts between the applicant and Daniela were not in the child's
interests as Daniela seriously objected to seeing the applicant.
According to the records, the District Court pronounced the decision
in a public hearing at the end of the day in the absence of the
parties.
On 14 May 1992 the applicant instituted new proceedings before
the Erfurt District Court, requesting that the right to custody over
Daniela be transferred to him.
On 26 May 1992 the Erfurt Court of Appeal granted the applicant
leave to appeal out of time and dismissed his appeal on the merits.
The Court confirmed the findings of the first instance court. The
Court considered in particular that there was no room for a court
decision ordering a right of access in a situation as in the
applicant's case where Daniela seriously refused such an access and the
applicant had himself stated that he did not wish forcibly to implement
a right of access. The Court set out in detail that Daniela's
reasoning as to her refusal to see the applicant for the time being was
conclusive and serious. As regards the applicant's subsidiary request
that family therapy should be ordered the Court found that, in the
context of custody and access proceedings, parents and children could
not be forced to undergo such a therapy. His further subsidiary
request to appoint a supplementary guardian to determine Daniela's
place of residence (Anordnung einer Pflegschaft zur Aufenthalts-
bestimmung) was rejected for lack of competence as a second instance
court. The Court also observed that there were no reasons for
suggesting measures regarding the right of custody. The decision was
served upon the applicant on 16 June 1992.
The applicant lodged a further appeal (weitere Beschwerde) with
the Federal Court of Justice (Bundesgerichtshof).
In the second set of proceedings pending before the Erfurt
District Court, the applicant eventually amended his request, claiming
again a determination of his right of access. The proceedings were
thereupon suspended on 31 March 1993 in order to await the outcome of
the proceedings before the Federal Court of Justice.
On 27 October 1993 the Federal Court of Justice, upon the
applicant's further appeal, quashed the Court of Appeal's decision and
sent the case back to it. The Court of Justice considered that the
Court of Appeal had erroneously assumed that the applicant had
abandoned his request for a judicial decision on his right of access
to Daniela. Moreover, Daniela's refusal to have contacts with the
applicant did not dispense the Court from taking a decision on the
applicant's right of access, even if it were to limit or temporarily
suspend the applicant's right. The failure to render a court decision
and thus leaving the matter unsettled, was unreasonable. The Federal
Court of Justice also set legal guidelines as to the further
proceedings. It confirmed in particular the refusal of family therapy.
On 9 February 1994, in the second set of proceedings instituted
in May 1992, the Erfurt District Court held a hearing in camera in the
presence of the parties. The Court fixed the hearing date for the
pronouncement of its decision for 2 March 1994. In its decision of
2 March 1994 the Erfurt District Court dismissed the applicant's
respective requests for access to Daniela, for the appointment of a
supplementary guardian to determine her place of residence as well as
his subsidiary requests for a transfer of the right of custody. As
regards the applicant's right of access, the Court noted that following
the decision of the Federal Court of Justice of 27 October 1993 the
proceedings on this matter were again pending before the Court of
Appeal. Accordingly, it had no competence to decide on the applicant's
renewed requests. Moreover, any decision on the appointment of a
supplementary guardian presupposed a decision to withdraw the right of
custody exercised by Daniela's mother as far as the right to determine
Daniela's place of residence. However, the applicant had failed to
show any reasons which could justify such a measure. Furthermore,
there was nothing to show that a transfer of the right of custody to
the applicant would be in Daniela's interest. According to the
records, the District Court pronounced the decision in a public hearing
in the absence of the parties.
On 10 November 1994 the Jena (Thüringen) Court of Appeal,
examining the resumed proceedings as well as the applicant's appeal
against the decision of 2 March 1994, held a hearing in camera. In
accordance with S. 170 of the Court Organisation Act, proceedings
concerning family and child care matters are conducted in camera.
Daniela was heard prior to the hearing by two of the three judges.
Both the applicant and Daniela's mother appeared in person, assisted
by their respective counsel. According to the trial record, the
relevant factual and legal issues were discussed in detail. The
parties were given the possibility to file further submissions before
1 December 1994. The Court further indicated that it would serve its
decision on the parties.
On 21 March 1995 the Jena (Thüringen) Court of Appeal quashed the
decisions of 22 August 1991 and 2 March 1994 and decided to exclude the
applicant's right of access to Daniela. It dismissed the remainder of
the applicant's requests. Having regard to all circumstances, the
Court of Appeal found that any access as requested by the applicant
would endanger Daniela's mental development. The Court of Appeal
considered that, for several years, Daniela had seriously refused
contacts with the applicant. In this respect, the Court of Appeal had
regard to the results of a hearing of Daniela, by two of the three
judges, on 10 November 1994. Considering the explanations of the then
16-year-old Daniela as to her reasons for disapproving of the applicant
and her self-assertive and independent personality, her position had
to be respected in order to avoid serious repercussions on her further
development. Enforcing the applicant's right to access would also run
counter Daniela's constitutional right to respect for her personality.
No other, more lenient measure could be envisaged in the circumstances.
Finally, a limitation in time was not appropriate, having regard to
Daniela's majority in two years. As regards the applicant's further
request to order the measures with a view to preparing for contacts
with Daniela, the Court of Appeal confirmed that no measures of family
therapy could be enforced.
The decision was served on the applicant on 18 April 1995.
On 13 June 1995 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to entertain the applicant's constitutional
complaint (Verfassungsbeschwerde).
The Federal Constitutional Court found that the applicant's
submissions did not raise any constitutional questions of fundamental
importance. The constitutional questions regarding decisions on a
parent's right of access to his or her child were settled in the
jurisprudence of the Federal Constitutional Court. As regards the
applicant's complaint about the lack of public pronouncement of the
decisions taken in the access and custody proceedings, the Federal
Constitutional Court observed that, assuming that the principle of the
rule of law (Rechtsstaatsprinzip) included a right to public hearing
and pronouncement of decisions, limitations were possible in the
interests of the parties to the proceedings. Moreover, the applicant's
complaint about the length of the proceedings did not raise any new
questions.
Moreover, the acceptance of the applicant's constitutional
complaint for adjudication was not required for the purpose of
implementing his constitutional rights. In particular, there was no
indication that the competent civil courts had disregarded the
applicant's right to respect for his family life and the principles
established in the jurisprudence of the Federal Constitutional Court.
The Court of Appeal's reasoning that Daniela's express wishes had to
be taken into account and that a decision granting the applicant access
against her will would violate her personality rights, was conclusive
and could not be objected to from a constitutional point of view. The
principle that access and custody proceedings were held in camera and
that decisions were not pronounced publicly served the protection of
the parties to such proceedings against a publication of mostly very
personal matters. Finally, the length of the proceedings had not
violated the principle of the rule of law. The Federal Constitutional
Court, bearing in mind that in access and custody proceedings, the
lapse of time considerably limited the legal protection afforded, found
that the length of the proceedings in the present case had been due to
the problems following the German unification and the applicant's own
conduct. The Court did not accept the applicant's argument that the
competent courts had caused the length by rendering wrong decisions.
The decision was received on 22 June 1995.
COMPLAINTS
1. The applicant complains about the German court decisions to
suspend his right of access to Daniela. He invokes Article 8, taken
individually and in conjunction with Article 14, of the Convention.
He considers in particular that S. 1634 of the Civil Code is not
sufficiently precise to serve as a legal basis for the interference in
question. Moreover, according to the applicant, there were no
sufficient reasons to justify the suspension of his right of access.
He also submits that the courts did not duly take his arguments into
account and failed to balance the competing interests at stake.
Moreover, they should not have decided on his requests without having
taken expert advice. The Court of Appeal, when hearing Daniela, also
failed duly to discuss her opinions and attitude with a view to
influencing her position. In any event, only two of the three judges
had participated in hearing Daniela.
2. The applicant also complains under Article 8 that the German
authorities failed to take the necessary steps to ensure his right of
access to Daniela on the occasion of his divorce and the award of the
right to custody over Daniela to her mother.
3. The applicant further complains under Article 6 of the Convention
that the German court decisions in the access and custody proceedings
at issue were not pronounced publicly.
4. The applicant further complains under Articles 6 and 8 of the
Convention about the length of the above proceedings.
5. The applicant raises the above complaints in his own name and on
behalf of Daniela.
THE LAW
1. The applicant has filed the application in his own as well as in
his daughter's 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 daughter was awarded to his former wife. The Commission
also observes that Daniela has meanwhile attained her majority. In any
event, the Commission is not required to decide whether or not the
applicant, when lodging his application, was able to bring his
complaints also on behalf of his daughter, as the application is
inadmissible for the following reasons.
2. The Commission has first examined the applicant's complaints, in
respect of the court decisions on his right of access to Daniela,
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 HR, Berrehab v. the Netherlands judgment of
21 June 1988, Series A no. 138, p. 14, para. 21).
The Commission finds that the decision to suspend the applicant's
right of access to his daughter Daniela interfered with his right to
family life under Article 8 para. 1 (Art. 8-1) of the Convention. The
Commission 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 decision in question was taken in
accordance with S. 1634 of the German Civil Code. 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 child 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 (cf. Eur. Court HR, Berrehab
judgment, loc. cit., p. 15, para. 28; Funke v. France judgment of
25 February 1993, Series A no. 256-A, p. 24, para. 55).
The Commission observes at the outset that the impugned decision
was taken in court proceedings brought by the applicant following the
spouses' divorce and award of the right of custody to Daniela's mother
in 1990.
The Commission notes that the competent courts initially
considered that no judicial determination of the applicant's right of
access was called for in the circumstances of the present case. In
this respect, they considered that Daniela had refused to see the
applicant, who had stated that he did not intend forcibly to implement
his right of access. These decisions were quashed by the Federal Court
of Justice on the ground that the applicant's requests for a
determination of his right of access could not merely be dismissed
without taking any express decision whether or not he was entitled to
have access to his daughter. The Jena Court of Appeal, having due
regard to the guidelines given by the Federal Court of Justice in the
preceding appeal proceedings, decided that the suspension of the
applicant's right of access was in the best interest of Daniela,
sixteen years old at the relevant time. In this respect, the Court of
Appeal had in particular regard to the explanations given by Daniela
at a hearing by two of the three judges. In this respect, the
Commission considers that the absence of one of the judges at the
questioning concerned does not call into question the diligence of the
Court in establishing the relevant facts. The Court of Appeal, in its
decision, carefully analysed her statements and her personality.
Weighing all circumstances, it concluded that it was her serious
intention to refuse any contacts with the applicant. As regards the
applicant's argument that no expert opinion was ordered on these
matters, the Commission notes that, while he requested the appointment
of an expert in the context of his application for a family therapy,
the applicant failed to show that he requested the taking of expert
evidence to establish the wishes of his daughter Daniela, the
seriousness thereof or any other related issue. Moreover, his
submissions do not disclose any reasons to conclude that the Court of
Appeal was not in a position to evaluate the statements of the then
sixteen-year-old girl.
Against this background, the reasons for the impugned decision
were both relevant and sufficient.
As to the procedural requirements implicit in Article 8 (Art. 8)
(cf. Eur. Court HR, Olsson v. Sweden 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.
In these circumstances, the German authorities did not exceed
their margin of appreciation when deciding to suspend the applicant's
right of access to Daniela. 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. With regard to the above issue, the applicant also invokes
Article 14, taken in conjunction with Article 8 (Art. 8).
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. The applicant further complains under Article 8 (Art. 8) that
following his divorce and the transfer of the right to custody over
Daniela to her mother, the German authorities failed to take the
appropriate steps to ensure his future access to Daniela.
The Commission notes that, in the context of the divorce
proceedings, the applicant did not request a decision determining his
right of access to Daniela, but only did so in March 1991. Even
assuming compliance with Article 26 (Art. 26) of the Convention, the
applicant's submissions on this point do not disclose any lack of
respect for his family life on the part of the German authorities.
It follows that this aspect of the application is likewise
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2).
4. The applicant further complains under Article 6 para. 1
(Art. 6-1) that the competent civil courts, except for the Federal
Court of Justice, did not deliver their decisions in public hearings.
According to Article 6 para. 1 (Art. 6-1), second sentence,
judgment shall be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interest of morals,
public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the
parties so require, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would prejudice
the interests of justice.
The Commission observes that both the decisions of the Erfurt
District Court of 22 August 1991 and 2 March 1994, respectively, were,
according to the records, pronounced at a public hearing, the parties
having been informed in advance. The Court of Appeal's decision of
26 May 1992 was served upon the parties. The applicant did not raise
the complaint about the absence of public pronouncement of this
decision in his appeal to the Federal Court of Justice. In any event,
following the Federal Court's decision to set aside - for other reasons
- the appellate court's decision and to send the case back to the Court
of Appeal, the applicant can no longer complain to be the victim,
within the meaning of Article 25 (Art. 25), of a violation of this
procedural right under Article 6 para. 1 (Art. 6-1).
As regards the Court of Appeal's decision in the resumed
proceedings, dated 21 March 1994, the Commission notes that the
applicant did not lodge a further appeal with the Federal Court of
Justice, complaining about the absence of a public pronouncement.
However, he addressed the matter in his constitutional complaint. The
Federal Constitutional Court considered that the principle that access
and custody proceedings were held in camera and that decisions were not
pronounced publicly served the protection of the parties to such
proceedings against the publicity of usually very personal matters.
Assuming compliance with Article 26 (Art. 26), the Commission
recalls that the public character of proceedings is a principle of
fundamental importance to these proceedings (Eur. Court HR, Pretto and
others v. Italy judgment of 8 December 1983, Series A no. 71, p. 11,
paras. 21-22; Axen v. Germany judgment of 8 December 1983; Series A no.
72, p. 12, paras. 25-26). However, Article 6 para. 1 (Art. 6-1),
second sentence allows for derogations from this principle, inter alia
if justified by the need to protect the private lives of the parties.
In the present case, the proceedings were, as they concerned a child
care matter, conducted in camera in accordance with S. 170 of the Court
Organisation Act. The Commission considers that the proceedings in
question related to private matters regarding the family relations and
the personality of the then sixteen-year-old Daniela. The Court of
Appeal's decision set out in detail the statements made by Daniela and
its considerations regarding her personal development. In these
circumstances, the absence of publicity served the purposes of
protecting the interests of the parties in the family dispute and in
particular the interests of the child.
The Commission finds that the applicant, being aware of the non-
public character of the proceedings and also informed, at the hearing
before the Court of Appeal, that its decision would be merely served
upon the parties, failed to request its public pronouncement.
Accordingly, the absence of a public pronouncement of the decision in
question does not infringe the applicant's rights under 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).
5. The applicant finally complains under Article 6 (Art. 6) about
the length of the proceedings in question.
The Commission finds that the proceedings in question started in
March 1991 when the applicant applied for a judicial determination of
his right of access to Daniela. They terminated on 22 June 1995 when
the Federal Constitutional Court's decision of 13 June was served upon
the applicant. The proceedings thus lasted about four years and three
months.
The reasonableness of the length of proceedings must be
assessed in the light of the particular circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the parties and of the authorities concerned and what
is at stake in the litigation. In this instance, the circumstances
call for a global assessment (cf. Eur. Court HR, Bock v. Germany
judgment of 29 March 1989, Series A no. 150, p. 18, para. 38; Vernillo
v. Italy judgment of 20 February 1991, Series A no. 198, p. 12,
para. 30; Salerno v. Italy judgment of 12 October 1992, Series A
no. 245-D, p. 55, para. 19).
The Commission observes that, at the first stage of the
proceedings, the Erfurt District Court rendered its decision on the
applicant's request on 22 August 1991, i.e. within five months. The
Erfurt Court of Appeal decided upon the applicant's appeal, having
granted him leave to appeal out of time, within nine months.
Meanwhile, the applicant had also instituted new proceedings at first
instance regarding custody and access. The proceedings before the
Federal Court of Justice lasted one year and five months. In the
resumed appeal proceedings, which extended to the applicant's appeal
against the first instance decision taken in his second set of
proceedings, the Court of Appeal decided within one year. The Federal
Constitutional Court proceedings lasted less than two months.
In these circumstances, the Commission, finds that, taking into
account the factual and legal questions at issue, no important delays
are imputable to the German courts at the various stages of the
proceedings.
As regards the applicant's argument as to the allegedly erroneous
court decisions, the Commission recalls that an error by a court
leading to a delay in the proceedings brought about by the need for
appeal proceedings to correct the error may, in combination with other
factors, be taken into account in the determination of the
reasonableness of the relevant period pursuant to Article 6 para. 1
(Art. 6-1) (cf. Bock judgment, loc. cit., p. 21, para. 44). However,
in the present case, the applicant's appeals were decided within due
time.
In sum, the Commission, regard being had to the diligence
required in cases concerning child matters, finds no indication that,
in the applicant's case, the German court proceedings exceeded a
"reasonable time" within the meaning of Article 6 para. 1 (Art. 6-1)
of the Convention.
It follows that the applicant's complaint about the length of the
proceedings is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy