THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 46165/99
by Christian NEKVEDAVICIUS
against Germany
The European Court of Human Rights (Third Section), sitting on 19 June 2003 as a Chamber composed of
MrI. Cabral Barreto, President,
MrG. Ress,
MrP. Kūris,
MrB. Zupančič,
MrJ. Hedigan,
MrsM. Tsatsa-Nikolovska,
MrK. Traja, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 26 December 1998,
Having deliberated, decides as follows:
THE FACTS
The applicant, Christian Nekvedavicius, is a German and Lithuanian national, who was born in 1946 and lives in Münster (Germany).
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In mid-October 1994, the applicant started a relationship with L. They began living together in L.’s flat as from 11 January 1995 and planned to get married once the applicant would have obtained his divorce from his second wife. At the end of February 1995 it was confirmed that L. was pregnant. In March 1995 the relationship between the applicant and L. broke down and they ceased co-habiting.
1. The first set of proceedings
On 11 September 1995, during L.’s pregnancy, the applicant applied to the Münster District Court (Amtsgericht) to be granted a right of access. This application was rejected by a decision of the Münster District Court of 13 October 1995. On 16 October 1995 L. gave birth to a daughter S.
The applicant, on his own initiative, recognised his paternity while the mother first contested it. On 23 November 1995 she acknowledged that the applicant was the natural father of her daughter.
On 11 November 1995 the applicant applied to the Münster District Court, acting as guardianship court (Vormundschaftsgericht), for a decision granting him a right of access (Umgangsregelung) to his daughter. He also applied for an interim injunction on his right of access. On 18 December 1995 the Münster District Court dismissed this request on the ground that it could not decide before holding a hearing on this question. A hearing was held on 12 January 1996.
On 15 January 1996 the applicant renewed his request for an interim injunction. On 19 January 1996 the Münster District Court again dismissed this request considering that the question of access could only be resolved by means of an expert opinion.
On 24 May 1996 the District Court held a hearing in the presence of the parties, an expert and the applicant’s former wife as a witness.
On 29 October 1996 the Münster District Court, relying inter alia on a psychological expert opinion of 21 March 1996, granted the applicant a right of access to his daughter every Tuesday in the premises of the Social Office (Amt für soziale Dienste).
On appeal of the child’s mother, the Münster Regional Court (Landgericht) quashed this decision on 17 March 1997 after having heard the applicant, the child’s mother and a representative of the Münster Youth Office on 14 March 1997.
Referring to Articles 1711 § 2 and 1634 § 2 of the Civil Code (Bürgerliches Gesetzbuch - see the section of the Relevant Domestic Law below), the Regional Court held that a child should have personal contact with the father since, as a general rule, maintaining personal contact to both parents favoured a healthy development of the child. However, access against the will of the mother must be denied where the best interests of the child warranted such a decision. In the present case, there was serious reason to believe that the animosity between the parents would be detrimental to the child. Unlike the expert, the Regional Court found that granting the applicant a right of access would not help the parents to clarify their respective parental roles, to improve their relationship and to co-operate. In particular, the applicant’s conduct vis-à-vis the child’s mother adversely affected the child. He was not willing or capable to respect the legitimate interests of the child’s mother or the special situation of the child living with her mother. The applicant did not accept that the child’s mother had put an end to their short relationship which had lasted from January to March 1995. This was shown by the fact that he had been determined to obtain information about her pregnancy from her gynaecologist and to be informed about the address of the clinic where the child was to be born in order to be present at the child’s birth. Moreover, prior to the child’s birth, he introduced several court proceedings with a view to being granted a right of access and having his surname added to the child’s surname. Three weeks after the child’s birth, he applied again to be granted a right of access and requested that a coercive fine be imposed on the child’s mother. Although the applicant could not be criticised for claiming a right of access, his conduct showed that he was seeking a de facto parental authority over the child. Against this background, the Regional Court found that, if the applicant were granted a right of access, he would oppose any decision by the mother and conflict and numerous new court proceedings would be unavoidable. The Regional Court concluded that, in these circumstances, the relationship between mother and child would continuously be disturbed. This would not be in the child’s best interests.
On 6 May 1997 the applicant lodged a constitutional complaint with the Federal Constitutional Court (Bundesverfassungsgericht).
On 8 January 1999 a panel of three judges of the Federal Constitutional Court refused to entertain this complaint.
2. The second set of proceedings
On 1 July 1998, after the entry into force of the amended Law on Family Matters (Reform zum Kindschaftsrecht - see the section of the Relevant Domestic Law below), the applicant applied again to the Münster District Court for a decision granting him a right of access to his daughter.
On 22 September 1998 the District Court heard the parties and a social worker of the City of Münster. The social worker stated that he had made a visit to the applicant’s home where the latter lived with his six-year-old daughter Z. According to the social worker, there was no indication that granting the father a right of access would be contrary to the interests of S. He found, however, that for reasons of practicability the strained relations between the parents should first improve.
On 26 September 1998 the District Court appointed a psychological expert to assess whether granting the applicant a right of access would adversely affect the child’s well-being.
On 30 September 1998 the expert informed the court that, due to his excessive workload, he was not in a position to commence his assessment before mid-December.
On 6 and 15 October 1998 the applicant applied to the Münster District Court for provisional measures granting him a right of access to his daughter.
On 24 October 1998 the applicant appealed to the Federal Constitutional Court complaining that the Münster District Court failed to take the required action. He further applied for an interim measure granting him a right of access to his daughter.
On 27 October 1998 the District Court dismissed the applicant’s request for interim measures considering that the unusually strong tensions existing between the parents made it necessary to await the expert opinion with a view to determining the question of access. According to the District Court, to grant such a right provisionally would be more likely to be disadvantageous than advantageous to the child’s well-being.
Thereafter, the applicant unsuccessfully instituted various proceedings challenging the judge of the Münster District Court, G., and, subsequently, the judges G., H. and S. of the Hamm Court of Appeal (Oberlandesgericht) for bias. The applicant also challenged the psychological expert on the ground that he had refused to indicate whether or not he intended to reply to all the questions of the District Court, including those which, in the applicant’s opinion, were unlawful. Furthermore, the applicant contested the expert’s impartiality alleging that, as the appointed court expert, he might be influenced by the well-known hostile attitude of judge G. towards men.
In a letter of 26 April 1999 the applicant informed the Münster District Court of his intention not to co-operate any further with the expert and applied for an immediate decision.
On 8 January 1999 the Federal Constitutional Court, sitting in a panel of three judges, refused to entertain the applicant’s constitutional complaint lodged on 24 October 1998.
On 1 April 1999 the applicant again requested the Münster District Court for an interim injunction granting him a right of access to his daughter.
By a decision of 9 April 1999, the Münster District Court dismissed the request.
On 12 May 1999 the Münster District Court rejected the applicant’s application of 1 July 1998 to be granted a right of access. In reaching the above decision, the District Court had regard to its decision of 17 March 1997, according to which it was not in the best interests of S. to grant the applicant a right of access. Pursuant to Article 1684 of the Civil Code, as drafted by the amended Law on Family Matters, this decision might be open to discussion should the circumstances on which the decision was based change. However, with a view to establishing the relevant new facts on this question, the court found to be dependent on the assistance of the psychological expert. Due to the applicant’s refusal to co-operate with that expert, this question could not be resolved and the requested right of access had to be denied.
The applicant appealed against the two above decisions to the Hamm Court of Appeal.
On 25 January 2000 the Hamm Court of Appeal dismissed the applicant’s appeal against these decisions.
On 27 January 2000 the applicant lodged a constitutional complaint against this decision with the Federal Constitutional Court and requested for interim measures.
On 1 March 2000 the Federal Constitutional Court, sitting in a panel of three judges, refused to entertain both the applicant’s constitutional complaint and his request for interim measures.
3. Subsequent developments
On 4 September 2000 the applicant applied to the Münster Administrative Authorities (Bürgeramt) to be informed of the child’s whereabouts. On 6 August 2001 he requested the Münster District Court to be granted a right of access. He also applied for an interim injunction. He stated that the previous court decisions were in breach of fundamental and human rights and had to be revised in the light of the quickly changing circumstances of the child. He alleged that the child’s mother was a member of a radical feminist sect which professed the superiority of women over men and was said to perform strange rituals, including the killing of children. As soon as she had learned that she was expecting a healthy daughter, she gave up her feigned plan to get married and, with the assistance of German female civil servants and judges, deprived him of the common child.
On 24 April 2002 the Münster District Court rejected the applicant’s requests for reasons of competence. It considered that the Unna District Court was the competent court having regard to the residence of the child’s mother.
On 28 June 2002 the Hamm Court of Appeal dismissed the applicant’s appeal against this decision on the ground that the applicant had failed to request the transfer of the case to the competent district court.
On 16 August 2002 a panel of three judges of the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint lodged against this decision and dismissed the applicant’s request for an interim injunction.
B. Relevant domestic law
1. Legislation on family matters in force at the material time
The relevant provision of the Civil Code (Bürgerliches Gesetzbuch) concerning custody and access for a child born in wedlock was worded as follows:
Article 1634
“1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing.
2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under Article 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare.
3. A parent not having custody who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child’s interests. The guardianship court shall rule on any dispute over the right to information.
4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.”
The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows:
Article 1705
“Custody over a minor child born out of wedlock is exercised by the child’s mother ...”
Article 1711
“1. The person having custody of the child shall determine the father’s right of access to the child. Article 1634 § 1, second sentence, applies by analogy.
2. If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Article 1634 § 2 applies by analogy. The guardianship court can change its decision at any time.
3. The right to request information about the child’s personal circumstances is set out in Article 1634 § 3.
4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.”
2. Legislation on family matters currently in force
The statutory provisions on parental authority and access are to be found in the Civil Code. They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette (Bundesgesetzblatt-BGBl) 1997, p. 2942), which came into force on 1 July 1998.
Article 1626 § 1 reads as follows:
“The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. Parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.”
Pursuant to Article 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Article 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s welfare would be put at risk. The family courts may order that the right of access is exercised in the presence of a third party, such as a Youth Office authority or an association.
COMPLAINTS
1. The applicant complained under Article 8 of the Convention that the German court decisions denying him a right of access to his daughter amounted to a violation of this right to respect for his family life.
2. Invoking Article 14 of the Convention, taken together with Article 8, the applicant complained that he had been a victim of discriminatory treatment in his situation as a father of a child born out of wedlock, when compared to children born in wedlock and their fathers and also when compared to mothers of children born out of wedlock.
3. Invoking Article 6 § 1 of the Convention, he further complained that he was denied a fair hearing. According to him, the courts failed to duly establish the facts and decided arbitrarily. The judges were biased against him, refused to apply the statutory law and based their decisions on the mother’s unjustified refusal to co-operate. He also complains of the length of these proceedings.
4. The applicant complained under Article 3 of the Convention that the German authorities openly and cynically showed that by refusing access a mother could deprive a father of his most basic human rights and thus subject him to unprecedented mental suffering.
5. The applicant further complained that the constitutional complaint to the Federal Constitutional Court did not constitute an effective remedy within the meaning of Article 13 of the Convention. He submitted that constitutional complaints were dismissed without reasons within a short time and, according to statistics, in ten years only three decisions out of 9,000 constitutional complaints were passed in favour of the applying fathers.
THE LAW
1. The applicant complains that the German court decisions dismissing his requests for access to his daughter, a child born out of wedlock, amounted to a breach of Article 8 of the Convention, the relevant part of which provides:
“1. Everyone has the right to respect for his ... 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.”
a) Whether there was an interference with the applicant’s right to respect for his family life
The Court recalls that the notion of “family life” in Article 8 is not confined solely to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together outside marriage. A child born out of such a relationship is ipso iure part of a “family” unit from the moment of his birth by the very fact of it. There thus exists between the child and his parents a bond amounting to family life even if at the time of his or her birth the parents are no longer co-habitating or if their relationship has then ended (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, pp. 17-18, § 44, and Kroon and Others v. the Netherlands, judgment of 27 October 1994, Series A no. 297-C, pp. 55-56, § 30). Further, the Court considers that Article 8 cannot be interpreted as only protecting “family life” which has already been established but, where the circumstances warrant it, must extend to the potential relationship which may develop between a natural father and a child born out of wedlock. Relevant factors in this regard include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the natural father to the child both before and after the birth (see M.B. v. the United Kingdom, no. 22920/93, Commission decision of 6 April 1994, Decisions and Reports (DR) 77-A, p. 115).
In the present case, the relationship between the applicant and the child’s mother lasted not longer than approximately five months during three of which they were cohabiting. However, the applicant has shown a strong desire to have personal contact with his daughter. The Court furthermore notes that the child’s mother has acknowledged that the applicant is the natural father of S. There thus exists between the applicant and S. a bond amounting to family life within the meaning of Article 8 § 1.
The Court further recalls that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures which hinder such enjoyment amount to an interference with the right protected by Article 8 (see, amongst others, Johansen v. Norway, judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, pp. 1001-1002, § 52, and Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII). The impugned measures, namely the decisions of the German courts refusing the applicant a right of access to his daughter, amounted to an interference with the applicant’s right to respect for his family life as guaranteed by paragraph 1 of Article 8 of the Convention.
b) Whether the interference was justified
The interference mentioned in the preceding paragraph constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.
The relevant decisions had a basis in national law, namely Articles 1711 and 1634 § 2 of the Civil Code as in force at the relevant time and Article 1684 of the Civil Code as currently in force.
The Court is satisfied that the court decisions of which the applicant complained were aimed at protecting the “health or morals” and the “rights and freedoms” of the applicant’s daughter and thus pursued legitimate aims within the meaning of paragraph 2 of Article 8.
In determining whether the impugned measure was “necessary in a democratic society”, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their margin of appreciation (see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55, and, mutatis mutandis, Elsholz cited above, § 48).
Furthermore, a fair balance must be struck between the interests of the child and those of the parent and, in striking such a balance, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular, the parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see Elsholz cited above, § 50, and T.P. and K.M. v. the United Kingdom, no. 28945/95, § 71).
As to the first set of the proceedings, the Court finds that the domestic courts carefully considered the question of access. They confirmed that in principle, for a harmonious development, a child must have contact with both parents, to the extent that this was consistent with the best interests of the child. Thus, it was clear that maximum contact was not an unlimited objective, and that it had to be curtailed wherever the child’s welfare required it.
Accordingly, the Münster Regional Court found that where, as in the present case, a conflict appeared to exist between the parents, it would not be in the best interests of the child to grant the applicant a right of access. It had regard in this respect, not only to the fact that the child’s mother was opposed to any access by the applicant, but also to the applicant’s unbalanced insistence on the recognition of his rights and to his disregard for the relationship between the mother and the daughter. When giving its decision, the Münster Regional Court relied on the expert report ordered previously by the Münster District Court, the statements made by the applicant and the child’s mother and on the testimony of a witness.
The Court considers that, having regard to the circumstances of the case, particularly the real and serious conflicts between the applicant and the child’s mother, the decision taken to deny the applicant a right of access appears to be based on relevant and sufficient grounds. Nevertheless is has to be noted that the right of access for natural fathers arising out of Article 8 is only one, but an important element of the duty to preserve the uniting bonds between father and daughter. In the light of this duty the reasons to deny access cannot be regarded as permanent, but the national courts are under an ongoing obligation to re-assess the situation and to try to overcome any of the obstacles which might hinder granting an even very limited access of the father. Therefore there is a positive obligation of the national authorities to take up the issue up again at regular intervals of at least one year.
In the present case, the national courts have dealt with the case continually and gave decisions stating full reasons. They were in a better position than the Court to strike a fair balance between the interests of the child in living in a peaceful environment and those motivating the steps taken by her father (see Söderbäck v. Sweden, judgment of 28 October 1998, Reports 1998-VII, pp. 3095-96, §§ 30-34). The courts did not exceed the margin of appreciation afforded to them under paragraph 2 of Article 8.
As regards the second set of the proceedings before the German authorities subsequent to the entry into force of the amended Law on Family Matters, the Court notes that the requested right of access had again been denied. Whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8. The Court must therefore determine whether, having regard to the circumstances of the case and notably the importance of the decisions to be taken, the applicant has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests (see W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, p. 29, § 64, Elsholz cited above, § 52, and T.P. and K.M. v. the United Kingdom cited above, § 72). The Court does not agree with the applicant’s submission that he has been the victim of a violation of Article 8 on account of the court-appointed expert’s conduct of his investigations. There is no indication in the file that the applicant’s doubts as to the expert’s lack of impartiality were objectively justified. In that connection the Court notes that the applicant did not expressly question that expert’s professional competence as a psychologist. The decision-making process as a whole does not appear to have been unfair. In this context account should also be taken of the fact that the applicant failed to co-operate with the psychological expert. Thus, it was the applicant himself who prevented the District Court from obtaining the information necessary to decide on the requested right of access.
In the light of the foregoing, the Court finds that, having regard to the margin of appreciation afforded to them in such matters, the German courts were - for the time being - entitled to consider the refusal of access to be necessary and that the reasons for so concluding were not only relevant but also sufficient for the purposes of paragraph 2 of Article 8. The Court reiterates that this cannot amount to an unlimited refusal of access, but that a continuous re-examination of the situation is also necessary, in particular in view of the obligation of the child’s mother to enable the access of the father to his daughter in regular intervals.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant further complained that he had been a victim of discriminatory treatment in breach of Article 14 of the Convention read in conjunction with Article 8. In the applicant’s submission, Article 1711 of the Civil Code on contacts between a father and his child born out of wedlock discriminated against the father on ground of his sex when confronted with the provisions of Article 1634 of the Civil Code relating to contacts between a father and his legitimate child and also when compared to a mother of a child born out of wedlock. Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court does not find it necessary to consider whether the former German legislation as such, namely Article 1711 of the Civil Code, made an unjustifiable distinction between fathers and mothers of children born out of wedlock, such as to be discriminatory within the meaning of Article 14, since the application of this provision in the present case does not appear to have led to a different approach than would have ensued in the case of a mother or a divorced father requesting for a right of access.
The Court notes that the Regional Court’s reasoning of 17 March 1997, after having heard both parents and a witness, was clearly based on the danger to the child’s development if she had to take up contact with the applicant. The Regional Court pointed out that, although contacts to both parents should be the rule, there was serious reason to believe that in the present case the animosity between the parents would be detrimental to the child. The risk to the child’s welfare was thus the paramount consideration and not the mother’s attitude and her feelings towards the applicant. In the circumstances of the present case, the applicant, as a natural father, was therefore not treated less favourably than a divorced father or a mother in a similar situation. As concerns the second set of proceedings instituted by the applicant, the Court notes that the District Court based its decision of 12 May 1999 on the fact that due to the applicant’s refusal to co-operate with the psychological expert, it was unable to assess whether or not there was still a risk to the child’s welfare.
It follows that this part of the application must likewise be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
3. The applicant complained that the proceedings before German courts did not meet the requirements of Article 6 § 1 of the Convention, the relevant part of which reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
The applicant complained in particular that the courts did not fully establish the relevant facts necessary for a decision on the question of access, arbitrarily assessed the evidence and repeatedly refused to apply the statutory law. He further complained that the judges were biased against him and that the proceedings lasted unreasonably long.
The Court re-iterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the undertakings of the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Furthermore, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce (see Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, p. 32, § 33). However, the Court must ascertain whether, taken as a whole, the proceedings, including the way in which the evidence was dealt with, were fair within the meaning of Article 6 § 1. The Court recalls in this respect that the difference between the purposes pursued by the safeguards afforded by Article 6 § 1 and Article 8, respectively, may justify an examination of the same set of facts under both Articles (McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p. 57, § 91).
The Court considers that in the present case the reasons on which the courts based their decisions are sufficient to exclude the assumption that the evaluation of evidence and the interpretation of the law were arbitrary. Furthermore, the Court cannot, in the circumstances of the present case, find that the applicant was prevented from arguing his case in an effective manner.
Insofar as the applicant complains that his case was not heard by an impartial tribunal, the Court recalls that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see Hauschildt v. Denmark, judgment of 24 may 1989, Series A no. 154, p. 21, § 46, and Fey v. Austria, judgment of 24 February 1993, Series A no. 255, p. 12, § 28).
With regard to the personal impartiality of the judge of the Münster District Court and in particular the allegedly well-known hostile attitude of this judge towards men, the Court considers that the applicant did not adduce any evidence in support of his allegation. In the circumstances of the present case, the Court concludes that the applicant’s fear as to the judges’ impartiality cannot be regarded as subjectively or objectively justified and therefore finds no appearance of a violation of Article 6 § 1 in this respect.
It follows that, as far as the alleged lack of impartiality is concerned, the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
The applicant also complained of the length of the two sets of proceedings as a result of which he was denied a right of access to his daughter.
The Court finds that the first set of proceedings began on 11 November 1995 when the applicant applied to be granted a right of access following the child’s birth and ended on 8 January 1999 when the Federal Constitutional Court declined to accept the case for adjudication. These proceedings thus lasted almost three years and two months over three levels of jurisdiction.
As for the second proceedings, the Court finds that they began on 1 July 1998 and ended on 1 March 2000. They thus lasted one year and eight months over three levels of jurisdiction.
The reasonableness of the length of proceedings is to be considered in the light of the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and that of the relevant authorities. On the latter point, the importance of what is at stake for the applicant in the litigation has also to be taken into account. It is, in particular, essential that custody and contact cases be dealt with speedily (see Glaser v. United Kingdom, no. 2346/96, § 93).
The Court considers that the present case is of some complexity due to the necessity to obtain an expert opinion on the question of whether granting the applicant a right of access was in the child’s interest.
As for the conduct of the authorities, the Court observes that the total length of the proceedings before the Münster District Court was eleven months and eighteen days, before the Münster Regional Court four months and three days and before the Federal Constitutional Court one year, eight months and two days. In view of these facts, the Court considers that, on the whole, the length of the first set of proceedings cannot be regarded as unreasonable.
As concerns the second set of proceedings before German courts, the Court finds that the period of one year and eight months over three levels of jurisdiction was not excessive, having regard in particular to the fact that the applicant himself had contributed to the length of these proceedings by challenging the expert and the judges for bias and by refusing to co-operate with the psychological expert.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
4. The applicant complained that the courts’ refusal to make access arrangements impaired his right to human dignity and subjected him inhuman or degrading treatment in breach of Article 3.
The Court, having found that the court decisions complained of were justified under Article 8 § 2, by the overriding interests of the child, considers that the same decision cannot be regarded as constituting inhuman or degrading treatment under Article 3.
It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
5. The applicant complained that no effective remedy had been available to him in respect of the violation of his right to respect for his family rights under Article 8. He maintained in particular that that the constitutional complaint to the Federal Constitutional Court was no effective remedy within the meaning of Article 13 of the Convention which reads as follows:
“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 the applicant applied to the Federal Constitutional Court against the refusal to grant him access to his daughter. It is true that the applicant’s complaints did not prove successful. However, the effectiveness of the remedy for the purpose of Article 13 does not depend on the certainty of a favourable outcome (see Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria, judgment of 19 December 1994, Series A no. 302, § 55). There is no indication that the Federal Constitutional Court would not, as a general matter, fulfil the requirements of an “effective remedy” within the meaning of Article 13.
It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent BergerIreneu Cabral Barreto
RegistrarPresident
Full & Egal Universal Law Academy