AS TO THE ADMISSIBILITY OF
Application No. 25435/94
by Hans-Volker and Gisela Helene PETERS
against Germany
The European Commission of Human Rights sitting in private on
20 February 1995, the following members being present:
MM. C.A. NØRGAARD, President
C.L. ROZAKIS
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
D. SVÁBY
E. KONSTANTINOV
G. RESS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 May 1994 by
Hans-Volker and Gisela Helene Peters against Germany and registered on
17 October 1994 under file No. 25435/94;
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 facts of the case, as they have been submitted by the
applicants, may be summarised as follows.
The applicants, both German nationals, are a married couple. The
first applicant, born in 1943, is a certified biologist. The second
applicant, born in 1946, is a housewife. They are residing in
Schwetzingen.
The present application relates to several sets of proceedings.
I. On 7 December 1981 the Heidelberg District Court (Amtsgericht)
dismissed the request of a third person, a patent attorney, to place
the first applicant under guardianship, as, according to a medical
expert opinion, he was only partly incapable of entering into legal
transactions, namely in respect of his scientific work and patents.
II. On 30 August 1982 the Karlsruhe District Court, upon the request
of the Karlsruhe Public Prosecutor's Office (Staatsanwaltschaft),
placed the second applicant under guardianship on account of her mental
illness. The Court, referring to S. 645 of the Code of Civil Procedure
(Zivilprozeßordnung) and S. 6 of the German Civil Code (Bürgerliches
Gesetzbuch), found that the second applicant was suffering from a
schizophrenia of a paranoic nature to such an extent that she was not
capable of entering into legal transactions and had to be placed under
guardianship. In this respect, the Court had regard to the written
expert opinion of a psychiatric expert, as amended at a hearing, and
the second applicant's statements at that hearing.
In the beginning of 1984 the second applicant requested the
Schwetzingen District Court to terminate her placement under
guardianship. It appears that this request remained unsuccessful.
III. On 21 August 1984, in the context of provisional injunction
proceedings, the Schwetzingen District Court, referring to S. 1674 of
the Civil Code, found that the second applicant's right to custody over
the spouses' child, born on 2 August 1984, was suspended on account of
her placement under guardianship for mental illness. The District
Court further provisionally withdrew the first applicant's right to
determine the child's place of residence and transferred it to the
local Youth Office. The Court ordered that the child be handed over
to the Youth Office, whereby the bailiff was authorised, if need be,
to use physical force. Having regard to a report of the local Youth
Office, the Court found that there was an imminent danger for the
child's well-being, necessitating the above decisions without having
previously heard the applicants.
On 4 September 1984 the child was placed with foster parents.
On 17 December 1984 the Schwetzingen District Court granted the
first applicant the right to visit his daughter once a fortnight in the
localities of the Youth Office. On 11 April 1985 the District Court
dismissed the request of the Youth Office to reduce the first
applicant's right of access. The right to visit the child was later
extended to the second applicant.
On 23 October 1985, at a hearing before the District Court, the
second applicant, assisted by her guardian and in presence of the first
applicant, requested that the proceedings be suspended for one year.
The Court decided accordingly.
On 11 October 1985 the Schwetzingen District Court amended its
decision of 21 August 1984 to the extent that the first applicant's
right to determine the child's place of residence had been withdrawn.
The Court ordered that the child be handed over to the first applicant.
Moreover, the Court suspended the proceedings regarding the final
decision on the right of custody for the period of one year. The Court
also gave various instructions as regards the applicants' conduct
concerning their child. The Court, having regard to medical expert
advice and to reports of the local Youth Office, considered that there
were reasons to assume that the applicants' conduct would expose the
child concerned to a danger as to her physical, mental and
psychological well-being. However, there was also a hope that by more
lenient measures such a danger in the applicants' household could be
avoided. The Court noted that the local Youth Office had so far failed
to offer help to the applicants in order to avoid that the child was
separated from the applicants.
On 17 March 1986 the Mannheim Regional Court (Landgericht), upon
the respective appeals of the child's foster parents and the Youth
Office, quashed the decision of 11 October 1985 regarding the decision
that the child be handed back to the applicants. The Regional Court,
referring to S. 1666 of the Civil Code, found that due to the second
applicant's mental illness the child could not be given back to the
parental household and be brought up in these surroundings. The Court
noted that the seriousness of the second applicant's illness had been
confirmed by a psychiatric expert opinion of 1982, and that her
situation was, according to a report of 1985, only periodically
improving. The Court also observed that the second applicant was again
staying at a psychiatric hospital. The first applicant could not avert
this danger as he could not possibly control his wife and the child at
any given time. Thus the question whether the first applicant was
himself capable of educating his daughter was irrelevant. The more
lenient measures envisaged by the District Court appeared insufficient,
as they only consisted in a sporadic control.
On 7 May 1986 the Karlsruhe Court of Appeal (Oberlandesgericht)
declared the first applicant's further appeal inadmissible, as it had
not been lodged by counsel. The second applicant's appeal was
dismissed.
On 23 November 1988 the Schwetzingen District Court found that
both applicants' right to custody over their child was suspended on
account of their respective mental illness. Having regard to the
applicants' conduct in the course of earlier visits, their right of
access to the child was withdrawn.
S. 1666 of the German Civil Code provides in particular that, if
the physical, mental or psychological well-being of a child is
endangered as a consequence of an abuse of the right of custody, or
neglect of the child, or a failure of the parents arising through no
fault of their own or due to the conduct of a third person, and if the
parents are not willing or not able to avert the danger, the competent
guardianship court will order the measures necessary to avert the
danger concerned.
IV. On 28 August 1990 the Weinheim District Court granted the child's
adoption by her foster parents.
The District Court, referring to SS. 1741 - 1746 of the German
Civil Code, found that the conditions for adoption were met. The Court
considered that the applicants, due to their mental health, were - on
a long-term basis - not capable of educating the child. In this
respect the District Court had regard to psychiatric expert evidence,
in particular a psychiatric expert opinion of 1986 prepared in the
context of the above-mentioned proceedings before the Schwetzingen
District Court, and to the opinion of the Heidelberg Youth Office of
30 July 1990. The Weinheim District Court found that this assessment
had been confirmed upon the hearing of the applicants who, in the
context of the adoption proceedings had refused to accept that they
were mentally ill. The applicants had requested that their child be
soon given back to them, indicating that the second applicant had been
able to play with other children. According to the District Court, the
applicants thereby overlooked that education of a child required more
than playing. The child's adoption by her foster parents was,
therefore, the ideal solution, as growing up under the unhealthy
influence of the applicants would necessarily result in an unhealthy
development of the child.
The District Court, referring to S. 1747 para. 4 of the Civil
Code, finally found that the applicants' consent to the adoption was
not necessary on the ground that they were permanently suffering from
serious mental illness and thus incapable of entering into legal
transactions and of giving their valid consent.
S. 1741 of the Civil Code provides for the adoption of a child
if it serves the child's well-being and if it can be expected that a
parent-child relationship will develop between the child and the
adoptive parents. The adoption requires the consent of the child; if
the child is not capable of entering into legal transactions or has not
attained the age of fourteen, the adoption requires the consent of his
or her guardian (S. 1746). The consent of a parent who is permanently
incapable of making such a statement is not necessary (S. 1947).
According to S. 1752 the competent guardianship court decides upon the
request of the adoptive parents on the adoption. S. 52e of the Code
on Non-Contentious Proceedings (Gesetz über die freiwillige
Gerichtsbarkeit) excludes an appeal against a court decision granting
adoption. SS. 90 seq. of the Federal Constitutional Court Act
(Bundesverfassungs-gerichtsgesetz) provide for a constitutional
complaint (Verfassungs-beschwerde) with the Federal Constitutional
Court (Bundesverfassungs-gericht) regarding alleged violations of the
constitutional rights under the German Basic Law (Grundgesetz) which
include the right to respect for family life.
The applicants were informed of the decision by letter of
10 September 1990.
On 1 October 1990 the Mannheim Regional Court declared the first
applicant's appeal inadmissible on the ground that there was no appeal
against an adoption order.
On 19 April 1994 the Federal Constitutional Court refused to
admit the applicants' constitutional complaint, as it was lodged out
of time and as they had not filed all relevant court decisions.
V. In 1986 and 1987 the Federal Labour Office (Bundesanstalt für
Arbeit) dismissed the first applicant's requests for a disability
pension on the ground that he did not fulfil the legal conditions
regarding the waiting periods. His requests for financial support in
view of a professional training were dismissed on the ground that, as
shown by medical expert evidence, he was suffering from a schizophrenic
psychosis and was therefore permanently unfit for work.
On 4 December 1987 the Mannheim Social Court (Sozialgericht)
dismissed the first applicant's action against the Federal Labour
Office. His appeal was dismissed by the Baden Wurttemberg Labour Court
of Appeal (Landessozialgericht) on 6 September 1988.
The first applicant's repeated requests for a re-opening of the
proceedings were to no avail.
COMPLAINTS
The applicants complain in particular about the adoption of their
child, and of the proceedings concerned. In this context they also
state that in 1984 their child should not have been taken away from
them and placed with foster parents. They further submit that
following various difficulties and the detrimental influence of
psychiatrists the first applicant cannot appropriately pursue his
scientific work, and is thus prevented from improving medicine to help
thousands of persons. In this respect, they refer to the refusal of
payments by the Federal Labour Office, as confirmed by the German
Social Courts. They invoke Articles 2, 3, 6, 9 and 10 of the
Convention.
THE LAW
The applicants complain about the decision of the Weinheim
District Court of August 1990 granting the adoption of their child by
the foster parents, and apparently also about the previous decision of
the Schwetzingen District Court of August 1984 to withdraw the first
applicant's right of custody over the child and to suspend the second
applicant's right of custody. The first applicant also complains about
the refusal of payments by the Federal Labour Office, as confirmed by
German social courts in 1987 and 1988.
The Commission recalls that it is not competent to decide whether
or not the facts alleged by the applicants disclose any appearance of
a violation of the Convention, as Article 26 (Art. 26) provides that
the "Commission may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law, and within a period of six months from the
date on which the final decision was taken".
The Commission recalls that the six months' rule, in reflecting
the wish of the High Contracting parties to prevent the examination of
past events after an indefinite lapse of time, serves the interest of
legal certainty. It marks out the temporal limits of supervision
carried out by the organs of the Convention and signals to both
individuals and State authorities the period beyond which such
supervision is no longer possible (cf. No. 9587/81, Dec. 13.12.82,
D.R. 29 p. 228; No. 10416/83, Dec. 17.5.84, D.R. 38 p. 158; No.
9833/82, Dec. 7.3.85, D.R. 42 p. 53; No. 15213/89, Dec. 1.7.91, D.R. 71
p. 230; see also Eur. Court H.R., De Wilde, Ooms and Versyp judgment
of 18 June 1971, Series A no. 12, p. 30, para. 54).
In the present case, the Commission notes that the decision to
withdraw the first applicant's right to determine the child's place of
residence and to suspend the second applicant's right of custody was
taken in August 1984 and the proceedings concerned terminated in 1986.
The final decision on the adoption was taken by the Weinheim District
Court in August 1990 and served in September 1990, the decision of the
Federal Constitutional Court of 1994 on the applicants' constitutional
complaint cannot be regarded as the final decision for the purposes of
Article 26 (Art. 26), as the complaint was rejected as having been
lodged out of time. The social court proceedings terminated in 1988.
The Commission finds that, since the application was introduced
to the Commission on 19 May 1994, it has been presented more than six
months after the dates of the final decisions in the respective sets
of proceedings.
The Commission has further considered whether there were special
circumstances to the effect that the six months' period under
Article 26(Art. 26) cannot be held against the applicants.
In view of the purposes of the six months' rule, such
circumstances must be based on clear and conclusive evidence (cf.
No. 10416/83, loc. cit.; No. 9833/82, loc. cit.).
The Commission notes that according to the German court decisions
the first applicant, though a request in 1981 to place him under
guardianship was refused, is suffering at least partly from a mental
illness, and the second applicant was placed under guardianship on
account of her mental illness in 1982.
However, the Commission considers that the state of mental health
of both applicants did not prevent them from addressing themselves to
the Commission within the time-limit under Article 26 (Art. 27), even
having regard to the fact that their submissions reveal some confusion.
In reaching this conclusion the Commission took into account that in
1984 the second applicant initiated court proceedings to have the court
decision placing her under guardianship set aside. Moreover, the
applicants initiated appeal proceedings against the Schwetzingen
District Court decision of August 1984. They also lodged an appeal
against the adoption order in 1990. Furthermore, the first applicant
conducted social court proceedings between 1986 and 1988, and made
repeated, though unsuccessful requests for their re-opening. Moreover,
there is no indication that, as compared to the preceding years, the
applicants' state had changed at the time when they filed their
application with the Commission.
The ignorance of applicants about the Convention does not
constitute a circumstance justifying the interruption of the running
of the six months' period (No. 512/59, Collection 1).
Accordingly, an examination of the case does not disclose the
existence of any special circumstances which might have interrupted or
suspended the running of the six months' period.
It follows that the application has been introduced out of time
and must be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy