AS TO THE ADMISSIBILITY OF
Application No. 13626/88
by Gerd-Arnold RIESLE
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 14 April 1989, the following members being present:
MM. F. ERMACORA, Acting President
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. J. RAYMOND, Deputy 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 17 January 1988
by Gerd-Arnold Riesle against the Federal Republic of Germany and
registered on 23 February 1988 under file No. 13626/88;
Having regard to the report provided for in Rule 40 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
applicant, may be summarised as follows:
The applicant, born in 1935, is a German national and resident
in Hannover. He is an engineer by profession.
In 1984 the applicant was involved in divorce proceedings
before the Hannover District Court (Amtsgericht) including the
question of custody over the spouses' son born in 1981. In these and
the following proceedings the applicant was represented by counsel.
On 1 August 1984 the spouses agreed in a friendly settlement
before the District Court that, should the right of custody be granted
to the child's mother, the applicant would have a right of access to
his son every week-end. On 3 August 1984 the Hannover District Court
granted the right of custody to the child's mother.
On 5 October 1984 the Hannover District Court cancelled the
spouses' agreement of 1 August 1988. The applicant's right of access
to his child was reduced to the last week-end of every month. The
Court found in particular that, having regard to the progressive
strain on the spouses' relations, the previous extensive right of
access endangered the child's well-being.
On 28 October 1985 the Hannover District Court, in injunction
proceedings, provisionally suspended the applicant's right of access
to his child on the ground that criminal proceedings had been pending
against the applicant on charges of attempted instigation to murder
his wife. The District Court noted that, although the Hamburg
Regional Court (Landgericht) had acquitted the applicant, it had
stated in its judgment of 20 August 1985 that he had seriously talked
with two persons about killing his wife.
On 2 October 1986 the Celle Court of Appeal (Oberlandes-
gericht), in appeal proceedings following the spouses' divorce,
finally granted the right to custody over the child to his mother.
The Court of Appeal referred in particular to a psychological expert
opinion of 25 May 1986. Furthermore, the Rapporteur of the Court of
Appeal had heard the child on 26 September 1986. The Federal
Constitutional Court (Bundesverfassungsgericht) refused to admit the
applicant's constitutional complaint (Verfassungsbeschwerde) about the
custody decision on 3 December 1986.
On 12 February 1987, in the main proceedings concerning the
right of access, the Hannover District Court, having heard the
parties on 16 December 1986, suspended the applicant's right of access
to his child. The District Court, having regard to the course of the
divorce proceedings and the hearing of 16 December 1986, found in
particular that the applicant's behaviour was still characterised by
strong negative emotions towards his divorced wife. The Court
considered that the child, in the interest of his well-being, could
not be exposed to the strained relations between his parents. Any
visits would necessarily entail serious mental damage to the child.
On 25 June 1987 the Celle Court of Appeal dismissed the
applicant's appeal (Beschwerde). The Court of Appeal confirmed the
District Court's decision that the applicant's right of access to his
son had to be suspended under S. 1634 para. 2 of the Civil Code
(Bürgerliches Gesetzbuch) in the interest of the child's well-being.
The Court of Appeal, having regard to the psychological expert
opinion of 25 May 1986, considered that the child's further
development, in particular as regards emotional relations, would
suffer from any contacts with his father exposing him to the strained
relations between his parents. It observed that the spouses' problems
had increased following the criminal proceedings against the applicant
on the charge of attempted instigation to murder his wife. It noted
that according to the judgment of the Hamburg Regional Court of 20
August 1985 the applicant was acquitted on the ground that, although
he had intended to have her killed, his preparations had not yet
reached the stage of attempt punishable under German criminal law.
Furthermore, the Court of Appeal considered that, in the circumstances
of the present case, no further expert opinion was necessary as in
1986 the opinion of the psychological expert had been carefully and
adequately prepared. Moreover it had not been necessary to hear the
child a second time. The child's alleged wish to visit and play with
the applicant would not alter the result that, in the child's well-
understood interests, the applicant's right of access had to be
suspended.
On 24 September 1987 the Federal Constitutional Court refused
to admit the applicant's constitutional complaint on the ground that
it offered no prospect of success. The Constitutional Court found in
particular that disputes between divorced parents concerning the right
of access had to be determined in the light of their basic rights.
However, the interests of the child's well-being always had to
prevail. The courts could, therefore, suspend the right of access of
the parent who had not been granted custody in accordance with S. 1634
para. 2 of the Civil Code. The impugned decisions in the present case
had obviously been taken in the interests of the child's well-being
and could not be objected to under constitutional law.
COMPLAINTS
1. The applicant complains in his own name and on behalf of his
son that the German court decisions suspending his right of access to
his son violate the right to respect for his family life with the
meaning of Article 8 of the Convention. He submits that the court
decisions were incorrect. In particular, the Court of Appeal had
failed to hear his son and properly to take his son's wishes into
account. His divorced wife would not properly take care of the child,
and even ill-treated him. The applicant also invokes Articles 5, 6, 7,
11, 12 and 13 of the Convention and Article 2 of Protocol No. 1 to the
Convention.
2. The applicant complains under Article 6 of the Convention that
the reasoning in the Celle Court of Appeal's decision of 25 June 1987
violated the presumption of innocence.
THE LAW
1. The applicant complains, in his own name and on his son's
behalf, about the decisions of the Hannover District Court of
12 February 1987 and the Celle Court of Appeal of 25 June 1987
suspending his right of access.
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.
In the present case, the right of custody over the child was
awarded to the applicant's wife after the dissolution of their marriage.
The question, therefore, arises whether in these circumstances
the applicant is able to complain about the German courts' decisions
on the suspension of his right of access also on behalf of his son
(cf. mutatis mutandis No. 10812/84, Dec. 11.76.85 - to be published in
Decisions and Reports). However, the Commission does not regard it as
necessary to settle this issue, as the complaints are in any case
inadmissible for the following reasons.
2. The Commission has examined the applicant's complaints about
the German court decisions in 1987 suspending his right of access to
his son in the light of Article 8 (Art. 8) of the Convention which reads:
"1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Commission recalls that the family life of the parents
with their children does not cease following the divorce of a married
couple (cf. No. 7770/77, Dec. 2.5.78, D.R. 14 p. 175).
In the present case, the German courts' decisions to suspend
the applicant's right of access to his son interfered with the
applicant's right to respect for his 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 observes that the German courts' decisions to
suspend the applicant's right of access to his son were taken under
S. 1634 para. 2 of the German Civil Code and, therefore, in accordance
with the law within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.
Furthermore, the Commission finds that the Hannover District
Court and the Celle Court of Appeal, which had already acted in the
applicant's divorce and custody proceedings, carefully examined the
issue of the applicant's access to his son in their decisions of 12
February and 25 June 1987, respectively. In particular, the Celle
Court of Appeal, having regard to a psychological expert opinion, the
statements of the child in a hearing in September 1986 as well as the
findings in the criminal proceedings against the applicant on charges
of attempted instigation to murder his divorced wife, found that the
child's future well-being would suffer from any contacts with his father.
In these circumstances the Commission is satisfied that the
decisions to suspend the applicant's right of access to his child were
based on due consideration of the interests of the child.
The Commission therefore finds that the interference with the
applicant's right to respect for his family life, namely the
suspension of his right of access, was justified under Article 8 para. 2 (Art.
8-2) of the Convention as necessary for the protection of the health and future
well-being of the applicant's son.
It follows that the complaint concerning the German courts' decisions
on the applicant's right of access to his son is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention about the proceedings before the Celle Court of Appeal in 1987. He
submits in particular that the Court of Appeal failed to hear his son again and
to respect his wishes.
Insofar as those complaints relate to the substance of the domestic
decisions the Commission refers to its above findings under Article 8 (Art. 8)
of the Convention.
As regards the domestic proceedings in 1987 before the Hannover
District Court and the Celle Court of Appeal the Commission finds no indication
that the applicant, who was represented by a lawyer, could not properly present
his case or that the proceedings were otherwise unfairly conducted.
The Commission does not, therefore, find any appearance of a violation
of the rights set forth in Article 6 para. 1 (Art. 6-1) of the Convention in
the proceedings before the District Court and the Court of Appeal.
It follows that the application, in this respect, is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Furthermore, the applicant complains that the reasoning of the Celle
Court of Appeal, in its decision of 27 June 1987, violated the presumption of
innocence under Article 6 para. 2 (Art. 6-2) of the Convention. However, the
Commission finds that, even assuming that the applicant exhausted the domestic
remedies within the meaning of Article 26 (Art. 26) of the Convention, the
Court of Appeal's reasoning did not amount to a finding of guilt, but only
contained a reference to the findings of the Hamburg Regional Court in its
judgment of 20 August 1985. It follows that this aspect of the application is
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (F. ERMACORA)