AS TO THE ADMISSIBILITY OF
Application No. 12246/86
by Helmut IRLEN
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private on
13 July 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN, First Vice-President
S. TRECHSEL, Second Vice-President
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 25 September 1985
by Helmut IRLEN against the Federal Republic of Germany and registered
on 30 June 1986 under file No. 12246/86;
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 Coblenz. He is a businessman by profession. Before the Commission
he is represented by Mr F. Schmidt, a lawyer practising at
Bernkastel-Kues.
The applicant is filing his application also in the name of
his daughter, born in wedlock on 24 January 1978.
In June 1982, the applicant's former wife, a Yugoslav national,
who lived in the Federal Republic of Germany for about nine years and
had a permanent residence permit, instituted divorce proceedings
before the Düsseldorf District Court (Amtsgericht) on the ground that
the marriage had broken down. She requested the right to custody over
her daughter.
On 16 July 1982 the Düsseldorf District Court awarded the
right to custody over the daughter, pending the spouses' separation,
until divorce, to her mother, except the right to leave the territory
of the Federal Republic of Germany with the child. The Court, having
regard to the reports of the Düsseldorf Youth Office (Jugendamt) and
of a private association working in the field of social services
(Sozialdienst Katholischer Frauen und Männer e.V.), found that this
decision was necessary in the interest of the daughter's well-being.
Moreover, the applicant had in principle agreed that his former wife
should take care of their daughter. Furthermore, the Court granted
the applicant the right to visit the daughter regularly on every
second and fourth Saturday per month.
On 3 November 1982 the applicant lodged an appeal (Beschwerde)
with the Düsseldorf Court of Appeal (Oberlandesgericht). On
20 April 1983, following a hearing before the Court of Appeal, the
spouses agreed in particular that the applicant would withdraw his
appeal and that his former wife would not take up residence with their
daughter outside the territory of the Federal Republic of Germany and
would educate her according to the Roman Catholic religion. The
applicant's right to visit the child as provided for in the District
Court's decision of 16 July 1982 was confirmed.
On 2 December 1983 the Düsseldorf District Court granted
divorce and gave the right of custody over the daughter to the mother.
The Court, following both the mother's request and the proposal of the
Düsseldorf Youth Office, found that this decision was in the interest
of the child's well-being. It noted that the mother had taken care of
the daughter since birth and, in particular, also after the separation
of the spouses. There was no indication that the mother intended to
return to Yugoslavia with the daughter and, thereby, prevent the
father from seeing her. The Court dismissed the applicant's main
request to be granted the right to custody on the ground that,
according to his own submissions, he did not intend to take care of
the child in his own household; moreover such a transfer of custody
would be disadvantageous to the child's well-being, as it would have
to leave its usual environment. The Court also dismissed the
applicant's first subsidiary request to transfer the right to custody
to both parents on the ground that the parties could not achieve an
understanding as to the education of their child. Finally the Court
did not find it necessary to transfer the right to determine the
child's residence to the applicant.
On 30 July 1984 the Düsseldorf Court of Appeal dismissed the
applicant's appeal (Beschwerde) against the judgment of the District
Court concerning the right to custody. The Court concurred with the
District Court in finding that the transfer of the right to custody to
the mother was in the interest of the child's well-being and thus
complied with S. 1671 paras. 1 and 2 of the German Civil Code (Bürger-
liches Gesetzbuch), which state:
"In case of the parents' divorce the competent court
(Familiengericht) decides on which parent should have
the right to custody over a common child.
The court takes the decision which is in the interest
of the child's well-being; the child's bonds, especially
to its parents and brothers and sisters, are to be
considered."
The Court considered the report of the Düsseldorf Youth Office
and a further report of the Frankfurt Youth Office according to which
the applicant's former wife was capable of educating her daughter.
Having heard the mother personally the court found no reasons to doubt
these reports. The mother's change of residence together with her
daughter from Düsseldorf to Frankfurt could not be considered as a
disadvantage for the child on the grounds that the mother, who was
unemployed and could not be supplied with a job in the Düsseldorf
region, obtained satisfactory employment in Frankfurt. She had rented
an apartment sufficiently big and had found a place for her daughter
in a day-nursery nearby. There was no indication that she was a
member of a religious sect or that she planned to return to
Yugoslavia. A joint right to custody as requested by the applicant
could not be granted on the grounds that there was no agreement
between the parties on their child's education and that mother and
daughter now lived in Frankfurt. The splitting up of the right to
custody, as requested by the applicant, would be inadmissible under
the Civil Code.
On 19 March 1985 the Federal Constitutional Court
(Bundesverfassungsgericht) refused to accept the applicant's
constitutional complaint (Verfassungsbeschwerde), which had also been
lodged on behalf of the daughter, on the ground that it offered no
prospect of success. The Court found in particular that the decisions
on custody served the child's well-being and did not appear to be
arbitrary. This decision was received by the applicant's
representative on 29 March 1985.
As far as it can be determined from the applicant's
submissions, he instituted new proceedings before the Düsseldorf
District Court concerning his right of access to his daughter in
September 1984. These proceedings are still pending.
COMPLAINTS
1. The applicant complains under Article 8 para. 1 of the
Convention that the German court decisions awarding the right of
custody over their daughter to his former wife violated his and his
daughter's right to respect for their family life. He submits that
the decisions prevent him from seeing his child without any hindrance.
2. The appicant complains under Article 6 para. 1 of the
Convention that in the custody proceedings he had no fair hearing by
independent and impartial courts. He submits in particular that his
daughter was not heard in person by the District Court or by the
Court of Appeal. Moreover he alleges that the proceedings before the
Federal Constitutional Court were unfair on the ground that the
Court's burden of work prevents it from taking fair decisions.
3. The applicant also invokes Article 3 of the Convention in
respect of the above complaints.
THE LAW
1. The applicant has filed the application in his own as well as
in his daughter's name.
In principle 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.
It is true that in the present case the right of custody over
the daughter was awarded to the applicant's former wife after the
dissolution of their marriage.
The question, therefore, arises whether in these circumstances
the applicant is able to lodge his complaints concerning the German
courts' decisions on the grant of custody also on behalf of his
daughter (cf. mutatis mutandis No. 10812/84, Dec. 11.7.1985 - 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 first examined the applicant's complaints, in
respect of the grant of custody, under Article 8 (Art. 8) of the Convention
which reads:
"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. No. 7770/77, Dec. 2.5.78, D.R. 14 p. 175).
In the present case, the German courts' decisions to give the
custody over the applicant's daughter to his former wife interfered with the
applicant's right to family life under Article 8 para. 1 (Art. 8-1) of the
Convention. The Commission's therefore has to examine whether this
interference was justified under the terms of Article 8 para. 2 (Art. 8-2).
The Commission observes first that the German courts'
decisions to grant the custody over the applicant's daughter to his
former wife after their divorce were taken in accordance with S. 1671
of the German Civil Code and, therefore, in accordance with the law
within the meaning of Article 8 para. 2 (Art. 8-2).
The Commission notes the finding of the Düsseldorf District
Court and the Düsseldorf Court of Appeal that the interests of the
applicant's daughter and in particular her future well-being required
that her mother should continue to take care of her. The Courts
relied in particular on reports of the Düsseldorf and the Frankfurt
Youth Office as to the child's education by her mother. The Court of
Appeal also heard the mother personally. Moreover the Courts noted
that the applicant had in principle agreed that the mother should take
care of their child and that his respective requests to be awarded the
custody or to have a joint right to custody were motivated by his wish
to control the mother's decisions on the child's place of residence
and, furthermore, to ensure his right of access to the child. In this
context, the Commission observes that the applicant's right to access
was first settled in the proceedings before the Düsseldorf Court of
Appeal in April 1983 and is again at issue in proceedings still
pending before the Düsseldorf District Court. The Commission finds no
indication that the custody decisions so far taken were not based on
due consideration of the interests of the child.
The Commission is therefore satisfied that the interference
with the applicant's right to family life, namely the denial of
custody, 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 daughter.
It follows that the complaint concerning the German courts'
decisions on custody 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
allegedly unfair and arbitrary decisions of the German courts in
respect of the custody over his daughter. He alleges in particular
that the courts did not properly consider his daughter's 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.
Insofar as they concern the domestic proceedings before the
Düsseldorf District Court and the Düsseldorf Court of Appeal the
Commission observes in particular that in the proceedings before the
District Court the applicant himself submitted that his former wife
should take care of their child and that he did not intend to have her
in his own household. He did not request that his daughter be heard.
The Commission finds that there is nothing in the case file to
indicate that the applicant, who was represented by a lawyer, could
not properly present his case or that the Courts conducted the
proceedings in an unfair manner.
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 in this respect the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant also complains under Article 6 para. 1 (Art. 6-1) of the
Convention of the alleged unfairness of the proceedings before the
Federal Constitutional Court.
However, the Commission notes that under Section 93 (a) of the
Federal Constitutional Court's Act (Bundesverfassungsgerichtsgesetz) a
constitutional complaint must be formally accepted for an examination
by the court as to the admissibility and merits of the complaint. The
Commission is of the opinion that when a group of three judges of the
Federal Constitutional Court determines, in a preliminary examination,
whether or not a constitutional complaint is admissible, it does not
take a decision relating to "civil rights and obligations" or to a
"criminal charge". It follows that Article 6 para. 1 (Art. 6-1) of the
Convention does not apply to the proceedings in which a group of three
judges of the Federal Constitutional Court refused to accept the
applicant's constitutional complaint.
This part of the application is thus incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
5. Moreover, the applicant invokes Article 3 (Art. 3) of the Convention in
respect of the above complaints. However, the Commission finds no appearance
of a violation of this Article. 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.
Secretary to the Commission President of the Commission
(H.C. KRUGER) (C.A. NØRGAARD)