FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 21369/07
by Ernst SAKEWITZ
against Germany
The European Court of Human Rights (Fifth Section), sitting on 2 November 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva,
Ganna Yudkivska, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 21 May 2007,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ernst Sakewitz, is a German national who was born in 1963 and lives in Seestermühe. He is represented before the Court by Ms A. Zeycan, a lawyer practising in Bochum.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
In 2000 the applicant married the mother of his daughter born in September 2001. In January 2003 the mother moved out with their daughter. The daughter is living with the mother since then. On 24 January 2007 the parents got divorced.
2. The interim proceedings
On 30 January 2003 the mother applied with the Hamburg District Court for the right to decide where the child should live (Aufenthaltsbestimmungsrecht) to be transferred to her. She argued inter alia that the applicant’s way of dealing with his Wilson´s Disease posed a risk to the child’s well-being as he was unable to adequately supervise the child. On 20 February 2003 the applicant requested to reject the mother’s motion. On 19 March 2003 he applied for the right to decide where the child should live to be transferred to him as the mother was neither able to bring up the child nor to enable contacts between him and his daughter and asked the court to obtain a psychological expert opinion on her ability in this respect.
On 16 April 2003 the Hamburg District Court held an oral hearing and heard the applicant and the mother. The parties agreed on weekly contacts between the applicant and his daughter until the end of July 2003.
On 6 May 2003 the mother withdrew the agreement of 16 April 2003.
On 12 May 2003 the applicant requested the District Court to take coercive measures against the mother in order to get access to the child.
On 15 July 2003 the District Court held a second oral hearing, heard the parents and the Youth Office and, by way of an interim injunction, transferred to the mother the right to decide where the child should live and the right to bring up the child (Aufenthaltsbestimmungs- und Erziehungsrecht). It held that the parents had completely fallen out with each other and were unable to agree on anything. After the parents separated the daughter had been living with the mother. With regard to the young age of the child and to maintain the necessary continuity the said rights had to be transferred to the mother, even if both parents appeared to be suited to raise the child.
On 11 August 2003 the applicant appealed against the decision holding inter alia that there had been no dispute between him and the mother concerning the right to decide where the child should live but only concerning his access rights. He argued that it was wrong that he and the mother had completely fallen out with each other and that there was no dispute concerning the right to bring up the child. On 22 September 2003 the mother requested to reject the applicant’s appeal, giving different examples for the disputes between them.
On 24 November 2003 the Hanseatic Court of Appeal rejected the applicant’s appeal against the interim injunction. It confirmed the District Court’s finding that the parents had completely fallen out with each other. It held that the necessity of clarifying the situation concerning the question where the child should live was shown inter alia by the applicant having pressed charges against the mother for “abduction of minors from the care of their parents” under Article 235 of the German Criminal Code. As regard the applicant’s complaint that the District Court’s decision had gone further then the mother’s request, the Court of Appeal held that, in any event, by requesting to reject the applicant’s appeal the mother had made the District Court’s decision her own.
On 19 December 2003 the Court of Appeal rejected the applicant’s objection (Gegenvorstellung). The decision was served on the applicant’s lawyer on 30 December 2003. It held inter alia that it would be decided in the main proceedings on child custody (Sorgerecht), whether it was necessary to transfer the right to bring up the child to the mother.
On 29 December 2003 the applicant lodged a constitutional complaint. He complained about the aforementioned decisions but pointed out explicitly that he did not want to object to the transferral of the right to decide where the child should live. As regards the transferral of the right to bring up the child he put forward that the courts had neither properly established the existence of a quarrel between the parents nor its influence on their ability to exercise joint custody.
On 20 November 2006 the Federal Constitutional Court rejected the applicant’s constitutional complaint holding that it was inadmissible without giving further reasons. On 25 November 2006 the decision was served on the applicant’s lawyer.
3. The main proceedings
a. Access proceedings
On 15 July 2003 the Hamburg District Court held an oral hearing.
On 14 January 2004 the District Court held another oral hearing and decided to obtain an expert opinion on the question whether longer stays with the father, in particular overnight stays, would be in the best interest of the child. The parties agreed on weekly contacts between the father and the child until the expert opinion was rendered.
On 23 May 2004 the applicant made requests for an interim injunction granting him further access rights. On 18 June 2004 the District Court rejected his request holding that it could not grant further access before the expert opinion on whether such access was in the child’s best interest had been obtained.
On 15 July 2004 the applicant made further requests for an interim injunction concerning his access rights.
On 5 August 2004 the District Court held an oral hearing. On 9 August 2004 the District Court, referring to the reasons given in its decision of 18 June 2004, rejected the applicant’s further request for an interim measure and suggested an expert to render the expert opinion.
On 31 August 2004 the District Court named the expert to render the expert opinion.
On 19 August 2005 the District Court rejected the applicant’s numerous further requests of 11 October 2004 and granted his request of 16 October 2004 to put a further question to the expert.
On 2 February 2006 the applicant made a further request for an interim injunction granting him access to his daughter.
On 24 January 2007 the District Court held an oral hearing and the parents provisionally agreed on the modalities of weekly contacts between the applicant and the child.
On 12 April 2007 the District Court held an oral hearing and heard the applicant, the mother and the Youth Office.
On 18 April 2007 the District Court heard the child.
On 12 July 2007 the District Court granted the applicant access to the daughter on every Saturday for six hours during the first two months, for eight and a half hours during the second two months and afterwards every two weeks from Saturday to Sunday with an overnight stay. According to the summary of facts in the decision the expert opinion was never obtained due to the applicant’s refusal to contribute. Moreover, the court pointed out that due to numerous motions for bias the proceedings had not advanced.
b. Custody proceedings
On 24 January 2007 the Hamburg District Court held an oral hearing. On the same day the mother requested the District Court to be granted sole custody.
On 25 July 2008 the District Court decided to obtain an expert opinion on the question whether it was in the best interests of the child to transfer custody rights partly or entirely to one of the parents, and if so to whom.
On 6 February 2009 the expert rendered her report.
On 28 April 2009 the District Court held an oral hearing and heard the applicant, the mother, the expert and the Youth Office. The parents made an agreement concerning the access.
On 11 June 2009 the District Court transferred sole custody on the mother. Referring to the expert opinion it held that the best interest of the child required transferring sole custody to the mother and pointed out that the parents were incapable of dialogue.
B. Relevant domestic law
Pursuant to Article 1631 § 1 of the German Civil Code, parental child custody consists of different sub-categories. Child custody includes without limitation the duty and the right to care for, bring up and supervise the child and to specify its abode, that is, the right to determine where the child should live.
COMPLAINTS
The applicant complains under Article 6 and 8 of the Convention about the conduct and the outcome of the domestic custody and access proceedings. In particular, he complained about a violation of his right to be heard, about an unequal treatment in comparison with his wife, about the District Court having gone beyond the mother’s request by also transferring to her the right to bring up the child, about the proceedings having led to an alienation between him and his daughter, and about the length of the interim as well as the main proceedings. The applicant also complained in a general manner under Article 5 Protocol no. 7 and Article 14 about discrimination in comparison with other fathers and parents as due to the withdrawal he was unable to exercise custody rights and about fathers being discriminated against in German child custody proceedings.
THE LAW
1. The applicants complained that the length of the main proceedings before the Hamburg District Court had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. As regards the remaining complaints, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the length of the main proceedings;
Declares the remainder of the application inadmissible.
Stephen PhillipsPeer Lorenzen
Deputy RegistrarPresident
Full & Egal Universal Law Academy