AS TO THE ADMISSIBILITY OF
Application No. 13776/88
by H.I.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 14 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
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 13 May 1987
by H.I. against the Federal Republic of Germany and registered
on 19 April 1988 under file No. 13776/88;
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 D.. He is a businessman by profession.
The applicant's previous application (No. 12246/86) was
declared inadmissible on 13 July 1987. It concerned the applicant's
divorce proceedings before the Düsseldorf District Court (Amtsgericht)
in 1982/83 and theDüsseldorf Court of Appeal (Oberlandesgericht) in
1984, in the course of which the right to custody over the spouses'
daughter, born in 1978, was granted to the mother.
On the basis of a settlement between the spouses of 20 April
1983 the applicant had a right of access to his daughter on the
second and fourth Saturday of every month. Until 25 February 1984
the applicant had regular contacts with his daughter. In March 1984
the mother refused contacts between the applicant and their child, and
moved from D. to Frankfurt.
On 27 September 1984, the applicant instituted proceedings
before the Frankfurt District Court concerning his right of access to
his daughter. The District Court ordered reports from the D.
and the Frankfurt Youth Offices (Jugendämter) and, following
unsuccessful injunction proceedings in December 1984, it held a hearing
in the main proceedings in February 1985.
On 15 March 1985, at a second hearing before the District
Court, the parents agreed upon two meetings between the applicant and
his daughter on 30 March and 27 April 1985. The mother cancelled the
meeting in March. Following the meeting on 27 April 1985 in Frankfurt
the child was heard by the District Court on 29 April 1985. She
refused further meetings with her father and confirmed this refusal at
the hearing on 5 May 1985. The District Court therefore ordered a
psychological expert opinion as regard the applicant's right of access
to his daughter. His right of access was provisionally suspended.
On 28 May 1986 the District Court, having heard the parties
upon the expert opinion of 26 February 1986, ordered a supplementary
psychological expert opinion from an institute specialised in family
therapy as regards the question whether and, if so, how the applicant
could be granted access to his daughter. The Court found in particular
that the first opinion showed positive elements in the parents'
relationship which might render an agreement in this respect possible,
but had not sufficiently examined this aspect of the case. The second
expert opinion was delivered on 17 December 1986. The expert stated in
particular that the mother had no longer been willing to cooperate in
the preparation of the opinion.
On 11 March 1987 the Frankfurt District Court decided to
suspend sine die the applicant's right of access to his daughter. The
Court suggested that he reduce progressively the strain on his
relations with his divorced wife by taking up employment and paying
his daughter's alimony; his contacts with his daughter ought to be
restricted to correspondence. Furthermore, the Court decided that the
matter should not be reviewed before the expiry of five years.
The District Court found in particular that, after proceedings
of two and a half years with two psychological expert opinions, the
minimum of harmony between the parents which would be necessary to
grant the applicant access to his daughter could not be established.
The right of access ought to be excluded in order to terminate the
disputes between the parents in the interest of the child's
well-being. In the future, the applicant should terminate all
litigations with his divorced wife, reduce the tensions in their
relations and resume his duties as a father. After the expiry of the
period of five years fixed for a review, the child would have reached
a new stage in her development, a circumstance which might allow a new
decision in this case.
Proceedings concerning the right of access to his child of the
parent who does not have the right to custody are, inter alia,
governed by the Non-Contentious Proceedings Act (Gesetz über die
Angelegenheiten der Freiwilligen Gerichtsbarkeit). S. 12 of the
Non-Contentious Proceedings Act provides that the competent court has
to establish the facts ex officio.
On 28 August 1987 the Frankfurt Court of Appeal dismissed the
applicant's appeal (Beschwerde). The Court, having heard the
applicant, his divorced wife and his daughter as well as the competent
Youth Offices, considered that the applicant's right of access to his
daughter had to be suspended under S. 1634 para. 2 of the German Civil
Code (Bürgerliches Gesetzbuch) in the interests of the child's
well-being. The Court found in particular that, due to the parents'
bad relationship, a right of access might lead to further disputes
harming the child. It had, therefore, been necessary to adopt a
solution by which the child would be removed from the centre of
conflict between her parents for a long period.
On 19 October 1987 the Frankfurt Court of Appeal declared the
applicant's request for leave to appeal (Antrag auf Zulassung der
weiteren Beschwerde) inadmissible. On 25 November 1987 the Federal
Court of Justice (Bundesgerichtshof) declared the applicant's further
appeal (Nichtzulassungsbeschwerde) inadmissible.
On 12 November 1987 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) about the refusal of access to his
daughter and the length of the court proceedings concerned on the
ground that it offered no prospect of succes. The Constitutional
Court found in particular that the rights of parents are to be
exercised in the interest of their children's well-being. The
contested suspension of the applicant's right of access to his
daughter appeared to be necessary and reasonable in the interest of
her development. The District Court's decision that there should be
no review before the expiry of five years set a time-limit to the
provisional suspension. However, it did not prevent the applicant from
instituting new proceedings alleging changed circumstances.
Furthermore, on 17 March 1987 the Frankfurt District Court
dismissed the applicant's request dated 2 February 1987 to transfer
the right of custody to both parents. The applicant had already
unsuccessfully lodged such a request in the divorce and custody
proceedings in 1983, which were the subject of his previous
application before the Commission. His appeal and constititional
complaint remained unsuccessful.
Moreover, on 1 November 1988 the Frankfurt District Court
dismissed the applicant's request for free legal aid to institute new
proceedings concerning his right of access to his daughter. The
Court found that his proposed action offered no prospect of success
as he had failed to show a change in the relevant circumstances of the
case. His appeal was dismissed by the Frankfurt Court of Appeal on
14 December 1988. On 30 January 1989 the Frankfurt District Court
dismissed the applicant's renewed request to change the decision of
11 March 1987. It found again that the applicant had not shown any
change in the circumstances, in particular the relationship with his
divorced wife.
COMPLAINTS
1. The applicant complains under Article 8 para. 1 of the
Convention that the German court decisions suspending his right of
access to his daughter violate his right to respect for his family
life. He submits in particular that the suspension of his right to
access was disproportionate and constitutes inhuman and degrading
treatment within the meaning of Article 3 of the Convention. He also
refers to Article 14 of the Convention.
2. Furthermore, the applicant complains under Article 6 para. 1
of the Convention that the District Court's decision of 11 March 1987,
insofar as it excludes a review before the expiry of five years, denies
his right of access to court.
3. The applicant complains under Article 6 para. 1 of the
Convention about the length of the proceedings before the Frankfurt
District Court and Court of Appeal concerning his right of access.
4. Moreover the applicant complains under Articles 3, 6 para. 1,
8 and 14 of the Convention about the German court decisions not to
grant the divorced parents a joint right of custody.
THE LAW
1. The applicant complains that the decisions of the Frankfurt
District Court of 11 March 1987 and the Frankfurt Court of Appeal of
28 August 1987 suspending his right of access to his daughter violate
his right to respect for his family life under Article 8 (Art. 8) of the
Convention. He also invokes Articles 3 and 14 (Art. 3, 14) in this respect.
Article 8 (Art. 8) of the Convention provides:
"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, in its decision of 13 July 1987
on the admissibility of the applicant's previous application No.
12246/86, the German court decisions to grant the custody over his
daughter after divorce to his former wife were found to be 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.
In the present case concerning ensuing court proceedings, the
Commission finds that the contested court decisions to suspend sine
die the applicant's right of access to his daughter, again interfered with his
right to respect for his family life under Article 8 para. 1 (Art. 8-1)
However, this interference was justified under Article 8 para. 2 (Art. 8-2) of
the Convention.
The Commission observes that the German court decisions
concerned were taken in accordance with 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). Furthermore, the Commission finds that the
Frankfurt District Court as well as the Frankfurt Court of Appeal, having heard
the parties, the competent Youth Offices and, in particular, having considered
two psychological expert opinions, carefully examined the issue of the
applicant's access to his daughter. The Commission finds no indication that
the decisions to suspend his right of access for a considerable period were not
based on due consideration of the interests of the child.
Moreover, the applicant's submissions in this respect do not disclose
any appearance of a violation of Articles 3 and 14 (Art. 3, 14) of the
Convention.
It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the Frankfurt District Court's decision of 11 March 1987 denies
his right of access to court under Article 6 para. 1 (Art. 6-1) of the
Convention in that it excludes a review of the decision for a period of five
years.
Article 6 para. 1 (Art. 6-1), first sentence of the Convention
provides:
"In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by
law."
The Commission notes that the Frankfurt District Court
excluded a review of its decision of 11 March 1987 in order to remove
the applicant's daughter for a long period from the centre of conflict
between her parents. The Federal Constitutional Court considered this
ruling to be a time-limit for the provisional suspension of the
applicant's right of access which did not prevent him from instituting
new proceedings in view of changed circumstances. In fact, the
Frankfurt District Court, in its decision of 1 November 1988 upon the
applicant's request for free legal aid, did not consider the envisaged
action to have his right of access to his daughter re-examined as
barred by the decision of 11 March 1987 and on 30 January 1989 the
District Court considered the merits of the applicant's request to
change the decision of 11 March 1987.
In these circumstances, the Commission finds that the
applicant was not deprived of access to court contrary to Article 6
para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant moreover complains under Article 6 para. 1 (Art. 6-1) of
the Convention that the Frankfurt District Court and the Frankfurt
Court of Appeal did not decide upon his request for access to his
daughter within a reasonable time.
The Commission notes that the proceedings were instituted
before the Frankfurt District Court on 27 September 1984 and that the
Frankfurt Court of Appeal rendered its decision on 28 August 1987.
Thus the proceedings lasted about two years and eleven months, of
which two and a half years were spent at first instance.
The Commission recalls that issues releating to divorce and
family matters have to be determined particularly speedily (B. v. the
Federal Republic of Germany, Comm. Report of 13.11.87, paras. 113/114).
In the present case, the Commission finds that the issues
before the Frankfurt District Court were complicated as to the facts,
in particular due to the problems and disputes between the divorced
spouses, which had progressively developed since the earlier divorce
and custody proceedings.
The Commission considers that the tensions in the parents'
relations had also an impact on their conduct in the proceedings. In
particular, according to the second expert opinion of December 1986,
the proceedings were delayed by the mother who was no longer willing
to cooperate in the preparation of that opinion.
The District Court, in accordance with S. 12 of the
Non-Contentious Proceedings Act, was obliged to establish the relevant
facts in order to find a solution in the interests of the child which
had due regard to both parents' interests. Thus, the District Court
had to take evidence from two psychological expert opinions in order
to establish the relations between the parties and the child in view
of the requested right of access. It does not appear from the
applicant's submissions that any unnecessary delays occurred in the
course of these proceedings for which the Frankfurt District Court
could be held responsible, and that he had taken appropriate steps to
accelerate the proceedings.
Consequently, the applicant's complaint about the length of
the proceedings concerning his right of access is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Finally, the applicant's complaints under Articles 3, 6, 8 and 14 (Art.
3, 6, 8, 14) of the Convention about the German court decisions to dismiss his
renewed request for a joint right of custody over his daughter do not disclose
any appearance of a violation of the Convention. It follows that this part of
the application is also 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 President of the Commission
(J. RAYMOND) (C. A. NØRGAARD)