FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 32806/02
by Athanassios VRYONIS
against Germany
The European Court of Human Rights (Fifth Section), sitting on 2 May 2006 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger, judges,
and Ms C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 2 September 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Athanassios Vryonis, has Greek and German nationality. He was born in 1962 and lives in Duisburg in Germany.The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Factual background
The applicant is the father of the child K., born on 7 September 1992. The parents separated in November 1995. Following police intervention, the applicant’s wife and son found shelter in a women’s refuge, were they stayed until April 1996.
On 13 February 1996 the Ahaus District Court (Amtsgericht) temporarily transferred parental custody to the child’s mother. The applicant’s appeals remained unsuccessful.
Since August 1996 the child attended kindergarten in Bocholt.
Throughout the proceedings, the child remained with his mother; until the summer of 1997 the applicant had regular access to him.
In April 1998, following a visit during the Easter holidays, the applicant returned the child two days later than agreed upon.
On 9 June 1998, following a weekend visit, the applicant refused to return K. to his mother. He took the child out of Bocholt kindergarten and registered him at a kindergarten in Duisburg. On 10 June 1998, upon the mother’s request, the Bocholt District Court ordered that the child be returned to his mother.
As difficulties arose when the applicant had to return the child following a visit on 17 July 1998, which necessitated intervention by a Youth-Office officer, the applicant, allegedly upon the Youth Office’s advice, temporarily suspended the visits.
On 15 December 1998 the applicant attempted to visit his son. A conflict arose between the parents which culminated in police intervention.
2. Proceedings on custody and access rights
On 23 March 1997 the applicant, represented by counsel, filed a petition for divorce with the Bocholt District Court, acting in the capacity of a family court. At the same time, he requested that sole parental authority over K. should be transferred to him.
On 20 June 1997 the applicant, in separate interim proceedings, requested the Bocholt District Court to grant him access rights.
On 28 July 1997 the District Court, in the proceedings on the applicant’s access rights, ordered the psychological expert W. to prepare an expert opinion as to how parental authority and access rights should be distributed between the parents.
On 19 January 1998 W. submitted his expert opinion. He found that both parents were in principle able and willing to raise K. The mother, however, had not been able to build up an unburdened relationship with her son.
Her personality was characterised by introversion, emotional instability and inhibition, by a low capacity to build and stabilise human relationships and by low emphatic capacities (geringe emotionale Mitschwingfähigkeit).
The applicant, on the other hand, had a more stable personality and was considerably better apt to treat K. with empathy and loving understanding. The expert further found that the applicant did not show any remarkable signs of aggressiveness. It followed that the applicant was better able to raise the child and to serve him as a role model. The expert concluded that both parents should be granted joint custody, that the child should live with the applicant and that the mother should be granted regular visiting rights.
On 30 June 1998 the parents concluded a friendly settlement according to which the applicant was granted visiting rights every second weekend from Friday night until Saturday night.
As difficulties arose when the applicant had to return the child following the next visit on 17 July 1998, the applicant, allegedly upon the Youth Office’s advice, temporarily suspended the visits.
On 24 March 1999 the District Court, in the divorce proceedings, ordered the preparation of a fresh expert opinion as to the distribution of parental authority and access rights by the psychological expert M. K.
On 21 August 2000 M. K. submitted her expert report. Having on several occasions heard and examined both parents and the child, the expert noted that the implementation of the applicant’s access rights had failed because the applicant insisted on exercising these rights according to his own discretion, without accepting any rules. In this respect, the expert noted that the applicant wanted to fetch the boy at different times than agreed upon, that he refused to return him after visits and that he took him out of kindergarten and registered him in another one at his home place, without having parental authority. He further tried to discredit his wife. According to the expert, the applicant had been unable to realise that his behaviour was damaging his good relationship with his son. There was no indication that the mother influenced the child against him; on the contrary, the fact that the child still expressed the wish to see his father indicated that such influence had not taken place.
The expert further noted that the mother was perfectly able to raise the child and that she tried to keep him as much as possible out of his parents’ post-marital conflicts. She had demonstrated her ability to deal with everyday conflicts. The applicant’s reproaches against her, which had culminated in the filing of criminal information, were unfounded. According to psychological tests and the mother’s reports, K. did not show any psychological abnormalities. This too indicated that the mother was able to educate and encourage him in accordance with his age and his individual needs.
In so far as the mother was suspicious as to whether the applicant would abide by the agreements on visiting rights, this was justified by her previous experiences. The expert further found that the applicant had shown a high degree of aggressiveness. In so far as the expert W. had concluded that the applicant did not show any aggressive behaviour, his assessment had been based on psychological tests which had not been suitable for the purpose at hand. Finally, the expert expressed her doubts as to whether the applicant would be able to adequately deal with daily problems in case the child’s needs were opposed to his own interests.
The expert concluded that the child K. loved and needed both parents. However, having regard to the persisting conflicts between the parents and the fact that the applicant did not accept the mother as his equal, the granting of joint custody would be contrary to the child’s best interests.
She recommended that sole parental authority should be transferred to the mother. With regard to access rights, the expert noted that it would be in the child’s interest to have regular contacts with his father. However, both K. and his mother would have to be assured that the applicant abided by the rules set up for such contacts. As long as the applicant insisted that the child should live with him, as long as he degraded the mother and as long as he did not change his behaviour with a view to a more constructive strategy aimed at solving conflicts, such visits would have to be supervised.
On 19 September 2000 the Bocholt District Court, having heard both parents, the child and the experts W. and M. K., issued the divorce decree, transferred sole parental authority to the child’s mother and temporarily suspended the applicant’s access rights. The District Court noted, firstly, that neither of the parents was willing to accept joint parental authority. Having regard to the development of the parents’ conflicts, which had not diminished in spite of the long period of separation, it would be contrary to the child’s best interests to award joint custody. This had not been contrary to the finding of the first expert W., who had favoured joint custody. In this respect, the District Court noted that W.’s expert opinion had been more than 2.5 years old and that W. himself, in a supplementary statement dated 27 February 1999, had declared that joint custody had to be excluded with a view to the subsequent developments. Furthermore, the expert had expressly declared that his expert opinion was “outdated” and that changed circumstances warranted a fresh examination.
The District Court found that it was in the child’s best interest to transfer parental authority to the mother. The applicant was not able to properly raise the child. Following the expert M. K.’s opinion, that court found that the applicant was not able to adequately deal with daily problems in case the child’s needs were opposed to the applicant’s own interests. Furthermore, the child’s well-being was jeopardised by the applicant’s aggressive impulses and by the fact that the applicant did not accept the child’s mother as his equal, but tried to debase her.
The child’s mother, on the other hand, had proved that she was able to raise the child and that she had developed strategies to solve conflicts of daily life. As established by the expert, she had succeeded in keeping K. out of his parents’ conflicts and to preserve the positive image he had of his father. Insofar as K. appeared to be shy and aggrieved when heard by the court, this had to be explained by the fact that the child was torn into the conflict between his parents and that he had to take sides between two persons whom he both loved. There was no indication that the child had been negatively influenced against his father, otherwise he would not have declared that he wished to have contact with him. This finding was not contrary to the conclusions drawn by expert W., as the latter had conceded that his report had to be updated as the parents’ personal circumstances had changed in the meantime. The District Court could not follow the expert W.’s finding that the applicant did no show any signs of aggressive behaviour. In this respect, it pointed out that in 1996, the lease of the applicant’s flat had been terminated on the ground that the applicant had attacked the lessor’s wife. In separate proceedings, the director of the women’s refuge where K.’s mother temporarily found shelter had given testimony on the applicant’s aggressive behaviour. The Regional Court noted that these findings were in line with the finding of the expert M. K., who attested the applicant violent impulses.
The District Court further decided to temporarily suspend the applicant’s access rights pursuant to section 1684 of the Civil Code (Bürgerliches Gesetzbuch, see relevant domestic law below). It acknowledged that the child had a strong relationship to his father and that it would be desirable to grant regular contacts. This, however, was not possible at the present time. In this respect the District Court noted, firstly, that the applicant’s contacts with his child led to serious conflicts which necessitated police intervention. Referring to the expert M. K.’s finding, the District Court found that access rights could only be granted if the child could be assured that the applicant abided by the rules. As long as the applicant insisted on taking K. with him to Duisburg and did not accept any differing decisions – including court orders – such visits would have to be supervised. Such supervision was presently not possible as the applicant was not willing to accept any person as a supervisor, who did not completely meet his own expectations and who did not act accordingly. The Bocholt Youth Office could not act as a supervisor in the present case due to serious tensions between the applicant and the Youth Office. The applicant had lodged petitions for administrative and criminal review against the Youth Office. Accordingly, the latter had refused to act as a supervisor in the applicant’s case. Another possible supervisor, Mr B., was only willing to supervise visiting contacts if both parents agreed to this. During the court hearing, the District Court had phoned Mr B. in order to render visits possible. These endeavours failed, firstly, because the applicant was not willing to bear the costs entailed by supervision. Furthermore, the mother only agreed to commission Mr B. in case the applicant accepted that the child remained with her until a final court decision. The applicant had not been willing to make such a declaration. That the mother’s fears were not unfounded was demonstrated by the fact that the applicant had refused to return the child in the summer of 1998. There were no other persons available who could supervise visiting contacts. In any event, the problem would persist as the applicant was not willing to bear the necessary expenses.
On 27 June 2001 the Hamm Court of Appeal (Oberlandesgericht) rejected the applicant’s appeal against the District Court’s decisions on parental authority and on the temporary exclusion of access rights.
The Court of Appeal followed the District Court’s reasoning, according to which the serious tensions persisting between the parents excluded the possibility of joint custody. With regard to the transfer of parental custody to one parent, the Court of Appeal left the question undecided whether the applicant was sufficiently able to raise the child on a daily basis, as the mother had proved to be. The transfer of custody to the mother was in accordance with the wishes the child had expressed when heard by the expert and by the court. The most decisive point was that the transfer of custody to the mother gave continuity to the child’s present life and educational circumstances. A change of the child’s present life circumstances which would be added to the psychological burden which had already been imposed on him by his parents’ separation could only be justified if such change was compensated by considerable advantages for the child. Such advantages could not be found in the present case. Following the expert M. K.’s opinion, that court found that the child was well taken care of by his mother. It was not necessary to determine whether the finding of the expert W. had been scientifically correct, as they dated back to 1998 and the decision had to be taken according to the current circumstances. The expert W. did not claim that his findings were still valid. He had, on the contrary, stated that M. K.’s recommendations may be correct for the time of her examination. The issue which parent was more ready to accept the child’s relationship with the other parent (Bindungstoleranz) clearly pointed in favour of the mother. This was established by the expert M. K.’s findings as well as by the applicant’s unfounded allegations during custody and access proceedings, who had reproached the mother of “brainwashing” and abusing the child. The fact that the child had looked forward to meet his father disproved the allegations that the mother had influenced the child against him.
With respect to the decision on the temporary exclusion of access rights, the Court of Appeal confirmed the District Court’s finding that unattended visits could not be granted as long as the applicant did not respect the rules set up for such meetings. Supervised visits were currently not feasible as the applicant refused to cooperate. The Court of Appeal noted that the Youth Office could not supervise meetings, as the applicant did not accept the Youth Office’s staff and that the Youth Office had consequently refused to undertake that task. The Court of Appeal further noted that the District Court, in its hearing of 29 August 2000, had tried to arrange supervised visits. These endeavours had failed inter alia because the applicant had been unwilling to bear the necessary expenses, in spite of being legally obliged to do so. The applicant had not changed his attitude during second instance proceedings.
On 1 March 2002 the Federal Constitutional Court (Bundesverfassungsgericht) refused to accept the applicant’s constitutional complaint and joint request for an interim order for adjudication.
B. Relevant domestic law
The relevant provisions of the Civil Code (Bürgerliches Gesetzbuch) read as follows:
Section 1671
Living separately and joint parental authority
“(1) If parents who share joint parental authority are separated more than temporarily, each parent can request the family court to be transferred either sole parental authority or part of the parental authority.
(2) The request shall be granted if
1. the other parent consents, unless the child is at least fourteen years of age and is opposed to the transfer, or
2. if it is to be expected that the lifting of joint parental authority and its transfer to the applicant is best suited to serve the child’s welfare
...”
Section 1684
Contacts between parent and child
“(1) The child is entitled to have access to both parents; each parent is obliged to have contact with, and is entitled to have access to the child.
(2) The parents must not do anything that would harm the child’s relationship with the other parent or interfere with the child’s upbringing...
(3) The family courts can determine the scope of the right of access and can prescribe more specific rules for its exercise, also with regard to third parties.
They may oblige the respective parties to fulfil their obligations under paragraph 2.
(4) The family court can restrict or suspend access rights or the execution of previous decisions on access if such a measure is necessary for the child’s welfare.
A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be endangered.
The family courts may order that the right of access be exercised under the supervision of a third party. Such a third party may be a Youth Office or a private association...”
COMPLAINTS
1. The applicant complained under Articles 6 and 8 of the Convention about the suspension of his access rights. He further complained under Article 8 that the Hamm Court of Appeal had failed to hold a hearing in second instance proceedings.
2. Invoking Article 17 in conjunction with Article 8, the applicant complained about the withdrawal of parental authority.
3. Under Article 13 of the Convention the applicant complained that the constitutional complaint did not constitute an effective remedy.
4. The applicant furthermore complained under Article 3 of the Convention about the suspension of access rights.
THE LAW
1. The applicant complained that the domestic courts’ decisions suspending his access rights to his son amounted to a breach of Article 8 of the Convention, the relevant part of which provides:
“1. Everyone has the right to respect for his...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 applicant complained, in particular, that the domestic courts had failed to consider the factual separation from his son, which had lasted for more than two years. According to the applicant, the domestic courts had failed to fulfil their obligation to put an end to the mother’s “boycott” of access rights. Referring to the Court’s decision in the Elsholz case
(Elsholz v. Germany [GC], no. 25735/94, ECHR 2000‑VIII) he further complained about the fact that the Hamm Court of Appeal had not held a hearing in second instance proceedings.
The Court finds that the decision temporarily suspending the applicant’s right of access to his son amounted to an interference with his right to respect for his family life, as guaranteed by Article 8 § 1. Any such interference will constitute a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”.
The Court notes, firstly, that the temporary suspension of access rights had a basis in national law, namely section 1684 (3) of the Civil Code, and that it was aimed at protecting the “health and morals” and the “rights and freedoms” of the child. Accordingly, they pursued legitimate aims within the meaning of paragraph 2 of Article 8 (see Görgülü v. Germany,
no. 74969/01, § 37, 26 February 2004; Elsholz, cited above, § 47).
In determining whether the refusal of custody and access was “necessary in a democratic society”, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover,
it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Görgülü, cited above, § 41; and Sahin and Sommerfeld v. Germany [GC], nos. 30943/96 and 31871/96, § 64 and § 62 respectively, ECHR 2003-VIII).
The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. In particular when deciding on custody, the Court has recognised that the authorities enjoy a wide margin of appreciation. However, a stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Görgülü, cited above, § 42; Elsholz, cited above,
§ 49, ECHR 2000-VIII; and Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002-I). According to the Court’s case-law, where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed (see, among other authorities, Görgülü, cited above, § 45).
The Court further reiterates that a fair balance must be struck between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development (see Scozzari and Giunta v. Italy [GC],
nos. 39221/98 and 41963/98, § 169, ECHR 2000-VIII; P., C. and S.
v. the United Kingdom, no. 56547/00, § 117, ECHR 2002-VI).
In the present case the Court notes that the Bocholt District Court, when temporarily suspending the applicant’s access rights, considered the serious difficulties which had arisen during previous visiting contacts, which had necessitated police intervention. Relying on its own assessment of the facts and on expert opinion, it concluded that unsupervised visiting rights were not feasible as long as the applicant refused to abide by the rules set up for such contacts. Supervised visits were temporarily excluded because there was no person available who would be willing to undertake this task, taking into account the applicant’s attitude.
The Court accepts that these reasons had been relevant. However, it must be determined whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests
(see Sahin, cited above, § 68; Görgülü, cited above, § 52).
The Court notes, firstly, that there is no indication that the applicant, who had been represented by counsel throughout the proceedings before the District Court and the Court of Appeal, was not placed in a position enabling him to put forward all arguments in favour of obtaining access rights and had not had access to all relevant information which was relied on by the domestic courts (see, mutatis mutandis, Sahin, cited above, § 71). Insofar as the applicant complained that the courts had failed sufficiently to consider the two years’ separation of father and son and the reasons therefor, the Court notes that the domestic courts had not found that the child had become alienated from his father. There was no indication that the mother had influenced the child against him. On the contrary, the fact that the child expressed the wish to see him indicated that the mother had succeeded to preserve the positive image of his father. The Court further notes that the applicant himself temporarily discontinued to exercise his visiting rights in the summer of 1998.
The evidential basis for the District Court’s decision included the parents’ written and oral submissions, the statements of the child and two expert opinions. Both experts delivered their opinion after meeting the applicant, the child and the child’s mother on several occasions. The Court notes that both the District Court and the Court of Appeal thoroughly examined the expert opinions. In so far as the second opinion given by expert M. K. differed from that submitted by expert W., the District Court noted that W. considered that the case warranted a fresh examination, taking into account the time which had passed since the preparation of his own opinion. The Court further notes that the District Court tried to solve the problem of supervised visits by contacting a possible supervisor, but that no agreement could be reached between the parents which would have allowed commissioning him. This was at least partly due to the applicant’s attitude, who had refused to bear the necessary expenses, in spite of being legally obliged to do so. Under these circumstances, the Court does not find that the domestic courts had failed to consider facts which were relevant in the applicant’s case or had failed to abide by their positive obligations under Article 8.
With respect to the absence of a hearing in the appeal proceedings,
the Court notes that the Court of Appeal rendered its decision nine months after the first instance decision, based on the case-file of the first instance proceedings, on the two expert opinions commissioned by the District Court and on the written appeal submissions. This case can clearly be distinguished from the Elsholz case (cited above), in which the Court found that the absence of a second instance hearing combined with the refusal to commission expert opinion violated the applicant’s procedural rights under Article 8, by the fact that the Court of Appeal could base its decision on two expert opinions. Under the circumstances of the present case, the Court finds that the applicant’s appeal did not raise questions of fact and law which could not be adequately resolved on the basis of the written material at the disposal of the Court of Appeal.
Having regard to the foregoing and to the domestic authorities’ margin of appreciation, the Court is satisfied that the German courts’ procedural approach was reasonable in the circumstances and provided sufficient material to reach a reasoned decision on the question of access in the particular case. The Court can therefore accept that the procedural requirements implicit in Article 8 of the Convention were complied with.
It follows that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant alleged that he had been the victim of a violation of Article 6 § 1 of the Convention, the relevant part of which reads:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Court has found above that the applicant was sufficiently involved in the decision-making process for the purposes of Article 8 of the Convention. For the same reasons, the Court finds no indication that the procedures or decisions adopted by the domestic courts in this case infringed the applicant’s right to a fair trial under Article 6 § 1.
It follows that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. As regards the applicant’s further complaints under Articles 17 in conjunction with 8, 13 and 3 of the Convention, the Court notes that the proceedings in question ended on 1 March 2002, when the Federal Constitutional Court refused to accept the applicant’s complaint for adjudication, while the respective complaints were first raised by the applicant in his letter dated 30 June 2003, i.e. more than six months later.
It follows that this part of the application was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy