The European Commission of Human Rights sitting in private on
10 October 1986, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 (art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 August 1984 by E.
W. against the Federal Republic of Germany and registered on
6 May 1985 under file No. 11526/85;
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 1942, is a German national and resident in
Child's Ercall, United Kingdom. He is an unemployed doctor.
The applicant is filing his application also in the name of his
daughter, born in wedlock on 13 August 1975. Since 1984 the applicant
has apparently been living together with his daughter, although the
right of custody had been granted to the daughter's mother after the
parents' divorce in 1983.
I.
On 28 April 1981 the applicant instituted divorce proceedings before
the Charlottenburg District Court (Amtsgericht) on the ground that his
marriage had broken down and requested the custody over his daughter.
A provisional transfer of the right of custody as well as of the right
to determine the daughter's residence was refused by the Court on
29 April 1981 in order to enable her to stay in her usual
surroundings.
On 2 April 1982 the Court dismissed the applicant's request to grant
him access to his daughter during the Easter holidays. The Court
found in particular that the applicant had already spent two weeks
holidays with his daughter at the beginning of 1982.
On 15 May 1982 the Court provisionally awarded the custody to the
daughter's mother without having heard the parties. The Court found
that this decision was in the interest of the daughter's well-being.
The Court based its decision on a psychological opinion of the
certified psychologist Dr. F, which had been ordered by the Court in
November 1981. According to this opinion the daughter had had the
closest emotional contacts with her mother and was now endangered by
the applicant's strong attempts to manipulate the daughter's
attitudes. The Court concluded that the daughter had stronger moral
bonds to her mother and should, therefore, stay with her.
On 6 October 1982 the Court, upon the applicant's request, held a
hearing with the parties. As a result, it confirmed its previous
provisional decision in respect of the grant of custody to the mother.
The Court found that for the time being the mother should retain the
custody in order to avoid a second change of the daughter's residence
within a short period of time. The Court adjourned its decision on
the applicant's objections against the results of the psychological
opinion. Furthermore, the Court granted the applicant regular
visiting rights.
The applicant's appeal (sofortige Beschwerde) was declared
inadmissible by the Berlin Court of Appeal (Kammergericht) on
12 November 1982 on the ground that it had not been presented by a
lawyer.
On 11 January 1983 the Charlottenburg District Court heard the
applicant's daughter and ordered a final psychological opinion to be
prepared by Prof. L on the ground that her statements were
inconsistent with the results of the first psychological opinion.
On 22 June 1983 the Court dismissed the applicant's request to spend
holidays with his daughter in July 1983 on the grounds that he had
already spent holidays with her in March and April 1983 and that his
wife had already planned a holiday during that time. His appeal was
declared inadmissible by the Berlin Court of Appeal on 29 June 1983.
The Court found that there existed no right to appeal separately
against decisions concerning access to a child.
On 28 December 1983 the Charlottenburg District Court granted divorce
and gave the right of custody to the mother according to S. 1671
para. 1 of the German Civil Code (Bürgerliches Gesetzbuch). S. 1671
para. 1 states:
"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 proceeded from Prof. L's opinion according to which, in
principle, the grant of custody to either of the parents would favour
the daughter's well-being who only subconsciously felt slightly more
attached to the applicant. In view of the fact that both parents,
albeit differing in personality, were equally capable to educate their
daughter, decisive importance should be attached to the aspect of the
continuity of her development and education. The Court, therefore,
concluded that the existing situation should not be changed.
In April 1984 the applicant's wife informed the Berlin Police that the
applicant had abducted the daughter.
On 23 May 1984 the Berlin Court of Appeal dismissed the applicant's
appeal against the decision of the Charlottenburg District Court dated
28 December 1983 as being unfounded. The Court found in particular
that the applicant had shown a severe weakness of character in view of
the fact that he had failed to accept the previous instance's decision
and had unlawfully absconded with the daughter. The Court concluded
that he could no longer be considered as being capable of educating
his daughter.
II.
Upon the request of the applicant's wife, the Schöneberg District
Court ordered, on 30 June 1983, the forced sale of the family's common
estate in view of the divorce proceedings. However, the estate was
nevertheless voluntarily sold in March 1984.
On 5 July 1984, the Charlottenburg District Court ordered the arrest
(dinglicher Arrest) of the applicant's claim insofar as he was
entitled to the purchase price. The Court found that the arrest was
necessary in order to secure his daughter's right to a monthly alimony
until her eighteenth birthday as well as a further claim which
concerned legal charges. The Court also found that the applicant was
likely to abscond.
On 7 November 1984 after conducting a hearing with the parties the
Court confirmed the order. The applicant's appeal was dismissed by
the Berlin Court of Appeal on 27 March 1985. The latter found that
the assets at issue would enable the applicant to abscond while
endangering his daughter's right to her alimony.
III.
On 26 June 1984 the Berlin Public Prosecution Authority
(Staatsanwaltschaft) indicted the applicant for having abducted his
daughter. The Authority informed the applicant's employer, a public
hospital, thereof. As a result the employer refused to conclude a
further temporary employment contract in September 1984.
IV.
In 1984 (the applicant has not submitted the dates or copies of the
respective decisions) the Tiergarten District Court fined the
applicant for insult, but failed to hear him and formally to serve the
decision upon him. The applicant has submitted that his lawyer
nevertheless found a copy of this decision in the court files
concerning his divorce proceedings. The applicant unsuccessfully
requested a restitutio in integrum. His subsequent appeal to the
Tiergarten District Court was dismissed as being out of time.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 (art. 6-1) of
the Convention that the German courts' proceedings in which the
custody over his daughter was awarded to his former wife were unfair
in that neither he nor his daughter were heard prior to the
provisional grant of custody in May 1982, i.e. the allegedly decisive
decision in respect of the subsequent continuity of education.
Moreover the decisions on the grant of custody did not have regard to
his daughter's wishes, or take into account the mother's disability to
educate children. He also complains that he was arbitrarily refused
permission to spend further holidays with his daughter.
2. On behalf of his daughter the applicant complains that the
court's decisions in respect of the custody and the holidays
interfered with her freedom of movement within the meaning of
Article 2 of Protocol No. 4 (P4-2).
3. The applicant complains under Article 14 (art. 14) of the
Convention that the German courts discriminated against him on the
ground of his sex in that they based their decisions on the
traditional roles of man and woman in a family.
4. The applicant furthermore complains under Article 6 para. 1
(art. 6-1) of the Convention that the proceedings in respect of the
forced sale of his estate were unfair.
5. The applicant complains under Article 1 of Protocol No. 1
(P1-1) that the Court's order of arrest in July 1984 concerning his
claim of payment after the sale of his estate were issued in order to
force him to bring his daughter back to Berlin.
6. The applicant complains under Article 6 para. 2 (art. 6-2) of
the Convention that the Berlin Public Prosecution Authority violated
the presumption of innocence when if informed his employer about the
indictment against him.
7. The applicant moreover complains under Article 6 (art. 6) of
the Convention that the court decision by which he was fined in 1984
was not served upon him and that therefore he was not able to defend
himself.
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, though the applicant has apparently
been living with his daughter since 1984.
The question, therefore, arises whether in these circumstances the
applicant is able to lodge his complaints concerning the German
courts' respective decisions on the grant of custody and the requests
for permission to spend holidays with his daughter also on behalf of
his daughter (cf. 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
manifestly ill-founded for the following reasons.
2. The Commission has first examined the applicant's complaints
in respect of the grant of custody as well as the decisions on
holidays with his daughter 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 finds 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 next task is 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).
Furthermore the Commission finds that with regard to cases where the
communal life of the parents is practically non-existent or
interrupted, as in the present circumstances, it is legitimate, or
even necessary, for the national law to provide rules governing the
relationship between parents and children which differ from the rules
which are normally applicable when the family unit is still
maintained. In such cases, Article 8 (art. 8) does not grant to one
or the other parent the right to be given preference as to his claim
for the custody over a child. The competent public authorities, when
called upon to take a decision in this respect, should take into
consideration the interest of the child (cf. No. 7770/77, ibid.).
In this respect, the Commission notes that the Charlottenburg District
Court and the Berlin Court of Appeal in fact considered the interests
of the applicant's daughter and in particular her future well-being as
being predominant. The Courts relied on psychological expert advice
as to the child's relationship with each parent as well as each
parent's capability to educate children. As these were found to be
roughly equal the District Court considered the continuity of
education as the decisive aspect. The Court of Appeal took moreover
the applicant's subsequent conduct, i.e. the abduction of his
daughter, into account. There is no evidence before the Commission to
show that these decisions did not give careful consideration to 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.
The Commission has next considered the applicant's complaint
concerning the refusal of his requests for permission to spend certain
holidays with his daughter. The Commission finds that the respective
courts' decisions interfered with the applicant's right to family life
within the meaning of Article 8 (art. 8), which includes the right of
a parent, who is denied custody following the dissolution of a
marriage, to have access to or contact with his child (cf. Hendriks
v. the Netherlands, Comm. Report 8.3.82, D.R. 25 p. 5).
However, the Commission notes that the decisions concerning the
requested permission concerning holidays with the daughter were given
under S. 1634 para. 2 of the German Civil Code. S. 1634 para. 2
provides, inter alia, that the Court may determine the extent
according to which the parent who is deprived of custody may exercise
his right to personal contact; it may furthermore restrict or exclude
this right, inasmuch as this is necessary for the child's well-being.
The Commission, therefore, finds that the decisions were in accordance
with German law. They furthermore pursued a legitimate aim under
Article 8 para. 2 (art. 8-2), namely the daughter's well-being. The
Commission moreover considers that the interference complained of was
proportionate to the legitimate aim pursued. The District Court
carefully considered the applicant's requests for permission to spend
holidays with his daughter in the light of the facts that he exercised
extensive and regular visiting rights and that he had already spent
holidays with his daughter prior to each request.
The Commission finds that in these circumstances the courts' decisions
to refuse the permissions sought were reasonable and that the
interference with the right to family life was thus justified under
Article 8 para. 2 (art. 8-2) of the Convention.
It follows that the complaint concerning the German courts' decisions
on custody and holidays is manifestly ill-founded within the meaning
of Article 27 para. 2 (art. 27-2) of the Convention.
3. The applicant complains under Article 14 (art. 14) of the
Convention that the District Court and the Court of Appeal when
deciding on the grant of custody discriminated against him on account
of his sex in that they based their decisions on the traditional roles
of man and woman in a family.
Article 14 (art. 14) of the Convention reads:
"The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national
or social origin, association with a national minority, property,
birth or other status."
The Commission has examined this complaint under Article 14 (art. 14)
in conjunction with Article 8 (art. 8) of the Convention. However, it
finds that the courts decided the grant of custody to the mother on
the ground that it was in the interest of the applicant's daughter.
There is no indication of a discrimination based on the applicant's
sex.
Consequently the complaint under Article 14 (art. 14) is manifestly
ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of
the Convention.
4. The applicant also complains that the courts' decisions on the
transfer of custody and his requests for permission to spend his
holidays with his daughter violated his daughter's right to liberty of
movement within the meaning of Article 2 para. 1 (art. 2-1) of
Protocol No. 4 (P4-2-1).
Article 2 para. 1 (art. 2-1) provides:
"Everyone lawfully within the territory of a State shall, within that
territory, have the right to liberty of movement and freedom to choose
his residence."
The Commission observes that the respective decisions on custody and
the requests concerning joint holidays did not as such interfere with
the freedom of movement of the applicant's daughter within the Federal
Republic of Germany.
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.
5. 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 transfer of custody over his daughter and the refusal
of permission to spend his holidays together with her. He alleges
that the courts did not consider his daughter's wishes and misjudged
her mother's capability to educate children. Neither he nor his
daughter were heard prior to the provisional decision on custody in
May 1982 which he considers to have been the decisive decision.
Insofar as those complaints relate to the substance of the domestic
decisions the Commission refers to its above findings under
Articles 8 and 14 (art. 8, art. 14) of the Convention and
Article 2 of Protocol No. 4 (P4-2). Insofar as they concern the domestic
proceedings, the Commission observes that, after the provisional grant
of custody, the applicant was heard by the District Court on
6 October 1982 and his daughter on 11 January 1983. The applicant then
had full opportunity to make his submissions on all points at issue
and in particular to comment upon the psychological opinion. 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 Court 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. 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.
6. The applicant complains under Article 6 para. 1 (art. 6-1) of
the Convention that the proceedings before the Schöneberg District
Court concerning the forced sale by auction of his (and his wife's)
estate were unfair.
The Commission notes that these proceedings were only in their initial
stage directed towards a forced sale by auction. The estate was
subsequently voluntarily sold to private purchasers. This sale
disposed of the auction proceedings. An issue arises therefore as to
whether the initial stage of these proceedings involved a
determination of the applicant's civil rights and obligations within
the meaning of Article 6 para. 1 (art. 6-1) of the Convention.
However,the Commission does not find it necessary to determine this
question as the applicant has in any case not exhausted the domestic
remedies available to him within the meaning of Article 26 (art. 26)
of the Convention.
The Commission here observes that the applicant failed to appeal
against the decision ordering the forced sale by auction under the
relevant Act on Forced Sale by Auction (Zwangsversteigerungs- gesetz)
and has, therefore, not exhausted the remedies available to him under
German law. Moreover, an examination of the case does not disclose
the existence of any special circumstances which might have absolved
the applicant, according to the generally recognised rules of
international law, from exhausting this domestic remedy.
It follows that the applicant has not complied with the condition as
to the exhaustion of domestic remedies and his application must in
this respect be rejected under Art. 27 para. 3 (art. 27-3) of the
Convention.
7. The applicant moreover complains under
Article 1 of Protocol No. 1 (P1-1) that the Schöneberg District Court
froze his claim of payment, which he had acquired after the sale of
the estate.
The Commission observes that this decision was taken in order to
secure the right of the applicant's daughter to a monthly alimony.
The applicant thus lost his right of free disposal of that claim in
connection with civil proceedings which were intended to secure the
future fulfilment of certain financial obligations. Consequently,
there is no appearance of a violation of the right to peaceful
enjoyment of one's possessions as guaranteed by
Article 1 of Protocol No. 1 (P1-1) (see mutatis mutandis No. 7256/75,
Dec. 10.12.76, D.R. 8 p. 161).
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.
8. The applicant complains under Article 6 para. 2 (art. 6-2) of
the Convention that the Berlin Public Prosecution Authority informed
his employer, a public hospital, about an indictment against him,
which had charged him with abduction of his daughter.
The Commission notes that the applicant has not shown that he
instituted any legal proceedings in order to challenge the lawfulness
of the Public Prosecution Authority's conduct. The question therefore
arises whether the applicant has exhausted the domestic remedies
within the meaning of Article 26 (art. 26) of the Convention. However,
the Commission finds it unnecessary to determine this question as the
above complaint under Article 6 para. 2 (art. 6-2) is in any event
manifestly ill-founded for the following reasons.
In the present case the applicant's employer was informed about an
indictment against the applicant, including the relevant charges.
However, Article 6 para. 2 (art. 6-2) is not violated if authorities
inform the public about criminal investigations as long as they do not
declare somebody guilty (cf. No. 7986/77, Dec. 3.10.78, D.R. 13 p. 73;
No. 8361/78, Dec. 17.12.81, D.R. 27 p. 37). In these
circumstances, the Commission finds that the information given by the
Public Prosecution Authority did not violate the principle of
presumption of innocence.
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.
9. The applicant complains under Article 6 para. 1 (art. 6-1)
that he was convicted by the Tiergarten District Court in 1984 on a
charge of insult without having had a possibility to defend himself.
However, the Commission is not required to decide whether or not the
facts alleged by the applicant disclose any appearance of a violation
of this provision as, under Article 26 (art. 26) of the Convention, it
may only deal with a matter after all domestic remedies have been
exhausted according to the generally recognised rules of international
law.
The Commission observes that according to S. 709 of the German Code of
Criminal Procedure (Strafprozessordnung), the appeal against the
conviction and sentence in summary proceedings (Strafbefehl) must be
lodged within a period of one week. Pursuant to S. 44 et seq. of the
Code of Criminal Procedure a restitutio in integrum may be requested
within the period of one week from the date on which the obstacle to
meet the time-limit was removed. The District Court declared the
applicant's request for restitution and his appeal inadmissible as
being lodged out of time.
The Commission recalls its constant case-law according to which there
is no exhaustion of domestic remedies where a domestic appeal is not
admitted because of a procedural mistake (see No. 6878/75,
Dec. 6.10.76, D.R. 6 p. 79). In the present case the applicant failed
to comply with the requirements under the Code of Criminal Procedure
and has therefore not exhausted the remedies available to him under
German law. Moreover, an examination of the case, as it has been
submitted by the applicant, does not disclose the existence of any
special circumstances which might have absolved the applicant,
according to the generally recognised rules of international law, from
exhausting the domestic remedies at his disposal.
It follows that the applicant has not complied with the condition as
to the exhaustion of domestic remedies and his application must in
this respect be rejected under Article 27 para. 3 (art. 27-3) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)