EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 28422/95

Peter Hoppe

against

Germany

REPORT OF THE COMMISSION

(adopted on 10 September 1999)

Page

I. INTRODUCTION

(paras. 1 - 15) .............................................. 1

A. The application

(paras. 2 - 4) .......................................... 1

B. The proceedings

(paras. 5 - 10) ......................................... 1

C. The present Report

(paras. 11 - 15) ........................................ 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16 - 40) ............................................. 3

A. The particular circumstances of the case

(paras. 16 - 38) ........................................ 3

B. Relevant domestic law and practice

(paras. 39 - 40) ........................................ 6

III. OPINION OF THE COMMISSION

(paras. 41 - 74) ............................................. 7

A. Complaints declared admissible

(para. 41) ............................................ 7

B. Points at issue

(para. 42) ............................................ 7

C. As regards Article 8 para. 1 of the Convention

(paras. 43 - 61) ........................................ 7

CONCLUSION

(para. 62) ........................................... 11

D. As regards Article 6 para. 1 of the Convention

(paras. 63 - 69) ....................................... 11

CONCLUSION

(para. 70) ........................................... 12

Page

E. As regards Article 14 taken in conjunction with Article 8 of the Convention

(paras. 71 - 72) ....................................... 12

CONCLUSION

(para. 73) ........................................... 12

F. Recapitulation

(paras. 74 - 76) ....................................... 13

DISSENTING OPINION OF Mr G. RESS

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION .................... 15

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is a German citizen, born in Wuppertal and resident there. He was representing himself before the Commission.

3 . The application is directed against Germany. The respondent Government were represented by their Agent, Ms. H. Voelskow-Thies, Ministerialdirigentin , of the Federal Ministry of Justice.

4 . The case concerns the applicant's complaint, about the German court decisions on his right of access and on custody of his daughter, and the proceedings concerned. The applicant invokes Article 8 para. 1, Article 6 para. 1 and Article 14 of the Convention.

B. The proceedings

5 . The application was introduced on 27 July 1995 and registered on 4 September 1995.

6 . On 26 June 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. It declared the remainder of the application inadmissible.

7 . The Government's observations were submitted on 8 October 1996. The applicant replied on 18 December 1996. He made further submissions on 3 March, 29 April and 23 September 1997.

8 . On 14 January 1998 the Commission declared admissible the applicant's complaints under Articles 8 para. 1, 6 para. 1 and 14 of the Convention. It declared inadmissible the remainder of the application.

9 . The text of the Commission's decision on admissibility was sent to the parties on 30 January 1998 and they were invited to submit further information or observations on the merits as they wished.

10 . After declaring the case admissible, the Commission, acting in accordance with former [1] Article ï€ 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected. Pursuant to the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the application was transferred to the Commission sitting in plenary.

C. The present Report

11 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

Mrs G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

Sir Nicolas BRATZA

MM. I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENI Č

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

12 . The text of this Report was adopted on 10 September 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

13 . The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14 . The Commission's decision on the admissibility of the application is annexed hereto.

15 . The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

a) Factual background

16 . In December 1992 the applicant and his wife separated. The spouses' daughter Svenja, born in wedlock in April 1990, stayed with her mother. In 1994 the applicant's wife instituted divorce proceedings before the Wuppertal District Court ( Amtsgericht ), claiming that the marriage had broken down.  She requested that custody of Svenja be granted to her.  The applicant requested that custody should be exercised by both parents. Furthermore, the applicant requested that his right of access to Svenja be determined by court decision. In these and the related proceedings, both spouses were represented by counsel.

b) The applicant's right of access

17 . On 19 October 1994 the Wuppertal District Court, following hearings on 22 June and 17 October 1994, decided that the applicant was entitled to see Svenja every second Saturday as well as on Boxing Day, Easter Monday and Whit Monday. The District Court referred to S. 1634 of the Civil Code ( Bürgerliches Gesetzbuch ).

18 . In its decision, the Court noted that the applicant had previously seen Svenja twice a week, until her mother, on account of Svenja's behaviour, had reduced their contacts. Thereupon, the applicant had requested a right of access during one day at the week-end and between Wednesday afternoon and Thursday morning. Svenja's mother had agreed to a right of access every second Saturday. The Court found that, having due regard to the child's well-being, the applicant's right to see Svenja had to be arranged accordingly so that they could preserve their relationship.

19 . As regards the frequency of visits, the Court noted that all experts heard in the proceedings, i.e. the psychological expert (report of 14 June 1994), the therapeutic pedagogue and a social worker of the Barmen Diaconate Institution ( Diakonisches Werk ), had stated that the four-year-old child was exposed to a conflict of loyalty, which she experienced as a strong pressure, and that she could not cope with this situation. While it was true that Svenja was fond of the applicant and would be in a position to see him without fear if her parents managed to create an atmosphere which took the pressure off her, they had not been able to do so.  The frequency of visits as requested by the applicant could not, for the time being, be handled by Svenja. It appeared that the applicant, for personal reasons, could not agree to a limited access. Moreover, Svenja's mother had not yet managed to give her such a feeling of security as to permit Svenja to visit the applicant without feelings of fear.  Svenja therefore needed the intervals of two weeks as times of rest in her mother's household.

20 . On 4 November 1994 the applicant lodged an appeal with the Düsseldorf Court of Appeal ( Oberlandesgericht ).

21 . On 24 November 1994 the Court of Appeal informed the parties of its intention to decide in a written procedure.  The applicant stated his preference for an oral hearing.

22 . On 9 March 1995 the Düsseldorf Court of Appeal granted the parties legal aid for the purposes of the applicant's appeal proceedings against the decision on his right of access. Moreover, upon the applicant's appeal, the Court of Appeal amended the District Court's decision to the effect that every first visiting weekend per month the applicant was entitled to see Svenja from Saturday morning until Sunday evening. The remainder of his appeal was dismissed.

23 . The Court of Appeal confirmed the findings of the District Court according to which a regular visit every second week best suited the child's well-being. In this respect, the Court of Appeal had particular regard to the parents' controversial relations and their impact on the child. Thus the parents were not yet in a position to have a calm discussion on questions relating to the right of access. Lately, on 21 February 1995, the attempt of a conversation between the parents at the Parents Counselling Service ( Elternberatungsstelle ) of the local Youth Office ( Jugendamt ) had failed. As long as there was no agreement between the parents, any visit was an emotional strain for the child. The applicant's right of access had to be arranged in view of the continuing conflict between the parents.

24 . The Court of Appeal  further found that the regular visits as decided upon by the District Court best suited both the applicant's wishes and the child's well-being. The  exercise of the right of access had functioned well since October 1994. In particular, the child had meanwhile calmed down and her sleep was no longer troubled. The Court of Appeal, in agreement with the parties, further considered the report, dated 19 January 1995, of a social worker of the Elberfeld Diaconate Institution, which had been obtained in the context of the parallel custody proceedings. According to this report, particularities in Svenja's behaviour had no longer been observed. The Court of Appeal found that this encouraging development did not yet allow for a significant extension of the applicant's right of access. However, taking a cautious approach, the visit on the first weekend of every month could be extended to include one stay over night. Having regard to the psychological expert opinion of 14 June 1994, the objections previously raised by Svenja's mother were no longer valid. Should she experience any problems, she would have to see to it that Svenja came to regard the visits with a stay over night as a usual matter. Any further contacts, including a stay over night between every Wednesday and Thursday, routine telephone conversations and common holidays, were not yet possible, but could be envisaged in case the decision on access proved successful.

25 . On 13 June 1995 the Federal Constitutional Court ( Bundesverfassungsgericht ) refused to admit the applicant's constitutional complaint ( Verfassungsbeschwerde ).

26 . The Federal Constitutional Court considered that the applicant's complaint did not raise any issue of fundamental importance. In accordance with the case-law of the Federal Constitutional Court, both the right of access of a parent not entitled to custody and the right of custody of the other parent were protected by the right to respect for family life under the Basic Law ( Grundgesetz ). The possibility, pursuant to S. 1634 para. 2 of the Civil Code, to limit or exclude the right of access, if necessary for the child's well-being, ensured that the courts' decisions on the matter were based on the child's well-being.

27 . Furthermore, the Federal Constitutional Court found that the Court of Appeal's decision did not disclose any fundamentally wrong views on parental rights. Thus, the Court of Appeal had considered the child's well-being in the circumstances of the instant case. The reasoned decision that the visits could only slowly be extended could not be objected to from a constitutional point of view. There was no indication that the procedural requirements were not met. In particular, the applicant had not shown that, following the failure of a conversation between the former spouses at the Parents Counselling Service, the Court of Appeal could not reach the conclusion that a fresh hearing would not permit any new findings.

28 . On 3 April 1996 the Wuppertal District Court amended the decisions on the applicant's right of access to the effect that he was entitled to see his daughter every second weekend between Saturday morning and Sunday evening and also for a period of two weeks of summer holidays.

c) The custody proceedings

29 . On 24 October 1994 the Wuppertal District Court, following an oral hearing on 17 October 1994, granted a divorce and transferred custody of Svenja to her mother.

30 . The Court, referring to S. 1671 of the Civil Code, found that its decision on custody was, for the time being, in the child's best interest. In this respect, the Court, having regard to the statements of the psychological expert in the proceedings regarding the applicant's right of access, noted that Svenja's mother lovingly educated her and was only interested in Svenja's well-being.

31 . As to the applicant's request for joint custody, the Court considered that the conditions for joint custody were not met. In particular, the parents' relations with each other regarding Svenja, as well as the relations with Svenja were not free of conflicts. The applicant did not accept that Svenja's living situation had changed following her parents' separation and found that, as a four-year-old child, she needed a stable conduct of life without being torn between different apartments and different styles of education. The Court noted the applicant's interest in Svenja's well-being and his efforts; however, he failed to see that his wishes obstructed Svenja's psychological development.

32 . On 12 December 1994 the applicant lodged an appeal with the Düsseldorf Court of Appeal.

33 . On 15 December 1994 the Court of Appeal requested Svenja's mother as well as the competent Youth Office to comment on the applicant's appeal submissions. On 19 January 1995 the Elberfeld Diaconate Institution, upon the instructions of the competent Youth Office, submitted its report. The parties were given the opportunity to comment upon the said report in writing. The applicant stated his preference for an oral hearing.

34 . On 9 March 1995 the Düsseldorf Court of Appeal  dismissed the applicant's request for free legal aid for the purposes of appeal proceedings against the District Court's judgment of 24 October 1994, and dismissed the applicant's appeal.

35 . The Court of Appeal observed that, following a divorce, parents could only have joint custody if they were willing to cooperate. However, Svenja's mother was not prepared to do so. In the proceedings regarding the applicant's right of access, which had been pending since March 1993, the parents had continuously had major disagreements, and the attempt of a conversation at the Parents Counselling Service had finally failed in February 1995. Custody could, therefore, only be exercised by one of the parents, in this case the child's mother. While the applicant had requested that, in the alternative, custody be granted to him, he had not raised any serious objections to the District Court's reasoning.

36 . The Court of Appeal also considered that it could decide on the basis of the case-file without an oral hearing with the parties being necessary.

37 . On 13 June 1995 the Federal Constitutional Court refused to admit the applicant's constitutional complaint.

38 . The Federal Constitutional Court considered that the applicant's complaint did not raise any issue of fundamental importance. The Federal Constitutional Court recalled that when courts had to decide on the transfer of custody following the parents' divorce, they had to balance the positions of both parents without encroaching upon the parental priority in educational matters. In such cases, the courts were not, therefore, subject to the strict conditions in respect of interferences with parental rights. The legislator and, in application of the relevant legal provisions, the courts were entitled to transfer the main responsibility for the education of a child to one parent, if the conditions for joint custody were not met. Furthermore, according to the Federal Constitutional Court, the Court of Appeal's view that the conditions for granting joint custody were not met in the instant case could not be objected to from a constitutional point of view. Moreover, there was nothing to show that the Court of Appeal should have conducted any further inquiries.

B. Relevant domestic law and practice

39 . S. 1634 paras. 1 and 2 of the Civil Code, as far as relevant, provide as follows:

“(1) A parent who is not entitled to custody has the right of access to the child.  ...

(2) The competent (family court) may decide on the extent of the right of access and its implementation, ... The court may limit or exclude the right of access if this is necessary in the interest of the child's well-being.”

S. 1671 paras. 1 and 2 of the Civil Code provide as follows:

“(1) In case of the parents' divorce the competent court ( Familiengericht ) decides on which parent should have the right to custody over a common child.

(2) 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.”

40 . In a decision of 3 November 1982, the Federal Constitutional Court declared unconstitutional paragraph 4, first sentence, of S. 1671, according to which the right to custody had to be transferred to one of the parents in case of divorce. The Constitutional Court considered that a right to joint custody was possible in case of divorce if there was a common proposal by the parents, showing their willingness to share the responsibility for their child after their divorce.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

41 . The Commission has declared admissible the applicant’s complaints:

- that the German court decisions and the proceedings concerned determining his right of access to his daughter and granting custody of his daughter to his former wife and thereby refusing his request for joint custody violated his right to respect for his family life, as guaranteed by Article 8 para. 1 of the Convention;

- that he had been unable to have the question of access and custody of his daughter determined in proceedings that complied with Article 6 para. 1 of the Convention, in particular because the Court of Appeal did not hear the parties, although he had requested such a hearing in the proceedings regarding his right of access and the custody;

- under Article 14 taken in conjunction with Article 8 of the Convention that the German courts, in accepting the negative attitude of Svenja's mother, discriminated against him as Svenja's father.

B. Points at issue

42. Accordingly, the points at issue are:

- whether there has been a violation of Article 8 para. 1 of the Convention;

- whether there has been a violation of Article 6 para. 1 of the Convention;

- whether there has been a violation of Article 14 taken in conjunction with Article 8 of the Convention.

C. As regards Article 8 para. 1 of the Convention

43.              The applicant alleged that he had been the victim of a violation of Article 8 para. 1 of the Convention, which, insofar as relevant, reads as follows:

Article 8, as far as relevant, reads as follows:

“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 the rights and freedoms of others.”

44. As to his right of access to his daughter, the applicant contends that extensive contacts as requested by him are in the interest of his daughter and were only refused because of the negative attitude of Svenja's mother. In placing Svenja into a situation of loyalty conflict, she had been able to obstruct his right of access. He also complains that the courts did not fully establish the relevant facts necessary for a decision on his right of access. He submits in particular that the Court of Appeal did not hear the parties and an expert, although he had requested such a hearing.

45. The Government submit that the decisions limiting the applicant's right of access were taken in accordance with German law and were necessary in a democratic society for the protection of the child's well-being. In particular the Courts had regard to strained relations between the parents which exposed Svenja to a conflict of loyalty. In this respect, the District Court had heard the parents, a psychological expert as well as a social worker. The Court of Appeal could base its decision on the first instance files, amended by the report of the Elberfeld Diaconate Institution and the parents' written submissions which confirmed the continuing conflicts between them. In the absence of relevant new facts, the Court of Appeal had not been required to hold a hearing.

46. The applicant further complains that the German court decisions concerning custody of Svenja, and the proceedings concerned, also violated his right to respect for his family life. He considers that a common proposal by the divorced spouses should not be a condition for the granting of joint custody after divorce. He submits that custody should not have been granted to the parent refusing the exercise of joint custody and obstructing the other parent's right of access. Moreover, there had been no sufficient reasons for the Court of Appeal to decide on his appeal without an oral hearing.

47. The Government reject this argument. They submit in particular that the interference with the applicant's right to respect for his family life was justified under paragraph 2 of Article 8. In a situation of conflict between the parents, the competent courts could not decide that custody be jointly exercised by them, but had to grant custody to one of them. In the present case, the daughter had been living with her mother since the separation of her parents and, for reasons of continuity, custody could only be granted to her. Moreover, on the whole, both parents were sufficiently involved in the decision-making process. In their view, no hearing before the Court of Appeal appeared necessary, as the main consideration had been that the strained relations between the parents did not permit joint custody.

Whether there has been an interference

Whether the interference was justified

50. Such interference constitutes 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” (see, among other authorities, Eur. Court HR, Bronda v. Italy judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1489, para. 52).

“In accordance with the law”

“Legitimate aim”

“Necessary in a democratic society”

53. The Commission recalls that the case-law of the Convention organs establishes that the notion of necessity implies that the interference corresponds to a pressing social need and that it is proportionate to the aim pursued. In addition, in determining whether an interference is necessary, the Convention organs will take into account that a margin of appreciation is left to the Contracting states as to the necessity of a given measure (Eur. Court HR, W v. the United Kingdom judgment of 8 July 1987, Series A No. 121, p. 27, para. 59). Furthermore, when so determining, the Commission observes that it is not its task to take the place of the competent national courts and make a fresh examination of all the facts and evidence - rather the task of the Commission is to examine whether those courts adduced reasons to justify the relevant interference which are “relevant and sufficient” (Eur Court HR, Olsson v. Sweden judgment of 24 March 1988, Series A No. 130, p. 32, para. 68).

55. In the present case, the Commission finds that the domestic courts carefully considered the applicant’s request for a transfer of the custody and the problems in respect of the access arrangement. The decisions on access and on custody were taken with due regard to the parents' arguments and on the basis of expert advice. The courts had regard to the strained relations between the parents and to the conflict of loyalty resulting therefrom. They concluded that it was in the best interest of Svenja that she continued living with her mother and that the applicant's right of access was limited to every second week-end. There is no indication that these decisions were motivated by any other, undue considerations.

56. Accordingly, the Commission considers that, in the circumstances of the present case and in view of the margin of appreciation accorded to States in this area, the imposition by the courts of their views as to the best interests of the child was supported by “relevant” as well by “sufficient” reasons. The interference was therefore, in the Commission’s view, proportionate to the legitimate aim pursued.

57. The Commission has not overlooked the applicant’s situation. The restricted access to one’s child may cause considerable suffering to the non-custodial parent. However, where, as in the present case, there is a serious conflict between the interests of the child and one of its parents which can only be resolved to the disadvantage of one of them, the interests of the child must, under Article 8 of the Convention, prevail.

58. As regards the procedural requirements implied in Article 8 of the Convention to ensure effective respect for family life (cf. Eur. Court HR, W. v. United Kingdom judgment of 8 July 1987, Series A no. 121-A, p. 28, para. 62; Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, p. 33, para. 71; McMichael v. United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 57, para. 91), the Commission observes that the applicant , assisted by counsel, was involved in the decision-making process. In particular in the proceedings at first instance he had the possibility to present his arguments, both in writing and at oral hearings. As regards both sets of appeal proceedings before the Düsseldorf Court of Appeal, the Commission notes that, contrary to the wishes expressed by the applicant, no oral hearings were held. It is true that the Court of Appeal considered, inter alia on the basis of a further report of 19 January 1995 prepared by the Diaconate Institution, recent factual developments with a view to amending the first instance court decision. These recent developments concerned the strained relations between the parents and the consequences for the child's well-being. However, the applicant was given the possibility of putting forward any views in writing which in his opinion would be decisive for the outcome of the relevant proceedings. Furthermore, the report of 19 January 1995 was only one among other elements for the assessment of the case. The Commission is therefore persuaded by the Government’s argument that the Court of Appeal could base its decision on the first instance files, amended by the report of the Elberfeld Diaconate Institution and the parents' written submissions which confirmed the continuing conflicts between them and that no hearing before the Court of Appeal appeared to be necessary.

59. In addition, the Commission recalls that in cases relating to a person’s relationship with his child there is a duty to exercise exceptional diligence in view of the risk that the lapse of time may result in the de facto determination of the matter before the court. In the present case the Commission considers that the matter was determined with the benefit of the necessary material and on the merits of case with special diligence, since the decisions of the Court of Appeal were given on 9 March 1995, that is not even five months following the hearing before the Wuppertal District Court on 17 October 1994.

60. In these circumstances the Commission is satisfied that the procedural requirements implicit in Article 8 of the Convention were complied with and that the applicant was involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests.

CONCLUSION

62. The Commission concludes, by 16 votes to 10, that in the present case there has been no violation of Article 8 of the Convention.

D. As regards Article 6 para. 1 of the Convention

Article 6 para. 1, as far as relevant, provides:

"1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal ..."

64. The applicant complains in particular that the courts did not fully establish the relevant facts necessary for a decision on the custody matter and that the Court of Appeal did not hear the parties and an expert, although he had requested such a hearing.

65. The Government contend that in the proceedings concerning the applicant’s right to access to his daughter, there were no relevant new facts requiring the Court of Appeal to hold a hearing. As to the custody proceedings, the Government submit that no hearing before the Court of Appeal appeared necessary, as the main consideration had been that the strained relations between the parents did not permit joint custody.

66. The Commission recalls that Article 6 para. 1 of the Convention requires in principle that a hearing be held. The question therefore arises whether a departure from this principle could, in the circumstances of the case, be justified at the appeal stage.

67. The manner in which Article 6 of the Convention applies to proceedings before courts of appeal depends on the special features of the domestic proceedings viewed as a whole. Even where the court of appeal has jurisdiction both as to facts and as to law Article 6 does not always require a right to a public hearing irrespective of the nature of the issues to be decided. Therefore, if several judicial bodies may examine the matter, a hearing before one of them may suffice (cf., e.g., Eur. Court HR, Jan-Ã…ke Andersson v. Sweden judgment of 29 October 1991, Series A no. 212-B, pp. 44-46, paras. 23 and 27-29). In certain circumstances, even the complete absence of an oral hearing may be compatible with Article 6 (cf. Eur. Court HR, Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, pp. 19-20, para. 58; Allan Jacobsson v. Sweden judgment of 19 February 1998 (no. 2), paras. 46-49, Reports of Judgments and Decisions 1998-I, pp. 168-169, paras. 46-49).

68. The Commission observes that hearings had been held at first instance. The Wuppertal District Court had regard to the statements of a psychological expert, a therapeutic pedagogue and a social worker of the Barmen Diaconate Institution. The decisions of the Düsseldorf Court of Appeal, which was competent both as to the facts and as to the law, were based on the files of the first instance proceedings, the parties' fresh submissions in writing as well as on a new report of 19 January 1995 prepared by the Diaconate Institution together with the parties’ written comments. The main question raised by the applicant’s appeal concerned the strained relations between the parents and the child’s well-being. The Commission finds no indication that a hearing could have added anything of relevance to the matters the Court of Appeal had to decide. The Commission therefore considers that in the specific circumstances of the present case the appeal lodged by the applicant did not raise any questions of fact or law which could not adequately be resolved on the basis of the various material at the disposal of the Court of Appeal.

69. As to the fairness of the proceedings, it is not the Commission's task to substitute its own assessment of the facts for that of the national courts. Instead it must ascertain whether the overall proceedings, including the way in which evidence was dealt with, were fair within the meaning of Article 6 para. 1 (see, e.g., Eur. Court HR, Dombo Beheer v. the Netherlands judgment of 27 October 1993, Series A no. 274, pp. 18-19, para. 31 and the references therein). Considering the proceedings as a whole, the Commission finds that there was no  violation of Article 6 para. 1 as regards the alleged unfairness of the proceedings.

CONCLUSION

70. The Commission concludes, by 19 votes to 7, that in the present case there has been no violation of Article 6 para. 1 of the Convention.

E. As regards Article 14 taken in conjunction with Article 8 of the Convention

71. The applicant complains under Article 14 taken in conjunction with Article 8 of the Convention that the German courts, in requiring a common proposal of the parents in order to be granted joint custody, discriminate against one of the divorced spouses.

Article 14 of the Convention provides:

"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."

72. The Commission observes that the German courts weighed the interests of the child and her parents. The arguments put forward by both the mother and the applicant were duly into account. There is nothing in the case-file to substantiate the applicant's allegation of discrimination (cf., mutatis mutandis , Eur. Court HR, Schuler-Zgraggen v. Switzerland judgment, op. cit ., pp. 21-22, paras. 66-67).

CONCLUSION

73. The Commission concludes, unanimously, that in the present case there has been no violation of Article 14 in conjunction with Article 8 of the Convention.

F. Recapitulation

74. The Commission concludes, by 16 votes to 10, that in the present case there has been no violation of Article 8 of the Convention (para. 62).

75. The Commission concludes, by 19 votes to 7, that in the present case there has been no violation of Article 6 para. 1 of the Convention (para. 70).

76. The Commission concludes, unanimously, that in the present case there has been no violation of Article 14 in conjunction with Article 8 of the Convention (para. 73).

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

DISSENTING OPINION OF MR G. RESS

JOINED BY MM. J.-C. SOYER AND R. NICOLINI

According to the majority there was neither a violation of Article 8 nor of Article 6 in this case.  I cannot share this view.

On the contrary there was a violation of Article 8 in relation to the procedural requirements implicit in this article and no separate issue in relation to Article 6 para. 1.  The procedural requirements implicit in Article 8, in my view, are intrinsically related to the situation of every member of the family and demand that their views on their personal situation and on the interests of all involved can be duly expressed in all decisive court procedures, in particular in an oral hearing when new factual information is put before the judges. These procedural requirements of Article 8 in relation to the decision in family matters may even go beyond the requirements of Article 6 para. 1.  In my view, the lack of an oral hearing before the appeal courts in both proceedings did not correspond to the respect the respondent State is obliged to offer for family life.  Article 8 has to be regarded for such constellation as lex specialis in relation to Article 6 para. 1 .

It is true that to a large extent the applicant, assisted by counsel, was involved in the decision-making process. In particular in the proceedings at first instance he had the possibility to present his arguments, both in writing and at oral hearings.

As regards both sets of appeal proceedings before the Düsseldorf Court of Appeal, it has to be noted that, contrary to the wishes expressed by the applicant, no oral hearings were held. However, contrary to the Government's contention, the Court of Appeal did not limit its examination to a legal review but considered, inter alia on the basis of a further report of 19 January 1995 prepared by the Diaconate Institution, recent factual developments with a view to amending the first instance court decision. These recent developments concerned the very core of the problem before the Court of Appeal, namely the strained relations between the parents and the consequences for the child's well-being. In this situation, it was not sufficient to have the parties' comments in a written procedure. Rather, the Court of Appeal should have held an oral hearing, thus also having the opportunity of a personal impression of the parties and of an oral comment on the recent factual developments.

In these circumstances, the decision-making process determining the custody and access arrangements in regard to Svenja did not afford the requisite protection of the applicant's interests as safeguarded by Article 8 para. 1 (cf., mutatis mutandis , McMichael v. United Kingdom judgment, op. cit. , para. 92). Consequently, the lack of respect which the Court of Appeal showed for the applicant’s right under Article  8 para. 1 of the Convention cannot be justified under paragraph 2 of that Article.

[1] The term “former” refers to the text of the Convention  before the entry into force of Protocol No. 11 on 1 November 1998.