Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26568/95

by Haci Mehmet KARAKUZEY

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 February 1995

by Haci Mehmet KARAKUZEY against Germany and registered on

22 February 1995 under file No. 26568/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1961, is a Turkish national, residing in

Göppingen. In the proceedings before the Commission he is represented

by Mr. M. Garbach, a lawyer practising in Weilheim.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 4 December 1991 the Weilheim District Court (Amtsgericht)

granted an order of dissolution of the applicant's marriage and

transferred the right of custody over the spouses' daughter, born in

wedlock in 1986, to her mother. The court noted that the applicant had

agreed to the transfer of custody which was, for the time being, in the

best interests of the child.

According to the applicant's submissions, his daughter had

initially been educated according to Islamic belief. It appears that,

following their divorce, his former wife decided to have the child's

religious education changed and, in June 1992, had her baptised

according to Roman-Catholic faith. Thereupon, the applicant stopped his

maintenance payments.

On 16 December 1992 the Weilheim District Court ordered the

applicant to pay maintenance of DM 472,50 per month to his daughter.

The court noted that the change of his daughter's religion did not

affect her maintenance claim.

On 11 June 1993 the Weilheim District Court gave a decision

relating to the applicant's right to access to his daughter. It found

that he was entitled to see her every third weekend from Friday evening

until Sunday evening and for three weeks during the summer holidays.

It appears that the applicant could not exercise this right. He submits

that his daughter, allegedly influenced by her mother, refused any

contact with him. On 25 January 1994 the District Court decided that

both parties would have to pay a fine of up to DM 1,000 should they

further defy its decision as to the applicant's right of access.

On 11 August 1993 the applicant requested free legal aid for the

purpose of appealing against the decision of 16 December 1992 on the

ground that he had no obligation to pay his daughter maintenance. He

submitted in particular that his daughter refused any contact with him.

Further she had been baptised and had become a member of the Roman-

Catholic church. He had lost his right to educate her according to his

beliefs. According to Islamic belief a child which left this faith was

non-existent. Therefore, an obligation to pay her maintenance violated

his freedom of religion. Although she had been influenced by her

mother, his daughter had lost her right to maintenance on account of

her conduct.

On 19 November 1993 the Weilheim District Court refused the

applicant's request for free legal aid. It found that the appeal he

intended to bring lacked sufficient prospects of success. In

particular, the change of his daughter's religion did not affect his

obligation to pay maintenance.

On 18 February 1994 the Munich Court of Appeal (Oberlandes-

gericht) dismissed the applicant's appeal against this decision.

On 8 March 1994 the Weilheim District Court convicted the

applicant of breaching his obligation to pay maintenance. It sentenced

him to six months imprisonment suspended on probation. The Court noted

that the applicant had stopped his maintenance payments in November

1992, upon learning that this daughter had been baptised and had become

a Roman-Catholic. However, he knew that he was not entitled to do so.

The court found in particular that the change of his daughter's

religion did not dispense the applicant from his obligation to pay her

maintenance. This change had been brought about by the applicant's

former wife, who had lawfully exercised her right to custody which

included the determination of the child's religion. As regards the

applicant's submissions that his conviction violated his human rights,

the court noted that his own right to exercise his religion was not

affected and that his right to determine his daughter's religion had

been restricted by the transfer of custody to his former wife.

On 6 June 1994 the applicant lodged an appeal on points of law

(Revision) against this decision. He argued that his right to freedom

of religion had been violated in that he had lost all influence over

his daughter's religious education by reason of the fact that the right

to custody had been awarded to her mother. In particular, his right to

determine his daughter's religion had been violated, as her religion

had been changed by her mother without his being consulted. According

to Islamic belief such a conduct constituted an insult which would

oblige the father to expel mother and child from his family. In case

of such a gross violation of his freedom of religion any obligation to

pay maintenance had to be excluded. The financial interest of the

mother and the child had to be regarded as less important, in

particular as the maintenance of the child could be guaranteed by

public authorities or, eventually, with the help of the Roman-Catholic

church. Moreover, his daughter, influenced by her mother, had refused

any contact with him. As she had been alienated from him, it was

against his dignity to be degraded to a mere funder. His right to

access and his feelings had to be put above the financial interest of

the child. For these reasons, the legal provisions concerning custody

and maintenance as well as the contested judgment were

unconstitutional.

On 8 August 1994 the Bavarian Court of Appeal dismissed the

applicant's appeal on points of law.

On 17 August 1994 the Federal Constitutional Court

(Bundesverfassungsgericht) refused to admit the applicant's

constitutional complaint (Verfassungsbeschwerde) as regards the refusal

of free legal aid for appealing against the decision obliging him to

pay maintenance.

On 25 September 1994 the Federal Constitutional Court refused to

admit the applicant's constitutional complaint as regards the decisions

concerning his conviction for breaching his obligation to pay

maintenance.

COMPLAINTS

The applicant complains about the change of his daughter's

religion and about the court decisions obliging him to pay maintenance

to her despite the fact that she refuses contact with him and is

brought up in Roman-Catholic faith. He submits in particular that the

transfer of custody to his divorced wife, which enabled her to have his

daughter's religion changed without consulting him, violates the

principle of equality between the spouses and his right to freedom of

religion. Further, he considers that the court decisions are

discriminatory in that they reduced his relationship with his daughter

to the payment of maintenance. The applicant invokes Article 5 of

Protocol No. 7 as well as Articles 9 and 14 of the Convention.

THE LAW

1. The applicant complains about the change of his daughter's

religion and about the court decisions obliging him to pay maintenance

to her despite the fact that she refuses contact with him and is

brought up in Roman-Catholic faith. He invokes Article 5 of

Protocol No. 7 (P7-5) as well as Articles 9 and 14 (Art. 9, 14) of the

Convention.

2. Article 26 (Art. 26) of the Convention provides that "the

Commission may only deal with the matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law, and within a period of six months from the date on

which the final decision was taken." The obligation to exhaust domestic

remedies requires use of those remedies that are available and

sufficient. The remedy must be effective, that is capable of rectifying

directly the situation complained of (cf. No. 18079/91, Dec. 4.12.91,

D.R. 72 p. 263).

In the present case the question arises whether the applicant has

exhausted the remedies available to him under German law. In

particular, the Commission notes that the applicant did not appeal

against the decision of 16 December 1992, by which the Weilheim

District Court ordered him to pay maintenance to his daughter. The

related criminal proceedings cannot be considered as an effective

remedy as regards his grievances relating to the change of his

daughter's religion or her refusal to see him. However, the Commission

does not need to examine whether an effective remedy was available to

the applicant, or, in case there was none, whether he has complied with

the six-months' time-limit, as his application is inadmissible for the

following reasons.

3. As far as the applicant invokes the right to equality between the

spouses as guaranteed by Article 5 of Protocol No. 7 (P7-5), the

Commission notes that Germany has not ratified the said Protocol.

It follows that this part of the application is incompatible

ratione personae within the meaning of Article 27 para. 2 (Art. 27-2)

of the Convention.

4. The Commission has examined the applicant's complaint under

Article 9 (Art. 9) of the Convention, which reads as follows:

"1. Everyone has the right to freedom of thought, conscience

and religion; this right includes freedom to change his religion

or belief and freedom, either alone or in community with others

and in public or in private, to manifest his religion or belief,

in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be

subject only to such limitations as are prescribed by law and are

necessary in a democratic society in the interests of public

safety, for the protection of public order, health or morals, or

for the protection of the rights and freedoms of others."

The applicant submits in particular that, as a consequence of the

transfer of custody to his divorced wife, he could no longer determine

his daughter's religion.

The Commission recalls that it has previously found with regard

to Article 2 of Protocol No. 1 (P1-2) of the Convention, that in a case

where custody is awarded to one parent after divorce, the right of

parents to ensure the education of their children in accordance with

their religion and their philosophical convictions, which is an

integral part of the right to custody, may not be exercised by the

parent from whom custody has been withdrawn (cf. No. 7911/77, Dec.

12.12.97, D.R. 12 p. 192).

The Commission considers that Article 2 of Protocol No. 1 (P1-2)

contains the more specific provision as regards a parent's right to

determine his child's religious education. It follows that, in this

regard, the applicant's complaint does not raise an issue under

Article 9 (Art. 9) of the Convention.

Further, the applicant can be understood to complain that his

obligation to pay maintenance, despite the fact that his daughter is

not raised in Islamic faith, violates his freedom of religion.

The Commission recalls that Article 9 (Art. 9) primarily protects

the sphere of personal beliefs and religious creeds, but does not cover

every act which is motivated by religion or belief. In protecting the

said personal sphere, Article 9 (Art. 9) does not always guarantee the

right to behave in the public sphere in a way which is dictated by such

a belief, for instance by refusing to pay certain taxes because part

of the revenue so raised may be applied for military expenditure (cf.

No. 10358/83, Dec. 15.12.83, D.R. 37 pp. 142, 147).

In the present case, the German courts ordered the applicant to

pay his daughter maintenance and convicted him of having breached his

obligation to do so. They stated that the said obligation was not

affected by the change of his daughter's religion.

The Commission finds that the obligation of a parent to pay

maintenance to his child who is living with the other parent applies

generally and has no specific conscientious implications in itself.

Article 9 (Art. 9) does not confer on the applicant a right to refuse,

on the basis of his religious beliefs, to abide by the court decisions

at issue. The Commission, therefore, finds that there has been no

interference with the applicant's right to freedom of religion as

guaranteed by Article 9 para. 1 (Art. 9-1) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5. Finally, examining the application under Article 14 taken

together with Article 9 (Art. 14+9) of the Convention, the Commission

finds that the applicant failed to substantiate his complaint. In

particular there is nothing in the file to show that the was

discriminated against on the ground of his religion or any other

personal status.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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KARAKUZEY v. GERMANY

KARAKUZEY v. GERMANY

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