AS TO THE ADMISSIBILITY OF

                      Application No. 29567/95

                      by Bernhardt AIGNER

                      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

                 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 23 November 1995

by Bernhardt AIGNER against Germany and registered on 19 December 1995

under file No. 29567/95;

     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 1954, is a German national and resident

in Augsburg.  He is medical practitioner by profession.  In the

proceedings before the Commission, he is represented by Mr. T. Budde,

a lawyer practising in Reutlingen.

A.   Particular circumstances of the case

     The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

     The applicant had a relationship with Ms. T.L., a Finnish

national, from which a girl, Marjut, was born in 1985.  Marjut has

Finnish nationality.  The applicant recognised his paternity of Marjut.

     On 17 August 1990 the applicant and Ms. T.L. had a notary

legalise an agreement between them according to which, in case of

termination of their relationship, Marjut should live with the

applicant.  According to the applicant's and her mother's statements,

Marjut had been living in their common household in Tübingen since her

birth, she had been visiting a German kindergarten and only spoke

German.  Furthermore, Ms. T.L. was very engaged in her profession, and

to pursue a profession was more important to her than to the applicant.

The certified document further contained the applicant's request,

addressed to the District Court (Amtsgericht), acting as guardianship

court (Vormundschaftsgericht) in Augsburg, the applicant's main place

of residence, for Marjut's legitimation (Ehelicherklärung) in

accordance with SS. 1723 et seq. of the Civil Code.  Ms. T.L., in her

position both as Marjut's legal representative and her mother declared

her agreement with the said request.  According to a final clause of

the certified document, the notary informed the applicant and Ms. T.L.

about the legal implications of the requested legitimation, inter alia,

that Marjut would acquire the position of a legitimate child of the

applicant and that Ms. T.L. would lose her right to custody.

     On 8 January 1992 the Augsburg District Court, referring to

SS. 1723 et seq. of the Civil Code (Bürgerliches Gesetzbuch), granted

the applicant's request for Marjut's legitimation.  The District Court,

having heard the applicant and Marjut, found that they had a natural

and loving relationship.  Moreover, according to the applicant's

statements, he had occasionally taken care of Marjut.  The District

Court further noted the certified statements according to which the

mother was very engaged in her professional activities.  According to

the District Court, Ms. T.L. had refused to be heard on the matter.

The District Court considered that, in these circumstances, the

legitimation was in the interest of Marjut's well-being, and that there

was no indication of any serious objections.

     On 16 January 1992 the Augsburg District Court, upon the request

of Ms. T.L., issued a preliminary injunction, according to which the

applicant's right to determine Marjut's place of residence was

provisionally withdrawn and transferred to Ms. T.L.

     In its reasoning the District Court observed that, when deciding

upon the applicant's request for Marjut's legitimation, it had assumed

that such a decision corresponded to the genuine intentions of both the

mother and the father. The Court noted inter alia that the applicant,

when presenting Marjut in court on 7 January 1992, had stated that the

mother was staying in New York; that Marjut was integrated in Tübingen

and that he did not intend to separate her from her mother.  However,

he had concealed the fact that Ms. T.L. had married Mr. W. on

23 December 1991.  On 15 January 1992, when Ms. T.L. had learnt about

the legitimation and had reproached him with his conduct, the applicant

had called for an ambulance and had had her taken to a psychiatric

hospital.  When she was released shortly afterwards and returned,

Marjut had disappeared.  The District Court considered that in these

circumstances the applicant's right to custody was likely to be

withdrawn and transferred to the mother.  While this matter remained

to be examined, there was a risk that the applicant might not treat

Marjut appropriately which could only be met by the decision taken.

     On 20 January 1992 the applicant lodged an appeal (Beschwerde).

In these and the following court proceedings the applicant was

represented by counsel.  Still on 20 January, both parents were heard

personally by the District Court.  In the evening, the applicant

brought Marjut to her mother, Ms. T.L.

     On 13 February 1992 the Augsburg Regional Court (Landgericht)

dismissed the applicant's appeal (Beschwerde).

     The Regional Court, referring to S. 1666a para. 2 and S. 1666

para. 1 of the Civil Code, found that the decision to withdraw,

provisionally, the applicant's right to determine Marjut's place of

residence was necessary to avert a serious danger for her well-being

and that a final decision could not be awaited.  The Regional Court

confirmed the findings of the first instance court that the applicant's

right to custody would most likely be withdrawn and transferred back

to Ms. T.L.  In this respect, the Regional Court noted the parties'

concurring statements that Marjut's centre of life had been in

Tübingen.  The Regional Court further considered that the applicant,

taking into account his professional engagements as a specialist

practising in a hospital, would not be able to take sufficient care of

Marjut.  Living together with the applicant, who had previously not

been concerned with her education, would not be in the interest of

Marjut's well-being.  The Regional Court found that the relevant facts

had been substantiated.   No further investigations were required in

the preliminary injunction proceedings.

     On 9 April 1992 the Bavarian Court of Appeal (Bayerisches

Oberstes Landesgericht) dismissed the applicant's further appeal

(weitere Beschwerde).

     The Court of Appeal, on the basis of the facts underlying the

decisions taken by the lower instances, as amended in the proceedings

before it, confirmed the lower courts' findings.   In this respect, the

Court of Appeal considered in particular the events on 15 January 1992.

Thus, contrary to his statements in the legitimation proceedings, the

applicant had taken Marjut away from home without informing her mother,

Ms. T.L.  The Court of Appeal found that the applicant had thereby

interfered with Ms. T.L.'s rights, namely at least her rights to access

and information, even if, in the light of the case-law of the Federal

Constitutional Court (Bundesverfassungsgericht), she had lost her right

to custody.  The taking away of a child from its usual surroundings

could amount to an abuse of the right of custody, if it occurred at the

wrong time.  This had been the case, as Marjut had so far been living

with her mother most of the time and as the applicant had enforced his

rights immediately after the service of the decision on the

legitimation and without consulting Ms. T.L.   The sudden taking away

and the other events on 15 January 1992 which could not be concealed

from the then six-year-old child endangered her well-being.

     On 21 December 1993, in the main custody proceedings, the

Tübingen District Court, following a hearing on 6 December 1993,

withdrew the applicant's right to custody over Marjut and transferred

this right to Ms. T.L.  The District Court also provisionally withdrew

the applicant's right of access to Marjut until the completion of an

expert opinion regarding the matter.

     In its decision, the District Court summarised the relevant facts

regarding the legitimation proceedings, the subsequent events and the

course of the preliminary injunction proceedings.  The Court also noted

that it had heard the parties on 7 May 1992 and at the hearing of

6 December 1993, and that Marjut had been heard on 25 June 1992.

     As regards the merits, the District Court found that Ms. T.L.'s

request that the right to custody of Marjut be transferred back to her

in accordance with S. 1738 para. 2 of the Civil Code was well-founded.

In this context, the question whether or not, pursuant to the case-law

of the Federal Constitutional Court on the constitutionality of the

legal provisions on legitimation, she had fully lost her right to

custody or retained it notwithstanding the applicant's simultaneous

right to custody could be left open on the ground that in any event the

applicant's right to custody had to be withdrawn for abuse in

accordance with S. 1666 of the Civil Code.

     The District Court found that the applicant had obtained his

right to custody of Marjut in an improper way in that he had pursued

the legitimation proceedings without Ms. T.L.'s knowledge and behind

her back.  The request for legitimation had been certified at a time

when the parties had a common household and when the applicant, being

unemployed, had more intensively taken care of Marjut.  According to

the report of the Tübingen Youth Office of April 1991, filed in the

context of the legitimation proceedings, Ms. T.L. had intended to

obtain for Marjut the position of the applicant's legitimate child, and

that, in case anything should happen to her, Marjut should live with

the applicant.  However, she had never thought that the applicant would

exercise the right to custody so as to take Marjut away from her.  The

applicant, who had taken up a new job in Starnberg, had himself stated

at the Youth Office that Marjut would certainly remain in her usual

surroundings.  Further, in his counsel's written submission of

31 May 1991 it was indicated that Marjut would stay with her mother as

long as he and Ms. T.L. were separated and that the applicant was aware

of the fact that he could not himself take care of the child.

Following her marriage, Ms. T.L. had no longer agreed with Marjut's

legitimation and the applicant had been aware of this.  The conclusion

of the legitimation proceedings without her further participation had

taken Ms. T.L. by surprise.  While it would have been advisable for her

to have informed the District Court in precise terms, her statements

that she had not thought that the proceedings would be pursued were

conclusive.  The applicant however had seized the opportunity of Ms.

T.L.'s absence abroad in order to appear, together with Marjut, before

the District Court and to obtain, with incomplete submissions and false

pretences, the right to custody of Marjut with a view to separating her

from her mother, Ms. T.L.  Moreover, he had arranged for Ms. T.L.'s

admission to a psychiatric hospital in Marjut's presence and had

brought Marjut to acquaintances, keeping her whereabouts secret.  On

the occasion of Marjut's hearing in June 1992, it appeared that these

events had had a negative impact on her relationship with the

applicant.  The course of action taken by the applicant amounted to an

abuse of his right to custody which, therefore, had to be withdrawn.

     The transfer of the right to custody to Ms. T.L. was in Marjut's

best interest: it corresponded both with Marjut's wishes, as expressed

upon her hearing in June 1992 and persisting, according to the

observations of the Youth Office at the hearing in December 1993, and

with the necessity to authorise the person taking care of Marjut to

take the daily decisions for the child.

     As regards the applicant's request for a right of access to

Marjut pursuant to S. 1634 of the Civil Code, the District Court noted

that the applicant suffered from the separation from the child and that

Ms. T.L. had stated her intentions to establish a regular access.

However, Marjut refused to have any contacts with him.  The District

Court observed that, in the course of Marjut's personal hearing in June

1992, she had expressed such a strong emotional resistance to even

seeing the applicant that the applicant's right of access was

provisionally suspended, after having heard the parties who had not

insisted on a formal decision to that effect.  As Ms. T.L. had stated,

at the hearing of December 1993, that this resistance on Marjut's part

persisted, no decision on the applicant's right of access to Marjut

could be taken before the conclusion of the expert opinion regarding

this matter.  Although Marjut had not been heard by the Court for

eighteen months, her renewed hearing had not been necessary as she had

meanwhile been examined and questioned by the expert and the expert

opinion would soon be available.  The provisional withdrawal of the

applicant's right of access for such a short period could not be

regarded as disproportionate.

     On 23 September 1994 the Tübingen Regional Court dismissed the

applicant's appeal.

     According to the Regional Court, the District Court had correctly

based its decisions on both S. 1666 and S. 1738 of the Civil Code.  The

Regional Court further subscribed to the approach taken by the District

Court that the dominant feature was that the applicant had acquired the

right to custody in an extremely improper manner.  In this respect the

Regional Court noted the applicant's own statements in the course of

the preparation of the expert opinion of 8 June 1994 that he had known

about the relationship between Ms. T.L. and her husband-to-be and had

deliberately concealed their marriage from the District Court in the

legitimation proceedings, assuming - with good reason - that he would

otherwise not obtain the requested decision.  He could also foresee

that Ms. T.L., who had been on her honeymoon, would strongly react to

the loss of her right to custody.  While it was true that improper

conduct for the purpose of obtaining the right of custody could not,

as such, amount to an abuse of this right, the applicant's insistence

on this right with the long-term intention to separate Marjut from her

family constituted such an abuse.  In any event, the applicant's

subsequent conduct, seen as a whole, justified the impugned decision.

The Regional Court noted in particular the applicant's arrangements,

in Marjut's presence, to have her mother admitted to a psychiatric

hospital as well as the subsequent taking away and hiding of Marjut

who, separated from her mother, had travelled around with the applicant

for several days and had suffered from a serious mental strain.  The

applicant's lack of consideration for Marjut's mental well-being was

also shown by the fact that, after having brought her back to her

mother, he had kept part of Marjut's toys in order to demonstrate his

legal position.  Similar considerations applied to his conduct

regarding Marjut's identity papers which, following unsuccessful

enforcement proceedings, he had only handed over to the expert

appointed by the District Court in February 1994.  The Regional Court

also considered that the fact that the applicant had repeatedly

resorted to criminal charges against Ms. T.L. had further strained the

relations between the parents and worried Marjut.

     Accordingly, the District Court had correctly withdrawn the

applicant's - merely formal - right to custody of Marjut and

transferred it to her mother, as Marjut was well integrated in her

mother's new family.

     As regards the applicant's right of access to Marjut, the

Regional Court acceded to the findings of the expert in his opinion of

8 June 1994 according to which a temporary suspension of this right was

in the best interest of Marjut who could thereby profit from a

stabilisation of the situation.  In this respect, the Court observed

that the main proceedings regarding the applicant's right of access

could be continued following conclusion of the said expert opinion and

therefore the effects of the provisional suspension were limited in

time.  When heard on 23 August 1994, Marjut had herself indicated that

she did not wish contacts with the applicant.  Such contacts should,

however, be envisaged for the future.

     On 23 February 1995 the Stuttgart Court of Appeal dismissed the

applicant's further appeal.

     The Court of Appeal, referring to S. 1666 of the Civil Code,

confirmed that the applicant's conduct had amounted to a gross

violation of his right to custody of Marjut.  The Court of Appeal

placed less emphasis on the manner in which the applicant had obtained

this right to custody than on his subsequent conduct with a view to

separating Marjut from her usual surroundings.  The Court of Appeal

noted that, according to the psychiatric expert opinion, these events

had had such lasting negative consequences for Marjut that

psychotherapy treatment still appeared necessary. The events in

connection with the decision on legitimation were, therefore,

irrelevant and the taking of further evidence in this respect, as

requested by the applicant, was not necessary.  The Court of Appeal,

having regard to the conclusive findings of the expert opinion and

Marjut's own statements, also confirmed the provisional suspension of

the applicant's right of access to Marjut.  The Court of Appeal also

considered both the withdrawal of the applicant's right to custody and

the provisional suspension of his right of access to Marjut from the

constitutional point of view, finding that there was no violation of

the applicant's natural rights as a parent under the Basic Law.

     However, the Court of Appeal also advised both parents to settle

the disputes between them with a view to permitting Marjut to overcome

her problems and to take up contacts with the applicant.  Such contacts

were in Marjut's interest and Ms. T.L., in exercising her right to

custody, was obliged to exercise a positive influence on Marjut.  Thus

both parents should take the necessary steps to render future contacts

possible.

     On 23 May 1995 the Federal Constitutional Court refused to admit

the applicant's constitutional complaint (Verfassungsbeschwerde) on the

ground that the conditions for accepting the complaint for a decision

on its merits were not met.

     In its decision, the Federal Constitutional Court found that the

applicant's submissions did not raise any issue of fundamental

importance.  In particular, the applicant had failed to show that

S. 1738 para. 2 of the Civil Code could be objected to under

constitutional law or that there were any other fundamental questions

regarding the position of the father of a child born out of wedlock.

Furthermore, there was no reason to review S. 1711 para. 2 of the Civil

Code according to which the father only had a right of access if this

was in the interest of the child concerned, as the impugned decisions

suspending the applicant's right of access were not based on such a

reasoning.

     Moreover, according to the Federal Constitutional Court, the

acceptance of the applicant's constitutional complaint was not

necessary for the protection of his fundamental rights.  In particular,

the applicant had failed to show in what respect the taking of evidence

by the civil courts could be objected to: he had not submitted which

allegations he had intended to prove, how he had formulated his request

to take further evidence and in which way he had raised this matter in

his appeal with the Court of Appeal.  Furthermore, there was no

indication of a violation of his parental rights.  In this respect, the

Constitutional Court observed that the impugned decisions served to

resolve a dispute between two parents who both enjoyed the protection

of the Basic Law (Grundgesetz).  In this situation, the guiding

principle had to be the well-being of the child.  This principle had

been respected by the Court of Appeal.  The applicant's submissions,

which did not deal with the expert opinion to which the Court of Appeal

had repeatedly referred, did not disclose any indication that the Court

of Appeal's assessment according to which the applicant's conduct had

enduring adverse effects on the child's well-being could be objected

to from a constitutional point of view.

     The decision was served on 30 May 1995.

B.   Relevant domestic law

1.   Legitimation of a child born out of wedlock

     S. 1719 to 1740g of the German Civil Code (Bürgerliches

Gesetzbuch) concern the legitimation (Legitimation) of children born

out of wedlock.  SS. 1719 to 1722 govern the legitimation following the

subsequent marriage of their natural parents.  SS. 1723 to 1740g

concern the legitimation (Ehelicherklärung) upon the request of the

father or the child.

     According to S. 1723, the competent guardianship court grants the

father's request for the legitimation of his child born out of wedlock,

if the legitimation is in the child's best interest and if there are

no serious reasons against it.  The legitimation is only permitted with

the consent of the child or, if the child is a minor, the consent of

his or her mother; if the father is married, his spouse's consent is

also required (S. 1726 para. 1).  Exceptions to the requirement of the

mother's or the spouse's consent and the conditions for the replacement

of their consent by court order are regulated in S. 1726 para. 3 and

S. 1727, respectively.

     S. 1736 provides that upon legitimation the child acquires the

status of a child born in wedlock.  The child obtains the father's

family name (S. 1737).

     S. 1738 para. 1 provides that, upon the legitimation of the

child, the mother loses her right and obligation to exercise custody.

According to a decision of the Federal Constitutional Court of

7 May 1991 (1 BvL 32/88-BGBl. I S. 1509), this provision is

irreconcilable with Article 6 paras. 2 and 5 of the Basic Law (on the

protection of the parental rights in the care and upbringing of

children and the equality of opportunities between "illegitimate" and

"legitimate" children) to the extent that the mother loses her right

and obligation to exercise custody even in cases where the father and

the mother live in a common household with the child and both parents'

intentions underlying the legitimation are to exercise a joint right

to custody, and if such an arrangement is in the best interest of the

child.

     According to S. 1738 para. 2, the guardianship court may transfer

the right to custody back to the mother in case the father's right to

custody is terminated or suspended, or if the father's right to custody

of the child has been withdrawn.

2.   Withdrawal of the right to custody

     S. 1666 of the Civil Code provides in particular that, if the

physical, mental or psychological well-being of a child is endangered

as a consequence of an abuse of the right of custody, or neglect of the

child, or a failure of the parents arising through no fault of their

own or due to the conduct of a third person, and if the parents are not

willing or are unable to avert the danger, the competent guardianship

court will order the measures necessary to avert the danger concerned.

     According to S. 1666a, measures resulting in a separation of the

child from the parental family are only permitted if there are no other

means, including public welfare, to avert the danger.  The right of

custody may only be withdrawn if other measures have proved to be

unsuccessful or if it can be assumed that they are not sufficient to

avert the danger.

3.   Right of access

     Pursuant to S. 1634 of the Civil Code, the parent not holding the

right to custody is entitled to have access to the child.  This right

of access may be suspended if such a measure is necessary in the best

interest of the child.

COMPLAINTS

1.   The applicant complains about the German court decisions to

withdraw his right to custody of Marjut and provisionally to suspend

his right of access to her.  He considers that the courts' assessment

according to which he had abused his right to custody is incorrect, and

that the withdrawal of his right to custody was disproportionate.  He

further complains that he has not seen Marjut since 20 January 1992.

     He also submits that the fact that he does not have the same

legal position towards Marjut as Marjut's mother violates the principle

of gender equality.

     The applicant invokes Article 12 of the Convention and Article 5

of Protocol No. 7.

2.   The applicant further complains under Article 6 of the Convention

that the court proceedings were unfair.  He submits that the reasoning

in the impugned court decisions is erroneous.  He further complains

that the Regional Court and the Court of Appeal refused his request for

the hearing of a witness who could have made statements on the

relationship between himself and Marjut as well as on the general

family situation.

THE LAW

1.   The applicant complains about the German court decisions to

withdraw his right to custody of Marjut.  He also complains that he has

not seen his daughter since January 1992.    The applicant invokes

Article 12 (Art. 12) of the Convention.

     Article 12 (Art. 12) of the Convention secures the fundamental

right of a man and a woman to marry and to found a family, subject to

the national laws of the Contracting States.

     The Commission finds that the applicant's right to respect of his

family life lies at the heart of his complaints about the court

decisions to withdraw his right to custody of his daughter and the lack

of access to her.  The Commission therefore finds it appropriate to

examine the applicant's complaints under Article 8 (Art. 8) of the

Convention.

     Article 8 (Art. 8), so far as relevant, provides as follows:

     "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 recalls that the notion of "family life" in

Article 8 (Art. 8) is not confined solely to marriage-based

relationships and may encompass other de facto "family ties" where

parties are living together outside marriage.  A child born out of such

a relationship is ipso iure part of that "family" unit from the moment

of his or her birth and by the very fact of it.  There thus exists

between the child and his or her parents a bond amounting to family

life even if at the time of his or her birth the parents are no longer

co-habiting or if their relation has then ended (cf. Eur. Court HR,

Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, pp. 17-18,

para. 44; Kroon and Others v. the Netherlands judgment of 27 October

1994, Series A no. 297-C, pp. 55-56, para. 30).

     In the present case, the relationship between the applicant and

the child's mother lasted for several years after the child's birth in

1985, and they had a common household in 1990 when the applicant's

request for the legitimation of Marjut and her mother's agreement were

recorded by a notary.  Moreover, in January 1992 the German courts

granted the applicant's request for the legitimation of Marjut.  Their

relationship at the relevant time thus had to be regarded as "family

life" for the purposes of Article 8 (Art. 8).  Accordingly, from the

moment of Marjut's birth there existed between the applicant and his

daughter a bond amounting to family life.

     The Commission finds that the court decisions withdrawing the

applicant's right of custody of Marjut, which he had obtained as a

consequence of her legitimation, interfered with the applicant's right

to respect for his family life under Article 8 para. 1 (Art. 8-1).  As

regards the applicant's complaint about the lack of access to Marjut,

the Commission observes that it is seized with the matter to the extent

that the applicant's submissions refer to the German court decisions

provisionally to suspend his right of access to Marjut pending

completion of an expert opinion which was under preparation for the

purposes of a decision on the merits of his access rights.  The

Commission finds that such a provisional suspension order also

interferes with the applicant's right under Article 8 (Art. 8).  The

Commission therefore has to examine whether such interferences were

justified under the terms of paragraph 2 of Article 8 (Art. 8-2).

     The Commission finds that the German courts' decisions to

withdraw the applicant's right to custody of Marjut and to transfer it

to Marjut's mother were taken in accordance with SS. 1666 and 1738

para. 2 of the German Civil Code in the light of the case-law of the

Federal Constitutional Court.  The provisional suspension of his right

of access to Marjut was based on S. 1634 of the Civil Code.  The

applicant's submissions do not show any clear non-observance of the

applicable legal provisions.  The interference at issue was, therefore,

in accordance with the law within the meaning of Article 8 para. 2

(Art. 8-2).

     The Commission further considers that the impugned custody

decisions had a legitimate purpose under paragraph 2 of Article 8,

(Art. 8-2) namely the protection of the rights of others, namely of the

child concerned.

     As regards the question whether the interference complained of

was "necessary in a democratic society", the Commission recalls that

the Contracting States enjoy a certain margin of appreciation in

assessing whether such a need for an interference exists, but it goes

hand in hand with European supervision (see, Eur. Court HR, Berrehab

v. the Netherlands judgment of 21 June 1988, Series A no. 138, p. 15,

para. 128; Funke v. France judgment of 25 February 1993, Series A

no. 256-A, p. 24, para. 55).

     The Commission observes at the outset that the impugned custody

and access decisions were taken in the context of a controversy between

Marjut's parents with a view to determining the best solution for

Marjut's future upbringing and education.

     In the present case, the issues before the German courts were

whether the applicant had abused his right to custody of Marjut, which

he had obtained upon her legitimation in January 1992, and whether it

was in the best interest of Marjut to suspend - provisionally - his

access to her.  The German courts, taking the child's well-being as the

guiding principle for their decisions, considered Marjut's personal

situation and living conditions, the applicant's conduct in obtaining

her legitimation and thereby his right to custody and - as decisive

elements - the events on and after 15 January 1992, especially his

behaviour towards Marjut's mother in the presence of Marjut as well as

the taking away and hiding of Marjut, which had enduring adverse

effects on the child's well-being.   In their decisions, the courts

relied on the statements of both parents as well as of Marjut, and also

on the findings of a psychiatric expert opinion.  Moreover, the courts

carefully balanced the conflicting interests involved and, in

particular the Court of Appeal and the Federal Constitutional Court

considered in detail whether the withdrawal of the applicant's right

to custody and the provisional suspension of his right of access

amounted to a breach of his right to respect of his family life, as

guaranteed by the Basic Law.

     Against this background, the Commission finds that the reasons

for the impugned decisions were both relevant and sufficient.

Moreover, having regard to the child's personal situation, there is no

indication of any disproportion between the decisions taken and the

legitimate aim pursued.  As regards the applicant's right of access,

the Commission further observes that both the Regional Court and the

Court of Appeal not only stressed the provisional nature of the

suspension, but also drew both parents' attention to the necessity to

render future contacts between the applicant and Marjut possible.

     Finally, as to the procedural requirements implicit in Article 8

(Art. 8) (cf. Eur. Court HR, Olsson v. Sweden judgment of 24 March

1988, Series A no. 130, p. 33, para. 71), the Commission finds that the

applicant, assisted by counsel, was involved in the decision-making

process, seen as a whole, to a degree sufficient to provide him with

the requisite protection of his interests.  Thus, both parents as well

as the child concerned were heard by the courts in the custody

proceedings and also by the psychiatric expert who prepared an opinion

for the purposes of advising the courts in their assessment of the

relevant facts.

     In these circumstances, the German authorities did not exceed

their margin of appreciation when deciding to withdraw the applicant's

right to custody of Marjut and to transfer it to her mother.  Likewise,

the provisional suspension of his right of access until termination of

an expert opinion on the issue and the decision in the main proceedings

regarding his right of access cannot be objected to.  Consequently,

there is no appearance of a breach of Article 8 (Art. 8).

     It follows that this part of the application is manifestly

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

Convention.

2.   The applicant also complains that the impugned decisions amount

to discrimination.  He invokes Article 5 of Protocol No. 7 (P7-5).

     The Commission observes that Protocol No. 7 has not been ratified

by the Federal Republic of Germany.

     The Commission has examined the applicant's allegation of sexual

discrimination under Article 14, in conjunction with Article 8

(Art. 14+8), of the Convention.

     The Commission, referring to its above findings under Article 8

(Art. 8) of the Convention, considers that the impugned court decisions

were based on a careful examination of the particular circumstances of

the instant case.  There is nothing in the case-file to disclose any

difference of treatment on the ground of sex or of any other status.

     It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2).

3.   As regards the applicant's complaints under Article 6 of the

Convention about the alleged unfairness of the custody proceedings, the

Commission refers to its above reasoning regarding the procedural

requirements implicit in Article 8 (Art. 8).

     It is true that the applicant also complains that, in the custody

proceedings, the courts did not hear a particular witness who should

have made statements as to the good relations between him and Marjut

as well as Marjut's personal situation and development in general.

However, the Commission notes the findings of the Stuttgart Court of

Appeal that, as it placed less emphasis on the manner in which the

applicant had obtained his right to custody than on his subsequent

conduct with a view to separating Marjut from her usual surroundings,

the events in connection with the decision on legitimation were

irrelevant and the taking of further evidence in this respect was not

necessary.  Moreover, the Commission notes that Marjut was heard

personally in the court proceedings and a psychiatric expert opinion

was prepared on the relevant question as to what effects the

applicant's conduct had had upon Marjut.  In these circumstances, the

applicant has failed to show the relevance of the evidence which could

have been obtained by hearing the witness suggested by him.

     Accordingly, the Commission finds no indication that the court

proceedings were unfair contrary to the requirements of Article 6

para. 1 (Art. 6-1).

     This part of the application is, therefore, also manifestly ill-

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

Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

     M.F. BUQUICCHIO                         J. LIDDY

       Secretary                             President

to the First Chamber                   of the First Chamber