AS TO THE ADMISSIBILITY OF

                      Application No. 26283/95

                      by Göran FRESE

                      against Germany

     The European Commission of Human Rights (First Chamber) sitting

in private on 26 June 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           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 2 September 1994

by Göran FRESE against Germany and registered on 24 January 1995 under

file No. 26283/95;

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

of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

FACTS

     The applicant, born in 1961, is a German national and resident

at Groß Jehser.  He is a parson by profession.  In the proceedings

before the Commission, he is represented by Mr. G. Rixe, a lawyer

practising in Bielefeld.

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

applicant, may be summarised as follows.

A.   Particular circumstances of the case

     In 1992 the applicant's wife instituted divorce proceedings

before the Pasewalk District Court (Amtsgericht), claiming that the

marriage had broken down.  She requested the right to custody of the

spouses' twin sons, born in wedlock in 1989.  The applicant requested

that the right to custody should be exercised by both parents.  In

April 1993, they reached an agreement in court as regards the

applicant's right of access to the children.

     On 14 June 1993 the Pasewalk District Court granted the divorce

and transferred the right of custody of the sons to the mother.  The

Court, following both the mother's request and a report of the Pasewalk

Youth Office, found that this decision was in the best interests of the

children's well-being.

     In its decision, the District Court noted that, as conceded by

the applicant, the children had a close and intensive relationship with

their mother who had taken care of them since their birth, and in

particular, after the separation of the spouses.  The applicant had

also agreed with the findings of the Youth Office that the children

were properly taken care of by the mother.  There were no doubts as to

the capability of the mother to educate the children and to assist and

support them as regards their speech impediments.  As to the

applicant's request, the Court considered that the right to custody

could not be exercised by both parents.  The Court observed that the

children had good relations with their father who, having regard to his

personality and profession was in a position to assist the mother in

her efforts to support the children.  However, the applicant's wife was

not prepared to share the exercise of the right to custody with the

applicant on account of the conflicting views as to the education of

the children and the applicant's psychological problems following the

spouses' separation.  In these circumstances, it could not be expected

that the spouses would take a uniform attitude towards the children.

     In these and the following proceedings, the applicant was

represented by counsel.

     On 8 July 1993 the applicant lodged an appeal against the custody

decision with the Rostock Court of Appeal (Oberlandesgericht).  He

submitted that he wished actively to further the children's

development, in particular as regards their speech impediments and that

there were only few problems regarding the spouses' views on the

children's education.  Moreover, he had overcome his problems following

their separation.

     On 14 July 1993 the applicant's former wife commented on the

applicant's appeal.  She repeated her refusal regarding a joint

exercise of the right to custody and claimed that the conflicting views

on the children's education persisted.  Moreover, referring to the

applicant's correspondence with her and his conduct in the course of

the hearing at first instance, she claimed that the applicant continued

to be psychologically unstable.

     On 29 September 1993 the Rostock Court of Appeal dismissed the

applicant's request for free legal aid for the purposes of the appeal

proceedings.  His former wife was granted legal aid.  In its decision,

the Court of Appeal found that the applicant's appeal offered no

prospects of success.  The Court confirmed the findings of the District

Court that, taking the mother's refusal into account, the right of

custody could not be exercised by both parents following their divorce.

It referred, in this respect, to the relevant case-law of the Federal

Constitutional Court according to which such a decision required an

agreement between the parents on the joint exercise of the right of

custody.  Having regard to the statements of the parents at the hearing

at first instance as well as the former wife's submissions to the Court

of Appeal (Vorbringen in der Beschwerdeinstanz), her doubts as to the

applicant's capability to cooperate with regard to the children's

education were obvious.

     By letter of 30 September 1993 the applicant's counsel was

requested to indicate whether the applicant wished to pursue his

appeal.  On 4 November 1993 his counsel informed the Court that he

upheld his appeal and that he intended to amend his submissions.  In

reply, the Court of Appeal informed him that it was envisaged to decide

upon the appeal without hearing the parties again.

     On 21 December 1993 the Rostock Court of Appeal dismissed the

applicant's appeal against the judgment of the District Court

concerning the right to custody.  The Court concurred with the District

Court in finding that the transfer of the right to custody to the

mother was in the interest of the children's well-being and thus

complied with S. 1671 paras. 1 and 2 of the German Civil Code

(Bürgerliches Gesetzbuch).

     The Court of Appeal noted the findings of the District Court and

the parties' arguments.  The Court considered in particular that both

parties agreed that they were capable of educating the children, and

in a position to take care of them.  In the course of the hearing at

first instance, the applicant had stated that the marriage had broken

down due to the conflicting opinions on the education of their children

which had resulted in his having psychological problems.  The agent of

the Pasewalk Youth Office had raised doubts as to a joint right of

custody on the grounds of the divisions between the parents and the

impression that they had not yet overcome all consequences of the

divorce proceedings.  Moreover, at that hearing, the parties had agreed

that their children should, as a rule, stay with their mother.

     In these circumstances, the Court of Appeal, taking into account

the mother's refusal, confirmed the District Court's decision to refuse

a joint right of custody.  The Court of Appeal, referring to the case-

law of the Constitutional Court, found that parents could only educate

their children together if they were willing to cooperate in this

respect.  Such cooperation could not be enforced by any state measures.

However, the applicant himself had conceded conflicting views on the

education of the children, and the mother's comments on his appeal,

whether or not her apprehensions regarding the applicant were correct,

showed that she was not prepared to exercise a joint right to custody.

        On 19 March 1985 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde).

     The Constitutional Court considered that the applicant's

complaint did not raise any issue of fundamental importance, in

particular as regards the refusal of a joint right to custody.  In this

respect the Constitutional Court found that the Courts concerned had

taken the particular circumstances of the case into account, in

particular the District Court's opinion that on account of the parents'

controversial opinions on the education of their children no joint

right to custody could be granted.

     Furthermore, the Constitutional Court found that the court

decisions that the conditions for granting a joint right of custody

were not met in the instant case did not disregard the parental rights.

     To the extent that the applicant's submissions related to the

proceedings before the Court of Appeal, the Constitutional Court

declared his complaints inadmissible for non-exhaustion of the remedies

in the proceedings concerned.  Thus the Court of Appeal's decision on

the question of legal aid indicated that the applicant's former wife

had filed submissions in reply to his appeal and informed him on the

prospects of success of the appeal.  He could have, therefore,

requested the Court of Appeal to serve the submissions concerned upon

him and he could have subsequently filed any further comments.

Moreover, the Court of Appeal had informed him that it did not intend

to hear the parties again.  It would have been for the applicant to

amend his appeal reasoning and to argue that the hearing of the parties

was necessary.

     This decision was received by the applicant's counsel on

13 March 1994.

B. Relevant domestic law and practice

     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 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."

     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 joint right to custody was possible in case of

divorce if there is a common proposal by the parents to this effect,

showing their willingness to share the responsibility for their child

after their divorce.

COMPLAINTS

1.   The applicant complains, in his own name and also on behalf of

his sons, that the German court decisions awarding the right of custody

over their sons to his former wife, thereby refusing his request for

a joint right of custody, violated their right to respect for their

family life, as guaranteed by Article 8 para. 1 of the Convention.  He

considers that a common proposal by the divorced spouses should not be

a condition for the granting of a joint right of custody after divorce.

He also complains that the courts did not fully establish the relevant

facts necessary for a decision on the right of custody over the

children; in particular, neither court heard the children and the Court

of Appeal did not hear the parties.

2.   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, discriminate against one of the

divorced spouses.

3.   The applicant further complains under Article 6 para. 1 of the

Convention that the custody proceedings were unfair.  He submits in

particular that the children were not heard, and that the Court of

Appeal omitted a new hearing of the parties.  Moreover, his former

wife's submissions of 14 July 1993 had not been served upon him.

THE LAW

1.   The applicant has filed the application in his own as well as in

his sons' name.

     In principle only 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 (No. 12246/86, Dec. 13.7.87,

D.R. 53 p. 225).  In the present case, the right to custody over the

applicant's sons was awarded to his former wife.   However, the

Commission is not required to decide whether or not the applicant is

able to lodge his complaints concerning the German courts' decisions

on the grant of custody, and the court proceedings, also on behalf of

his sons, as the application is anyway inadmissible for the following

reasons.

2.   The Commission has first examined the applicant's complaints, in

respect of the court decisions on the right of custody, 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 family life of the parents with

their children does not cease following the divorce of a married couple

(cf.  Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A

no. 138, p. 14, para. 21).

     The Commission finds that the German courts' decisions awarding

the right of custody over the spouses' children solely to their mother

interfered with the applicant's right to family life under Article 8

para. 1 (Art. 8-1) of the Convention.  The Commission's therefore has

to examine whether this interference was justified under the terms of

Article 8 para. 2 (Art. 8-2).

     The Commission finds that the German courts' decisions to grant

the custody over the applicant's sons to his former wife were taken in

accordance with S. 1671 paras. 1 and 2 of the German Civil Code in the

light of the case-law of the Federal Constitutional Court.  The

applicant's submissions do not show that this legal basis was not

adequately accessible or that it was not formulated with sufficient

clarity.  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 the children

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 H.R., Berrehab

judgment of 21 June 1988, Series A no. 138, p. 15, para. 128; Funke

judgment of 25 February 1993, Series A no. 256-A, p. 24, para. 55).

     The Commission observes at the outset that the impugned custody

decisions were taken in the context of the parents' divorce with a view

to determining the best solution for their children's future upbringing

and education.

     In the present case, the issue before the German courts was

whether or not the divorced spouses should be granted a joint right of

custody, as requested by the applicant, or, whether, as requested by

his former wife, the right of custody should be transferred to her

alone.  The applicant had not requested that he should be granted the

sole right of custody.  The Commission notes the findings of the German

courts that the transfer of the right of custody to the mother was in

the best interests of the children concerned.  The Courts relied in

particular on reports of the competent Youth Office and on the divorced

spouses' statements.  The Commission finds no indication that the

custody decisions were not based on due consideration of the interests

of the children.  In particular, their refusal of a joint right of

custody was not merely reasoned by the attitude of the applicant's

former wife, but by the spouses' past differences as to the education

of the children which, according to the applicant's statements in the

proceedings at first instance, had resulted in their separation and

divorce.  Against this background, the reasons for the impugned

decisions were both relevant and sufficient.

     Moreover, as to the procedural requirements implicit in Article 8

(Art. 8) (cf. Eur. Court H.R., Olsson 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.

     As regards his specific complaints about the course of the court

proceedings, the Commission notes that the applicant failed to raise

the issue of whether the children should have been heard before the

domestic courts.  Moreover, as regards his complaints that the Court

of Appeal failed to serve a relevant document on him and further failed

to hear the parties, the Commission notes that the Federal

Constitutional Court, in its decision of 7 March 1993, refused to

examine these matters on the ground that the applicant had failed to

have recourse to all procedural remedies.  Thus, while, following the

Court of Appeal's decision refusing his request for legal aid, he had

been aware of the existence of submissions in reply to his appeal, he

had not asked for a copy of these submissions.  Furthermore, despite

the Court of Appeal's information that it intended to render a decision

without again hearing the parties, he had not insisted upon such a

hearing and submitted relevant reasons therefor.  In this situation,

the Commission, in accordance with Article 26 (Art. 26) of the

Convention, is not required to examine these arguments.

     In these circumstances the German authorities did not exceed

their margin of appreciation when deciding to transfer the right of

custody over the divorced spouses' sons to their mother. 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 court decisions to grant

the right of custody to his former wife amount to discrimination

contrary to 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 (Art. 6)

of the Convention about the alleged unfairness of the proceedings, the

Commission refers to its above reasoning regarding the procedural

requirements implicit in Article 8 (Art. 8).  The Commission finds

that, to the extent that it is required to examine the applicant's

complaints, in accordance with Article 26 (Art. 26), there is nothing

to indicate that the court proceedings were in breach 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.

Secretary to the First Chamber       President of the First Chamber

     (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)