Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13776/88

by H.I.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 14 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 May 1987

by H.I. against the Federal Republic of Germany and registered

on 19 April 1988 under file No. 13776/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

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

applicant, may be summarised as follows:

The applicant, born in 1935, is a German national and resident

in D.. He is a businessman by profession.

The applicant's previous application (No. 12246/86) was

declared inadmissible on 13 July 1987. It concerned the applicant's

divorce proceedings before the Düsseldorf District Court (Amtsgericht)

in 1982/83 and theDüsseldorf Court of Appeal (Oberlandesgericht) in

1984, in the course of which the right to custody over the spouses'

daughter, born in 1978, was granted to the mother.

On the basis of a settlement between the spouses of 20 April

1983 the applicant had a right of access to his daughter on the

second and fourth Saturday of every month. Until 25 February 1984

the applicant had regular contacts with his daughter. In March 1984

the mother refused contacts between the applicant and their child, and

moved from D. to Frankfurt.

On 27 September 1984, the applicant instituted proceedings

before the Frankfurt District Court concerning his right of access to

his daughter. The District Court ordered reports from the D.

and the Frankfurt Youth Offices (Jugendämter) and, following

unsuccessful injunction proceedings in December 1984, it held a hearing

in the main proceedings in February 1985.

On 15 March 1985, at a second hearing before the District

Court, the parents agreed upon two meetings between the applicant and

his daughter on 30 March and 27 April 1985. The mother cancelled the

meeting in March. Following the meeting on 27 April 1985 in Frankfurt

the child was heard by the District Court on 29 April 1985. She

refused further meetings with her father and confirmed this refusal at

the hearing on 5 May 1985. The District Court therefore ordered a

psychological expert opinion as regard the applicant's right of access

to his daughter. His right of access was provisionally suspended.

On 28 May 1986 the District Court, having heard the parties

upon the expert opinion of 26 February 1986, ordered a supplementary

psychological expert opinion from an institute specialised in family

therapy as regards the question whether and, if so, how the applicant

could be granted access to his daughter. The Court found in particular

that the first opinion showed positive elements in the parents'

relationship which might render an agreement in this respect possible,

but had not sufficiently examined this aspect of the case. The second

expert opinion was delivered on 17 December 1986. The expert stated in

particular that the mother had no longer been willing to cooperate in

the preparation of the opinion.

On 11 March 1987 the Frankfurt District Court decided to

suspend sine die the applicant's right of access to his daughter. The

Court suggested that he reduce progressively the strain on his

relations with his divorced wife by taking up employment and paying

his daughter's alimony; his contacts with his daughter ought to be

restricted to correspondence. Furthermore, the Court decided that the

matter should not be reviewed before the expiry of five years.

The District Court found in particular that, after proceedings

of two and a half years with two psychological expert opinions, the

minimum of harmony between the parents which would be necessary to

grant the applicant access to his daughter could not be established.

The right of access ought to be excluded in order to terminate the

disputes between the parents in the interest of the child's

well-being. In the future, the applicant should terminate all

litigations with his divorced wife, reduce the tensions in their

relations and resume his duties as a father. After the expiry of the

period of five years fixed for a review, the child would have reached

a new stage in her development, a circumstance which might allow a new

decision in this case.

Proceedings concerning the right of access to his child of the

parent who does not have the right to custody are, inter alia,

governed by the Non-Contentious Proceedings Act (Gesetz über die

Angelegenheiten der Freiwilligen Gerichtsbarkeit). S. 12 of the

Non-Contentious Proceedings Act provides that the competent court has

to establish the facts ex officio.

On 28 August 1987 the Frankfurt Court of Appeal dismissed the

applicant's appeal (Beschwerde). The Court, having heard the

applicant, his divorced wife and his daughter as well as the competent

Youth Offices, considered that the applicant's right of access to his

daughter had to be suspended under S. 1634 para. 2 of the German Civil

Code (Bürgerliches Gesetzbuch) in the interests of the child's

well-being. The Court found in particular that, due to the parents'

bad relationship, a right of access might lead to further disputes

harming the child. It had, therefore, been necessary to adopt a

solution by which the child would be removed from the centre of

conflict between her parents for a long period.

On 19 October 1987 the Frankfurt Court of Appeal declared the

applicant's request for leave to appeal (Antrag auf Zulassung der

weiteren Beschwerde) inadmissible. On 25 November 1987 the Federal

Court of Justice (Bundesgerichtshof) declared the applicant's further

appeal (Nichtzulassungsbeschwerde) inadmissible.

On 12 November 1987 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) about the refusal of access to his

daughter and the length of the court proceedings concerned on the

ground that it offered no prospect of succes. The Constitutional

Court found in particular that the rights of parents are to be

exercised in the interest of their children's well-being. The

contested suspension of the applicant's right of access to his

daughter appeared to be necessary and reasonable in the interest of

her development. The District Court's decision that there should be

no review before the expiry of five years set a time-limit to the

provisional suspension. However, it did not prevent the applicant from

instituting new proceedings alleging changed circumstances.

Furthermore, on 17 March 1987 the Frankfurt District Court

dismissed the applicant's request dated 2 February 1987 to transfer

the right of custody to both parents. The applicant had already

unsuccessfully lodged such a request in the divorce and custody

proceedings in 1983, which were the subject of his previous

application before the Commission. His appeal and constititional

complaint remained unsuccessful.

Moreover, on 1 November 1988 the Frankfurt District Court

dismissed the applicant's request for free legal aid to institute new

proceedings concerning his right of access to his daughter. The

Court found that his proposed action offered no prospect of success

as he had failed to show a change in the relevant circumstances of the

case. His appeal was dismissed by the Frankfurt Court of Appeal on

14 December 1988. On 30 January 1989 the Frankfurt District Court

dismissed the applicant's renewed request to change the decision of

11 March 1987. It found again that the applicant had not shown any

change in the circumstances, in particular the relationship with his

divorced wife.

COMPLAINTS

1. The applicant complains under Article 8 para. 1 of the

Convention that the German court decisions suspending his right of

access to his daughter violate his right to respect for his family

life. He submits in particular that the suspension of his right to

access was disproportionate and constitutes inhuman and degrading

treatment within the meaning of Article 3 of the Convention. He also

refers to Article 14 of the Convention.

2. Furthermore, the applicant complains under Article 6 para. 1

of the Convention that the District Court's decision of 11 March 1987,

insofar as it excludes a review before the expiry of five years, denies

his right of access to court.

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

Convention about the length of the proceedings before the Frankfurt

District Court and Court of Appeal concerning his right of access.

4. Moreover the applicant complains under Articles 3, 6 para. 1,

8 and 14 of the Convention about the German court decisions not to

grant the divorced parents a joint right of custody.

THE LAW

1. The applicant complains that the decisions of the Frankfurt

District Court of 11 March 1987 and the Frankfurt Court of Appeal of

28 August 1987 suspending his right of access to his daughter violate

his right to respect for his family life under Article 8 (Art. 8) of the

Convention. He also invokes Articles 3 and 14 (Art. 3, 14) in this respect.

Article 8 (Art. 8) of the Convention provides:

"1. Everyone has the right to respect for his private

and family life, his home and his correspondence.

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 in the interests of national security, public safety

or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The Commission recalls that, in its decision of 13 July 1987

on the admissibility of the applicant's previous application No.

12246/86, the German court decisions to grant the custody over his

daughter after divorce to his former wife were found to be justified

under Article 8 para. 2 (Art. 8-2) of the Convention as necessary for the

protection of the health and future well-being of the applicant's

daughter.

In the present case concerning ensuing court proceedings, the

Commission finds that the contested court decisions to suspend sine

die the applicant's right of access to his daughter, again interfered with his

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

However, this interference was justified under Article 8 para. 2 (Art. 8-2) of

the Convention.

The Commission observes that the German court decisions

concerned were taken in accordance with S. 1634 para. 2 of the German

Civil Code and, therefore, in accordance with the law within the meaning of

Article 8 para. 2 (Art. 8-2). Furthermore, the Commission finds that the

Frankfurt District Court as well as the Frankfurt Court of Appeal, having heard

the parties, the competent Youth Offices and, in particular, having considered

two psychological expert opinions, carefully examined the issue of the

applicant's access to his daughter. The Commission finds no indication that

the decisions to suspend his right of access for a considerable period were not

based on due consideration of the interests of the child.

Moreover, the applicant's submissions in this respect do not disclose

any appearance of a violation of Articles 3 and 14 (Art. 3, 14) 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.

2. The applicant also complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the Frankfurt District Court's decision of 11 March 1987 denies

his right of access to court under Article 6 para. 1 (Art. 6-1) of the

Convention in that it excludes a review of the decision for a period of five

years.

Article 6 para. 1 (Art. 6-1), first sentence of the Convention

provides:

"In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by

law."

The Commission notes that the Frankfurt District Court

excluded a review of its decision of 11 March 1987 in order to remove

the applicant's daughter for a long period from the centre of conflict

between her parents. The Federal Constitutional Court considered this

ruling to be a time-limit for the provisional suspension of the

applicant's right of access which did not prevent him from instituting

new proceedings in view of changed circumstances. In fact, the

Frankfurt District Court, in its decision of 1 November 1988 upon the

applicant's request for free legal aid, did not consider the envisaged

action to have his right of access to his daughter re-examined as

barred by the decision of 11 March 1987 and on 30 January 1989 the

District Court considered the merits of the applicant's request to

change the decision of 11 March 1987.

In these circumstances, the Commission finds that the

applicant was not deprived of access to court contrary to Article 6

para. 1 (Art. 6-1) of the Convention.

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.

3. The applicant moreover complains under Article 6 para. 1 (Art. 6-1) of

the Convention that the Frankfurt District Court and the Frankfurt

Court of Appeal did not decide upon his request for access to his

daughter within a reasonable time.

The Commission notes that the proceedings were instituted

before the Frankfurt District Court on 27 September 1984 and that the

Frankfurt Court of Appeal rendered its decision on 28 August 1987.

Thus the proceedings lasted about two years and eleven months, of

which two and a half years were spent at first instance.

The Commission recalls that issues releating to divorce and

family matters have to be determined particularly speedily (B. v. the

Federal Republic of Germany, Comm. Report of 13.11.87, paras. 113/114).

In the present case, the Commission finds that the issues

before the Frankfurt District Court were complicated as to the facts,

in particular due to the problems and disputes between the divorced

spouses, which had progressively developed since the earlier divorce

and custody proceedings.

The Commission considers that the tensions in the parents'

relations had also an impact on their conduct in the proceedings. In

particular, according to the second expert opinion of December 1986,

the proceedings were delayed by the mother who was no longer willing

to cooperate in the preparation of that opinion.

The District Court, in accordance with S. 12 of the

Non-Contentious Proceedings Act, was obliged to establish the relevant

facts in order to find a solution in the interests of the child which

had due regard to both parents' interests. Thus, the District Court

had to take evidence from two psychological expert opinions in order

to establish the relations between the parties and the child in view

of the requested right of access. It does not appear from the

applicant's submissions that any unnecessary delays occurred in the

course of these proceedings for which the Frankfurt District Court

could be held responsible, and that he had taken appropriate steps to

accelerate the proceedings.

Consequently, the applicant's complaint about the length of

the proceedings concerning his right of access is manifestly

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

Convention.

4. Finally, the applicant's complaints under Articles 3, 6, 8 and 14 (Art.

3, 6, 8, 14) of the Convention about the German court decisions to dismiss his

renewed request for a joint right of custody over his daughter do not disclose

any appearance of a violation of the Convention. 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

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C. A. NØRGAARD)

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I. v. THE FEDERAL REPUBLIC OF GERMANY

I. v. THE FEDERAL REPUBLIC OF GERMANY

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