Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12246/86

by Helmut IRLEN

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private on

13 July 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN, First Vice-President

S. TRECHSEL, Second Vice-President

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER, 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 25 September 1985

by Helmut IRLEN against the Federal Republic of Germany and registered

on 30 June 1986 under file No. 12246/86;

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 Coblenz. He is a businessman by profession. Before the Commission

he is represented by Mr F. Schmidt, a lawyer practising at

Bernkastel-Kues.

The applicant is filing his application also in the name of

his daughter, born in wedlock on 24 January 1978.

In June 1982, the applicant's former wife, a Yugoslav national,

who lived in the Federal Republic of Germany for about nine years and

had a permanent residence permit, instituted divorce proceedings

before the Düsseldorf District Court (Amtsgericht) on the ground that

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

her daughter.

On 16 July 1982 the Düsseldorf District Court awarded the

right to custody over the daughter, pending the spouses' separation,

until divorce, to her mother, except the right to leave the territory

of the Federal Republic of Germany with the child. The Court, having

regard to the reports of the Düsseldorf Youth Office (Jugendamt) and

of a private association working in the field of social services

(Sozialdienst Katholischer Frauen und Männer e.V.), found that this

decision was necessary in the interest of the daughter's well-being.

Moreover, the applicant had in principle agreed that his former wife

should take care of their daughter. Furthermore, the Court granted

the applicant the right to visit the daughter regularly on every

second and fourth Saturday per month.

On 3 November 1982 the applicant lodged an appeal (Beschwerde)

with the Düsseldorf Court of Appeal (Oberlandesgericht). On

20 April 1983, following a hearing before the Court of Appeal, the

spouses agreed in particular that the applicant would withdraw his

appeal and that his former wife would not take up residence with their

daughter outside the territory of the Federal Republic of Germany and

would educate her according to the Roman Catholic religion. The

applicant's right to visit the child as provided for in the District

Court's decision of 16 July 1982 was confirmed.

On 2 December 1983 the Düsseldorf District Court granted

divorce and gave the right of custody over the daughter to the mother.

The Court, following both the mother's request and the proposal of the

Düsseldorf Youth Office, found that this decision was in the interest

of the child's well-being. It noted that the mother had taken care of

the daughter since birth and, in particular, also after the separation

of the spouses. There was no indication that the mother intended to

return to Yugoslavia with the daughter and, thereby, prevent the

father from seeing her. The Court dismissed the applicant's main

request to be granted the right to custody on the ground that,

according to his own submissions, he did not intend to take care of

the child in his own household; moreover such a transfer of custody

would be disadvantageous to the child's well-being, as it would have

to leave its usual environment. The Court also dismissed the

applicant's first subsidiary request to transfer the right to custody

to both parents on the ground that the parties could not achieve an

understanding as to the education of their child. Finally the Court

did not find it necessary to transfer the right to determine the

child's residence to the applicant.

On 30 July 1984 the Düsseldorf Court of Appeal dismissed the

applicant's appeal (Beschwerde) 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 child's well-being and thus

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

liches Gesetzbuch), which state:

"In case of the parents' divorce the competent court

(Familiengericht) decides on which parent should have

the right to custody over a common child.

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."

The Court considered the report of the Düsseldorf Youth Office

and a further report of the Frankfurt Youth Office according to which

the applicant's former wife was capable of educating her daughter.

Having heard the mother personally the court found no reasons to doubt

these reports. The mother's change of residence together with her

daughter from Düsseldorf to Frankfurt could not be considered as a

disadvantage for the child on the grounds that the mother, who was

unemployed and could not be supplied with a job in the Düsseldorf

region, obtained satisfactory employment in Frankfurt. She had rented

an apartment sufficiently big and had found a place for her daughter

in a day-nursery nearby. There was no indication that she was a

member of a religious sect or that she planned to return to

Yugoslavia. A joint right to custody as requested by the applicant

could not be granted on the grounds that there was no agreement

between the parties on their child's education and that mother and

daughter now lived in Frankfurt. The splitting up of the right to

custody, as requested by the applicant, would be inadmissible under

the Civil Code.

On 19 March 1985 the Federal Constitutional Court

(Bundesverfassungsgericht) refused to accept the applicant's

constitutional complaint (Verfassungsbeschwerde), which had also been

lodged on behalf of the daughter, on the ground that it offered no

prospect of success. The Court found in particular that the decisions

on custody served the child's well-being and did not appear to be

arbitrary. This decision was received by the applicant's

representative on 29 March 1985.

As far as it can be determined from the applicant's

submissions, he instituted new proceedings before the Düsseldorf

District Court concerning his right of access to his daughter in

September 1984. These proceedings are still pending.

COMPLAINTS

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

Convention that the German court decisions awarding the right of

custody over their daughter to his former wife violated his and his

daughter's right to respect for their family life. He submits that

the decisions prevent him from seeing his child without any hindrance.

2. The appicant complains under Article 6 para. 1 of the

Convention that in the custody proceedings he had no fair hearing by

independent and impartial courts. He submits in particular that his

daughter was not heard in person by the District Court or by the

Court of Appeal. Moreover he alleges that the proceedings before the

Federal Constitutional Court were unfair on the ground that the

Court's burden of work prevents it from taking fair decisions.

3. The applicant also invokes Article 3 of the Convention in

respect of the above complaints.

THE LAW

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

in his daughter's name.

In principle 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.

It is true that in the present case the right of custody over

the daughter was awarded to the applicant's former wife after the

dissolution of their marriage.

The question, therefore, arises whether in these circumstances

the applicant is able to lodge his complaints concerning the German

courts' decisions on the grant of custody also on behalf of his

daughter (cf. mutatis mutandis No. 10812/84, Dec. 11.7.1985 - to be

published in Decisions and Reports). However, the Commission does not

regard it as necessary to settle this issue, as the complaints are in

any case inadmissible for the following reasons.

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

respect of the grant of custody, under Article 8 (Art. 8) of the Convention

which reads:

"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. No. 7770/77, Dec. 2.5.78, D.R. 14 p. 175).

In the present case, the German courts' decisions to give the

custody over the applicant's daughter to his former wife 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 observes first that the German courts'

decisions to grant the custody over the applicant's daughter to his

former wife after their divorce were taken in accordance with S. 1671

of the German Civil Code and, therefore, in accordance with the law

within the meaning of Article 8 para. 2 (Art. 8-2).

The Commission notes the finding of the Düsseldorf District

Court and the Düsseldorf Court of Appeal that the interests of the

applicant's daughter and in particular her future well-being required

that her mother should continue to take care of her. The Courts

relied in particular on reports of the Düsseldorf and the Frankfurt

Youth Office as to the child's education by her mother. The Court of

Appeal also heard the mother personally. Moreover the Courts noted

that the applicant had in principle agreed that the mother should take

care of their child and that his respective requests to be awarded the

custody or to have a joint right to custody were motivated by his wish

to control the mother's decisions on the child's place of residence

and, furthermore, to ensure his right of access to the child. In this

context, the Commission observes that the applicant's right to access

was first settled in the proceedings before the Düsseldorf Court of

Appeal in April 1983 and is again at issue in proceedings still

pending before the Düsseldorf District Court. The Commission finds no

indication that the custody decisions so far taken were not based on

due consideration of the interests of the child.

The Commission is therefore satisfied that the interference

with the applicant's right to family life, namely the denial of

custody, was 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.

It follows that the complaint concerning the German courts'

decisions on custody is manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

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

allegedly unfair and arbitrary decisions of the German courts in

respect of the custody over his daughter. He alleges in particular

that the courts did not properly consider his daughter's wishes.

Insofar as those complaints relate to the substance of the

domestic decisions the Commission refers to its above findings under

Article 8 (Art. 8) of the Convention.

Insofar as they concern the domestic proceedings before the

Düsseldorf District Court and the Düsseldorf Court of Appeal the

Commission observes in particular that in the proceedings before the

District Court the applicant himself submitted that his former wife

should take care of their child and that he did not intend to have her

in his own household. He did not request that his daughter be heard.

The Commission finds that there is nothing in the case file to

indicate that the applicant, who was represented by a lawyer, could

not properly present his case or that the Courts conducted the

proceedings in an unfair manner.

The Commission does not, therefore, find any appearance of a violation

of the rights set forth in Article 6 para. 1 (Art. 6-1) of the Convention in

the proceedings before the District Court and the Court of Appeal. It follows

that in this respect the application is manifestly ill-founded within the

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

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

Convention of the alleged unfairness of the proceedings before the

Federal Constitutional Court.

However, the Commission notes that under Section 93 (a) of the

Federal Constitutional Court's Act (Bundesverfassungsgerichtsgesetz) a

constitutional complaint must be formally accepted for an examination

by the court as to the admissibility and merits of the complaint. The

Commission is of the opinion that when a group of three judges of the

Federal Constitutional Court determines, in a preliminary examination,

whether or not a constitutional complaint is admissible, it does not

take a decision relating to "civil rights and obligations" or to a

"criminal charge". It follows that Article 6 para. 1 (Art. 6-1) of the

Convention does not apply to the proceedings in which a group of three

judges of the Federal Constitutional Court refused to accept the

applicant's constitutional complaint.

This part of the application is thus incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

5. Moreover, the applicant invokes Article 3 (Art. 3) of the Convention in

respect of the above complaints. However, the Commission finds no appearance

of a violation of this Article. It follows that this aspect of the application

is 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.

Secretary to the Commission President of the Commission

(H.C. KRUGER) (C.A. NØRGAARD)

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IRLEN v. THE FEDERAL REPUBLIC OF GERMANY

IRLEN v. THE FEDERAL REPUBLIC OF GERMANY

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