Lexploria

The European Commission of Human Rights sitting in private on

10 October 1986, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 August 1984 by E.

W. against the Federal Republic of Germany and registered on

6 May 1985 under file No. 11526/85;

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 1942, is a German national and resident in

Child's Ercall, United Kingdom. He is an unemployed doctor.

The applicant is filing his application also in the name of his

daughter, born in wedlock on 13 August 1975. Since 1984 the applicant

has apparently been living together with his daughter, although the

right of custody had been granted to the daughter's mother after the

parents' divorce in 1983.

I.

On 28 April 1981 the applicant instituted divorce proceedings before

the Charlottenburg District Court (Amtsgericht) on the ground that his

marriage had broken down and requested the custody over his daughter.

A provisional transfer of the right of custody as well as of the right

to determine the daughter's residence was refused by the Court on

29 April 1981 in order to enable her to stay in her usual

surroundings.

On 2 April 1982 the Court dismissed the applicant's request to grant

him access to his daughter during the Easter holidays. The Court

found in particular that the applicant had already spent two weeks

holidays with his daughter at the beginning of 1982.

On 15 May 1982 the Court provisionally awarded the custody to the

daughter's mother without having heard the parties. The Court found

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

The Court based its decision on a psychological opinion of the

certified psychologist Dr. F, which had been ordered by the Court in

November 1981. According to this opinion the daughter had had the

closest emotional contacts with her mother and was now endangered by

the applicant's strong attempts to manipulate the daughter's

attitudes. The Court concluded that the daughter had stronger moral

bonds to her mother and should, therefore, stay with her.

On 6 October 1982 the Court, upon the applicant's request, held a

hearing with the parties. As a result, it confirmed its previous

provisional decision in respect of the grant of custody to the mother.

The Court found that for the time being the mother should retain the

custody in order to avoid a second change of the daughter's residence

within a short period of time. The Court adjourned its decision on

the applicant's objections against the results of the psychological

opinion. Furthermore, the Court granted the applicant regular

visiting rights.

The applicant's appeal (sofortige Beschwerde) was declared

inadmissible by the Berlin Court of Appeal (Kammergericht) on

12 November 1982 on the ground that it had not been presented by a

lawyer.

On 11 January 1983 the Charlottenburg District Court heard the

applicant's daughter and ordered a final psychological opinion to be

prepared by Prof. L on the ground that her statements were

inconsistent with the results of the first psychological opinion.

On 22 June 1983 the Court dismissed the applicant's request to spend

holidays with his daughter in July 1983 on the grounds that he had

already spent holidays with her in March and April 1983 and that his

wife had already planned a holiday during that time. His appeal was

declared inadmissible by the Berlin Court of Appeal on 29 June 1983.

The Court found that there existed no right to appeal separately

against decisions concerning access to a child.

On 28 December 1983 the Charlottenburg District Court granted divorce

and gave the right of custody to the mother according to S. 1671

para. 1 of the German Civil Code (Bürgerliches Gesetzbuch). S. 1671

para. 1 states:

"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 proceeded from Prof. L's opinion according to which, in

principle, the grant of custody to either of the parents would favour

the daughter's well-being who only subconsciously felt slightly more

attached to the applicant. In view of the fact that both parents,

albeit differing in personality, were equally capable to educate their

daughter, decisive importance should be attached to the aspect of the

continuity of her development and education. The Court, therefore,

concluded that the existing situation should not be changed.

In April 1984 the applicant's wife informed the Berlin Police that the

applicant had abducted the daughter.

On 23 May 1984 the Berlin Court of Appeal dismissed the applicant's

appeal against the decision of the Charlottenburg District Court dated

28 December 1983 as being unfounded. The Court found in particular

that the applicant had shown a severe weakness of character in view of

the fact that he had failed to accept the previous instance's decision

and had unlawfully absconded with the daughter. The Court concluded

that he could no longer be considered as being capable of educating

his daughter.

II.

Upon the request of the applicant's wife, the Schöneberg District

Court ordered, on 30 June 1983, the forced sale of the family's common

estate in view of the divorce proceedings. However, the estate was

nevertheless voluntarily sold in March 1984.

On 5 July 1984, the Charlottenburg District Court ordered the arrest

(dinglicher Arrest) of the applicant's claim insofar as he was

entitled to the purchase price. The Court found that the arrest was

necessary in order to secure his daughter's right to a monthly alimony

until her eighteenth birthday as well as a further claim which

concerned legal charges. The Court also found that the applicant was

likely to abscond.

On 7 November 1984 after conducting a hearing with the parties the

Court confirmed the order. The applicant's appeal was dismissed by

the Berlin Court of Appeal on 27 March 1985. The latter found that

the assets at issue would enable the applicant to abscond while

endangering his daughter's right to her alimony.

III.

On 26 June 1984 the Berlin Public Prosecution Authority

(Staatsanwaltschaft) indicted the applicant for having abducted his

daughter. The Authority informed the applicant's employer, a public

hospital, thereof. As a result the employer refused to conclude a

further temporary employment contract in September 1984.

IV.

In 1984 (the applicant has not submitted the dates or copies of the

respective decisions) the Tiergarten District Court fined the

applicant for insult, but failed to hear him and formally to serve the

decision upon him. The applicant has submitted that his lawyer

nevertheless found a copy of this decision in the court files

concerning his divorce proceedings. The applicant unsuccessfully

requested a restitutio in integrum. His subsequent appeal to the

Tiergarten District Court was dismissed as being out of time.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 (art. 6-1) of

the Convention that the German courts' proceedings in which the

custody over his daughter was awarded to his former wife were unfair

in that neither he nor his daughter were heard prior to the

provisional grant of custody in May 1982, i.e. the allegedly decisive

decision in respect of the subsequent continuity of education.

Moreover the decisions on the grant of custody did not have regard to

his daughter's wishes, or take into account the mother's disability to

educate children. He also complains that he was arbitrarily refused

permission to spend further holidays with his daughter.

2. On behalf of his daughter the applicant complains that the

court's decisions in respect of the custody and the holidays

interfered with her freedom of movement within the meaning of

Article 2 of Protocol No. 4 (P4-2).

3. The applicant complains under Article 14 (art. 14) of the

Convention that the German courts discriminated against him on the

ground of his sex in that they based their decisions on the

traditional roles of man and woman in a family.

4. The applicant furthermore complains under Article 6 para. 1

(art. 6-1) of the Convention that the proceedings in respect of the

forced sale of his estate were unfair.

5. The applicant complains under Article 1 of Protocol No. 1

(P1-1) that the Court's order of arrest in July 1984 concerning his

claim of payment after the sale of his estate were issued in order to

force him to bring his daughter back to Berlin.

6. The applicant complains under Article 6 para. 2 (art. 6-2) of

the Convention that the Berlin Public Prosecution Authority violated

the presumption of innocence when if informed his employer about the

indictment against him.

7. The applicant moreover complains under Article 6 (art. 6) of

the Convention that the court decision by which he was fined in 1984

was not served upon him and that therefore he was not able to defend

himself.

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, though the applicant has apparently

been living with his daughter since 1984.

The question, therefore, arises whether in these circumstances the

applicant is able to lodge his complaints concerning the German

courts' respective decisions on the grant of custody and the requests

for permission to spend holidays with his daughter also on behalf of

his daughter (cf. 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

manifestly ill-founded for the following reasons.

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

in respect of the grant of custody as well as the decisions on

holidays with his daughter 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 finds 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 next task is 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).

Furthermore the Commission finds that with regard to cases where the

communal life of the parents is practically non-existent or

interrupted, as in the present circumstances, it is legitimate, or

even necessary, for the national law to provide rules governing the

relationship between parents and children which differ from the rules

which are normally applicable when the family unit is still

maintained. In such cases, Article 8 (art. 8) does not grant to one

or the other parent the right to be given preference as to his claim

for the custody over a child. The competent public authorities, when

called upon to take a decision in this respect, should take into

consideration the interest of the child (cf. No. 7770/77, ibid.).

In this respect, the Commission notes that the Charlottenburg District

Court and the Berlin Court of Appeal in fact considered the interests

of the applicant's daughter and in particular her future well-being as

being predominant. The Courts relied on psychological expert advice

as to the child's relationship with each parent as well as each

parent's capability to educate children. As these were found to be

roughly equal the District Court considered the continuity of

education as the decisive aspect. The Court of Appeal took moreover

the applicant's subsequent conduct, i.e. the abduction of his

daughter, into account. There is no evidence before the Commission to

show that these decisions did not give careful consideration to 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.

The Commission has next considered the applicant's complaint

concerning the refusal of his requests for permission to spend certain

holidays with his daughter. The Commission finds that the respective

courts' decisions interfered with the applicant's right to family life

within the meaning of Article 8 (art. 8), which includes the right of

a parent, who is denied custody following the dissolution of a

marriage, to have access to or contact with his child (cf. Hendriks

v. the Netherlands, Comm. Report 8.3.82, D.R. 25 p. 5).

However, the Commission notes that the decisions concerning the

requested permission concerning holidays with the daughter were given

under S. 1634 para. 2 of the German Civil Code. S. 1634 para. 2

provides, inter alia, that the Court may determine the extent

according to which the parent who is deprived of custody may exercise

his right to personal contact; it may furthermore restrict or exclude

this right, inasmuch as this is necessary for the child's well-being.

The Commission, therefore, finds that the decisions were in accordance

with German law. They furthermore pursued a legitimate aim under

Article 8 para. 2 (art. 8-2), namely the daughter's well-being. The

Commission moreover considers that the interference complained of was

proportionate to the legitimate aim pursued. The District Court

carefully considered the applicant's requests for permission to spend

holidays with his daughter in the light of the facts that he exercised

extensive and regular visiting rights and that he had already spent

holidays with his daughter prior to each request.

The Commission finds that in these circumstances the courts' decisions

to refuse the permissions sought were reasonable and that the

interference with the right to family life was thus justified under

Article 8 para. 2 (art. 8-2) of the Convention.

It follows that the complaint concerning the German courts' decisions

on custody and holidays is manifestly ill-founded within the meaning

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

3. The applicant complains under Article 14 (art. 14) of the

Convention that the District Court and the Court of Appeal when

deciding on the grant of custody discriminated against him on account

of his sex in that they based their decisions on the traditional roles

of man and woman in a family.

Article 14 (art. 14) of the Convention reads:

"The enjoyment of the rights and freedoms set forth in this Convention

shall be secured without discrimination on any ground such as sex,

race, colour, language, religion, political or other opinion, national

or social origin, association with a national minority, property,

birth or other status."

The Commission has examined this complaint under Article 14 (art. 14)

in conjunction with Article 8 (art. 8) of the Convention. However, it

finds that the courts decided the grant of custody to the mother on

the ground that it was in the interest of the applicant's daughter.

There is no indication of a discrimination based on the applicant's

sex.

Consequently the complaint under Article 14 (art. 14) is manifestly

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

the Convention.

4. The applicant also complains that the courts' decisions on the

transfer of custody and his requests for permission to spend his

holidays with his daughter violated his daughter's right to liberty of

movement within the meaning of Article 2 para. 1 (art. 2-1) of

Protocol No. 4 (P4-2-1).

Article 2 para. 1 (art. 2-1) provides:

"Everyone lawfully within the territory of a State shall, within that

territory, have the right to liberty of movement and freedom to choose

his residence."

The Commission observes that the respective decisions on custody and

the requests concerning joint holidays did not as such interfere with

the freedom of movement of the applicant's daughter within the Federal

Republic of Germany.

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. 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 transfer of custody over his daughter and the refusal

of permission to spend his holidays together with her. He alleges

that the courts did not consider his daughter's wishes and misjudged

her mother's capability to educate children. Neither he nor his

daughter were heard prior to the provisional decision on custody in

May 1982 which he considers to have been the decisive decision.

Insofar as those complaints relate to the substance of the domestic

decisions the Commission refers to its above findings under

Articles 8 and 14 (art. 8, art. 14) of the Convention and

Article 2 of Protocol No. 4 (P4-2). Insofar as they concern the domestic

proceedings, the Commission observes that, after the provisional grant

of custody, the applicant was heard by the District Court on

6 October 1982 and his daughter on 11 January 1983. The applicant then

had full opportunity to make his submissions on all points at issue

and in particular to comment upon the psychological opinion. 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 Court 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. 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.

6. The applicant complains under Article 6 para. 1 (art. 6-1) of

the Convention that the proceedings before the Schöneberg District

Court concerning the forced sale by auction of his (and his wife's)

estate were unfair.

The Commission notes that these proceedings were only in their initial

stage directed towards a forced sale by auction. The estate was

subsequently voluntarily sold to private purchasers. This sale

disposed of the auction proceedings. An issue arises therefore as to

whether the initial stage of these proceedings involved a

determination of the applicant's civil rights and obligations within

the meaning of Article 6 para. 1 (art. 6-1) of the Convention.

However,the Commission does not find it necessary to determine this

question as the applicant has in any case not exhausted the domestic

remedies available to him within the meaning of Article 26 (art. 26)

of the Convention.

The Commission here observes that the applicant failed to appeal

against the decision ordering the forced sale by auction under the

relevant Act on Forced Sale by Auction (Zwangsversteigerungs- gesetz)

and has, therefore, not exhausted the remedies available to him under

German law. Moreover, an examination of the case does not disclose

the existence of any special circumstances which might have absolved

the applicant, according to the generally recognised rules of

international law, from exhausting this domestic remedy.

It follows that the applicant has not complied with the condition as

to the exhaustion of domestic remedies and his application must in

this respect be rejected under Art. 27 para. 3 (art. 27-3) of the

Convention.

7. The applicant moreover complains under

Article 1 of Protocol No. 1 (P1-1) that the Schöneberg District Court

froze his claim of payment, which he had acquired after the sale of

the estate.

The Commission observes that this decision was taken in order to

secure the right of the applicant's daughter to a monthly alimony.

The applicant thus lost his right of free disposal of that claim in

connection with civil proceedings which were intended to secure the

future fulfilment of certain financial obligations. Consequently,

there is no appearance of a violation of the right to peaceful

enjoyment of one's possessions as guaranteed by

Article 1 of Protocol No. 1 (P1-1) (see mutatis mutandis No. 7256/75,

Dec. 10.12.76, D.R. 8 p. 161).

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.

8. The applicant complains under Article 6 para. 2 (art. 6-2) of

the Convention that the Berlin Public Prosecution Authority informed

his employer, a public hospital, about an indictment against him,

which had charged him with abduction of his daughter.

The Commission notes that the applicant has not shown that he

instituted any legal proceedings in order to challenge the lawfulness

of the Public Prosecution Authority's conduct. The question therefore

arises whether the applicant has exhausted the domestic remedies

within the meaning of Article 26 (art. 26) of the Convention. However,

the Commission finds it unnecessary to determine this question as the

above complaint under Article 6 para. 2 (art. 6-2) is in any event

manifestly ill-founded for the following reasons.

In the present case the applicant's employer was informed about an

indictment against the applicant, including the relevant charges.

However, Article 6 para. 2 (art. 6-2) is not violated if authorities

inform the public about criminal investigations as long as they do not

declare somebody guilty (cf. No. 7986/77, Dec. 3.10.78, D.R. 13 p. 73;

No. 8361/78, Dec. 17.12.81, D.R. 27 p. 37). In these

circumstances, the Commission finds that the information given by the

Public Prosecution Authority did not violate the principle of

presumption of innocence.

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.

9. The applicant complains under Article 6 para. 1 (art. 6-1)

that he was convicted by the Tiergarten District Court in 1984 on a

charge of insult without having had a possibility to defend himself.

However, the Commission is not required to decide whether or not the

facts alleged by the applicant disclose any appearance of a violation

of this provision as, under Article 26 (art. 26) of the Convention, it

may only deal with a matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law.

The Commission observes that according to S. 709 of the German Code of

Criminal Procedure (Strafprozessordnung), the appeal against the

conviction and sentence in summary proceedings (Strafbefehl) must be

lodged within a period of one week. Pursuant to S. 44 et seq. of the

Code of Criminal Procedure a restitutio in integrum may be requested

within the period of one week from the date on which the obstacle to

meet the time-limit was removed. The District Court declared the

applicant's request for restitution and his appeal inadmissible as

being lodged out of time.

The Commission recalls its constant case-law according to which there

is no exhaustion of domestic remedies where a domestic appeal is not

admitted because of a procedural mistake (see No. 6878/75,

Dec. 6.10.76, D.R. 6 p. 79). In the present case the applicant failed

to comply with the requirements under the Code of Criminal Procedure

and has therefore not exhausted the remedies available to him under

German law. Moreover, an examination of the case, as it has been

submitted by the applicant, does not disclose the existence of any

special circumstances which might have absolved the applicant,

according to the generally recognised rules of international law, from

exhausting the domestic remedies at his disposal.

It follows that the applicant has not complied with the condition as

to the exhaustion of domestic remedies and his application must in

this respect be rejected under Article 27 para. 3 (art. 27-3) of the

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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W. v. THE FEDERAL REPUBLIC OF GERMANY

W. v. THE FEDERAL REPUBLIC OF GERMANY

LEXI