Lexploria

The European Commission of Human Rights sitting in private on 6 May

1986, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

M.A. TRIANTAFYLLIDES

G. JÖRUNDSSON

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr H.C. KRÃœGER, 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 16 April 1985 by

A.S. against the Federal Republic of Germany and registered on 24

June 1985 under file No.11606/85;

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 applicant is a Turkish citizen, born in 1940 and living in

Duisburg. He is represented by Messrs Rappen et al, lawyers in

Duisburg.

It follows from his statements and the documents submitted by him that

on 25 March 1982 the Geldern District Court (Amtsgericht) held that

the applicant is the father of R.M., born on 11 April 1976, the

plaintiff of the proceedings in question. The decision was, inter

alia, based on several expert opinions. The applicant's appeal

(Berufung) was rejected on 24 November 1982 by the Düsseldorf Court of

Appeal (Oberlandesgericht). The appellate court stated that the

applicant admitted to having had intercourse with the mother while

there was no evidence to show that at the relevant period the mother

also had intercourse with other men. Furthermore the expert opinions

had confirmed that the applicant was most likely to be the father.

According to medical experts a blood test had shown that there was a

91.46% probability of the applicant being the father of the plaintiff.

In a supplementary expert opinion the experts had explained that they

had also taken into account Turkish gene frequencies. The appellate

court pointed out that the medical experts were leading specialists

and known as being reliable. Therefore there were no reasons not to

rely on their expert opinion. The court added that a genotype expert

opinion (erbbiologisches Gutachten) likewise confirmed that the

applicant was "most likely" to be the father.

In 1983 the applicant brought an action against R.M. requesting the

court to order a further expert opinion on the paternity issue and to

direct the defendant R.M. to undergo tests for this purpose. He

alleged that due to a misunderstanding his counsel had in the previous

affiliation proceedings wrongly admitted that the applicant had had

intercourse with R.M.'s mother, while in reality he did not have

intercourse with her. On 7 October 1983 the Geldern District Court

dismissed the action. It stated that neither Section 641 i (1) of the

Code on Civil Proceedings (ZPO) nor any other provision of German law

gave the applicant a right to claim the cooperation of the defendant

with a view to obtaining another expert opinion. The principle of

legal certainty (Rechtssicherheit) required that Section 641 i ZPO be

interpreted in a narrow manner and did not allow it to be deduced from

this provision that it constituted the basis for a substantive claim

as raised by the applicant.

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(1) Section 641 i ZPO provides for a retrial if a party to affiliation

proceedings, which have been terminated by final judgment, can produce

an expert opinion the consideration of which would have led to another

decision in the previous proceedings.

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On 11 April 1984 the Düsseldorf Court of Appeal confirmed the

aforementioned decision of 7 October 1983 and rejected the applicant's

appeal (Berufung). It stated that the District Court's finding that

the present law did not provide for a claim as raised by the applicant

also corresponded to the prevailing opinion in legal doctrine.

Furthermore it pointed out that it was unlikely that a new expert

examination would lead to different results from the expert opinions

obtained in the previous affiliation proceedings, as these expert

opinions had taken into account all relevant factors. In so far as

the applicant had alleged that his counsel's submissions in the course

of the previous affiliation proceedings had been caused by a

misunderstanding the appellate court remarked that if the decisions

given in the previous proceedings should be based on incorrect factual

findings a retrial could only be obtained under the conditions laid

down in Section 580 (3) ZPO in connection with Section 581 ZPO (ie

when a judgment was obtained by a statement of a witness or an expert

who violated in a punishable manner his obligation to speak the

truth).

On 17 October 1984 a group of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) rejected the

applicant's constitutional complaint against the appellate court's

decision of 11 April 1984 as offering no prospects of success. It is

stated in the decision that the dismissal of the applicant's action

did not appear to be arbitrary as the denial of a claim obliging the

defendant child to cooperate with a view to the preparation of a

further expert opinion was at least arguable (zumindest vertretbar).

COMPLAINTS

The applicant submits that the German courts' interpretation of

Section 641 i ZPO violates his right to a fair trial (Art 6 of the

Convention (Art. 6)). He submits that Section 641 i ZPO is an exceptional

provision meant to cope with the particular problems of paternity

(affiliation) proceedings.

In his opinion it takes account of the fact that the older a child

becomes the easier it is for medical experts to establish paternity

links. Therefore, the purpose of the provision would be frustrated if

a corresponding obligation on the part of the child to cooperate was

denied.

He further argues that the denial of the legal protection as afforded

by Section 641 i ZPO amounts to a violation of Art 13 (Art. 13) of the

Convention.

THE LAW

1. The applicant has complained that his alleged claim against

R.M. who was declared to be his son in previous affiliation

proceedings was dismissed by German civil courts.

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Art 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except when it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its constant

jurisprudence (see eg decisions on the admissibility of applications

N° 458/59, Yearbook 3, pp 222, 236 and N° 1140/61, Collection of

Decisions, 8, 57, 62).

It is true that in this case the applicant also complains that the

decisions complained of violate his right to a fair trial as

guaranteed by Art 6 (Art. 6) of the Convention because they frustrate

the possibility of a retrial provided for by Section 641 i ZPO.

However, the Commission first observes that the right to a retrial is

as such not guaranteed by the Convention (Dec N° 7761/77, 8.5.78, DR

14, 171). Apart from that the Commission notes that the German courts

considered the applicant's arguments but held that he had no

substantive right to claim the defendant's cooperation in the

establishment of another expert opinion. There is nothing to show

that in arriving at this conclusion the German courts disregarded the

applicant's right to a fair trial. The Commission has also examined

the present complaint under Art 8 (1) (Art. 8-1) of the Convention

which guarantees to everyone the right to respect for his private and

family life. However, even assuming that the mere denial of the claim

raised by the applicant in civil proceedings can be considered to

amount to an interference with this right, such interference would

have to be considered as being justified as being necessary in a

democratic society for the protection of the rights of others, namely

the defendant party who has obtained a final judgment in his favour

and can rely on the principle of legal security and certainty. As the

applicant has not alleged or shown that the medical expert opinions

obtained in the previous affiliation proceedings were based on errors

or were for other reasons clearly untenable it cannot be found that

the German courts arbitrarily rejected the applicant's alleged claim.

It follows that this part of the application is manifestly ill-founded

within the meaning of Art 27 (2) (Art. 27-2) of the Convention.

2. As the applicant had the possibility of raising his complaint

before the Federal Constitutional Court there is further no appearance

of a violation of Art 13 (Art. 13) of the Convention.

This part of the application is therefore likewise manifestly

ill-founded within the meaning of Art 27 (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. KRÜGER) (C.A. NØRGAARD)

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S. v. THE FEDERAL REPUBLIC OF GERMANY

S. v. THE FEDERAL REPUBLIC OF GERMANY

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