FIFTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 71436/01 by Klaus BADER against Germany

The European Court of Human Rights ( Fifth Section), sitting on 26 June 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mrs M. Tsatsa-Nikolovska , Mr J. Borrego Borrego , Mr M. Villiger , judges , Mrs B. Mayen, ad hoc judge , and Mrs F. E lens -P assos , Deputy Section Registrar ,

Having regard to the above application lodged on 27 April 2001,

Having regard to the partial decision of 5 July 2005 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Klaus Bader , is a German national who was born in 1956 and lives in Ravensburg in Germany . He is represented before the Court by Mr A. Poppe, a lawyer practising in Berlin . The German Government (“the Government”) are represented by their Agent, Mrs A. Wittling-Vogel , Ministerialdirigentin , of the German Ministry of Justice .

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

I. The factual background

The applicant is the father of the child R., born out of wedlock on 19 January 1987 . The applicant acknowledged paternity immediately after his son ’ s birth.

The applicant and the child ’ s mother (Ms K.) separated permanently in 1989. The last contact between the applicant and his son to which Ms K. gave her consent took place in May 1990. Following this, Ms K. denied the applicant any access to his son. The applicant ’ s frequent requests to the family courts to be granted access rights remained unsuccessful.

On 7 December 1990 Ms K. married Mr K.

2. The adoption proceedings

On 10 April 1992 Mr and Ms K. applied to adopt the applicant ’ s son.

By order of 20 May 1992 the Ravensburg District Court ( Amtsgericht ) granted the adoption.

On 7 March 1995, following the applicant ’ s complaint, the Federal Constitutional Court ( Bundesverfassungsgericht ) lifted the binding effect of the adoption order of 20 May 1992 insofar as it prevented a fresh consideration of the case ( Aufhebung der Rechtskraft ) and remitted the case to the District Court. The Constitutional Court found that the legal provision permitting adoption of a child by his mother and stepfather without the natural father ’ s consent and without taking into account the latter ’ s interests in the maintenance of a parental relationship violated his rights to the enjoyment of his family life as guaranteed by Article 6 § 2 sentence 1 of the Basic Law ( Grundgesetz ). Accordingly, the legislator was ordered to amend the legal provisions.

On 1 July 1998 new legislation entered into force, providing that a minor ’ s adoption depended on both parents ’ consent. However, if the mother of a child born out of wedlock exercised sole custody, the court had to substitute the natural father ’ s consent if the child would suffer a disproportionate disadvantage if not adopted (section 1748 § 4 of the amended Civil Code, see relevant domestic law below).

On 1 August 1998 the counsel representing Mr and Ms K. filed a request to substitute the applicant ’ s consent to the child ’ s adoption by Mr K.

On 31 January 2001 the Ravensburg District Court, having heard the applicant, Mr and Ms K. and the child as well as expert opinion, substituted the applicant ’ s consent to the adoption pursuant to Article 1748 § 4 of the amended Civil Code. That court found that the child ’ s interest in being adopted by his stepfather outweighed the applicant ’ s interest in the maintenance of the parental bonds by far. It noted that the child R. had expressed that he felt as a full member of the K. family and that he strongly wished to be legally accepted as Mr K. ’ s child. It further noted that the K. family had been considerably disturbed during the previous ten years by numerous confrontations with the applicant. Furthermore, the court-appointed expert had clearly stated that the adoption would be in the child ’ s interest. With regard to the applicant ’ s interests, the District Court noted that the adoption would lead to a severing of the parental bonds. It took however into consideration that the child had lived for more than eleven years with the K. family and that no father-son relationship existed between the applicant and the child. Finally, the District Court considered that the adoption might put an obstacle to a later reconciliation between the applicant and the child, but considered that this would not prevent the child from getting in touch with the applicant if he later on might wish to do so.

On 16 March 2001 the Regional Court rejected the applicant ’ s complaint against the District Court ’ s decision.

On 22 March 2001 the applicant lodged a complaint against the decision of the Regional Court of 16 March 2001 with the Federal Constitutional Court and a further complaint against that same decision with the Stuttgart Court of Appeal ( Oberlandesgericht ).

On 27 April 2001 the applicant lodged his application with the Court.

On 9 May 2001 the Federal Constitutional Court rejected the applicant ’ s constitutional complaint as inadmissible.

On 17 July 2001 the Court of Appeal rejected the applicant ’ s complaint. That court found that the impugned decisions did not violate the applicant ’ s rights under the Basic Law and under the Convention. In so far as the requirements of adoption in the case of an unmarried father who had never held (joint) custody and had never “had responsibility for the child” were less than in the case of other parents, this distinction appeared factually justified in the circumstances of life that were typically found in this case. Furthermore, the lower courts had duly considered the applicant ’ s interests. The Court of Appeal added that the applicant ’ s long lasting fight for his rights had forced the child and his new family into the defensive, which made it necessary in the child ’ s interest to permit the adoption. It further noted that the last contact between the applicant and the child, which had taken place with the mother ’ s consent, was in 1990 – when the child was merely three years old – and that the applicant ’ s further endeavours to get into touch had contributed to the child ’ s aversions. The Court of Appeal considered that the length of the proceedings – which could not be attributed to the courts – had put the child under particular pressure and had thus weakened the applicant ’ s position.

On 31 August 2001 the District Court issued an order confirming the child ’ s adoption by Mr K. The District Court noted that the child had fully integrated into the K. family. According to the courts ’ previous findings, the child would suffer a disproportionate disadvantage if not adopted. The District Court found that the other legal prerequisites were met and, in particular, that the child had firmly expressed that he wished to be adopted.

On 19 October 2001 the Regional Court rejected the applicant ’ s complaint as being inadmissible.

On 6 August 2001 the applicant filed a constitutional complaint against the Court of Appeal ’ s decision of 17 July 2001 , the Regional Court ’ s decision of 16 March 2001 and the District Court ’ s decision of 31 January 2001 .

On 17 September 2001 the applicant lodged a constitutional complaint against the District Court ’ s decision of 31 August 2001 . He alleged that the impugned decisions and the legal provisions they were based upon violated his right to the enjoyment of his family life under Article 6 of the Basic Law and under Article 8 of the Convention. He further complained about a violation of his right to equal treatment as guaranteed by Article 3 of the Basic Law.

By letter of 12 February 2004 the Federal Constitutional Court informed the applicant that it had communicated his joint complaints to the Government and to several other interested parties for comments. By letter of 28 February 2005 the court informed the applicant that – due to the high workload of the section – it could not be predicted when a decision on the admissibility of his complaint could be given.

On 29 November 2005 the Federal Constitutional Court, sitting as a panel of three judges, quashed the decisions of the Court of Appeal of 17 July 2001, of the Regional Court of 16 March 2001 and of the District Court of 31 January and 31 August 2001 and ordered the Land of Baden-Württemberg to reimburse the applicant the necessary expenses incurred by the proceedings before the Constitutional Court.

The Federal Constitutional Court found that the applicant ’ s case could be adjudicated by a chamber of three judges as the questions raised by the applicant were no longer of fundamental importance.

The court noted in particular that the Federal Court of Justice, in a decision given on 23 March 2005 (see relevant domestic law and practice, below), had issued valid guidelines which assured that section 1748 § 4 of the Civil Code was interpreted in accordance with the Basic Law and that a father who had never held parental authority was not discriminated against as compared to a father who had.

The Constitutional Court emphasized the fact that the adoption severed all legal bonds to the natural father, including alimony claims and rights of succession. Furthermore, it was generally not to be regarded as being in the child ’ s best interest to exclude access rights of the natural parent. Summing up, the Federal Constitutional Court found that a child ’ s adoption by his or her stepfather could not generally be regarded as being in the child ’ s best interest.

Turning to the applicant ’ s case, the Federal Constitutional Court found that the impugned decisions violated the applicant ’ s right to equal treatment under Article 3 § 1 of the Basic Law, as they discriminated against the applicant when compared to a father who had previously held parental authority. It noted, in particular, that the lower courts had failed to take into account the applicant ’ s submissions that he had lived for a certain period of time with the child and had thus assumed his responsibility as a parent. The lower courts had further failed to examine the reasons which had prevented the applicant from maintaining a father-child relationship. As could be established from the case-file, the child ’ s mother had prevented the applicant ’ s access to the child after meeting her future husband. The Federal Constitutional Court finally found that the applicant ’ s later attempts to get in touch with the child should not be held against him.

Having regard to these findings, the Federal Constitutional Court did not find it necessary to examine the applicant ’ s further complaints. As a result of this judgment, the proceedings concerning the adoption of the applicant ’ s son were terminated.

3. The applicant ’ s detention

On 14 January and 18 February 2003 the District Court ordered the applicant ’ s arrest on the basis of section 901 of the Code of Civil Procedure, because he had refused to reimburse court fees incurred by the adoption proceedings and in order to compel him to render an affidavit ( eidesstattliche Versicherung ).

On 24 May 2004 the Federal Constitutional Court refused to entertain the applicant ’ s complaint against the arrest orders.

The applicant was arrested on 28 May 2004 and released following court order of 30 July 2004.

B. Relevant domestic law and practice

1. The guarantee of family life under the Basic Law

Article 6 of the Basic Law ( Grundgesetz ) reads as follows:

“(1) Marriage and the family shall enjoy the special protection of the state.

(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty...”

2. The provisions regulating adoption

The statutory provisions on adoption are to be found in the Civil Code ( Bürgerliches Gesetzbuch ).

Section 1747 (2) of that law originally provided that a child born out of wedlock could be adopted by its mother or stepfather without the natural father ’ s consent.

On 7 March 1995 the Federal Constitutional Court ( Bundesverfassungsgericht ) ruled that this provision violated the natural father ’ s rights to the enjoyment of his family life as guaranteed by Article 6 § 2 (1) of the Basic Law insofar as it did not require the natural father ’ s consent and did not allow to weigh the latter ’ s interests.

On 1 July 1998 the Act Concerning the Reform of Childhood Rights ( Gesetz zur Reform des Kindschaftsrechts ) entered into force, which amended the relevant provisions on child adoption as follows:

Under section 1741 § 1 the adoption of a child is permissible if it is in the interest of the child ’ s well-being and if it can be expected that parent-child relations will develop between the person applying for the permission to adopt and the child.

An adoption may only take place with the natural parents ’ consent (section 1747 §1).

Section 1748, insofar as relevant, reads as follows:

Section 1748 substitution of a parent ’ s consent

“(1) Upon the child ’ s request, the court has to substitute its consent for that of a parent, if that parent has grossly and persistently violated his or her duties toward the child or if he has demonstrated that the child is indifferent to him, and if the child would suffer a disproportionate disadvantage in the absence of an adoption...

...

(3) The court can further substitute its consent for that of a parent who is...permanently unable to care for the child if the child, in the absence of an adoption, could not be raised within a family, which would seriously endanger its development.

(4) In the cases of section § 1626a § 2 the court has to substitute its consent for the father ’ s if the child would suffer a disproportionate disadvantage in the absence of an adoption. “

Section 1626a § 2 provides that the mother of a child born out of wedlock exercises sole custody if no other agreement has been reached between the parents.

3. Case-law of domestic courts

On 23 March 2005 the Federal Court of Justice ( Bundesgerichtshof ) in separate proceedings which did not concern the applicant ’ s case, laid down the following guiding principle for the interpretation of section 1748 § 4 of the Civil Code:

“A disproportionate disadvantage in the absence of an adoption can only be assumed if the adoption would be so beneficial for the child that a parent who reasonably cared for the child ’ s well-being would not insist on the maintenance of parental ties.”

( “Das Unterbleiben der Adoption gereicht ... nur dann dem Kind zu unverhältnismäßigen Nachteil, wenn die Adoption einen so erheb lichen Vorteil für das Kind biet en würde, daß ein sich verständig um sein Kind sorgender Elternteil auf der Erhaltung des Verwandschaftsbandes nicht bestehen würde.”)

The Federa l Court of Justice further emphasised that it was not, as a general rule, in the child ’ s interest if the adoption was aimed at excluding the natural father from exercising access rights. It further had to be considered that the adoption generally did not alter the child ’ s opportunity to live within the new family, and only gave a legal framework to a factually existing situation. With regard to the father, one had to consider whether there existed a real parent-child-relationship or, if not, which reasons had prevented the father from building up such a relationship.

The Federal Court of Justice concluded that section 1748 § 4, if interpreted in accordance with these guidelines, respected the natural father ’ s rights under the Basic Law.

COMPLAINTS

1. The applicant complained under Article 8 of the Convention about the severing by adoption of the parental ties to his natural son.

2. The applicant further complained under Article 14 of the Convention about the fact that section 1784 § 4 of the Civil Code only applied to fathers, but not to mothers of children born out of wedlock.

3. He also complained under Article 6 § 1 of the Convention about the alleged unfairness of the adoption proceedings. Moreover, he maintained that the Federal Constitutional Court had patently not been able to safeguard his rights within a reasonable time.

4. Invoking Articles 5 and 7 of the Convention, the applicant finally complained about his arrest and subsequent detention.

THE LAW

1. The scope of the case

In his observations submitted to the Court on 15 February 2006 the applicant declared that his original complaints against the lower courts ’ decisions on his son ’ s adoption had been disposed of by the decision of the Federal Constitutional Court given on 29 November 2005. He further declared that he did not further pursue his complaint against his arrest and subsequent detention. He wished, however, that these facts were taken into account when assessing his claims for just satisfaction. He further requested the Court to establish that section 1748 § 4 of the Civil Code violated the provisions of the Convention and that its application in the instant case had violated his rights under Articles 8 and 14 of the Convention.

The Government took note of the fact that the applicant did not seem to wish to pursue his original complaints about the length of the proceedings before the Federal Constitutional Court and about his arrest and detention. The applicant did not contest this.

The Court takes note of the fact that the applicant, who is represented by counsel, expressed that he did not wish further to pursue his original complaints regarding the domestic court decisions. The Court observes that this includes the complaints against the alleged unfairness of the domestic proceedings and about the length of the proceedings before the Federal Constitutional Court . Furthermore, the applicant declared that he did not wish further to pursue his complaint against his arrest and subsequent detention. The Court is satisfied that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of these complaints (Article 37 § in fine). Accordingly, the Court does not find it necessary to examine them.

2. The applicant ’ s status as a victim

The applicant complained that the provision of section 1748 § 4 of the Civil Code violated in particular his rights under Articles 8 and 14 of the Convention, which read as follows:

“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 enjoyment of the rights and freedoms set forth in [the] 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.”

(a) The Government ’ s submissions

The Government contended that the applicant ’ s complaint about the substitution of his consent to the adoption was incompatible ratione materiae with the provisions of the Convention. They pointed out that the Federal Constitutional Court in its decision of 29 November 2005 had quashed the domestic decisions which had given rise to the present complaint. That court had expressly acknowledged that the applicant ’ s rights had been violated. It had carefully examined the applicant ’ s complaints regarding the substitution of his consent. Thus, the applicant ceased to be a victim within the meaning of Article 34 of the Convention.

According to the Government, it did not matter that the Federal Constitutional Court did not expressly base its decision on a violation of Article 6 § 2 of the Basic Law, namely the applicant ’ s right to the enjoyment of his family life. That court had not been obliged to examine a violation of Article 6 § 2, as the impugned decisions had to be quashed because of a violation of the right to equal treatment. According to the Government, it could not be required from the domestic authorities to examine every possible aspect of the applicant ’ s complaint, as long as they took into account its substance.

The Government finally contended that the applicant ’ s complaint had been inadmissible from the outset, as the applicant had lodged his complaint with the Court before the Federal Constitutional Court had given its final decision and had thus failed to exhaust domestic remedies. Had the applicant awaited the outcome of these proceedings, his complaint to the Court would have been unnecessary, as the Federal Constitutional Court had amended the violation of the applicant ’ s rights.

(b) The applicant ’ s submissions

The applicant contested these submissions. While conceding that the complaints which were directly aimed against the impugned decisions of the lower domestic courts had been disposed of by the decision of the Federal Constitutional Court, he requested the Court to establish that section 1748 § 4 of the amended Civil Code was incompatible with the provisions of the Convention and that its application violated his rights under Articles 8 and 14 of the Convention. He further requested to be granted just satisfaction under Article 41 of the Convention for the non-pecuniary damages caused by being deprived of any contact with his son for seventeen years. Finally, he pointed out that he had suffered a heart attack during the second set of adoption proceedings.

(c) The Court ’ s assessment

Article 34 of the Convention requires that an applicant must claim to be a victim of a violation of the Convention. That means that a person must be directly affected by the act or omission in issue (see Amuur v. France , judgment of 25 June 1996, Reports of Judgments and Decisions 1996 ‑ III, p. 846, § 36). It follows from this concept, on the one hand, that the Court is not competent to examine in abstracto the compatibility of domestic legislation with the provisions of the Convention , but can only establish whether the applicant ’ s rights have been safeguarded in his or her individual case.

On the other hand, according to the Court ’ s established case-law, an individual may no longer claim to be a victim of a violation of the Convention where the national authorities have acknowledged, either expressly or in substance, a breach of the Co nvention and afforded redress (see, among other authorities, Il aşcu and Others v. Moldova and Russia (dec.) [GC], no. 48787/99, 4 July 2001).

Turning to the present case, the Court notes that the applicant lodged his application with the Court before the Federal Constitutional Court gave its final decision on 29 November 2005. While it is true that that court did not expressly refer to the applicant ’ s rights under the Convention or his rights to the enjoyment of his family life, it thoroughly examined the applicant ’ s complaints and held that the lower courts had failed sufficiently to consider the applicant ’ s interest in the maintenance of his parental ties with his child, which lead to a violation of his right to equal treatment. Under these circumstances, the Court is satisfied that the domestic authorities have in substance acknowledged a breach of the applicant ’ s rights under Article 8 taken on its own and in conjunction with Article 14 of the Convention.

Having regard to the question whether the applicant has been afforded adequate redress, the Court recalls that the Convention obliges the Contracting States primarily to put an end to the breach of a Convention right and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach ( restitutio in integrum). Only if the domestic law does not allow – or allows only partial – reparation to be made for the consequences of the breach, does Article 41 empower the Court to afford the injured party such satisfaction as appears to it to be appropriate ( see, mutatis mutandis , Papa michalopoulos and Others v. Greece (Article 50), judgment of 31 October 1995, Series A no. 330 ‑ B, p. 59, § 34).

Turning to the present case, the Court notes that the Federal Constitutional Court in its decision of 29 November 2005 quashed all decisions relating to the substitution of the applicant ’ s consent and to the adoption of his son. Thus, from a legal point of view, no adoption has taken place and the applicant has been and continued to remain the legal father of his natural son. It follows that the domestic authorities, on their own motion, have restored as far as possible the situation existing before the breach.

The Court accepts that the applicant has suffered considerably from having been denied any access to his son for many years. He has thus been deprived of maintaining a father-son relationship during the crucial period of adolescence. It is true that this loss has not and cannot be amended. The Court notes, however, that the domestic decisions on access rights did not form the subject matter of the present application and that access had been denied even before the adoption had been granted.

As a result, the Court considers that the applicant has been awarded adequate redress by the domestic authorities. The applicant cannot, therefore, complain to be a victim of a violation of his rights to equal treatment and to the enjoyment of his family life, as guaranteed under Article 8 on its own and in conjunction with Article 14.

It follows that this complaint must be rejected in accordance with Article 35 § 3 and § 4 of the Convention.

For these reasons, the Court unanimously

Holds that it is not necessary to examine the complaints about the length of the proceedings before the Federal Constitutional Court , about the alleged unfairness of the domestic proceedings and about the applicant ’ s arrest and detention,

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Peer Lorenzen Deputy Registrar President