THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60534 /0 0 by Joseph WIMMER against Germany

The European Court of Human Rights (Third Section), sitting on 16 September 2004 as a Chamber composed of

Mr I. Cabral Barreto , President , Mr G. Ress , Mr R. Türmen , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , Mr K. Traja , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 20 July 2000 ,

Having regard to the parti al decision of 19 September 2002 ,

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

The applicant, Joseph Wimmer, is a German national, who was born in 1952 and lives in Töging am Inn , Germany . He is represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld , Germany . The respondent Gove rnment are represented by Mr K. Stoltenberg, Ministerialdirigent .

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

On 25 November 1992 the applicant and his wife (hereafter Ms W.) divorced before the Groß Gerau District Court. In this context, the District Court granted them joint custody of their two daughters, aged four and eight at that time.

On 6 July 1993, following Ms W. ' s appeal ( Beschwerde ) and after hearing both her and the applicant as well as two representatives of the local Youth Office, the Frankfurt/Main Court of Appeal granted Ms W. sole custody of the children, while allowing the applicant to retain a right of access. It found that, given the fact that the parents did not seem entirely willing to co-operate in practical matters, it would be in the children ' s best interest if decisions concerning their everyday life were taken by their mother alone. It added that the mother had agreed to discuss important decisions with the applicant and that she was expected to ensure that contacts between the applicant and his daughters would continue on a regular basis. In its decision, the Court of Appeal did not admit an appeal on points of law ( weitere Beschwerde ).

On 9 August 1993 the applicant lodged a constitutional complaint with the Federal Constitutional Court . He claimed in particular that the decision of the Frankfurt/Main Court of Appeal had misinterpreted the existing pr ovisions on custody of children and infringed his parental rights guaranteed by Article 6 paragraph 2 of the Basic Law.

On 23 March 1994 the President of the Federal Constitutional Court informed the applicant that he had communicated the case to 25 third parties, who had the right to submit their observations until 30 September 1994 . The list of third parties included the Federal Parliament ( Bundestag ), the Federal Council ( Bundesrat ), the Federal Government, the Länder G overnments, the P resident of the Federal Court of Justice, the parties of the proceedings before the Frankfurt/Main Court of Appeal, as well as various national organisations dealing with family law issues and involved in the protection of children.

On 13 November 1995 , following the applicant ' s request dated 2 October 1995 , the Federal Constitutional Court forwarded the pertinent written observations dated 1 and 25 July, 20 and 27 September, 20 October and 9 December 1994 and 19 February 1995 . These included the observations of the Federal Ministry of Justice of 9 December 1994 stating that the Government planned an amendment of the law on family matters, inter alia by introducing explicit provisions on joint custody after divorce.

Towards the end of 1997, the applicant received a telephone call from the Federal Constitutional Court informing him that the questions raised by his complaint would become obsolete with the expected entry into force of the amended Law on Family Matters of 16 December 1997 ( Reform zum Kindschaftsrecht ) on 1 July 1998 . The applicant was asked whether he wanted to declare that his constitutional complaint had been disposed of ( Erledigterklärung ) under these circumstances.

On 24 June 1998 the applicant requested the Constitutional Court to deliver a decision despite the change of law brought about by the Law on Family Matters.

On 22 December 1999 (decision served on 20 January 2000 ), the Federal Constitutional Court , sitting as a panel of three judges, refused to entertain the applicant ' s constitutional complaint. It found that due to the amended Law on Family Matters, the constitutional complaint no longer raised issues of general interest. The applicant ' s complaints could be adequately dealt with in proceedings for the amendment of a court order ( Abänderungsverfahren ) pursuant to Section 1696 paragraph 1 of the Civil Code (see the section on Relevant Domestic Law below) before the competent civil courts. In these proceedings, the new legal provisions on family matters could be taken into account.

B . Relevant d omestic l aw

Section 1671 of the Civil Code in its version in force until 30 June 1998 provided that the court sitting in family matters has to grant the custody of a child to one of its parents divorcing. Pursuant to Section 1671 of the Civil Code in its version in force since 1 July 1998 , parents who split up keep, as a rule, joint custody of their children. The courts sitting in family matters award sole custody to one parent only if a motion is filed to this end and certain further conditions are satisfied, especially if sole custody is best for the child ' s well-being.

The statutory provision on the amendment of a court order concerning the custody of a child, Section 1696 paragraph 1 of the German Civil Code, in its version in force until 30 June 1998 , was worded as follows:

“The court sitting in guardianship matters and the court sitting in family matters may modify their decisions at any time during the continuation of parental custody, if they consider this to be necessary in the interest of the child.”

The provision has been amended by the Law on Family Matters of 16 December 1997 ( Kindschaftsrechtsreformgesetz ), which entered into force on 1 July 1998 . The version of Section 1696 paragraph 1 of the Civil Code in force since then reads as follows:

“The court sitting in guardianship matters and the court sitting in family matters must modify their decisions, if this is necessary for cogent reasons which have a lasting effect on the child ' s well-being.”

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings before the Federal Constitutional Court .

THE LAW

The applicant complained that the length of the proceedings before the Federal Constitutional Court was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

a) The Government contended that the applicant did not exhaust all domestic remedies as required by Article 35 § 1 of the Convention. They took the view that the applicant, during the proceedings before the Federal Constitutional Court , would have had to seek redress by instituting proceedings under Section 1696 paragraph 1 of the Civil Code. He could have filed an application for the amendment of the decision of the Frankfurt/Main Court of Appeal after the entry into force of the new provisions on family matters , which had been amended in his favour. Thereby, he might have been granted joint custody of his children by the competent civil courts by mid- 1998. As a complaint to the Federal Constitutional Court was a remedy which is subsidiary to the proceedings before the competent civil courts, the latter had to be given the opportunity to change their decisions in accordance with the amended legal provisions.

The applicant contested this view. He stated that the possibility to institute proceedings under Section 1696 paragraph 1 of the Civil Code could not be regarded as an effective remedy to be exhausted pursuant to Article 35 § 1 of the Convention. The named proceedings before the civil courts were not capable of accelerating the proceedings before the Federal Constitutional Court . There existed no remedy under German law to exp edite the proceedings before that c ourt.

The Court recalls that under Article 35 § 1 of the Convention, an applicant must have provided the State with the opportunity to put right the alleged violation of a Convention right by using the judicial remedies provided by the national legal system. The rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in the domestic system precisely in respect of the alleged breach, whether or not the provisions of the Convention are incorporated in national law (see, inter alia , Tomé Mota v. Portugal ( dec .), no. 32082/96, ECHR 1999-IX; Horvat v. Croatia , no. 51585/99, §§ 37 and 38, ECHR 2001-VIII; Hartman v. Czech Republic , no. 53341/99, § 56, ECHR 2003-VIII).

As regards an applicant ' s complaint about the length of the proceedings, the Court reiterates that a means available to him under domestic law for raising this complaint is effective, if it either prevents the alleged violation or its continuation, or provides adequate redress for any violation that has already occurred (see, mutatis mutandis , Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000-XI; Papon v. France (No. 2) ( dec .), no. 54210/00, ECHR 2001-XII).

The Court notes that the applicant ' s complaint relates solely to the length of the proceedings before the Federal Constitutional Court . Even assuming that the applicant had been awarded custody of his children by instituting fresh proceedings in the civil courts under Section 1696 paragraph 1 of the Civil Code , this would not as such have had any impact on the length of the proceedings pending before the Federal Constitutional Court . The proceedings before the civil courts would neither have terminated the Constitutional Court proceedings nor provided redress for their allegedly unreasonable duration.

In so far as the Government contended that the applicant, by not instituting proceedings under Section 1696 paragraph 1 of the Civil Code , failed to take any steps to accelerate the Constitutional Court proceedings, the Court recalls that in respect of the length of civil proceedings, the question of the methods by which the applicant could have accelerated these proceedings concerns the merits of the application (see, inter alia , Horvat v. Croatia , cited above, § 46; Hartman v. Czech Republic , cited above, § 60).

Therefore, the Court considers that the applicant has exhausted domestic remedies as required by Article 35 § 1 of the Convention.

b) The Government further maintained that, in view of their submissions on the exhaustion of domestic remedies, the applicant might be perceived to have abused the right of application within the meaning of Article 35 § 3 of the Convention. He pursued futile proceedings before the Federal Constitutional Court , rather than institut ing proceedings under Section 1696 paragraph 1 of the Civil Code in order to be granted custody.

The applicant disputed this view.

The Court recalls that, except in extraordinary cases, an application may only be rejected as abusive under Article 35 § 3 of the Convention if it was knowingly based on untrue facts (see, inter alia , Akdivar and others v. Turkey [GC], judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1206, §§ 53, 54; Varbanov v. Bulgaria , no. 31365/96, § 36, ECHR 2000-X; Ř ehák v. Czech Republic , no. 67208/01, 18 May 2004). The Court notes that the facts of the present case as such are not disputed between the parties. Since the applicant ' s conduct in applying to the Court was not extraordinary, the Court is satisfied that the applicant did not abuse his right of application within the meaning of Article 35 § 3 of the Convention.

c) As regards the length of the proceedings before the Federal Constitutional Court , which lasted some six years and five months, the Government stated that in the light of the circumstances of the case, these proceedings did not last unreasonably long. They argued that the question raised by the applicant ' s constitutional complaint was complex. It was highly disputed between the German courts whether parents may be granted joint custody under Section 1671 of the Civil Code (in its version in force until 31 June 1998 ) when they did not agree on it. Moreover, the Constitutional Court heard many different authorities, courts and institutions.

According to the Government, the delays caused in the proceedings after the promulgation of the amended Law on Family Matters in December 1997 were mainly attributable to the applicant. He did not answer the Constitutional Court ' s question of December 1997 whether he wanted to declare that his constitutional complaint had been disposed of until 24 June 1998 . Furthermore, he failed to institute fresh proceedings for the amendment of the decision of the Frankfurt/Main Court of Appeal pursuant to Section 1696 paragraph 1 of the Civil Code , whereby he would have obtained a decision on the custody of his children much earlier.

The Government also pointed out that it was reasonable for the Constitutional Court not to anticipate by their decision legislation on the provisions on joint custody after divorce , which it knew to be forthcoming due to the observations of the Federal Ministry of Justice of 9 December 1994 . They claim that after the entry into force of the amended Law on Family Matters, the applicant ' s case did not have to be treated in a particularly speedy manner, as he could have obtained a decision on custody by instituting proceedings pursuant to Section 1696 paragraph 1 of the Civil Code .

The Government argued that the applicant had obviously not been very eager to be granted custody of his children, as he did not institute proceedings under Section 1696 paragraph 1 of the Civil Code .

The applicant contested this view. He stated that his case had not been complex. It only necessitated the interpretation of Section 1671 of the Civil Code (in its version in force until 31 June 1998 ) in accordance with the Basic Law and the established case law of the Constitutional Court .

The applicant claimed that he could answer the Constitutional Court ' s question of December 1997 whether he wanted to declare that his complaint had been disposed of only in June 1998, because he had to check the consequences of this declaration on further proceedings before the civil courts and this Court. In any event, the delay possibly caused thereby was minor compared with the delays attributable to the Federal Constitutional Court .

In the applicant ' s view, the Federal Constitutional Court did not proceed with his case after it had received the observations of the third parties until its telephone call in December 1997. He contested that the Federal Constitutional Court was entitled to postpone his case until the entry into force of the amended Law on Family Matters. He pointed out that, assuming that the questions raised by his case had become obsolete with the entry into force of the new legislation on family matters, there was no reason to give a decision on his case only on 22 December 1999 .

The applicant stressed that the case, concerning the custody of his children, was of great significance to him and had to be dealt with speedily.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant ' s conduct and that of the competent authorities and the importance of what was at stake for the applicant in the litigation ), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these re asons, the Court unanimously

Declares the remainder of the applicat ion admissible, without prejudg ing the merits of the case.

Vincent Berger Ireneu Cabral Barreto Registrar President