THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60534/00 by Joseph WIMMER against Germany

The European Court of Human Rights (Third Section) , sitting on 19 September 2002 as a Chamber composed of

Mr I. Cabral Barreto , President , Mr G. Ress , Mr P. Kūris , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa - Nikolovska , Mr K. Traja , judges , and Mr V. B erger , Section Registrar ,

Having regard to the above application on 20 July 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Joseph Wimmer, is a German national, who was born in 1952 and lives in Töging, Germany. He is represented before the Court by Mr Rixe, a lawyer practising in Bielefeld, Germany.

On 25 October 1992, the applicant and his wife (hereafter Ms W.) divorced before the Groß Gerau District Court. In this context, the District Court also decided on the spouses’ pension splitting ( Versorgungsausgleich ) and granted both parents common custody of their two daughters, aged four and eight at that time.

On 6 July 1993, following Ms W.’s appeal and after hearing both the applicant and her, 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.

On 9 August 1993, the applicant lodged a constitutional complaint with the Federal Constitutional Court.

On 23 March 1994, the President of the Federal Constitutional Court informed the applicant that he had communicated the case to several third parties, who had the right to submit their observations until 30 September 1994. The list of third parties included the German Federal Parliament ( Bundestag ), the Bundesrat , the Federal government, the Länder governments, the president of the Federal Court of Justice, the parties of the proceedings before the family courts, 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 July, 25 July, 20 September, 27 September, 20 October and 9 December 1994 and 19 February 1995.

Towards the end of 1997, the applicant received a call from the Federal Constitutional Court informing him that the questions raised by him 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.

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 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 and that the applicant’s claims could be adequately dealt with before the competent civil courts.

COMPLAINTS

The applicant complains under Article 8 of the Convention alone and in connection with Article 14 about the Frankfurt/Main Court of Appeal’s decision, as it prevented him from becoming a part of his daughters’ life. He alleges that granting his wife sole custody was not necessary in the interest of his children’s well-being.

The applicant also complains under Articles 6 and 13 of the Convention that the Federal Constitutional Court, in refusing to entertain his complaint, also refused him an effective remedy. He submits that considering the amount of time the previous proceedings took, he cannot reasonably be expected to initiate new proceedings before the German family courts.

Finally, the applicant complains about the length of proceedings before the Federal Constitutional Court.

THE LAW

1. Length of proceedings

The applicant complains that the proceedings before the Federal Constitutional Court were not concluded within a reasonable time, as required by Article 6 § 1 of the Convention.

Article 6 § 1, insofar as relevant, reads as follows:

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

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

2. Other issues

a) As regards the applicant’s complaint under Articles 8 and 14, the Court notes that after the applicant’s divorce from his wife, the Groß Gerau District Court had granted both parents common custody of their two daughters. Following the mother’s appeal, the Frankfurt/Main Court of Appeal revoked this decision and granted her sole custody.

The Court finds that while this decision may have interfered with the applicant’s rights to family life under Article 8 § 1 of the Convention, it was justified under Article 8 § 2, as it was in the interest of the children’s well-being. There is also no appearance of a discrimination under Article 14.

In the custody proceedings before it, the Court of Appeal had to solve a dispute between parents following their divorce. It carefully justified its decision after having heard both parents and two representatives from the local Youth Office, finding that sole custody was more in the children’s best interest, as the parents did not seem entirely willing to co-operate. It also noted that the applicant’s divorced wife had agreed to discuss important decisions with the applicant and finally added that it expected her to ensure that contacts between the applicant and his children continue on a regular basis. Nothing suggests that this decision is arbitrary or otherwise disproportionate in the way it balanced the interests of the children, the mother and the applicant. On the contrary, considering the circumstances of the case and the personal difficulties in the relationship between the applicant and his former wife, this solution seems to be in the best interest of the children’s well-being while expressly retaining the applicant’s rights as a father.

This part of the application is therefore manifestly ill-founded.

b) As regards the applicant’s complaint that the decision of the Federal Constitutional Court violated Article 13 of the Convention, the Court notes that the applicant cannot arguably claim to be the victim of a violation under his rights under Articles 8 and 14 of the Convention. Thus, no issue arises under Article 13 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of proceedings before the Federal Constitutional Court;

Declares inadmissible the remainder of the application.

Vincent Berger Ireneu C abral B arreto Registrar President