FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40324/98 by Werner SÃœSS against Germany

The European Court of Human Rights, sitting on 20 September 2001 as a Chamber composed of

Mr A. Pastor Ridruejo , President , Mr G. Ress , Mr L. Caflisch , Mr I. Cabral Barreto ,

Mr V. Butkevych , Mrs N. Vajić ,

Mr M. Pellonpää , judges ,

and   Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 10 October 1997 and registered on 17 March 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 Werner Süss, is a German national , born in 1940 and living in Berlin.

A. The circumstances of the case

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

The applicant married in August 1984. F. was born in wedlock in November 1984. In August 1989 the mother moved out of the former matrimonial home together with F. who has been living with the mother since.

On 6 December 1992 the applicant had his last contact with F. The mother subsequently denied the applicant any further contact.

Three sets of court proceedings concerning the custody of F., the applicant’s right of access and the spouses’ divorce opened before the Charlottenburg District Court (later Tempelhof-Kreuzberg District Court), namely

- no. 159 F 9531/89 concerning custody of F. pending the separation of the spouses and the applicant’s access to F,

- no. 159 F 13061/89 concerning divorce, custody and the applicant’s access to F., and

- no. 159 F 10373/92 concerning the applicant’s access to F.

1. Proceedings no. 159 F 9531/89 (Charlottenburg District Court)

On 7 September 1989, in the context of proceedings before the Charlottenburg District Court concerning custody of F. pending the separation of the spouses, the question of the applicant’s right of access ( Umgangsrecht ) to F. was settled.

Subsequently F.’s mother denied the applicant any contact with F. and the applicant applied to the District Court for assistance in this matter.

On 7 November 1989 the Judge of the Charlottenburg District Court, having heard F. and her mother, informed the applicant that contacts could take place regularly every second week-end and at Christmas. It is noted that F. has a good relationship with her father, however, further contacts would worsen the strained relations between the parents.

On 25 April 1990 the District Court decided that, pending the separation of the spouses, custody of F. be awarded to her mother. On 4 October 1990 the Berlin Court of Appeal, having regard to the parents’ statements made in court and a report of the Tempelhof District Youth Office, dismissed the applicant’s appeal.

2. Proceedings no. 159 F 13061/89 (Charlottenburg District Court)

In November 1989 the applicant filed a petition for divorce and requested that he should be granted custody of F. In the subsequent proceedings, both parties were assisted by counsel.

On 13 March 1990 the Charlottenburg District Court rendered a preliminary injunction, providing that the applicant should have access to F. once a week and that F. could stay overnight from Sunday until Monday morning every second week. The court considered that contacts between the applicant and F., as provided for in the settlement of September 1989, were in the child’s interest. For months, her mother had however advanced factual or personal pretexts to prevent contacts. The court noted that it had heard the parties on the question of access on 8 March 1990.

The mother objected to the preliminary injunction.

On 2 April 1990, at a hearing before the District Court, the parties arrived at a settlement on the applicant’s access to F. which was not implemented. The applicant asked for the enforcement of his right of access under terms of the settlement, while the mother requested the suspension of access.

In August and September 1991 the applicant asked for the preparation of an psychological expert opinion, to which the mother objected.

The applicant’s first motion to challenge the single District Court Judge S. for bias was dismissed by the Berlin Court of Appeal on 25 October 1991, his second motion was rejected on 23 December 1991.

On 15 April 1992 the District Court dismissed the applicant’s request for an interim injunction granting him access to his child.

On 25 May 1992 the District Court ordered the preparation of a psychological expert opinion regarding the child. The expert rendered the opinion on 4 May 1993.

Meanwhile, in a letter dated 18 January 1993, Judge S., referring to all three sets of proceedings, informed the parties’ representatives that the files were out of control and that it was intended to deal soon with the numerous requests. Judge S. also announced that the implementation of previous agreements and decisions would be ensured.

On 21 June 1993 a further hearing on custody and related family matters took place before the District Court. A court proposal for a settlement of the access matter was refused by the mother’s counsel.

Subsequently, the case, which had so far been processed by single Judge S., was, after his retirement, assigned to Judge H.

In October 1993 the District Court dismissed the applicant’s motion to challenge the expert for bias; his appeal was to no avail.

At a hearing on 31 March 1994, preceded by a questioning of the child, the applicant lodged a motion to challenge Judge H. for bias, which he withdrew on 5 April 1994. His repeated further motions of 5 May, 7, 16 and 23 June 1994 were to no avail. He filed further motions on 4 and 24 October 1994. On 4 November 1994 the Berlin Court of Appeal, having regard to Judge H.’s official statements, decided that she was disqualified.

In a hearing in camera before Judge R. of the Berlin Tempelhof-Kreuzberg District on 9 January 1995, F. indicated that she no longer wanted to visit her father. Asked about her former positive statements regarding her father, she replied that she did not love him anymore and that she would not care if he died. She expressed the fear that her father might commit suicide and might kill her as well. She stated that she wanted to live together with her mother and that she felt happy with her mother, her mother’s new partner and her brothers. She emphasised that she would refuse to see her father even if the Court ordered her to do so.

Subsequently, the applicant challenged Judge R. for bias. In a statement of 12 January 1995, Judge R. declared that she was not biased but that she was convinced that a settlement with the applicant was impossible. The motions and further appeals remained unsuccessful .

On 23 May 1995, following a further hearing, the Berlin-Tempelhof-Kreuzberg District Court, having regard to the statements made by both parties at hearings on 6 May 1991 and 21 June 1993 as well as a further hearing of the applicant’s wife on 23 May 1995, granted the divorce. It also granted the mother custody of F. and her half-brother, born in wedlock but of the relationship between the mother and a new partner. The applicant’s access to F. was suspended.

As concerns custody of F., the court noted that the applicant had not objected to the mother’s request. It considered that F. had shown close links to her mother and her new family and that there was no indication of any danger to her further development if she remained with her mother. It was not, therefore, necessary to take an outdated expert opinion in to account or to hear witnesses.

Regarding the applicant’s right of access, the court deemed it necessary, in the interest of the child’s well-being, to prohibit any contacts with F. It noted that the permanent quarrel between the parents constituted a heavy burden on F., which she now tended to repress by seeking as much distance as possible from her father. The court found that it could not ignore the determined wish of the child expressed at the hearing of 9 January 1995 and that it was therefore obliged to suspend the applicant’s access to F.

The applicant’s further motions challenging Judge R. for bias were to no avail.

The applicant appealed to the Berlin Court of Appeal. His requests for an interim injunction ordering access were, following hearings, dismissed on 24 November 1995 and 23 July 1996, respectively.

On 4 March 1997 the Berlin Court of Appeal, following an oral hearing on 7 February 1997 in the presence of the applicant and his counsel, dismissed the applicant’s appeal.

In its judgment the Court of Appeal relied on the opinion of a psychologist who had prepared a written expert opinion, dated 30 December 1996, and had been heard at the hearing of 7 February 1997. The court noted that according to the expert, who had heard the applicant, the mother and the child, the parents’ quarrels had placed a great strain on the child. The court acceded to the findings of the expert that, in view of F.’s intensive resistance against any contact with her father, enforcing such contact might cause serious psychological harm to her. The court, like the expert, considered that the negative attitude of the child towards the applicant might have partly been caused by the mother’s influence though not to the extent believed by the applicant. The court found that the expert opinion was exhaustive and conclusive and that accordingly it had not been necessary to appoint a second expert as requested by the applicant. The court further explained that it did not consider it suitable to limit in time the prohibition on access, as it could not be foreseen whether, if at all, F. might give up her resistance. Both parents were under an obligation to contribute to a change in her attitude. The main responsibility lay with F.’s mother who would have to overcome her own negative feelings towards the applicant in order to influence F. and to improve her father’s image. The Court of Appeal considered that it had not been required to hear F. and her mother personally.

In a letter to the applicant dated 6 April 1997, the Presiding Judge of the Court of Appeal explained inter alia that the mother’s allegations that F. had been sexually abused by the applicant had not been addressed in the court’s decision as they had been irrelevant. Moreover, it was repeated that the court, given the lengthy and embittered dispute, had refrained from hearing F. again as she had repeatedly expressed her will in an unequivocal manner.

On 17 February 1998 the Berlin Court of Appeal rejected the applicant’s objection against the decision that the costs of the proceedings be borne by him.

3. Proceedings no. 159 F 10373/92

In the context of separate proceedings concerning the applicant’s request of 24 July 1992 for the enforcement of his right of access under the terms of the agreement of 2 April 1990, the District Court held a hearing on 9 November 1992. Following the hearing, the District Court decided that the applicant should have contact with F. at her birthday and on Christmas. The mother subsequently withdrew her appeal.

On 11 March 1993 the District Court informed the parties that the request for enforcement of access was meanwhile without object.

The applicant repeated requests for enforcement measures and an amendment of the decision on access. The mother suggested to join the proceedings 159 F 13061/89 and 159 F 10373/92. While there is apparently no formal decision, further procedural steps as to the matter of access were processed in the context of the proceedings 159 F 13061/89.

4. Proceedings before the Federal Constitutional Court

On 21 April 1997 the applicant, represented by counsel, lodged a complaint with the Federal Constitutional Court. In the two-page submissions, his lawyer, referring to the Court of Appeal’s decision of 4 March 1997, complained that the suspension of the applicant’s right of access to his child violated the latter’s parental rights and was contrary to the child’s well-being. He complained that the expert appointed in the appeal proceedings had been misled by the child’s mother and that further expertise had been required. He also noted that the mother had not appeared at the court hearing. In his view, the applicant was blamed for his lengthy struggle to secure his right of access. Subsequently, u pon query, the applicant filed a further document.

On 15 September 1997 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint.

B. Relevant domestic law

The question of contacts between a parent not having custody was at the relevant time regulated in Section 1634 of the Civil Code, which read as follows (the Court’s translation):

“(1) A parent not having custody has the right to personal contact with the child. The parent not having custody and the parent having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing.

(2) The family court can determine the scope of that right and can prescribe more specific rules for the exercise thereof, including vis-à-vis third parties; as long as no decision is made, the right under Section 1632 (2) of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare.

...”

The relevant legislation has been amended by the Government Bill of 28 February 1996 on the reform of the law on family matters which has entered into force on July 1998.

According to Article 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be endangered. The family courts may order that the right of access exercised in the presence of a third party, such as a Youth Office authority or an association.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that the German court decision to suspend his access to his daughter amounted to a breach of his right to respect for family life. He considers that F.’s interests did not justify the interference with his right of access. The Courts, relying on F.’s statements, had ignored findings of modern psychology according to which a child does not have an independent will. Moreover, the delay in the proceedings and the failure to enforce the initial decisions ordering access had contributed to alienating F. from him.

2. The applicant complains under Article 6 of the Convention that the courts did not duly hear his arguments. In particular, the District Court failed to hear him prior to its decision of 23 May 1995.  He further complains that the Court of Appeal did not grant his request to hear a second expert on the question of how far his daughter had been influenced by the mother. He also alleges bias on account of the importance placed on the wishes expressed by F., contrary to the findings of modern psychology and ignoring her mother’s influence on her. He further submits that the Judge R. of the District Court was biased against him on account of personal problems originating from her childhood. As regards the court order on costs, in particular the expenses for the expert, the applicant complains that his divorced wife had caused the necessity to hear an expert as she had denied him the right of access to his child.

3. The applicant also complains under Article 14 of the Convention that the court decisions discriminated against him as a male parent.

4. Furthermore the applicant complains about the length of the proceedings.

THE LAW

1. The applicant raises complaints about German court decisions suspending his right of access to his child born in wedlock and about the unfairness of the proceedings concerned.

a) In their observations dated 24 August 2000, the Government contest the admissibility of part of the application on the ground of non-exhaustion of domestic remedies. They submit that the applicant’s submissions, in the proceedings before the Federal Constitutional Court, did not cover all the issues which he now raises before the Court.

As regards his complaints about the suspension of his right of access to his child and the unfairness of the proceedings, the Government state that the applicant failed to raise complaints about the Tempelhof-Kreuzberg District Court decision of 23 May 1995 and did not file a copy of that decision; that he did not file a copy of the expert opinion. Moreover, in their submission, he did not complain about a lack of hearing the mother and the child in the appeal proceedings. Referring to the relevant provisions of the Federal Constitutional Court Act and case-law, they explain that the Federal Constitutional Court regards complaints inadmissible, and does not entertain them for an examination on the merits, if, inter alia , they are inadmissible for formal shortcomings.

The applicant maintains that his complaint with the Federal Constitutional Court concerned the suspension of his right of access to his child, resulting from the District Court decision as confirmed by the Court of Appeal. His submissions contained all relevant information, including court decisions. He notes that the Federal Constitutional Court did not warn him about any shortcomings as to the admissibility of his complaint.

Article 35 § 1 of the Convention provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 obliges those seeking to bring their case against the State before an international judicial body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. It is not sufficient that applications have been made to the appropriate domestic courts and that use has been made of remedies designed to challenge decisions already given. It normally also requires that the complaints intended to be made subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements laid down in domestic law (see the Kopp v. Switzerland judgment of 25 March 1998, Reports of judgments and decisions 1998-II, pp. 538-539, § 47; and the Cardot v. France judgment of 19 March 1991, Series A, no. 200, p. 18, § 34).

Moreover, the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up (see the Akdivar v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1211, § 69).

In the present case, the Court notes that in the applicant’s complaint to the Federal Constitutional Court, his lawyer, referring to the Court of Appeal’s decision of 4 March 1997, complained that the suspension of the applicant’s right of access to his child violated his parental rights and was contrary to the child’s well-being. He complained that the expert appointed in the appeal proceedings had been misled by the child’s mother and that further expertise had been required. He also noted that the mother had not appeared at the court hearing. In his view, the applicant was blamed for his attempts to secure his right of access.

The Court therefore considers that the applicant raised in substance, before the national authorities, his complaints concerning the suspension of his right of access to his child and the fairness of the proceedings concerned.

This part of the application cannot, therefore, be rejected for non-exhaustion of domestic remedies.

b) The applicant complains that the German court decisions suspending his right of access to his child amounted to a breach of his right to respect for his family life, a right protected under Article 8 of the Convention, the relevant part of which provides:

“1. Everyone has the right to respect for his ... 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 .”

In the Government’s submission, the interference with the applicant’s right under Article 8 § 1 was in accordance with German law and served to protect “health and morals” and the “rights and freedoms” of the applicant’s child. Moreover, the interference complained of was necessary in a democratic society within the meaning of Article 8 § 2 for the said legitimate aims. In this respect, the Government submit that the Court of Appeal relied on a detailed and careful expert opinion and the minutes of the child’s questioning at first instance. Considering the child’s firm will not to see her father, the Court of Appeal, balancing the competing interests, had reached the conclusion that the child’s well-being required the suspension of access. The Government further consider that the applicant was on the whole sufficiently involved in the decision-making process to protect his interests. In particular he had every opportunity, on his own and through his lawyer, to comment on all relevant aspects of the case. As regards the proceedings before the Court of Appeal, the Government note that, in the course of the preparation of his opinion, the expert had heard the applicant. Moreover, the applicant who had been heard by the Court of Appeal in the context of the interim proceedings was present with his counsel at the oral hearing of 7 February 1997. Finally, in the Government’s view, the Court of Appeal, well informed about the attitude of all parties, had not been required to hear the child and her mother. In this respect, they note that the Court of Appeal had regard to the minutes of the child’s hearing of 9 January 1995 and to the detailed explanations in the expert opinion. According to them, hearing the child again would have amounted to a danger for her well-being.

The applicant considers that the suspension of his right of access, on the contrary, exposed his child to danger for her health and well-being. He submits that F.’s wishes were manipulated in the course of the lengthy proceedings and a wrong image construed by her mother. He refers to the parental-alienation-syndrome. The applicant further considers that the expert opinions were incomplete, in particular, it had not been possible to explore his relationship with his child. In his view, F. and her mother should have been present at the hearing before the Court of Appeal on 7 February 1997 and should have been told orally that the mother had to overcome her negative feelings towards the applicant.

c) As regards the procedural shortcomings, the applicant also considers that they amount to a breach of his right to a fair hearing, as guaranteed in Article 6 § 1, which provides:

“In the determination of his civil rights and obligations or ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.“

d) Having regard to the parties’ submissions concerning the suspension of the applicant’s right of access to his child, the Court finds that complex issues of fact and law arise under the Convention which should be examined on the merits. This part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it inadmissible have been established.

2. The applicant further complains that, as a male parent, he has been a victim of discriminatory treatment in breach of Article 14 of the Convention read in conjunction with Article 8. Article 14 provides:

“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.”

The Court notes that the Court of Appeal’s reasoning, in its decision of 4 March 1997, was clearly based on the findings of the expert that, in view of F.’s intensive resistance against any contact with her father, enforcing such contact might cause serious psychological harm to her. In this context, the Court of Appeal was aware that the child’s negative attitude towards the applicant might have partly caused by the mother’s influence. However, i n the Court’s view, these considerations do not reflect a difference of treatment on the ground of sex, but takes account of a factual situation regarding the conduct of the custodial parent. Accordingly, the Court finds no appearance of a violation of Article 14 of the Convention, taken together with Article 8.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. Finally the applicant complains under Article 6 § 1 of the Convention about the length of the proceedings concerning his right of access.

The Government also object to the admissibility of this complaint which was, in their view, not raised in the applicant’s complaint with the Federal Constitutional Court.

The applicant does not comment on this point.

The Court recalls that, according to the Federal Constitutional Court’s established case-law, the right to speedy proceedings is embodied in the Basic Law of the Federal Republic of Germany and a constitutional complaint must be brought by the applicant who complains about the length of civil proceedings (see Eur. Commission HR, no. 8499/79, Dec. 7.10.1980, DR 21, p. 176; no. 23959/94, Dec. 9.9.1998; see also the König v. Germany judgment of 28 June 1978, Series A no. 27, p. 22, §§ 58, 60).

The Court considers that the submissions presented by the applicant’s lawyer to the Federal Constitutional Court do not, expressly or in substance, include a complaint about the length of the court proceedings at issue. The mere reference to the applicant’s lengthy struggle for access to his child, done in the context of his argument regarding the interference with his family life, is in itself insufficient.

It follows that the applicant failed to exhaust domestic remedies in this respect and that this part of the application is inadmissible under Article 35 § 4 of the Convention.

For these reasons, the Court by a majority

Declares admissible, without prejudging the merits, the applicant’s complaints that the German court decisions suspending his right of access to his child amount to a breach of his right to respect for his family life and that the court proceedings concerned were not fair ;

and unanimously

Declares inadmissible the remainder of the application.

Vincent Berger Antonio Pastor Ridruejo Registrar President