FIFTH SECTION

DECISION

Application no . 13240/15 Edmund MÃœLLER against Germany

The European Court of Human Rights (Fifth Section), sitting on 21 February 2017 as a Committee composed of:

Faris Vehabović , President, Carlo Ranzoni, Lәtif Hüseynov , judges, and Anne-Marie Dougin, Acting Deputy Section Registrar ,

Having regard to the above application lodged on 7 March 2015, the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Edmund Müller, is a German national who was born in 1969 and lives in Werder .

2. The German Government (“the Government”) were represented by one of their Agents, Mrs H.J. Behrens, of the Ministry of Justice and Consumer Protection.

A. The circumstances of the case

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

4. The applicant ’ s son, born in 2004, lives with his mother, who has sole custody. From 2010 until 2011 the applicant had contact with his son on a regular basis under a contact order issued by the Potsdam Family Court. He met his son every second weekend and every Wednesday.

5. On 26 May 2011 the Family Court, after having appointed a guardian ad litem ( Verfahrenspfleger ) for the child, amended its contact order of 2010 so that the applicant was allowed supervised contact ( begleiteter Umgang ) every second Saturday from 10 a.m. to 4 p.m.

6. On 31 May 2011 the applicant appealed against that decision.

7. On 26 June 2011, the third chamber of the Brandenburg Court of Appeal (“the court”) heard the two parents and the child. On 27 June 2011 it ordered an expert opinion to establish whether there were reasons, owing to the applicant ’ s personality, which meant that unsupervised contact with him was not in the child ’ s best interests and appointed an expert. On 4 July 2011 the applicant applied to have the 27 June court order annulled and to amend the transcript of the hearing. He further stated that he refused to undergo a medical examination. The court decided on the two requests three days later and sent the case file to the expert. On 10 July 2011 the applicant lodged a constitutional complaint with the Constitutional Court of the Land Brandenburg against the court order of 27 June 2011.

8. Because of the expert ’ s heavy work load, on 27 July 2011 the court appointed a new expert, whom it subsequently briefed about the approach to be taken in the proceedings at issue. On 14 September 2011 the expert informed the court that the applicant refused to undergo a medical examination and that, as a result, no expert opinion could be submitted. On 12 October 2011 the court forwarded the expert ’ s submission to the parties for comment.

9. Upon a request by the prosecution after the applicant had lodged a criminal complaint, the court sent the case file to the prosecution for two weeks.

10. On 16 November 2011 it scheduled a hearing for 16 January 2012.

11. On 5 December 2011 the applicant challenged the judges L., J., N., T. and K. of the third chamber of the court for bias and on 7 December 2011 he complained of protracted contact proceedings. On 16 December 2011 he also complained of protracted court proceedings with regard to his challenge of the third chamber for bias. By 4 January 2012 all the judges of the third chamber had given their official statements regarding the challenges for bias, which were forwarded to the parties for comment.

12. On 18 January 2012 the applicant lodged an extraordinary appeal against “all the decisions issued by the court on 5 January 2012” with regard to three further sets of proceedings pending before that court and challenged the judges N., R. and G. for bias. On 12 February and 26 April 2012 the applicant again complained of the protracted court proceedings, both with regard to the contact proceedings and with regard to his motion for bias. On 23 February 2012 the court requested clarification on which judges had been challenged for bias on 18 January 2012.

13. On 26 April 2012 the second chamber of the court rejected the applicant ’ s challenge for bias of the third chamber (see paragraph 11 above).

14. On 10 May 2012 the applicant lodged a complaint about not being heard ( Gehörsrüge ). On 11 May 2012 the case file was sent to the second chamber for decision.

15. On 15 June 2012 the applicant again complained about the protracted contact proceedings.

16. On 29 June 2012 the applicant made an application for interim measures regarding contact, alleging that supervised contact was alienating his son from him.

17. On 15 July 2012 the applicant complained of protracted court proceedings.

18. On 26 July 2012, after obtaining statements from the parties with regard to the applicant ’ s complaint of 10 May 2012 of a violation of his right to be heard, the second chamber dismissed the complaint.

19. On 31 July 2012 the president of the third chamber informed the parties that he refrained from scheduling a hearing as the applicant had indicated that he would lodge a further constitutional complaint with the Constitutional Court of the Land Brandenburg, which he subsequently did (see paragraph 22 below).

20. On 7 August 2012 the applicant informed the court that he would submit a further challenge for bias of the judges L., J., N., R., B., L.-K-., No. and W., which he did on 23 August 2012. He alleged bias by the third chamber because of the protracted proceedings and by the second chamber because of its allegedly delayed treatment of his first challenge for bias.

21. Between 29 August and 10 September 2012 the judges challenged for bias submitted their official statements. On 12 and 16 September 2012 the applicant complemented his challenges, but withdrew them on 22 September 2012.

22. On 1 October 2012 the applicant lodged a further constitutional complaint with the Constitutional Court of the Land Brandenburg with regard to the decisions of the court dated 26 April 2012 and 26 July 2012 (see paragraphs 13 and 18 above).

23. On 4 October 2012 the judges ’ official statements were submitted to the parties for comment.

24. On 31 October 2012 the applicant again complained of protracted court proceedings with regard to his application for interim measures and with regard to his challenge for bias. He also challenged a further judge (judge H.) for bias.

25. On 1 November 2012 the third chamber of the court held a hearing as a measure which could not be delayed, in accordance with Article 47 of the Code of C ivil Procedure (see paragraph 50 below). It found that there was no pending decision which had to be taken without delay.

26. On 2 November 2012 the applicant complemented his challenges for bias.

27. Between 16 and 23 November 2012 the judges concerned by those complemented challenges submitted their official statements.

28. On 22 November 2012 the applicant again complemented his challenges for bias. On 26 November 2012 the judges concerned by those further complements submitted their official statements. They were sent to the parties on 27 November 2012, who commented on them on 30 November 2012.

29. On 10 December 2012 the third chamber rejected the challenges for bias against the judges W., R., B., Dr . L.-K. and No. ( see paragraph 20 above).

30. On 20 December 2012 the applicant lodged a complaint about not being heard against the decision of 10 December 2012, which was rejected on 4 February 2013.

31. On 13 February 2013 the second chamber of the court rejected the applicant ’ s challenge of the judges L., J., N. and H. fo r bias (see paragraphs 20 and 24 above).

32. On 18 February 2013 the applicant complained about the composition of the second chamber when rejecting his challenges for bias, which was in turn dismissed on 13 March 2013.

33. On 18 March 2013 the applicant informed the court that he would not be in Germany from 22 March to 7 April and from 26 April to 26 May 2013 and requested that no hearings be held during this period. During this time, the court decided on the costs incurred by the expert. On 9 April 2013, between his two periods of absences, the applicant complained about the protracted contact proceedings.

34. On 6 May 2013 the child ’ s guardian ad litem requested to be released. The request was submitted to the parties for comments. On 2 June 2013 the applicant commented on the guardian ’ s request and complained about the protracted contact proceedings. On 3 June 2013, after hearing the parties, the court released the guardian ad litem and appointed a new one. The applicant lodged an objection against the new guardian.

35. On 17 June 2013 the applicant challenged the third chamber ’ s presiding judge L. for bias and on 5 July 2013 he challenged the judges J., N. and S. of that chamber. On 5, 6, 9 and 16 July 2013 the applicant complemented his challenges for bias, again added to them on 1 August 2013 and challenged the judges L., J. and N. once more.

36. On 22 August 2013 the court rejected the applicant ’ s request of 5 July 2013 to challenge the two judges of the third chamber for bias (see paragraph 35 above).

37. On 20 September 2013 the Constitutional Court of the Land Brandenburg rejected the applicant ’ s constitutional complaint of 1 October 2012 (see paragraph 22 above).

38. On 25 September 2013 the applicant again complained with the court of the protracted contact proceedings.

39. On 30 September 2013 the court rejected the applicant ’ s request of 1 August 2013.

40. On 6 November 2013 the second chamber of the court rejected the applicant ’ s motion for bias of 17 June 2013 (see paragraph 35 above).

41. On 19 January 2014 the applicant again complained of the protracted contact proceedings.

42. On 23 January 2014 the court scheduled a hearing for 3 April 2014 in order to hear from the expert. On 18 February 2014 the court informed the applicant that it had asked the expert whether he could complete his opinion without a medical examination of the applicant. On 28 February 2014 the applicant challenged the expert for bias. He further informed the court that he would be on holiday between 18 April and 11 May 2014 and requested that no hearing be held during his absence. The expert made an official statement on 20 March 2014. On 13 and 14 May 2014 the applicant complemented his challenge for bias of the expert.

43. On 4 June 2014, after submitting the expert ’ s statements to the parties and obtaining their response, the court rejected the applicant ’ s request of 28 February 2014 to challenge the expert for bias. On 17 July 2014 the court ordered the expert to finish his report without examining the applicant.

44. On 4 August 2014 the applicant lodged, inter alia , a constitutional complaint with the Federal Constitutional Court regarding the Court of Appeals ’ decisions of 27 June 2011, 27 July 2011 and 4 June 2014.

45. On 30 August 2014 the Federal Constitutional Court dismissed the constitutional complaint without providing reasons (no. 1 BvR 2174/14).

46. On 8 September 2014 the expert submitted his report, which was forwarded to the parties. The applicant applied for two extensions of the time ‑ limit to comment on the report, to 10 November 2014, and then until 30 December 2014, which was granted.

47. On 26 February 2015 the court dismissed the applicant ’ s appeal against the family court ’ s decision of 26 May 2011.

B. Relevant domestic law

48. Under Article 44 of the Code of Civil Procedure a judge who has been challenged for bias has to submit an official statement regarding the grounds of the challenge.

49. Under Article 45 of the Code of Civil Procedure the court of which the judge is a member shall rule on a challenge for bias, without that judge being involved in the decision.

50. Under Article 47 of the Code of Civil Procedure, a judge who has been challenged for bias may take only such measures that cannot be delayed until the request to challenge him for bias has been dealt with.

COMPLAINT

51. The applicant complained under Article 8 of the Convention that the Brandenburg Court of Appeal had not expedited the proceedings with the requisite exceptional diligence. In particular, it had decided on his challenges for bias belatedly.

THE LAW

52. The applicant submitted that the Brandenburg Court of Appeal had failed to meet its positive obligations arising from Article 8 of the Convention as it had conducted the family law proceedings without the necessary exceptional diligence. Article 8 provides, in so far as relevant:

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

53. The Government rejected the allegation. They submitted that the court had been prevented from conducting the proceedings more swiftly because the applicant had lodged seven challenges for bias and had complemented them several times. The judges had been obliged under German law to submit an official statement with regard to each challenge for bias and each complement. He had further hindered progress in the proceedings by lodging so many appeals, complaints about not being heard, complaints about contracted court proceedings and criminal complaints. They had all had to be decided upon and had left the case file, which had finally grown to more than 3,000 pages, nearly incomprehensible.

54. The Court notes that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary , no. 71099/01, § 70, 5 April 2005). Even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective “respect” for family life. The Court reiterates that a State ’ s positive obligations under Article 8 of the Convention mean that ineffective, and in particular delayed, conduct of custody proceedings may give rise to a breach of that provision (see Z. v. Slovenia , no. 43155/05, § 142, 30 November 2010, and V.A.M. v. Serbia , no. 39177/05, § 146, 13 March 2007).

55. Turning to the case at hand the Court notes, at the outset, that the proceedings at issue dealt with the question whether the applicant was entitled to have unsupervised contact with his child. They thus fall within in the ambit of Article 8 of the Convention. The proceedings began with the applicant ’ s appeal of 31 May 2011 against the Potsdam family court ’ s decision of 26 May 2011 to amend its contact order of 2010 and were terminated on 26 February 2015, when the Brandenburg Court of Appeal decided on the applicant ’ s appeal. The proceedings before the court therefore lasted three years and nine months at one level of jurisdiction.

56. The Court observes, at the outset, that the contact proceedings before the Court of Appeal lasted a considerable length of time. Furthermore, having regard to the fact that the applicant ’ s appeal concerned the family court ’ s decision to allow him only supervised contact with his child rather than unsupervised contact as before, the Court considers that the proceedings had a considerable impact on the applicant ’ s family life. The domestic authorities were therefore under a positive obligation to exercise exceptional diligence in the conduct of the proceedings (compare Prodělalová v. the Czech Republic , no. 40094/08, § 62, 20 December 2011).

57. As regards the court ’ s positive obligation to expedite the contact proceedings the Court observes that in the present case the contact proceedings came repeatedly to a halt because the applicant challenged the judges of both the second and third chambers several times for bias and submitted several complements. The Court reiterates in that regard its constant approach, in the context of Article 6, that an applicant cannot be blamed for taking full advantage of the remedies afforded by national law in the defence of his interests (interests (see Prizzia v. Hungary , no. 20255/12 , § 43, 11 June 2013, and Skorobogatova v. Russia , no. 33914/02, § 47, 1 December 2005), and the Court finds it appropriate to apply the same approach in the present circumstances.

58. Nevertheless, in the present case it cannot but observe the amount of challenges for bias lodged by the applicant and their repeatedly submitted complements. They contributed significantly to the fact that the court could not deal with the proceedings in a speedy manner, because under Article 44 of the Code of Civil Procedure (see paragraph 47 above) , a judge challenged for bias has to submit an official statement on the grounds of the challenge. Owing to the multitude of challenges for bias, the fact they were lodged consecutively and then complemented afterwards, the judges so challenged were under a constant obligation to submit official statements. Furthermore, while the challenges for bias were pending, the judges concerned could, pursuant to Article 47 of the Code of C ivil Procedure (see paragraph 50 above), only take such measures that could not be delayed, until the challenge for bias had been dealt with. They thus had no right to speed up the proceedings. In that regard, the Court notes that on 1 November 2012 the third chamber of the court held a hearing under Article 47 as a measure which could not be delayed to decide whether or not any immediate measures were necessary.

59. Furthermore, the applicant unsuccessfully contested the appointment of his child ’ s guardian ad litem and unsuccessfully challenged the expert for bias.

60. Thus, even though the applicant had the right to bring those claims and to complement them, several official statements had to be obtained and several intermediate decisions taken, meaning that the court did not have the power to expedite the proceedings.

61. The Court also observes that the applicant asked the court to avoid scheduling hearings during his absences from 22 March to 7 April and 26 April to 26 May 2013 and from 18 April to 11 May 2014 and asked for two extensions of four weeks to the set time-limit. There is nothing to show that the court could have done anything to expedite the proceedings in those periods.

62. Lastly, the Court notes that throughout the proceedings the applicant had contact with his son every second week, albeit supervised.

In the light of the criteria laid down in its case-law and having regard to the particular circumstances of the case, the Court finds that although the proceedings lasted a considerable length of time, the conduct of the proceedings by the Brandenburg Court of Appeal does not disclose any appearance of a violation of Article 8 of the Convention .

63. It follows that the application is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 March 2017 .

Anne-Marie Dougin Faris Vehabović Acting Deputy Registrar President