FIFTH SECTION

DECISION

Application no . 78306/12 Luca CIRILLO against Germany

The European Court of Human Rights ( Fifth Section ), sitting on 6 October 2015 as a Committee composed of:

Boštjan M. Zupančič , President, Helena Jäderblom , Aleš Pejchal , judges,

and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 6 December 2012 ,

Having regard to the declaration submitted by the respondent Government on 8 April 2015 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS AND PROCEDURE

The applicant, Mr Luca Cirillo , is an Italian national, who was born in 1966 and lives in Brianza. He was represented before the Court by Ms S. Schmidt- Bandelow , a lawyer practising in Berlin .

The German Government (“the Government”) were represented by one of their Agent s , Mrs K. Behr , of the Federal Ministry of Justice .

The Italian Government did not make use of their right to intervene under Article 36 of the Convention.

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

The applicant has two sons, born in 1996 and 1998.

After the children ’ s parents separated, in 2002, the Monza Court in Italy granted the applicant contact rights. At the end of that year, the children ’ s mother left Italy for Berlin with the children, where they have resided ever since.

On 18 January 2003 the mother filed a request to the Kreutzberg ‑ Zehlendorf Family Court to suspend the applicant ’ s contact right s.

On 10 November 2004 the Family Court issued an interim decision providing supervised contacts, expressly stating that this decision altered a previous contact rights decision of the Monza Court.

Between 2005 and 2009, the Family Court provisionally suspended the applicant ’ s contact rights, commissioned two expert opinion s and held a hearing on 1 December 2009 . It then charged a contact custodian with the task of preparing the children for contact meetings w ith their father.

On 10 May 2010 , upon the mother ’ s appeal, the Berlin Court of Appeal suspended the execution of the Family C ourt ’ s decision to charge a contact custodian with the task of preparing the children for contact meetings w ith the applicant.

By decision of 29 Octobe r 2010 the Court of Appeal, after having heard the parties, the children, the expert and the curator ad litem , finally quashed the Family Court ’ s decision and suspended anew the applicant ’ s contact rights for two years. It observed that the children constantly refused to see the applicant. This wish had to be respected in the children ’ s best interest. There was no need for psychotherapy at the time as the children were not suffer ing . Their only wish was for the court proceedings to end and to “have their peace”. As the expert , S. , had confirmed during the court hearing, there was a risk that therapy would destabilise the m . The curator ad litem shared this opinion. She considered that the children would break down if confronted with a new reality. This assessment was confirmed by the personal impression the Court of Appeal had gained during the hearing. It became apparent that the whole proceedings put the children under considerable strain. The Court of Appeal further decided that the applicant remained entitled to write letters to his children and that the mother had to inform him about the children ’ s personal development.

On 29 May 2012 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint, without giving reasons (file no. 1 BvR 18/11) .

COMPLAINTS

The applicant complained under Articles 6 § 1 and 8 of the Convention that the length of the contact right proceedings had exceeded a reasonable time and thus violated his rights to a hearing within a reasonable time and his right to family life. Furthermore, he complained under Articles 6 § 1 and 8 of the Convention that the German courts failed to implement the decision on contact rights issued by the Italian Monza C ourt on 30 May 2002.

THE LAW

A. The applicant ’ s complaint about the courts ’ failure to expedite the contact right proceedings

The applicant complained that the family courts failed to decide about his contact rights with his sons in due time. He relied on Article 8 of the Convention which so far as relevant provides as follows:

“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 ... or for the protection of the rights and freedoms of others.”

The complaint with regard to the duration of the contact rights proceedings was communicated to the Government under Article 8 of the Convention (compare Eberhard and M. v. Slovenia , no s . 8673/05 and 9733/05 , §§ 111 and 143, 1 December 2009 ) .

After the failure of attempts to reach a friendly settlement, the Government informed the Court by a letter of 8 April 2015 that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“ 1 . The Federal Government acknowledge - by way of uni lateral declaration – that the a pplicant ’ s right to family life under Article 8 of the Convention was violated by the course of the domestic proceedings to determine the contact arrangements regarding his child .

2. If the Court strikes this case from its list, the Federal Government is willing to accept a claim for compensati on in the amount of EUR 18,000.00. This sum of EUR 18,000.00 would be deemed to settle all claims of the Applicant in connection with the above-mentioned Application against the Federal Republic of Germany, including in particular compensation for the Applicant ’ s damage (including non ‑ pecuniary damage) as well as costs and expenses.

3. In the view of the Federal Government, the offered sum constitutes just satisfaction pursuant to Article 41 of the Convention. Th e offered settlement amount of EUR 18,000.00 ensures that the Applicant will receive, in addition to reimbursement of the legal fees for his lawyer and reimbursement of the court costs charged to him, compensation for no n-pecuniary damage of at least EUR 10,000.00.

... ”

By a letter of 8 May 2015 , the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that the Government ’ s unilateral declaration did not include compensation with regard to the excessive length of the proceedings.

The Court re iterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“ for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also re iterates that , in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court has examined the declaration carefully in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey [GC ], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o . v. Poland ( dec. ), no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec. ), no. 28953/03, 18 September 2007).

The Court has established in a number of cases, including cases brought against Germany , its practice concerning complaints under the procedural aspect of Article 8 of the Convention about a court ’ s failure to implement contact rights with the due exceptional diligence (see, for example, Bergmann v. the Czech Republic , no. 8857/08 , §§ 38 and 46 , 27 October 2011 ; Süss v. Germany , no. 40324/98, § 100 , 10 November 2005 ).

Having regard to the nature of the admissions contained in the Government ’ s declaration, the Court notes that the Government recognised that the applicant ’ s rights under Article 8 of the Convention had been violated by the course of the domestic proceedings. Furthermore , the Government proposed to provide redress to the applicant by paying him compensation for non-pecuniary damage as well as costs and expenses. The amount of compensation is consistent with the amounts awarded in similar cases and thus adequate (compare Kuppinger v. Germany , no. 62198/11 , § 149, 15 January 2015) . Therefore t he Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).

Moreover, in the light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaint .

B. The applicant ’ s complaint under Article 6 of the Convention concerning the length of the proceedings

Relying on Article 6 § 1 the applicant also complained about the excessive length of the proceedings . Article 6 of the Convention reads, as far as relevant, as follows:

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

Having regard to the length of the proceedings the Court notes that, under the Act on Protracted Court Proceedings and Criminal Investigations ( Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren , hereafter: “the Remedy Act”), the applicant was entitled to lodge a claim for just satisfaction, but failed to do so. The Court has previously found that the Remedy Act was in principle capable of providing adequate redress for the violation of the right to a trial within a reasonable time and that an applicant could be expected to make use of this remedy, even though it became available to him only after he had lodged his complaint with the Court (see Kuppinger , cited above, §§ 124 et seq.; Taron v. G ermany ( dec. ), 53126/07, §§ 40-43, 29 May 2012). It considers that the applicant has not submitted any reason which would allow the conclusion that the just satisfaction claim would not have had a reasonable prospect of success if pursued by the applicant in respect of the alleged unreasonable length of the court proceedings.

It follows that this part of the application must thus be rejected for non ‑ exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

C . The remainder of the applicant ’ s complaints

The applicant further complained under Articles 6 § 1 and 8 of the Convention about the domestic courts ’ failure to implement the Monza Court ’ s decision from 2002 .

The Court has examined the remainder of the applicant ’ s complaints as submitted by him. However, having regard to all the material in its possession, the Court finds that this complaint does not disclose any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the part of the application which relates to the complaint under Article 8 of the Convention with regard to the length of the contact right proceedings out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 29 October 2015 .

Milan Blaško Boštjan M. Zupančič Deputy Registrar President