FIFTH SECTION

DECISION

Application no . 546/10 Roland ADEBOWALE against Germany

The European Court of Human Rights ( Fifth Section ), sitting on 2 December 2014 as a Committee composed of:

Boštjan M. Zupančič , President, Angelika Nußberger , Vincent A. de Gaetano , judges , and Stephen Phillips , Section Registrar ,

Having regard to the above application lodged on 21 December 2009 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Roland Adebowale , is a Nigerian national, who was born in 1974 and lives in Dresden .

A. The circumstances of the case

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

1. Background to the case

3. In December 2004 the applicant entered into a relationship with Ms C. (“the mother”), who became pregnant .

4. In April 2005 the applicant started to serve a prison term. While he was in prison the mother began a relationship with Mr O.

5. On 20 December 2005 the mother gave birth to a son (“the child”). The applicant and the mother assume that the applicant is the biological father.

6. On 27 March 2006, O. acknowledged paternity of the child before a notary public with the mother ’ s consent. He lives in a refugee camp and spends about two weeks per month with the mother and the child in Dresden.

2. The paternity proceedings

7. The applicant brought an action before the Dresden District Court to h ave his paternity established. The mother and O. submitted in reply that the applicant was excluded from contesting paternity as O. had been living in a domestic community with the child for a long period of time and had taken over actual responsibility for him .

8. On 18 June 2007 the Dresden District Court dismissed the applicant ’ s action.

9. On 15 May 2008 the Dresden Court of Appeal dismissed the applicant ’ s appeal. It found that the applicant was precluded from challenging O . ’ s paternity under Arti cle 1600 of the Civil Code (see Relevant domestic law below) as, in accordance with the requirements set up by the Federal Constitutional Court in its case-law, there was a social a nd family relationship between O. and the child.

10. The Court of Appeal did not apply the second sentence of Article 1600 § 3 of the Civil Code because it found that O. was not living with the child in the same household. O. was obliged under migration law to have his main place of residence in the refugee camp outside Dresden. Nevertheless, the Court of Appeal established by hearing witnesses and considering a report of the Dresden Youth Office that O., who visited mother and child for an average of 14 days per month, had taken over actual responsibility for the child from the date of his birth. The Court of Appeal concluded that a genuine social and family relationship existed between O. and the child.

11. On 26 November 2008 the Federal Court of Justice refused to grant legal aid for the applicant ’ s motion for leave to appeal ( Nichtzulassungsbeschwerde ) . It held that the applicant ’ s motion lacked the necessary prospect of success. The applicant was thus not represented by a legal practitioner as prescribed by domestic law.

12. Consequently, on 14 January 2009 the Federal Court of Justice rejected the motion for leave to appeal as inadmissible since it lacked motivation.

13. On 30 June 2009 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint (file no. 1 BvR 1063/09) without providing reasons. The decision was served on the applicant ’ s counsel on 7 July 2009 .

3 . The criminal proceedings

14. On 26 May 2005 Dresden District Court sentenced the applicant a to three years and two months imprisonment. On his release, the Dresden Regional Court ordered surveillance of conduct ( Führungsaufsicht ) for a period of three years.

B. Relevant domestic law

15. The relevant domestic and comparative law is summarized, in particular, in the Court ’ s judgment in the case of Kautzor v. Germany (no. 23338/09 , §§ 32-39, 22 March 2012).

16. The provisions referred to in the present case provide as follows. Under Article 1592 of the Civil Code, a child ’ s (legal) father is either the man who on the date of the child ’ s birth was married to the child ’ s mother (no. 1), or the man who acknowledged paternity (no. 2), or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3). Article 1600d § 1 of the Civil Code provides that paternity is to be established by the courts if ther e is no paternity under Article 1592 nos. 1 and 2 of the Civil Code.

17. Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child ’ s mother during the period of conception. However, under Article 1600 § 2 , the biological father has a right to challenge the paternity of the man who is the child ’ s legal father under Article 1592 nos. 1 or 2 only if there is no social and family relationship between the legal father and the child. A social and family relationship is considered to exist if the legal father has or had actual responsibility for the child at the relevant point in time (Article 1600 § 3, first sentence) . There is, as a rule, an assumption of actual responsibility if the legal father is married to the mother of the child or has lived together with the child in a domestic community for a long period of time (Article 1600 § 3, second sentence ).

COMPLAINTS

18. The applicant complained under Article s 8 and 14 of the Convention that the domestic courts ’ refusal to allow him to cha llenge O . ’ s legal paternity and to have his own paternity established had violated his right to respect for his private and family life and had discriminated against him.

19. He further complained about his imprisonment and about that the supervision of conduct ordered by the criminal courts.

THE LAW

A. Alleged violation of Article 8 of the Convention

20. The applicant complain s that the domestic courts ’ ref usal to allow him to challenge O . ’ s legal paternity violated his right to respect for his private and family life under Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

21. The Court, having regard to its case-law (see, in particular, Kautzor , cited above, § 63; and Ahrens v. Germany , no. 45067/09 § 60, 22 March 2012), finds that the decision to reject the applicant ’ s request to establish his paternity of the child interfered with his right to respect for his private life.

22. In determi ning whether that interference was necessary in a democratic society for the purposes of Article 8 § 2, the Court reiterates the following.

23. Article 8 can be interpreted as imposing on the Member States an obligation to examine whether it was in the child ’ s best interests to allow a biological father to establish a relationship with his child, in particular by granting contact rights (see Anayo v. Germany , no. 20578/07 , §§ 67-73, 21 December 2010; Schneider v. Germany , no. 17080/07, §§ 95-105, 15 September 2011; and Kautzor , cited above, § 76). This may imply the establishment, in access proceedings, of biological – as opposed to legal – paternity if, in the special circumstances of the case, contact between the alleged biological father – presuming that he was in fact the child ’ s biological parent – and the child were considered to be in the child ’ s best interests (see Schneider , cited above, § 103; and Kautzor , cited above, § 76).

24. However, the Court has further found that this does not imply a duty under the Convention to allow the alleged biological father to challenge the legal father ’ s status or to provide a separate action to establish biological – as opposed to legal – paternity (see Kautzor , cited above, § 77; and Ahrens , cited above, § 74). Having regard, in particular, to the lack of a consensus among the Member States and to the wider margin of appreciation to be accorded to the States in matters regarding legal status, the Court has considered that the decision whether the established or alleged biological father should be allowed to challenge paternity under the circumstances of the cases of Ahrens and Kautzor fell within the State ’ s margin of appreciation (see Ahrens and Kautzor , both cited above, §§ 75 and 78, respectively; Koppikar v. Germany [Committee] ( dec. ), no. 11858/10 , 11 December 2012 ; and H ü lsmann v. Germany [Committee] ( dec. ) , no. 26610/09, 5 November 2013) .

25. The Court cannot discern any elements which would allow distinguishing the present case from the last- mentioned cases. The fact that O. did not permanently cohabitate with the child does not call for a different conclusion. Th e domestic courts carefully examined the case and established that O. had taken over actual responsibility for the child at the time he was born and had maintained the relationship by regular extensive visits. The decision of the Court of Appeal is well-reasoned and has a factual basis in the hearing of several witnesses and a report of the Youth Office, all confirming that O. and the child had developed a close relationship (compare and contrast Różański v. Poland, no. 55539/00, 18 May 2006 , § 79). The applicant neither claims flaws in the taking of evidence nor does he complain about the established findings. The domestic courts thus could reasonably assume that a social and family relation existed.

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

B. Alleged violation of Article 14 in conjunction with Article 8 of the Convention

27. The applicant further invokes Article 14 read in conjunction with Article 8. The Court, having regard to its above findings and to those in comparable cases (see, in particular, Kautzor , cited above, §§ 90-92; and Ahrens , cited above, §§ 88-90), considers that the decision to give the existing family relationship between the child and his legal parents precedence over the relationship with his alleged biological father falls, in so far as the legal status is concerned, within the State ’ s margin of appreciation. The applicant has not, therefore, been treated differently compared to persons in a similar situation without an objective and reasonable justification.

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

C. Remainder of the applicant ’ s complaints

29. In so far the applicant complains about his detention and his subsequent supervision of conduct, the Court observes that the applicant has neither appealed the judgment of the Dresden District Court on points of law before the Federal Court of Justice nor did he appeal against the decision to order supervision of conduct.

30. It follows that this complaint mu st be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Boštjan M. Zupančič Registrar President