Resolution CM/ ResDH (2010)17 [1]

Execution of the judgments of the European Court of Human Rights

Sahin and Sommerfeld against Germany

(Applications Nos. 30943/96 and 31871/96, judgments of 8 July 2003, Grand Chamber)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the discriminatory treatment of the applicants due to the dismissal of their requests for access to their children born out of wedlock and, in the Sommerfeld case, also the fact that the applicant was deprived of a further appeal in the access proceedings on account of his status as the father of a child born out of wedlock (violations of Article 14, taken together with Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing new, similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2010)17

Information on the measures taken to comply with the judgments in the cases of

Sahin and Sommerfeld against Germany

Introductory case summary

Both cases concern domestic courts ’ dismissal, in 1991-1994, of the applicants ’ requests for access to their children born out of wedlock. The European Court found that the applicants had suffered discriminatory treatment in that, at the time of the facts, Sections 1634§1 and 1711§2 of the Civil Code provided unjustifiably different criteria making it more difficult for fathers of children born out of wedlock to obtain access to their children than for divorced fathers of children born in wedlock (violations of Article 14, taken together with Article 8).

In the Sommerfeld case, the European Court found in addition that the applicant had suffered discriminatory treatment in that he had been unable to lodge a further appeal under Section 63a of the Non-Contentious Proceedings Act which was, at the material time, available only to divorced fathers of children born in wedlock (violation of Article 14, taken together with Article 8).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Sahin (30943/96)

-

20 000 EUR

4 500 EUR

24 500 EUR

Paid on 01/09/2003

Sommerfeld (31871/96)

-

20 000 EUR

2 500 EUR

22 500 EUR

Paid on 20/08/2003

b) Individual measures

In the Sahin case, the German authorities stated in December 2003 that the applicant could at any time submit a new request to the competent authorities for access to his child. The latter is now of age.

In the Sommerfeld case, the applicant ’ s child turned 18 in 1999. Consequently, no further individual measure is necessary.

II. General measures

As regards the violations caused by the legislation on family matters , general measures were adopted following the Elsholz case (closed by Final Resolution ResDH (2001)155 adopted on 17/12/2001). Accordingly, the statutory provisions on custody and access, which are to be found in the German Civil Code ( Bürgerliches Gesetzbuch ), were amended on several occasions and many were repealed by the new Law on Family Matters ( Reform zum Kindschaftsrecht ) of 16/12/1997, which entered into force on 1/07/1998. In particular, pursuant to Article 1626a§1 as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect or if they marry. 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. Family courts can determine the scope of the right of access and prescribe more specific rules for its exercise; they can also restrict or suspend that right if such a measure is necessary for the child ’ s welfare.

Section 63a of the Non-Contentious Proceedings Act, which caused the second violation in the Sommerfeld case, was repealed by the Law on Family Matters of 1997 (see §36 of the judgment). Section 63 now provides the right to lodge a further appeal challenging the first appeal decision. The authorities also stated that t here were new provisions regarding the procedural rights of parents of children born out of wedlock.

Finally , both judgments were published in Europäische Grundrechte Zeitschrift ( EuGRZ , 2004, pp. 707-714).

III. Conclusions of the respondent state

The government considers that the measures adopted will prevent new, similar violations and that Germany has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 4 March 2010 at the 1078 th meeting of the Ministers’ Deputies .