Resolution ResDH (2001)155 concerning the judgment of the European Court of Human Rights of 13 July 2000 in the case of Elsholz against Germany

(Adopted by the Committee of Ministers on 17 December 2001 at the 775 th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”), Having regard to the final judgment of the European Court of Human Rights in the Elsholz case delivered on 13 July 2000 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention; Recalling that the case originated in an application (No. 25735/94) against Germany, lodged with the European Commission of Human Rights on 31 October 1994 under former Article 25 of the Convention by Mr Egbert Elsholz , a German national, and that the Commission declared admissible the complaints that the courts refused to grant the applicant access to his son, a child born out of wedlock, mainly due to the refusal to order an independent psychological report, and also that there was no hearing before the Regional Court; Recalling that the case was brought before the Court by the Commission, on 7 June 1999, and by the applicant, under Protocol No. 9, on 25 May 1999; Whereas in its judgment of 13 July 2000 the Court: - held, by thirteen votes to four, that there had been a violation of Article 8 of the Convention; - held, unanimously, that there had been no violation of Article 14 taken in conjunction with Article 8 of the Convention; - held, by thirteen votes to four, that there had been a violation of Article 6, paragraph 1, of the Convention; - held, unanimously, that the respondent State was to pay the applicant, within three months, together with any value-added tax that may be chargeable: 35 000 German marks in respect of non-pecuniary damage and 12 584,26 German marks in respect of costs and expenses and that simple interest at an annual rate of 4% would be payable on those sums from the expiry of the above-mentioned three months until settlement; - dismissed, unanimously, the remainder of the applicant’s claim for just satisfaction; Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention; Having invited the Government of the respondent State to inform it of the measures which had been taken in consequence of the judgment of 13 July 2000, having regard to Germany’s obligation under Article 46, paragraph 1, of the Convention to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent State gave the Committee information about the measures taken preventing new violations of the same kind as those found in the present judgment; this information appears in the appendix to this resolution; Having satisfied itself that on 10 October 2000, within the time-limit set, the Government of the respondent State had paid the applicant the sums provided for in the judgment of 13 July 2000, Declares, after having taken note of the information supplied by the Government of Germany, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH (2001)155

Information provided by the Government of G ermany during the examination of the Elsholz case by the Committee of Ministers

The Government of Germany has informed the Committee of Ministers that, as far as the legislation on family matters is concerned, the statutory provisions on custody and access, which are to be found in the German Civil Code ( Bürgerliches Gesetzbuch ), have been amended on several occasions and many were repealed by the amended Law on Family Matters ( Reform zum Kindschaftsrecht ) of 16 December 1997 (Federal Gazette ( Bundesgesetzblatt – BGBl ) 1997, p. 2942), which came into force on 1 July 1998. Now, according to Article 1626 § 1, “the father and the mother have the right and the duty to exercise parental authority ( elterliche Sorge ) over a minor child. Parental authority includes the custody ( Personensorge ) and the administration of the child’s property ( Vermögenssorge )”. Pursuant to Article 1626 a § 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, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. 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 the child’s well-being would be endangered in the absence of such measures. The family courts may order that the right of access is exercised in the presence of a third party, such a Youth Office authority or an association. Lastly, the Government of Germany has informed the Committee that the judgment of the European Court of Human Rights in this case has been published in number 32 of the current 2001 volume of the “ Neue Juristische Wochenschrift ”, pp. 2315 to 2319, and that it has also been transmitted to all authorities directly concerned. The Government of Germany considers that the measures taken will prevent the repetition of any new violations similar to those found in this case and that it has therefore fulfilled its obligations under Article 46, paragraph 1, of the Convention.