Communicated on 7 September 2020 Published on 28 September 2020

FIFTH SECTION

Application no. 46766/18 Delphine PAGO against Germany lodged on 24 September 2018

SUBJECT MATTER OF THE CASE

The application concerns the applicant ’ s right to contact with her child and the length of the proceedings in this regard.

The applicant, a French national, had been working in the Democratic Republic of the Congo. On 3 April 2004 her child was born out of wedlock in France but has lived in the Democratic Republic of the Congo ever since. The child has the French citizenship of the applicant and the German citizenship of her father, a German national born in the Democratic Republic of the Congo who is a permanent resident of Kinshasa and has sole custody of the child.

In 2010 the applicant left Africa, returned to France and initiated contact rights proceedings in Germany. Subsequently she moved to Brussels. On 18 August 2014 the (Berlin) Schöneberg Family Court ordered, inter alia , that the applicant be allowed to visit her child in Africa during the school holidays and to have supervised contact once a year in Germany. The court held that it had jurisdiction because of the child ’ s German citizenship and the absence of any agreement under international law between Germany and the Democratic Republic of the Congo. On 8 December 2017 the Berlin Court of Appeal upheld the decision regarding the visits in Africa, but held that the applicant was also entitled to have two days of supervised contact in Germany in 2018 and that the contact was to be gradually increased and granted without supervision between 2019 and 2021. On 22 March 2018 the Federal Constitutional Court declined to admit the applicant ’ s constitutional complaint for adjudication, without providing reasons (1 BvR 105/18).

The applicant complains that the length of the proceedings has been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. Furthermore, no effective remedy was available for this complaint until the entry into force of the Act on Protracted Court Proceedings in Family Matters. Moreover, the restrictions on her right to see her child were in violation of Article 8 of the Convention. The mother-child relationship would suffer irreparably from having only supervised contact in Germany on a very few occasions per year. It was also important that her child should get to know her living environment in Belgium. With regard to visits in the Democratic Republic of the Congo, the domestic courts failed to take into account her risk of being arrested in that country.

QUESTIONS TO THE PARTIES

1. Did the facts of which the applicant complains in the present case occur within the jurisdiction of Germany within the meaning of Article 1 of the Convention?

2. Was the length of the proceedings concerning the applicant ’ s contact rights in breach of the “reasonable tim e” requirement of Article 6 § 1 of the Convention, given the particular cross-border circumstances of the case? Has there also been a breach of Article 8 of the Convention on account of the German authorities ’ failure to take effective and expeditious measures, under the domestic and/or international law, with a view to enabling the applicant to have contact with her child?

3. In the light of the Court ’ s judgment in the Kuppinger case ( Kuppinger v. Germany , no. 62198/11, 15 January 2015), did the applicant have at her disposal an effective domestic remedy for her complaint under Articles 6 § 1 and 8 about the length of the proceedings, as required by Article 13 of the Convention?

4. Has the applicant exhausted all effective domestic remedies in respect of her complaint regarding length of proceedings, as required by Article 35 § 1 of the Convention? In particular, what was the domestic law on the transitory applicability of the Act on Protracted Court Proceedings in Family Matters for proceedings that were already pending when the said Act entered into force?

5. Has there been a failure by the State to comply with its positive obligations to secure the applicant ’ s right to respect for her family life under Article 8 of the Convention on account of the restrictions to the applicant ’ s contact rights?

6. The Government is requested to specify what specific procedural tools were available in domestic and international law aimed at facilitating the resolution of the cross-border dispute about the applicant ’ s contact rights.

7. The Government is also invited to provide the Court with the letter from the father ’ s lawyer of 22 September 2017, which was submitted to the Court of Appeal.