Information Note on the Court’s case-law 254

August-September 2021

Köhler v. Germany (dec.) - 3443/18

Decision 7.9.2021 [Section III]

Article 35

Article 35-1

Exhaustion of domestic remedies

Complaint aimed at not applying a federal statutory provision in applicant’s case lodged with a constitutional court of a Land, instead of the Federal Constitutional Court: inadmissible

Facts – The applicant was born in the former German Democratic Republic and taken into care by the then competent authorities. Following the German reunification and the applicant attaining full age, she was adopted by her foster mother. Some years later, after having found out about the particular circumstances of being taken into care and the unlawfulness of that order, she applied for an annulment of the adoption. This was dismissed by the family courts as being time-barred under Article 1762 § 2 of the Civil Code. The Berlin Constitutional Court dismissed her constitutional complaint. The applicant complained that the strict application of the time-limit for an annulment of her adoption violated her right to respect for her family life.

Law – Article 35 § 1: In view of the Government’s non-exhaustion objection that the applicant ought to have complained directly to the Federal Constitutional Court instead of applying before the Berlin Constitutional Court, the Court had to determine whether they had submitted any arguments that would indicate that constitutional complaints before these two courts did not have “essentially the same objective”, that is to say, whether the remedy at the federal level would have added any essential elements that were unavailable through the use of the remedy before the constitutional court of the Land of Berlin.

Pursuant to the uncontested submission of the Government, the Federal Constitutional Court had the sole prerogative to declare provisions of federal law unconstitutional and the pertinent provision of the Civil Code was federal law with an unequivocal wording, which left thus no leeway for divergent interpretations. The Federal Constitutional Court, in its decision of 15 October 1997, (clarifying the scope of constitutional review by the constitutional courts of Länder), on which the applicant had relied, had specified that a constitutional court of a Land was competent to review the courts’ application of federal procedural law on the basis of the applicant’s rights in the Basic Law and his or her rights in the constitution of the Land , provided that the respective rights had the same content . However, in the instant case the application of procedural law had not been in issue before the Berlin Constitutional Court as the applicant’s complaint had rather aimed at not applying Article 1762 § 2 of the Civil Code in her case. This complaint had been closely linked to claiming the unconstitutionality of the pertinent provision. Further, according to her a hardship clause in the pertinent provision would have been necessary in view of the injustice suffered in the former GDR. The Government had thus demonstrated that the scope of review by the Federal Constitutional Court was wider and that a direct constitutional complaint at the federal level would have added essential elements that were unavailable through the use of the constitutional complaint to the Berlin Constitutional Court. At the same time, the applicant had failed to plausibly explain that a declaration of unconstitutionality by the Federal Constitutional Court would not have been relevant in the present case.

Consequently, the applicant had failed to exhaust the domestic remedies available to her.

Conclusion : inadmissible (non-exhaustion of domestic remedies)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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