Information Note on the Court’s case-law 240

May 2020

Evers v. Germany - 17895/14

Judgment 28.5.2020 [Section V]

Article 8

Article 8-1

Respect for family life

Respect for private life

Challenge of a foreseeable contact ban in the context of sexual abuse of a mentally disabled woman, mother of the applicant’s child: inadmissible

Facts – The 71-year-old applicant had been living with his partner, P.B., who was the guardian of her daughter, V., a 22-year-old mentally disabled woman. The applicant had sexual relations with V., with whom he fathered a child born in March 2011.

In 2009 and 2010, two criminal proceedings had been initiated against the applicant in respect of his alleged sexual abuse of persons incapable of resistance. Both were discontinued.

On September 2010, the District Court had been notified by a medical clinic that V. had likely been sexually abused because she suffered from a moderate mental disability and had been impregnated by the applicant. The District Court, by means of an interim injunction, placed V. in a specialised residential home and appointed a professional guardian. On March 2011 the District Court upheld the interim injunction, relying on three expert opinions. Nevertheless, the applicant wished to continue his sexual relationship with V. However, on January 2013 a contact ban was issued by the District Court for V.’s protection.

The applicant had alleged that this contact ban infringed his rights under Articles 6 and 8 of the Convention.

Law

Article 8: The mere fact that the applicant had been living in a common household with P.B. and V. and that he was the biological father of V.’s child had not constituted a family link which would fall under the protection of Article 8 under its “family life” head.

The “private life” limb could not be understood as guaranteeing the right to establish a relationship with one particular person. “Private life” had not as a rule come into play in situations where a complainant had not enjoyed “family life” in relation to that person and where the latter had not shared the wish for contact. This had been all the more so if the person with whom a complainant had wished to maintain contact had been the victim of behaviour which had been deemed detrimental by the domestic courts.

Nor could Article 8 be relied on to complain of a loss of reputation which had been the foreseeable consequence of one’s own actions, such as, for example, the commission of a criminal offence. This rule had not been limited to reputational damage but had been expanded to a wider principle according to which personal, social, psychological and economic suffering which were the foreseeable consequences of the commission of a criminal offence could not be relied on in order to complain that a criminal conviction in itself amounted to an interference with the right to respect for “private life”. This extended principle had covered not only criminal offences but also other misconduct entailing a measure of legal responsibility with foreseeable negative effects on “private life”.

In the present case, the contact ban had not touched upon relations of the applicant with other people in general, but had only excluded contact of any sort with V. The applicant had insisted on contact with V., whereas the domestic courts had established that V. had expressed no particular interest in having contact with him. Moreover, contact between the applicant and V. had been deemed detrimental for the latter, who had showed signs of mental distress and had needed medication after his visit to the residential home. The Court therefore concluded that the applicant could not rely on Article 8 to challenge the order to abstain from entering into contact with V.

In addition, according to the civil courts which had based their decisions on the conclusions of three experts, V.’s child had been the result of a severe violation of her personality rights as she was unable to understand the consequences and risks of sexual acts and pregnancy. The applicant had continued to pursue his intention to abuse V. which would likely lead to further pregnancies and significant further risks for V. In its decision proposing to discontinue criminal proceedings, the Regional Court had explicitly pointed out to the applicant and P.B. that V. had to be considered as incapable of resistance. The decision to issue the contact ban and its consequences could therefore be seen as a foreseeable consequence of the applicant’s intention to continue visiting V.

In these circumstances the applicant’s challenge of the contact ban had not fallen within the scope of the private life limb of Article 8.

Conclusion : inadmissible (incompatible ratione materiae ).

Article 6 (civil)

(i) As regards the evidential basis for the domestic courts’ decisions – The proceedings had not lacked, overall, a sufficient evidentiary basis since the domestic courts had heard V. and had consulted three expert opinions. They also had further evidence at their disposal and had given the applicant the possibility to submit his arguments in writing.

The domestic authorities had based their decision to ban contact, not on V.’s status as a person with a disability, but rather on the finding that her disability had been of such a nature as to render her unable to adequately understand i) the significance and implications of the contact at issue and ii) the particularities of her relationship with the applicant, including, inter alia, the fact that the applicant had previously been her mother’s partner. The domestic authorities also had regard to the fact that any other form of contact would not be to her benefit either.

In sum, there had been nothing to indicate that the domestic courts had based their decisions on insufficient grounds or that they had arbitrarily refused to consider relevant evidence.

Conclusion : no violation (unanimously).

(ii) As regards the absence of an oral hearing of the applicant – The questions at the heart of the proceedings at issue had entailed an assessment of the applicant’s personality and his relationship to V., the nature of which the applicant had contested. Even though the applicant had maintained his position to continue to have sexual contact with V. and even though the District Court had heard him personally throughout the guardianship proceedings, the issue in the proceedings had not been purely legal and technical, but would have allowed the domestic courts to form their own impression of the applicant and the latter to explain his personal situation. There had therefore been no exceptional circumstances that would have justified dispensing the domestic courts with a personal hearing of the applicant.

Conclusion : violation (four votes to three).

The Court also held, unanimously, that there had been no violation of Article 6 § 1 on the grounds that the domestic court’s refusal to grant the applicant full access to the guardianship case-file had not been of such a nature as to impede the essence of the applicant’s ability to defend his position in relation to the proposed contact ban and they had been supported by relevant and sufficient reasons.

Article 41: Finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage.

(See concerning Article 8: X and Y v. the Netherlands , 8978/80 , 26 March 1985; Elsholz v. Germany [GC], 25735/94, 13 July 2000, Information Note 20 ; Söderman v. Sweden [GC], 5786/08, 12 November 2013, Information Note 168 ; Kruškić v. Croatia (dec.), 10140/13, 25 November 2014, Information Note 180 ; A.-M.V. v. Finland , 53251/13, 23 March 2017, Information Note 205 ; and Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Information Note 221 . See also concerning Article 6 § 1: Pönkä v. Estonia , 64160/11, 8 November 2016, Information Note 201 ; and Mirovni Inštitut v. Slovenia , 32303/13, 13 March 2018, Information Note 216 )

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

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