EUROPEAN
COURT OF HUMAN RIGHTS
FOURTH SECTION
CASE OF
HOFFMANN v.
(Application no. 34045/96)
JUDGMENT
This judgment will become final in the
circumstances set out in Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Hoffmann v.
The European Court of Human Rights
(Fourth Section), sitting as a Chamber composed of:
Mr A.
Pastor Ridruejo, President,
Mr G. Ress,
Mr L. Caflisch,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs N. Vajic,
Mr M. Pellonpää, judges,
and Mr V. Berger, Section Registrar,
Having deliberated in private on
Delivers the following judgment, which
was adopted on that date:
PROCEDURE
1. The case originated in an
application (no. 34045/96) against the Federal Republic of Germany lodged
with the European Commission of Human Rights (“the Commission”) under former
Article 25 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Friedhelm Hoffmann (“the
applicant”), on
2. The German Government
(“the Government”) were represented by their Agents,
Mrs H. Voelskow-Thies, Ministerialdirigentin, of the Federal
Ministry of Justice, at the initial stage of the proceedings, and subsequently
by Mr K. Stoltenberg, Ministerialdirigent, also of the Federal
Ministry of Justice.
3. The applicant alleged, in
particular, that the German court decisions dismissing his request for access
to his daughter, born out of wedlock, amounted to a breach of his right to
respect for his family life and that he was a victim of discriminatory
treatment in this respect. He further complained about a breach of his right to
a fair hearing. He invoked Articles 6, 8 and 14 of the Convention.
4. The application was
transmitted to the Court on 1 November 1998, when Protocol No. 11 to the
Convention came into force (Article 5 § 2 of Protocol No. 11).
5. The application was
allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of
Court). Within that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the
Rules of Court.
6. By a decision of 12
December 2000 the Chamber declared the application admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant is a German
national, born in 1954 and living in Mülheim. He is the father of the child J.,
born out of wedlock on 25 August 1985. The applicant and the child’s
mother, Ms S., lived together at the time of the child’s birth. They separated
in spring 1987.
J.’s mother married in 1992 and J.’s
family name was changed to her mother’s new family name.
8. On 23 June 1987 the
Mülheim District Court decided that the applicant should be entitled to visit
his daughter. These visiting arrangements were confirmed in a court settlement
between the parents in July 1987. Under the terms of this settlement, the
applicant was entitled to visit the child every 14 days. After some first
visits, the applicant did no longer exercise his right of access to his
daughter.
9. On 9 May 1990 the child’s
mother applied with the Mülheim District Court for an amendment of the above
settlement to the effect that the applicant should no longer be allowed access
to his child. It was stated that the applicant had not exercised his right of
access for three years so that J. had completely forgotten him. His wish to see
her again was not in J.’s interest.
10. On 12 June 1990 the
Mülheim Youth Office (Jugendamt), having regard to a report by the Diakonisches
Werk, a Catholic welfare organisation, recommended that the applicant
should not be granted access to his child.
11. On 9 October 1990 the
Mülheim District Court ordered that a medical report be prepared on the
question of access. The report dated 27 June 1991 recommended that contact
between the applicant and J. be build up carefully and gradually, despite of
the risk for J.’s emotional balance. The established sound emotional ties
between J. and her mother and the relationship of trust with the mother’s
partner should, however, not be upset.
12. In a further report of
26 August 1991, the Diakonisches Werk recommended that the applicant
should meet J. in a child guidance centre (Erziehungsberatungsstelle).
If these contacts developed positively, they should be extended or, in the
event of a negative experience, access should be stopped. The Youth Office
shared this assessment.
13. On 3 November 1992 the
Mülheim Child Guidance Centre confirmed that, between 10 August and 11
September 1992, J. had met the applicant three times in the centre in her
mother’s presence. It was stated that J.
had sensed the conflicts between her parents and was under mounting emotional
strain as a result.
14. On 14 December 1992 the
Mülheim District Court heard the applicant and J.’s mother. In these and the
following proceedings, both parties were represented by counsel.
15. On 18 December the
Mülheim District Court heard the then seven-year-old child in the absence of her
parents. She stated that she had not recognised her natural father and that she
did not want to see him.
16. On 23 January 1993 the
District Court set aside its earlier decision of 23 June 1987 and the court
settlement of July 1987.
The court noted inter alia that
the applicant had not exercised his right to visit his daughter since 1987 and
that J.’s mother was opposed to the applicant’s request. The court found that
the applicant was not entitled to have access to his daughter.
Referring to section 1711 of the Civil
Code (Bürgerliches Gesetzbuch), the District court observed that the
mother, in the exercise of her right to custody, determined the child’s
relations with third persons, and that therefore her will was decisive. The
father could only be granted a right of access by court order if this was in
the interest of the child. According to the court’s findings, these conditions
were not met in the applicant’s case. The court considered that, as the parents
separated when J. was only one and a half years old and as he did not exercise
his right of access for several years, he was a stranger in respect of the
child. No bonds existed between her and the applicant and she did not regard
him as her father.
The District Court further considered
that the attempt to overcome this situation had failed. It noted that, in the
course of several meetings between the applicant and his daughter at an
educational assistance office in August and September 1992, he had remained a
stranger to J. who did not wish to have contacts with her father. In the
court’s view, it was not in J.’s interest to act contrary to her wish. After
several changes, her mother’s new
husband had become a person exercising parental functions (männliche
Bezugsperson). J.’s stable position and emotions would be shaken if
contacts with a stranger were forced. In this context, the court considered
that J. was very sensitive and vulnerable and therefore needed stable living
conditions and a family life free of conflict. Her physical and emotional
well-being could be easily affected and she had difficulties in concentrating
and learning. Her wish not to have any contacts with her father had, therefore,
to be accepted.
17. On 26 March 1993 the
Duisburg Regional Court dismissed the applicant’s appeal.
The Regional Court endorsed the
District Court’s findings under section 1711 of the Civil Code. The
Regional Court further found that the applicant’s appeal submissions did not
disclose any new elements that were relevant. His argument that it had not been
his fault that he had not been able to exercise his right of access since 1987
was irrelevant, as the child’s interests were decisive. His criticism of
section 1711 was irrelevant as this provision was the applicable legislation
according to which granting access contrary to the mother’s will was only
possible in the interest of the child. However, in the applicant’s case the
District Court, on the basis of an expert opinion, had correctly found that
J.’s wish not to have contacts with the applicant had to be accepted. Moreover,
even assuming that J. was influenced by her mother, such influence could not
justify to force her to have contacts with the applicant. In this respect, the
Regional Court again noted the expert’s findings that J. was very sensitive and
vulnerable and that any forced contacts would certainly harm her.
18. On 4 June 1993 the
Düsseldorf Court of Appeal declared the applicant’s further complaint
inadmissible, pursuant to section 63a of the Non-Contentious Proceedings Act (Gesetz
über die Angelegenheiten der freiwilligen Gerichtsbarkeit). The Court of
Appeal considered that the prevailing legal situation, excluding a further
appeal in proceedings concerning a father’s access to his child born out of
wedlock, could not be objected to from a constitutional point of view. Even if
the criteria established in the Federal Constitutional Court’s decision of 1991
on the necessity to abolish discrimination against children born out of wedlock
were applied to procedural rules, the general standards as to the period left
to the legislator for the purpose of amending the relevant legislation did not
yet permit the conclusion that the existing legislation was unconstitutional.
19. On 21 July 1993 the
applicant filed a constitutional complaint with the Federal Constitutional
Court, complaining that the refusal of access to his daughter infringed his
parental rights and amounted to discrimination, as well as about the refusal of
his further appeal. The First Chamber of the First Senate of the Federal
Constitutional Court acknowledged receipt on 28 July 1993.
20. On 17 January 1994 the
Constitutional Court informed the applicant’s lawyer that it was dealing with a
further case concerning section 1711 of the Civil Code which had already
been submitted. A decision in that case was envisaged for the current year. The
processing of the applicant’s case was therefore postponed. On 18 January 1995,
upon the applicant’s inquiry, the Judge at the Federal Constitutional Court
dealing with the applicant’s case informed him that a decision on the other
case was envisaged for the current year. In a letter of 5 August 1996, the
applicant’s representative was informed that the date of a decision upon his
complaint could not be foreseen. The applicant was subsequently informed that,
in the light of the legislative reforms, a decision on his constitutional
complaint did no longer appear necessary and the applicant agreed to consider
the complaint as settled.
The applicant’s renewed request for
access to J. remained unsuccessful.
II. RELEVANT DOMESTIC LAW
A. Legislation on family matters currently in force
21. The statutory provisions
on custody and access are to be found in the German Civil Code. They 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 1997, p. 2942), which came into force on 1 July 1998.
22. Section 1626 § 1 reads
as follows (the Court’s translation):
“The father and the mother have the right and
the duty to exercise parental authority (elterliche Sorge) over a minor
child. The parental authority includes the custody (Personensorge) and
the care of property (Vermögenssorge) of the child.”
23. Pursuant to section 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 (declaration on
joint custody) or if they marry. According to Section 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. Moreover, the parents must not do anything that would harm the child’s
relationship with the other parent or seriously interfere with the child’s
upbringing. The 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. The 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 otherwise the child’s well-being would be endangered. The
family courts may order that the right of access exercised in the presence of a
third party, such as a Youth Office authority or an association.
B. Legislation on family matters in force at the material time
24. Before the entry into force of the amended Law
on Family Matters, the relevant provision of the Civil Code concerning custody
and access for a child born in wedlock was worded as follows (the Court’s
translation):
Section 1634
“1. A parent not having custody has the right to
personal contact with the child. The parent not having custody and the person
having custody must not do anything that would harm the child’s relationship
with others or seriously interfere with the child’s upbringing.
2. The family court can determine the scope of
that right and can prescribe more specific rules for its exercise, also with
regard to third parties; as long as no decision is made, the right, under
section 1632 § 2, of the parent not having custody may be exercised throughout
the period of contact. The family court can restrict or suspend that right if
such a measure is necessary for the child’s welfare.
3. A parent not having custody who has a
legitimate interest in obtaining information about the child’s personal circumstances
may request such information from the person having custody in so far as this
is in keeping with the child’s interests. The guardianship court shall rule on
any dispute over the right to information.
4. Where both
parents have custody and are separated not merely temporarily, the foregoing
provisions shall apply mutatis mutandis.”
25. The relevant provisions
of the Civil Code concerning custody of and access to a child born out of
wedlock were worded as follows (the Court’s translation):
Section 1705
“Custody over
a minor child born out of wedlock is exercised by the child’s mother...”
Section 1711
“1. The person
having custody of the child shall determine the father’s right of access to the
child. Section 1634 § 1, second sentence, applies by analogy.
2. If it is in
the child’s interests to have personal contact with the father, the
guardianship court can decide that the father has a right to personal contact.
Section 1634 § 2 applies by analogy. The guardianship court can change its
decision at any time.
3. The right
to request information about the child’s personal circumstances is set out in
Section 1634 § 3.
4. Where appropriate, the youth
office shall mediate between the father and the person who exercises the right
of custody.”
C. The Act on Non-Contentious Proceedings
26. Like proceedings in
other family matters, proceedings under former section 1711 § 2 of the Civil
Code were governed by the Act on Non-Contentious Proceedings (Gesetz über
die Angelegenheiten der freiwilligen Gerichtsbarkeit).
27. According to section 12
of that Act, the court shall, ex officio, take the measures of
investigation that are necessary to establish the relevant facts and take the
evidence that appears appropriate.
28. In proceedings regarding
access, the competent youth office has to be heard prior to the decision
(section 49(1) (k)).
29. As regards the hearing
of parents in custody proceedings, section 50a (1) stipulates that the
court shall hear the parents in proceedings concerning custody or the
administration of the child’s assets. In matters relating to custody, the court
shall, as a rule, hear the parents personally. In cases concerning placement
into public care, the parents shall always be heard. According to paragraph 2 of
section 50a, a parent not having custody shall be heard except where it appears
that such a hearing would not contribute to the clarification of the matter.
30. Section 63 provides for
a right of a further appeal challenging the first appeal decision. Section 63a
of that Act as in force at the material time excluded this right in proceedings
concerning a natural father’s access to his child born out of wedlock. This
provision has been repealed by the Law on Family Matters of 1997.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
31. The applicant complained
that German court decisions dismissing his request for access to his child,
born out of wedlock, amounted to a breach of Article 8 of the Convention, the
relevant part of which provides:
“1. Everyone
has the right to respect for his ... family life ... .
2. There shall be no interference by
a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society ... for the
protection of health or morals, or for the protection of the rights and
freedoms of others.”
A. The parties’ submissions
32. The applicant submitted
that contacts between him and his daughter would have been in the child’s
interest. The mother had alienated J.
and successfully prevented any contacts.
33. The Government admitted
that the relationship between the applicant and his daughter came within the
notion of family life under Article 8 § 1. However, in their submission, the
statutory regulations on the right of access of fathers to their children born
out of wedlock did not, as such, amount to an interference with the rights
under that provision.
The Government conceded that the German
court decisions in the present case, which were based on this legislation,
amounted to an interference with the applicant’s right under Article 8 § 1. In
their view, this interference was in accordance with German law and served to
protect the interests of the applicant’s child. Moreover, the interference
complained of was necessary in a democratic society within the meaning of
Article 8 § 2. In this respect, the Government submitted that the child’s best
interests were the principle guiding the German courts.
B. The Court’s assessment
1. Whether there was an interference with the
applicant’s right to respect for his family life
34. The Court recalls that
the notion of family under this provision is not confined to marriage-based
relationships and may encompass other de facto "family" ties
where the parties are living together out of wedlock. A child born out of such
a relationship is ipso jure part of that "family" unit from
the moment and by the very fact of his birth. Thus there exists between the
child and his parents a bond amounting to family life (see the Keegan
v. Ireland judgment of 26 May 1994, Series A no. 290, pp. 18-19, § 44).
Furthermore,
the mutual enjoyment by parent and child of each other’s company constitutes a
fundamental element of family life, even if the relationship between the
parents has broken down, and domestic measures hindering such enjoyment amount
to an interference with the right protected by Article 8 of the Convention
(see, amongst others, the Johansen v. Norway judgment of 7 August 1996, Reports
of Judgments and Decisions 1996-III, pp. 1001-1002, § 52, and Elsholz v.
Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII).
35. The Court notes that the
applicant lived with his daughter from her birth in August 1985 until spring
1987. In court proceedings in July 1987, he obtained a right of access. The
subsequent decisions refusing the applicant access to his daughter therefore
interfered with the exercise of his right to respect for his family life as
guaranteed by paragraph 1 of Article 8 of the Convention.
36. In these circumstances,
the Court considers that there is no need to examine whether or not section
1711 of the Civil Code as such constituted an interference with the applicant’s
right to respect for his family life.
2. Whether the interference was justified
37. The interference
mentioned in the preceding paragraph constitutes a violation of Article 8
unless it is “in accordance with the law”, pursues an aim or aims that are
legitimate under paragraph 2 of this provision and can be regarded as “necessary
in a democratic society”.
a. “In accordance
with the law”
38. The relevant decisions
had a basis in national law, namely, section 1711 § 2 of the Civil Code as
in force at the relevant time.
b. Legitimate aim
39. In the Court’s view the court
decisions of which the applicant complained were aimed at protecting the
“health or morals” and the “rights and freedoms” of the child. Accordingly they
pursued legitimate aims within the meaning of paragraph 2 of Article 8.
c. “Necessary in
a democratic society”
40. In determining whether
the impugned measure was “necessary in a democratic society”, the Court has to
consider whether, in the light of the case as a whole, the reasons adduced to
justify this measure were relevant and sufficient for the purposes of paragraph
2 of Article 8 of the Convention. Undoubtedly, consideration of what lies in
the best interest of the child is of crucial importance in every case of this
kind. Moreover, it must be borne in mind that the national authorities have the
benefit of direct contact with all the persons concerned. It follows from these
considerations that the Court’s task is not to substitute itself for the
domestic authorities in the exercise of their responsibilities regarding
custody and access issues, but rather to review, in the light of the
Convention, the decisions taken by those authorities in the exercise of their
power of appreciation (see the Hokkanen v. Finland judgment of 23 September
1994, Series A no. 299-A, p. 20, § 55, and, mutatis mutandis, Elsholz
v. Germany cited above, § 48).
41. The margin of
appreciation to be accorded to the competent national authorities will vary in
accordance with the nature of the issues and the importance of the interests at
stake. Thus, the Court recognises that the authorities enjoy a wide margin of
appreciation, in particular when assessing the necessity of taking a child into
care.
However, a stricter scrutiny is called
for in respect of any further limitations, such as restrictions placed by those
authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of
parents and children to respect for their family life. Such further
limitations entail the danger that the family relations between the parents and
a young child would be effectively curtailed (see Elsholz v. Germany
cited above, § 49).
42. The Court further
recalls that a fair balance must be struck between the interests of the child
and those of the parent and that in doing so particular importance must be
attached to the best interests of the child which, depending on their nature
and seriousness, may override those of the parent. In particular, the parent
cannot be entitled under Article 8 of the Convention to have such measures
taken as would harm the child’s health and development (see Elzholz v. Germany cited above, §
50; and T.P. and K.M. v. the United Kingdom, no. 28945/95, § 71,
ECHR-..).
43. In the present case the
Court notes that the competent national courts, when setting aside the
applicant’s right of access, relied on the statements made by the applicant and
the child’s mother, the comments of the Mülheim Youth Office and the local Diakonisches
Werk, and in particular on the statements made by the child, questioned by
the District Court at the age of about seven, as well as on expert advice. The
courts took into account the strained relations between the parents and found
that any further contact would negatively affect the child.
44. The Court does not doubt
that these reasons were relevant. However, it must be determined whether,
having regard to the particular circumstances of the case and notably the
importance of the decisions to be taken, the applicant has been involved in the
decision-making process, seen as a whole, to a degree sufficient to provide him
with the requisite protection of his interests (see the W. v. the United
Kingdom judgment of 8 July 1987, Series A no. 121, p. 29, § 64; the
above-mentioned Elsholz judgment, § 52).
45. The Court recalls that
in the present case the District Court had regard to several reports on the
question of contacts between the applicant and his child J., one of them being
based on the experience of meetings between the applicant and J. in a child
guidance centre. The applicant, represented by counsel, had the opportunity to
comment on these reports.
46. In the Court’s opinion,
the applicant was thereby sufficiently involved in the decision-making process.
The German courts arrived at the contested decision after weighing in the
balance the various competing interests in issue. As pointed out above, it is
not the Court’s task to sit in appeal on the merits of that decision.
47. Having regard to all
circumstances, the Court finds that, having regard to their margin of
appreciation, the German courts were entitled to consider the refusal of access
to be necessary and that their reasons for so concluding were “sufficient” for
the purposes of paragraph 2 of Article 8.
48. In sum, there has been
no violation of the applicant’s rights under Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN
TOGETHER WITH ARTCLE 8
49. The applicant further
complained that he had been a victim of discriminatory treatment in breach of
Article 14 of the Convention read in conjunction with Article 8. Article 14
provides:
“The enjoyment
of the rights and freedoms set forth in [the] Convention shall be secured
without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status.”
50. The Government
maintained that neither the statutory regulations on the right of access to
children born out of wedlock in themselves, nor their application in the
particular case, discriminated against the applicant in the enjoyment of his
right to respect for his family life.
The Government recalled the
Commission’s decisions according to which the provisions of section 1711 of the
Civil Code did not entail any discrimination contrary to Article 14
(application no. 9588/81, decision of 15 March 1984; application no. 9530/81,
decision of 14 May 1984, both unpublished). The consideration that fathers of
children born out of wedlock often were not interested in contacts with their
children and might leave a non-marital family at any time, and that it was
normally in the child’s interest to entrust the mother with custody and access,
still applied, even if the number of non-marital families had increased.
Section 1711 § 2 of the Civil Code struck a reasonable balance between the
competing interests involved in all these cases.
In this context, the Government
observed that the amended Law on Family Matters did not alter this assessment.
51. The Court has held in an
earlier case that it was not necessary to consider whether the former German
legislation as such, namely, section 1711 § 2 of the Civil Code, made an
unjustifiable distinction between fathers of children born out of wedlock and
divorced fathers, such as to be discriminatory within the meaning of Article
14, since the application of this provision in the case in question did not
appear to have led to a different approach than would have ensued in the case
of a divorced couple (see Elsholz v. Germany cited above, § 59).
52. The Court notes that in
the present case, both the District Court and the Regional Court expressly
stated that access could only be granted if in the interest of the child, as
required under section 1711 of the Civil Code in force at the relevant time. It
is true that the German courts had recourse to psychological expertise and had
relied on the statements made by the child in court. After an unsuccessful
attempt to build up contacts between the applicant and J. in a child guidance
centre, they concluded that it was not in J.’s interest to act contrary to her
wish not to see the applicant, who had remained a stranger to her.
53. The approach taken by
the German courts in the present case reflects the underlying legislation which
put fathers of children born out of wedlock in a different, less favourable
position than divorced fathers. Unlike the latter, natural fathers had no right
of access to their children and the mother’s refusal of access could only be
overridden by a court when access was “in the interest of the child”. Under
such rules and circumstances, there was evidently a heavy burden of proof on
the side of a father of a child born out of wedlock. The crucial point is that
the courts did not to regard contacts between child and natural father prima
facie as in the child’s interest, a court decision granting access being
the exception to the general statutory rule that the mother determined the
child’s relations with the father. Even if the impugned decisions contain
formulations referring to J.’s sensitive and vulnerable personality and the
risk that her stability and emotions would be shaken if contacts with the
applicant were to be enforced, the mother’s initial prohibition of further
contacts and her influence on the child remained decisive. A telling element in
this respect is the Regional Court’s argument that, even assuming that J. had
been influenced by her mother, such influence could not justify to force her to
have contacts with the applicant.
Accordingly, there is sufficient reason
to conclude that the applicant as a natural father was treated less favourably
than a divorced father in proceedings to suspend his existing right of access
54. In this context, the
Court has also considered the applicant’s argument as to a procedural
difference, namely the exclusion of a further appeal under the Act on
Non-Contentious Proceedings in the version in force at the relevant time.
55. For the purposes of
Article 14 a difference in treatment is discriminatory if it has no objective
and reasonable justification, that is if it does not pursue a legitimate aim or
if there is not a reasonable relationship of proportionality between the means
employed and the aim sought to be realised. Moreover, the Contracting States
enjoy a margin of appreciation in assessing whether and to what extent
differences in otherwise similar situations justify a different treatment (see Camp
and Bourimi v. the Netherlands, no. 28369/95, § 37, ECHR 2000-X).
56. According to the Court’s
case-law, very weighty reasons need to be put forward before a difference in
treatment on the ground of birth out of wedlock can be regarded as compatible
with the Convention (see the Camp and Bourimi v. the Netherlands cited
above, § 38).
57. In the present case,
the Court is not persuaded by the Government’s arguments, which are based on
general considerations that fathers of children born out of wedlock lack
interest in contacts with their children and might leave a non-marital
relationship at any time.
58. Such considerations did
not apply in the applicant’s case. He had acknowledged paternity and had in
fact been living with the mother at the child’s birth in 1981. Their
relationship only broke up several years later when the child was more than
five years old. More important, he had continued to show a concrete interest in
contacts with her for sincere motives.
59. As the Government
rightly pointed out, the number of non-marital families had increased. When deciding
the applicant’s case, the Regional Court stated the urgent need for a
legislative reform. Complaints challenging the constitutionality of this
legislation were pending with the Federal Constitutional Court. The amended Law
on Family Matters eventually entered into force in July 1998.
The Court wishes to make it clear that
these amendments cannot in themselves be taken as demonstrating that the
previous rules were contrary to the Convention. They do however show that the
aim of the legislation in question, namely the protection of the interests of
children and their parents, could also have been achieved without distinction
on the ground of birth (see, mutatis mutandis, the Inze v. Austria
judgment of 28 October 1987, Series A no. 126, p. 18, § 44).
60. The Court therefore
concludes that there was a breach of Article 14 of the Convention, taken
together with Article 8.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
61. In respect of the German
court decisions refusing him access to his child and the proceedings concerned,
the applicant also alleged that he had been the victim of a violation of
Article 6 § 1 of the Convention, the relevant part of which reads:
“In the
determination of his civil rights and obligations ..., everyone is entitled to
a fair and public hearing ... by an independent and impartial tribunal
established by law.”
62. The Court recalls that
the Court’s task under the Convention is to ascertain whether the proceedings
as a whole, including the way in which evidence was taken, were fair (see Elsholz
v. Germany cited above, § 66).
63. The Court had first
regard to its findings with respect to Article 8 (see paragraphs 46-48 above)
that the applicant was sufficiently involved in the decision-making process.
The Court considers that there was no violation of the applicant’s rights under
Article 6 § 1 in the proceedings before the District Court and the Regional
Court.
64. However, the applicant
further argued the exclusion of a further appeal with the Court of Appeal.
65. The Court reiterates
that Article 6 § 1 does not compel the States to set up courts of appeal or of
cassation. Nevertheless, where such courts exist, the guarantees contained in
Article 6 must be complied with inter alia by ensuring effective access
to the courts so that litigants may obtain a decision relating to their “civil
rights and obligations” (see, mutatis mutandis, the Delcourt v.
Belgium judgment of 17 January 1970, Series A no. 11 pp. 13-14, § 25, and Kudla
v. Poland (GC), no. 30210/96, § 122, ECHR 2000-XI; see also García
Manibardo v. Spain, no. 38695/97, § 39, ECHR 2000-II).
66. The Court notes that in
proceedings concerning a natural father’s access to his child born out of
wedlock, the general right of a further appeal against a first appeal decision,
as provided in section 63 of the Act on Non-Contentious Proceedings, was
excluded by operation of law, namely by section 63a of that Act as in force at
the material time (see paragraph 30 above). Having regard to its findings under
Article 14 of the Convention (see paragraphs 54 and 59 above), the Court
concludes that this limitation on the applicant’s right of access to a court
was not compatible with Article 6 § 1.
67. In these circumstances,
the Court finds that there has been a breach of that provision.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
68. Article 41 of the
Convention provides:
“If the Court
finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows
only partial reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party.”
A. Damage
69. The applicant sought
70,000 German marks (DEM) in compensation for non-pecuniary damage, pointing to
the distress he had felt as a result of the separation from his child since
1987.
70. The Government found the
claim excessive.
71. The Court considers that
the applicant undoubtedly sustained non-pecuniary damage. It cannot be said on
the evidence that the applicant would probably have been granted access to his
child had the violations of Articles 14, taken together with Article 8, of the
Convention and of Article 6 of the Convention not occurred. The Court has
notably found that the applicant was the victim of discrimination as regards
one of the most fundamental rights, namely that of respect for family life. The
Court further notes that since 1990 the applicant has been refused access to
his child. It can reasonably be presumed that those circumstances taken as a
whole have caused the applicant substantial suffering.
72. The Court thus concludes
that the applicant suffered non-pecuniary damage which is not sufficiently
compensated by the finding of a violation of the Convention. None of the
factors cited above lends itself to precise quantification. Making an
assessment on an equitable basis, as required by Article 41, the Court awards
the applicant DEM 25,000.
B. Costs and expenses
73. The applicant further
estimated his expenditure in the domestic proceedings at DEM 6,500 for costs
and expenses before the German courts. He submitted receipts for such expenses
in a total sum of DEM 2,480, other documents were no longer available.
74. The Government questioned the
amount exceeding DEM 2,480.
75. If the Court finds that
there has been a violation of the Convention, it may award the applicant the
costs and expenses incurred before the national courts for the prevention or redress
of the violation (see the Hertel v. Switzerland judgment of 25 August 1998, Reports
1998-VI, p. 2334, § 63). In the instant case, having regard to the
subject-matter of the proceedings before the German courts and what was at
stake in them, the applicant is entitled to request payment of the costs and
expenses incurred before these courts to the extent that these costs and
expenses are shown to have been actually and necessarily incurred and are
reasonable as to quantum (cf., mutatis mutandis, Elsholz v.
Germany cited above, § 73).
76. In the absence of
receipts or other supporting documents, the Court is not persuaded that the
applicant incurred costs and expenses in the total estimated amount. Deciding
on an equitable basis, the Court awards him the sum of DEM 2,500.
C. Default interest
77. According to the information available to the
Court, the statutory rate of interest applicable in Germany at the date of
adoption of the present judgment is 8,62 % per annum.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been no violation
of Article 8 of the Convention;
2. Holds by five votes to two that there has been a
violation of Article 14 of the Convention, taken together with Article 8;
3. Holds by six votes to one that there has been a
violation of Article 6 of the Convention;
4. Holds by five votes to two
(a) that the respondent State is to pay
the applicant, within three months from the date on which the judgment becomes
final according to Article 44 § 2 of the Convention;
(i)
25,000 (twenty five thousand) German marks in respect of non-pecuniary
damage;
(ii)
2,500 (two thousand five hundred) German marks in respect of costs and
expenses, together with any value-added tax that may be chargeable;
(b) that simple interest at an annual rate of 8,62 % shall be
payable from the expiry of the above-mentioned three months until settlement;
5. Dismisses unanimously the
remainder of the applicant’s claims for just satisfaction.
Done in English, and notified in
writing on 11 October 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Vincent Berger Antonio Pastor
Ridruejo
Registrar President
In accordance with Article 45 § 2 of
the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting
opinions of Mrs Vajic and Mr Pellonpää are annexed to this judgment.
A.P.R.
V.B.
PARTLY DISSENTING OPINION OF JUDGE VAJIC
1. Unfortunately, in view
of the Court’s judgment in Elsholz v. Germany (cited in paragraph
34 of the present judgment) I am unable to share the opinion of the majority
that there has been a violation of Article 8 in conjunction with Article 14 of
the Convention in the present case.
I agree with the views which Judge Pellonpää has
expressed in his dissenting opinion.
2. I have with some
hesitation voted with the majority in favour of a finding that the applicant’s
rights under Article 6 of the Convention were violated in the present case.
I see considerable force in
the view of Judge Pellonpää that the problem that raises Section 63a of the Act
on Non-Contentious Proceedings, as in force at the relevant time (see paragraph
306) is one of discrimination rather than access to court and could therefore
have been dealt with under Article 6 read in conjunction with Article 14.
I accept, however, that the problem can also be
looked at as one of unreasonable limitation on access to court. In other words,
the exclusion of a general right of a further appeal by operation of law (in
the version of the law in force at the relevant time), limited the applicant’s
right of access to court to such an extent that it amounted to a violation of
Article 6 of the Convention.
PARTLY DISSENTING OPINION OF JUDGE PELLONPÄÄ
While I agree with the conclusion that there has been no violation of
Article 8 alone in this case, I am unable to subscribe to the opinion of
the Chamber that there has been a violation of Article 14 taken together with
Article 8.
The Chamber attempts to make a distinction between this case and the case
of Elsholz v. Germany (cited in paragraph 34 of the present judgment),
in which the application of Section 1711 § 2 of the Civil Code “did not appear
to have led to a different approach than would have ensued in the case of a
divorced couple” (paragraph 51 of the present judgment).
I am not convinced by the alleged distinguishing features. In paragraph
52 it is emphasized “that in the present case, both the District Court and the
Regional Court expressly stated that access could only be granted if in the
interest of the child...” In so far as this appears to be given as a
distinguishing feature, I note that similar statements are also to be found in
the decisions of the District Court and the Regional Court in the Elsholz
case (see paragraphs 13 and 18 of the Elsholz judgment). According to
paragraph 53 of the present judgment the “crucial point is that the courts did
not regard contact between child and natural father prima facie as in
the child’s interest, a court decision granting access being the exception to
the general statutory rule that the mother determined the child’s relations
with the father.” I fail to see that the approach of the domestic courts on
this point was in any relevant manner different in Elsholz, in which the
District Court stated that the provisions “concerning the father’s right to
personal contact with his child born out of wedlock ... was conceived of as an
exemption clause which had to be construed strictly” (paragraph 13 of the Elsholz
judgment).
In the Elsholz case the Court, when coming to its conclusion of a
non-violation of Article 14 emphasized that the “risk of the child’s welfare
was ... the paramount consideration” (paragraph 60) in the national decisions.
Therefore it could not “be said ... that a divorced father would have been
treated more favourably” (paragraph 61). The child’s interests, however, seem
to have been an equally paramount consideration in the present case. Thus both
the District Court and the Regional Court very much emphasized the particular
vulnerability and sensitivity of the child and the dangers inherent in any
forced contact between her and the applicant. Contrary to what the majority
appears to suggest, I do not consider “the Regional Court’s argument that, even
assuming that J. had been influenced by her mother, such influence could not
justify to force her to have contacts with the applicant” (paragraph 53) as any
particular proof of discrimination. To me this seems to be just another example
of the paramount importance given to the child’s interests, there being nothing
indicating that in a comparable situation concerning a divorced father a
different approach would have been taken.
Although there may have been some differences between the domestic court
decisions in the two cases, those differences in my view were not of such a
nature as to justify a violation in one and a non-violation in the other. Like
in Elsholz, the present applicant has not shown that, in a parallel
situation, a divorced father would have been treated more favourably.
I have also voted against the violation of Article
6. I do recognize that Section 63a of the Act on Non-Contentious Proceedings,
as in force at the relevant time (see paragraph 30), was problematic from the
point of view of the Convention. In my view the problem was, however, one of
discrimination rather than access to court to be analysed under Article 6
alone. Therefore, I would have been able to vote for a violation of Article 6
read in conjunction with Article 14. Indeed, the situation is almost a classic
example of discrimination as envisaged in the locus classicus on the
subject, the Belgian Linguistic case (judgment of 23 July 1968, Series A no 6),
in which the Court stated:
“to
recall a further example [of discrimination].... Article 6 does not compel
States to institute a system of appeal courts. A State which does set up such
Courts consequently goes beyond its obligations under Article 6. However, it
would violate that Article, read in conjunction with Article 14, were it to
debar certain persons from these remedies without a legitimate reason while
making them available to others in respect of the same type of actions” (p.
33).