CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 juillet 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY OF   Application No. 12246/86 by Helmut IRLEN against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 13 July 1987, the following members being present:                      MM. C.A. NØRGAARD, President                         J.A. FROWEIN, First Vice-President                         S. TRECHSEL, Second Vice-President                         F. ERMACORA                         E. BUSUTTIL                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                    Mrs.   G.H. THUNE                    Sir   Basil HALL                    MM.   F. MARTINEZ                         C.L. ROZAKIS                    Mrs.   J. LIDDY                      Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 25 September 1985 by Helmut IRLEN against the Federal Republic of Germany and registered on 30 June 1986 under file No. 12246/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as they have been submitted by the applicant, may be summarised as follows:           The applicant, born in 1935, is a German national and resident in Coblenz.   He is a businessman by profession.   Before the Commission he is represented by Mr F. Schmidt, a lawyer practising at Bernkastel-Kues.           The applicant is filing his application also in the name of his daughter, born in wedlock on 24 January 1978.           In June 1982, the applicant's former wife, a Yugoslav national, who lived in the Federal Republic of Germany for about nine years and had a permanent residence permit, instituted divorce proceedings before the Düsseldorf District Court (Amtsgericht) on the ground that the marriage had broken down.   She requested the right to custody over her daughter.           On 16 July 1982 the Düsseldorf District Court awarded the right to custody over the daughter, pending the spouses' separation, until divorce, to her mother, except the right to leave the territory of the Federal Republic of Germany with the child.   The Court, having regard to the reports of the Düsseldorf Youth Office (Jugendamt) and of a private association working in the field of social services (Sozialdienst Katholischer Frauen und Männer e.V.), found that this decision was necessary in the interest of the daughter's well-being. Moreover, the applicant had in principle agreed that his former wife should take care of their daughter.   Furthermore, the Court granted the applicant the right to visit the daughter regularly on every second and fourth Saturday per month.           On 3 November 1982 the applicant lodged an appeal (Beschwerde) with the Düsseldorf Court of Appeal (Oberlandesgericht).   On 20 April 1983, following a hearing before the Court of Appeal, the spouses agreed in particular that the applicant would withdraw his appeal and that his former wife would not take up residence with their daughter outside the territory of the Federal Republic of Germany and would educate her according to the Roman Catholic religion.   The applicant's right to visit the child as provided for in the District Court's decision of 16 July 1982 was confirmed.           On 2 December 1983 the Düsseldorf District Court granted divorce and gave the right of custody over the daughter to the mother. The Court, following both the mother's request and the proposal of the Düsseldorf Youth Office, found that this decision was in the interest of the child's well-being.   It noted that the mother had taken care of the daughter since birth and, in particular, also after the separation of the spouses.   There was no indication that the mother intended to return to Yugoslavia with the daughter and, thereby, prevent the father from seeing her.   The Court dismissed the applicant's main request to be granted the right to custody on the ground that, according to his own submissions, he did not intend to take care of the child in his own household; moreover such a transfer of custody would be disadvantageous to the child's well-being, as it would have to leave its usual environment.   The Court also dismissed the applicant's first subsidiary request to transfer the right to custody to both parents on the ground that the parties could not achieve an understanding as to the education of their child.   Finally the Court did not find it necessary to transfer the right to determine the child's residence to the applicant.           On 30 July 1984 the Düsseldorf Court of Appeal dismissed the applicant's appeal (Beschwerde) against the judgment of the District Court concerning the right to custody.   The Court concurred with the District Court in finding that the transfer of the right to custody to the mother was in the interest of the child's well-being and thus complied with S. 1671 paras. 1 and 2 of the German Civil Code (Bürger- liches Gesetzbuch), which state:           "In case of the parents' divorce the competent court         (Familiengericht) decides on which parent should have         the right to custody over a common child.           The court takes the decision which is in the interest         of the child's well-being; the child's bonds, especially         to its parents and brothers and sisters, are to be         considered."             The Court considered the report of the Düsseldorf Youth Office and a further report of the Frankfurt Youth Office according to which the applicant's former wife was capable of educating her daughter. Having heard the mother personally the court found no reasons to doubt these reports.   The mother's change of residence together with her daughter from Düsseldorf to Frankfurt could not be considered as a disadvantage for the child on the grounds that the mother, who was unemployed and could not be supplied with a job in the Düsseldorf region, obtained satisfactory employment in Frankfurt.   She had rented an apartment sufficiently big and had found a place for her daughter in a day-nursery nearby.   There was no indication that she was a member of a religious sect or that she planned to return to Yugoslavia.   A joint right to custody as requested by the applicant could not be granted on the grounds that there was no agreement between the parties on their child's education and that mother and daughter now lived in Frankfurt.   The splitting up of the right to custody, as requested by the applicant, would be inadmissible under the Civil Code.           On 19 March 1985 the Federal Constitutional Court (Bundesverfassungsgericht) refused to accept the applicant's constitutional complaint (Verfassungsbeschwerde), which had also been lodged on behalf of the daughter, on the ground that it offered no prospect of success.   The Court found in particular that the decisions on custody served the child's well-being and did not appear to be arbitrary.   This decision was received by the applicant's representative on 29 March 1985.          As far as it can be determined from the applicant's submissions, he instituted new proceedings before the Düsseldorf District Court concerning his right of access to his daughter in September 1984.   These proceedings are still pending.   COMPLAINTS   1.       The applicant complains under Article 8 para. 1 of the Convention that the German court decisions awarding the right of custody over their daughter to his former wife violated his and his daughter's right to respect for their family life.   He submits that the decisions prevent him from seeing his child without any hindrance.   2.       The appicant complains under Article 6 para. 1 of the Convention that in the custody proceedings he had no fair hearing by independent and impartial courts.   He submits in particular that his daughter was not heard in person by the District Court or by the Court of Appeal.   Moreover he alleges that the proceedings before the Federal Constitutional Court were unfair on the ground that the Court's burden of work prevents it from taking fair decisions.   3.       The applicant also invokes Article 3 of the Convention in respect of the above complaints.   THE LAW   1.       The applicant has filed the application in his own as well as in his daughter's name.           In principle a parent who has the custody over his or her child is able to introduce an application under Article 25 (Art. 25) of the Convention on behalf of the child.           It is true that in the present case the right of custody over the daughter was awarded to the applicant's former wife after the dissolution of their marriage.           The question, therefore, arises whether in these circumstances the applicant is able to lodge his complaints concerning the German courts' decisions on the grant of custody also on behalf of his daughter (cf. mutatis mutandis No. 10812/84, Dec. 11.7.1985 - to be published in Decisions and Reports).   However, the Commission does not regard it as necessary to settle this issue, as the complaints are in any case inadmissible for the following reasons.   2.       The Commission has first examined the applicant's complaints, in respect of the grant of custody, under Article 8 (Art. 8) of the Convention which reads:           "1.    Everyone has the right to respect for his private         and 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."           The Commission recalls that the family life of the parents with their children does not cease following the divorce of a married couple (cf.   No. 7770/77, Dec. 2.5.78, D.R. 14 p. 175).           In the present case, the German courts' decisions to give the custody over the applicant's daughter to his former wife interfered with the applicant's right to family life under Article 8 para. 1 (Art. 8-1) of the Convention.   The Commission's therefore has to examine whether this interference was justified under the terms of Article 8 para. 2 (Art. 8-2).           The Commission observes first that the German courts' decisions to grant the custody over the applicant's daughter to his former wife after their divorce were taken in accordance with S. 1671 of the German Civil Code and, therefore, in accordance with the law within the meaning of Article 8 para. 2 (Art. 8-2).           The Commission notes the finding of the Düsseldorf District Court and the Düsseldorf Court of Appeal that the interests of the applicant's daughter and in particular her future well-being required that her mother should continue to take care of her.   The Courts relied in particular on reports of the Düsseldorf and the Frankfurt Youth Office as to the child's education by her mother.   The Court of Appeal also heard the mother personally.   Moreover the Courts noted that the applicant had in principle agreed that the mother should take care of their child and that his respective requests to be awarded the custody or to have a joint right to custody were motivated by his wish to control the mother's decisions on the child's place of residence and, furthermore, to ensure his right of access to the child.   In this context, the Commission observes that the applicant's right to access was first settled in the proceedings before the Düsseldorf Court of Appeal in April 1983 and is again at issue in proceedings still pending before the Düsseldorf District Court.   The Commission finds no indication that the custody decisions so far taken were not based on due consideration of the interests of the child.           The Commission is therefore satisfied that the interference with the applicant's right to family life, namely the denial of custody, was justified under Article 8 para. 2 (Art. 8-2) of the Convention as necessary for the protection of the health and future well-being of the applicant's daughter.           It follows that the complaint concerning the German courts' decisions on custody is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant complains under Article 6 para. 1 (Art. 6-1) of the allegedly unfair and arbitrary decisions of the German courts in respect of the custody over his daughter.   He alleges in particular that the courts did not properly consider his daughter's wishes.           Insofar as those complaints relate to the substance of the domestic decisions the Commission refers to its above findings under Article 8 (Art. 8) of the Convention.           Insofar as they concern the domestic proceedings before the Düsseldorf District Court and the Düsseldorf Court of Appeal the Commission observes in particular that in the proceedings before the District Court the applicant himself submitted that his former wife should take care of their child and that he did not intend to have her in his own household.   He did not request that his daughter be heard. The Commission finds that there is nothing in the case file to indicate that the applicant, who was represented by a lawyer, could not properly present his case or that the Courts conducted the proceedings in an unfair manner.           The Commission does not, therefore, find any appearance of a violation of the rights set forth in Article 6 para. 1 (Art. 6-1) of the Convention in the proceedings before the District Court and the Court of Appeal.   It follows that in this respect the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicant also complains under Article 6 para. 1 (Art. 6-1) of the Convention of the alleged unfairness of the proceedings before the Federal Constitutional Court.           However, the Commission notes that under Section 93 (a) of the Federal Constitutional Court's Act (Bundesverfassungsgerichtsgesetz) a constitutional complaint must be formally accepted for an examination by the court as to the admissibility and merits of the complaint.   The Commission is of the opinion that when a group of three judges of the Federal Constitutional Court determines, in a preliminary examination, whether or not a constitutional complaint is admissible, it does not take a decision relating to "civil rights and obligations" or to a "criminal charge".   It follows that Article 6 para. 1 (Art. 6-1) of the Convention does not apply to the proceedings in which a group of three judges of the Federal Constitutional Court refused to accept the applicant's constitutional complaint.           This part of the application is thus incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.       Moreover, the applicant invokes Article 3 (Art. 3) of the Convention in respect of the above complaints.   However, the Commission finds no appearance of a violation of this Article.   It follows that this aspect of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission               President of the Commission                   (H.C. KRUGER)                            (C.A. NØRGAARD)