CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 mars 1989

.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. 13776/88                       by H.I.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 14 March 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   J. RAYMOND, Deputy 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 13 May 1987 by H.I. against the Federal Republic of Germany and registered on 19 April 1988 under file No. 13776/88;           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 D..   He is a businessman by profession.           The applicant's previous application (No. 12246/86) was declared inadmissible on 13 July 1987.   It concerned the applicant's divorce proceedings before the Düsseldorf District Court (Amtsgericht) in 1982/83 and theDüsseldorf Court of Appeal (Oberlandesgericht) in 1984, in the course of which the right to custody over the spouses' daughter, born in 1978, was granted to the mother.           On the basis of a settlement between the spouses of 20 April 1983 the applicant had a right of access to his daughter on the second and fourth Saturday of every month.   Until 25 February 1984 the applicant had regular contacts with his daughter.   In March 1984 the mother refused contacts between the applicant and their child, and moved from D. to Frankfurt.           On 27 September 1984, the applicant instituted proceedings before the Frankfurt District Court concerning his right of access to his daughter.   The District Court ordered reports from the D. and the Frankfurt Youth Offices (Jugendämter) and, following unsuccessful injunction proceedings in December 1984, it held a hearing in the main proceedings in February 1985.           On 15 March 1985, at a second hearing before the District Court, the parents agreed upon two meetings between the applicant and his daughter on 30 March and 27 April 1985.   The mother cancelled the meeting in March.   Following the meeting on 27 April 1985 in Frankfurt the child was heard by the District Court on 29 April 1985.   She refused further meetings with her father and confirmed this refusal at the hearing on 5 May 1985.   The District Court therefore ordered a psychological expert opinion as regard the applicant's right of access to his daughter.   His right of access was provisionally suspended.           On 28 May 1986 the District Court, having heard the parties upon the expert opinion of 26 February 1986, ordered a supplementary psychological expert opinion from an institute specialised in family therapy as regards the question whether and, if so, how the applicant could be granted access to his daughter.   The Court found in particular that the first opinion showed positive elements in the parents' relationship which might render an agreement in this respect possible, but had not sufficiently examined this aspect of the case.   The second expert opinion was delivered on 17 December 1986.   The expert stated in particular that the mother had no longer been willing to cooperate in the preparation of the opinion.           On 11 March 1987 the Frankfurt District Court decided to suspend sine die the applicant's right of access to his daughter.   The Court suggested that he reduce progressively the strain on his relations with his divorced wife by taking up employment and paying his daughter's alimony; his contacts with his daughter ought to be restricted to correspondence.   Furthermore, the Court decided that the matter should not be reviewed before the expiry of five years.         The District Court found in particular that, after proceedings of two and a half years with two psychological expert opinions, the minimum of harmony between the parents which would be necessary to grant the applicant access to his daughter could not be established. The right of access ought to be excluded in order to terminate the disputes between the parents in the interest of the child's well-being.   In the future, the applicant should terminate all litigations with his divorced wife, reduce the tensions in their relations and resume his duties as a father.   After the expiry of the period of five years fixed for a review, the child would have reached a new stage in her development, a circumstance which might allow a new decision in this case.           Proceedings concerning the right of access to his child of the parent who does not have the right to custody are, inter alia, governed by the Non-Contentious Proceedings Act (Gesetz über die Angelegenheiten der Freiwilligen Gerichtsbarkeit).   S. 12 of the Non-Contentious Proceedings Act provides that the competent court has to establish the facts ex officio.           On 28 August 1987 the Frankfurt Court of Appeal dismissed the applicant's appeal (Beschwerde).   The Court, having heard the applicant, his divorced wife and his daughter as well as the competent Youth Offices, considered that the applicant's right of access to his daughter had to be suspended under S. 1634 para. 2 of the German Civil Code (Bürgerliches Gesetzbuch) in the interests of the child's well-being.   The Court found in particular that, due to the parents' bad relationship, a right of access might lead to further disputes harming the child.   It had, therefore, been necessary to adopt a solution by which the child would be removed from the centre of conflict between her parents for a long period.           On 19 October 1987 the Frankfurt Court of Appeal declared the applicant's request for leave to appeal (Antrag auf Zulassung der weiteren Beschwerde) inadmissible.   On 25 November 1987 the Federal Court of Justice (Bundesgerichtshof) declared the applicant's further appeal (Nichtzulassungsbeschwerde) inadmissible.           On 12 November 1987 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) about the refusal of access to his daughter and the length of the court proceedings concerned on the ground that it offered no prospect of succes.   The Constitutional Court found in particular that the rights of parents are to be exercised in the interest of their children's well-being.   The contested suspension of the applicant's right of access to his daughter appeared to be necessary and reasonable in the interest of her development.   The District Court's decision that there should be no review before the expiry of five years set a time-limit to the provisional suspension.   However, it did not prevent the applicant from instituting new proceedings alleging changed circumstances.           Furthermore, on 17 March 1987 the Frankfurt District Court dismissed the applicant's request dated 2 February 1987 to transfer the right of custody to both parents.   The applicant had already unsuccessfully lodged such a request in the divorce and custody proceedings in 1983, which were the subject of his previous application before the Commission.   His appeal and constititional complaint remained unsuccessful.         Moreover, on 1 November 1988 the Frankfurt District Court dismissed the applicant's request for free legal aid to institute new proceedings concerning his right of access to his daughter.   The Court found that his proposed action offered no prospect of success as he had failed to show a change in the relevant circumstances of the case.   His appeal was dismissed by the Frankfurt Court of Appeal on 14 December 1988.   On 30 January 1989 the Frankfurt District Court dismissed the applicant's renewed request to change the decision of 11 March 1987.   It found again that the applicant had not shown any change in the circumstances, in particular the relationship with his divorced wife.     COMPLAINTS   1.       The applicant complains under Article 8 para. 1 of the Convention that the German court decisions suspending his right of access to his daughter violate his right to respect for his family life.   He submits in particular that the suspension of his right to access was disproportionate and constitutes inhuman and degrading treatment within the meaning of Article 3 of the Convention.   He also refers to Article 14 of the Convention.   2.       Furthermore, the applicant complains under Article 6 para. 1 of the Convention that the District Court's decision of 11 March 1987, insofar as it excludes a review before the expiry of five years, denies his right of access to court.   3.       The applicant complains under Article 6 para. 1 of the Convention about the length of the proceedings before the Frankfurt District Court and Court of Appeal concerning his right of access.   4.       Moreover the applicant complains under Articles 3, 6 para. 1, 8 and 14 of the Convention about the German court decisions not to grant the divorced parents a joint right of custody.     THE LAW   1.       The applicant complains that the decisions of the Frankfurt District Court of 11 March 1987 and the Frankfurt Court of Appeal of 28 August 1987 suspending his right of access to his daughter violate his right to respect for his family life under Article 8 (Art. 8) of the Convention.   He also invokes Articles 3 and 14 (Art. 3, 14) in this respect.           Article 8 (Art. 8) of the Convention provides:   "1.       Everyone has the right to respect for his private and family life, his home and his correspondence.   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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."         The Commission recalls that, in its decision of 13 July 1987 on the admissibility of the applicant's previous application No. 12246/86, the German court decisions to grant the custody over his daughter after divorce to his former wife were found to be 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.           In the present case concerning ensuing court proceedings, the Commission finds that the contested court decisions to suspend sine die the applicant's right of access to his daughter, again interfered with his right to respect for his family life under Article 8 para. 1 (Art. 8-1) However, this interference was justified under Article 8 para. 2 (Art. 8-2) of the Convention.           The Commission observes that the German court decisions concerned were taken in accordance with S. 1634 para. 2 of the German Civil Code and, therefore, in accordance with the law within the meaning of Article 8 para. 2 (Art. 8-2).   Furthermore, the Commission finds that the Frankfurt District Court as well as the Frankfurt Court of Appeal, having heard the parties, the competent Youth Offices and, in particular, having considered two psychological expert opinions, carefully examined the issue of the applicant's access to his daughter.   The Commission finds no indication that the decisions to suspend his right of access for a considerable period were not based on due consideration of the interests of the child.           Moreover, the applicant's submissions in this respect do not disclose any appearance of a violation of Articles 3 and 14 (Art. 3, 14) of the Convention.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains under Article 6 para. 1 (Art. 6-1) of the Convention that the Frankfurt District Court's decision of 11 March 1987 denies his right of access to court under Article 6 para. 1 (Art. 6-1) of the Convention in that it excludes a review of the decision for a period of five years.           Article 6 para. 1 (Art. 6-1), first sentence of the Convention provides:       "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."           The Commission notes that the Frankfurt District Court excluded a review of its decision of 11 March 1987 in order to remove the applicant's daughter for a long period from the centre of conflict between her parents.   The Federal Constitutional Court considered this ruling to be a time-limit for the provisional suspension of the applicant's right of access which did not prevent him from instituting new proceedings in view of changed circumstances.   In fact, the Frankfurt District Court, in its decision of 1 November 1988 upon the applicant's request for free legal aid, did not consider the envisaged action to have his right of access to his daughter re-examined as barred by the decision of 11 March 1987 and on 30 January 1989 the District Court considered the merits of the applicant's request to change the decision of 11 March 1987.           In these circumstances, the Commission finds that the applicant was not deprived of access to court contrary to Article 6 para. 1 (Art. 6-1) of the Convention.           It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant moreover complains under Article 6 para. 1 (Art. 6-1) of the Convention that the Frankfurt District Court and the Frankfurt Court of Appeal did not decide upon his request for access to his daughter within a reasonable time.           The Commission notes that the proceedings were instituted before the Frankfurt District Court on 27 September 1984 and that the Frankfurt Court of Appeal rendered its decision on 28 August 1987. Thus the proceedings lasted about two years and eleven months, of which two and a half years were spent at first instance.           The Commission recalls that issues releating to divorce and family matters have to be determined particularly speedily (B. v. the Federal Republic of Germany, Comm.   Report of 13.11.87, paras. 113/114).           In the present case, the Commission finds that the issues before the Frankfurt District Court were complicated as to the facts, in particular due to the problems and disputes between the divorced spouses, which had progressively developed since the earlier divorce and custody proceedings.           The Commission considers that the tensions in the parents' relations had also an impact on their conduct in the proceedings.   In particular, according to the second expert opinion of December 1986, the proceedings were delayed by the mother who was no longer willing to cooperate in the preparation of that opinion.           The District Court, in accordance with S. 12 of the Non-Contentious Proceedings Act, was obliged to establish the relevant facts in order to find a solution in the interests of the child which had due regard to both parents' interests.   Thus, the District Court had to take evidence from two psychological expert opinions in order to establish the relations between the parties and the child in view of the requested right of access.   It does not appear from the applicant's submissions that any unnecessary delays occurred in the course of these proceedings for which the Frankfurt District Court could be held responsible, and that he had taken appropriate steps to accelerate the proceedings.           Consequently, the applicant's complaint about the length of the proceedings concerning his right of access is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       Finally, the applicant's complaints under Articles 3, 6, 8 and 14 (Art. 3, 6, 8, 14) of the Convention about the German court decisions to dismiss his renewed request for a joint right of custody over his daughter do not disclose any appearance of a violation of the Convention.   It follows that this part of the application is also 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       Deputy Secretary to the Commission       President of the Commission               (J. RAYMOND)                            (C. A. NØRGAARD)