CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 avril 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. 13626/88                       by Gerd-Arnold RIESLE                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 14 April 1989, the following members being present:                 MM. F. ERMACORA, Acting President                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS              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 17 January 1988 by Gerd-Arnold Riesle against the Federal Republic of Germany and registered on 23 February 1988 under file No. 13626/88;           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 Hannover.   He is an engineer by profession.           In 1984 the applicant was involved in divorce proceedings before the Hannover District Court (Amtsgericht) including the question of custody over the spouses' son born in 1981.   In these and the following proceedings the applicant was represented by counsel.           On 1 August 1984 the spouses agreed in a friendly settlement before the District Court that, should the right of custody be granted to the child's mother, the applicant would have a right of access to his son every week-end.   On 3 August 1984 the Hannover District Court granted the right of custody to the child's mother.           On 5 October 1984 the Hannover District Court cancelled the spouses' agreement of 1 August 1988.   The applicant's right of access to his child was reduced to the last week-end of every month.   The Court found in particular that, having regard to the progressive strain on the spouses' relations, the previous extensive right of access endangered the child's well-being.           On 28 October 1985 the Hannover District Court, in injunction proceedings, provisionally suspended the applicant's right of access to his child on the ground that criminal proceedings had been pending against the applicant on charges of attempted instigation to murder his wife.   The District Court noted that, although the Hamburg Regional Court (Landgericht) had acquitted the applicant, it had stated in its judgment of 20 August 1985 that he had seriously talked with two persons about killing his wife.           On 2 October 1986 the Celle Court of Appeal (Oberlandes- gericht), in appeal proceedings following the spouses' divorce, finally granted the right to custody over the child to his mother. The Court of Appeal referred in particular to a psychological expert opinion of 25 May 1986.   Furthermore, the Rapporteur of the Court of Appeal had heard the child on 26 September 1986.   The Federal Constitutional Court (Bundesverfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) about the custody decision on 3 December 1986.           On 12 February 1987, in the main proceedings concerning the right of access, the Hannover District Court, having heard the parties on 16 December 1986, suspended the applicant's right of access to his child.   The District Court, having regard to the course of the divorce proceedings and the hearing of 16 December 1986, found in particular that the applicant's behaviour was still characterised by strong negative emotions towards his divorced wife.   The Court considered that the child, in the interest of his well-being, could not be exposed to the strained relations between his parents.   Any visits would necessarily entail serious mental damage to the child.           On 25 June 1987 the Celle Court of Appeal dismissed the applicant's appeal (Beschwerde).   The Court of Appeal confirmed the District Court's decision that the applicant's right of access to his son had to be suspended under S. 1634 para. 2 of the Civil Code (Bürgerliches Gesetzbuch) in the interest of the child's well-being. The Court of Appeal, having regard to the psychological expert opinion of 25 May 1986, considered that the child's further development, in particular as regards emotional relations, would suffer from any contacts with his father exposing him to the strained relations between his parents.   It observed that the spouses' problems had increased following the criminal proceedings against the applicant on the charge of attempted instigation to murder his wife.   It noted that according to the judgment of the Hamburg Regional Court of 20 August 1985 the applicant was acquitted on the ground that, although he had intended to have her killed, his preparations had not yet reached the stage of attempt punishable under German criminal law. Furthermore, the Court of Appeal considered that, in the circumstances of the present case, no further expert opinion was necessary as in 1986 the opinion of the psychological expert had been carefully and adequately prepared.   Moreover it had not been necessary to hear the child a second time.   The child's alleged wish to visit and play with the applicant would not alter the result that, in the child's well- understood interests, the applicant's right of access had to be suspended.           On 24 September 1987 the Federal Constitutional Court refused to admit the applicant's constitutional complaint on the ground that it offered no prospect of success.   The Constitutional Court found in particular that disputes between divorced parents concerning the right of access had to be determined in the light of their basic rights. However, the interests of the child's well-being always had to prevail.   The courts could, therefore, suspend the right of access of the parent who had not been granted custody in accordance with S. 1634 para. 2 of the Civil Code.   The impugned decisions in the present case had obviously been taken in the interests of the child's well-being and could not be objected to under constitutional law.   COMPLAINTS   1.       The applicant complains in his own name and on behalf of his son that the German court decisions suspending his right of access to his son violate the right to respect for his family life with the meaning of Article 8 of the Convention.   He submits that the court decisions were incorrect.   In particular, the Court of Appeal had failed to hear his son and properly to take his son's wishes into account.   His divorced wife would not properly take care of the child, and even ill-treated him.   The applicant also invokes Articles 5, 6, 7, 11, 12 and 13 of the Convention and Article 2 of Protocol No. 1 to the Convention.   2.       The applicant complains under Article 6 of the Convention that the reasoning in the Celle Court of Appeal's decision of 25 June 1987 violated the presumption of innocence.     THE LAW   1.       The applicant complains, in his own name and on his son's behalf, about the decisions of the Hannover District Court of 12 February 1987 and the Celle Court of Appeal of 25 June 1987 suspending his right of access.           In principle, only 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.         In the present case, the right of custody over the child was awarded to the applicant's wife after the dissolution of their marriage.           The question, therefore, arises whether in these circumstances the applicant is able to complain about the German courts' decisions on the suspension of his right of access also on behalf of his son (cf. mutatis mutandis No. 10812/84, Dec. 11.76.85 - 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 examined the applicant's complaints about the German court decisions in 1987 suspending his right of access to his son in the light of Article 8 (Art. 8) of the Convention which reads:   "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 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 suspend the applicant's right of access to his son interfered with the applicant's right to respect for his family life under Article 8 para. 1 (Art. 8-1) of the Convention.   The Commission therefore has to examine whether this interference was justified under the terms of Article 8 para. 2 (Art. 8-2).           The Commission observes that the German courts' decisions to suspend the applicant's right of access to his son were taken under 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) of the Convention.           Furthermore, the Commission finds that the Hannover District Court and the Celle Court of Appeal, which had already acted in the applicant's divorce and custody proceedings, carefully examined the issue of the applicant's access to his son in their decisions of 12 February and 25 June 1987, respectively.   In particular, the Celle Court of Appeal, having regard to a psychological expert opinion, the statements of the child in a hearing in September 1986 as well as the findings in the criminal proceedings against the applicant on charges of attempted instigation to murder his divorced wife, found that the child's future well-being would suffer from any contacts with his father.           In these circumstances the Commission is satisfied that the decisions to suspend the applicant's right of access to his child were based on due consideration of the interests of the child.         The Commission therefore finds that the interference with the applicant's right to respect for his family life, namely the suspension of his right of access, 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 son.           It follows that the complaint concerning the German courts' decisions on the applicant's right of access to his son 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 Convention about the proceedings before the Celle Court of Appeal in 1987.   He submits in particular that the Court of Appeal failed to hear his son again and to respect his 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.           As regards the domestic proceedings in 1987 before the Hannover District Court and the Celle Court of Appeal the Commission finds no indication that the applicant, who was represented by a lawyer, could not properly present his case or that the proceedings were otherwise unfairly conducted.           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 the application, in this respect, is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       Furthermore, the applicant complains that the reasoning of the Celle Court of Appeal, in its decision of 27 June 1987, violated the presumption of innocence under Article 6 para. 2 (Art. 6-2) of the Convention. However, the Commission finds that, even assuming that the applicant exhausted the domestic remedies within the meaning of Article 26 (Art. 26) of the Convention, the Court of Appeal's reasoning did not amount to a finding of guilt, but only contained a reference to the findings of the Hamburg Regional Court in its judgment of 20 August 1985.   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           Deputy Secretary to the Commission   Acting President of the Commission               (J. RAYMOND)                           (F. ERMACORA)