CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 juin 1996

.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. 26283/95                       by Göran FRESE                       against Germany        The European Commission of Human Rights (First Chamber) sitting in private on 26 June 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 2 September 1994 by Göran FRESE against Germany and registered on 24 January 1995 under file No. 26283/95;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;          Having deliberated;        Decides as follows:   FACTS        The applicant, born in 1961, is a German national and resident at Groß Jehser.   He is a parson by profession.   In the proceedings before the Commission, he is represented by Mr. G. Rixe, a lawyer practising in Bielefeld.        The facts of the case, as they have been submitted by the applicant, may be summarised as follows.   A.    Particular circumstances of the case        In 1992 the applicant's wife instituted divorce proceedings before the Pasewalk District Court (Amtsgericht), claiming that the marriage had broken down.   She requested the right to custody of the spouses' twin sons, born in wedlock in 1989.   The applicant requested that the right to custody should be exercised by both parents.   In April 1993, they reached an agreement in court as regards the applicant's right of access to the children.        On 14 June 1993 the Pasewalk District Court granted the divorce and transferred the right of custody of the sons to the mother.   The Court, following both the mother's request and a report of the Pasewalk Youth Office, found that this decision was in the best interests of the children's well-being.        In its decision, the District Court noted that, as conceded by the applicant, the children had a close and intensive relationship with their mother who had taken care of them since their birth, and in particular, after the separation of the spouses.   The applicant had also agreed with the findings of the Youth Office that the children were properly taken care of by the mother.   There were no doubts as to the capability of the mother to educate the children and to assist and support them as regards their speech impediments.   As to the applicant's request, the Court considered that the right to custody could not be exercised by both parents.   The Court observed that the children had good relations with their father who, having regard to his personality and profession was in a position to assist the mother in her efforts to support the children.   However, the applicant's wife was not prepared to share the exercise of the right to custody with the applicant on account of the conflicting views as to the education of the children and the applicant's psychological problems following the spouses' separation.   In these circumstances, it could not be expected that the spouses would take a uniform attitude towards the children.        In these and the following proceedings, the applicant was represented by counsel.        On 8 July 1993 the applicant lodged an appeal against the custody decision with the Rostock Court of Appeal (Oberlandesgericht).   He submitted that he wished actively to further the children's development, in particular as regards their speech impediments and that there were only few problems regarding the spouses' views on the children's education.   Moreover, he had overcome his problems following their separation.        On 14 July 1993 the applicant's former wife commented on the applicant's appeal.   She repeated her refusal regarding a joint exercise of the right to custody and claimed that the conflicting views on the children's education persisted.   Moreover, referring to the applicant's correspondence with her and his conduct in the course of the hearing at first instance, she claimed that the applicant continued to be psychologically unstable.        On 29 September 1993 the Rostock Court of Appeal dismissed the applicant's request for free legal aid for the purposes of the appeal proceedings.   His former wife was granted legal aid.   In its decision, the Court of Appeal found that the applicant's appeal offered no prospects of success.   The Court confirmed the findings of the District Court that, taking the mother's refusal into account, the right of custody could not be exercised by both parents following their divorce. It referred, in this respect, to the relevant case-law of the Federal Constitutional Court according to which such a decision required an agreement between the parents on the joint exercise of the right of custody.   Having regard to the statements of the parents at the hearing at first instance as well as the former wife's submissions to the Court of Appeal (Vorbringen in der Beschwerdeinstanz), her doubts as to the applicant's capability to cooperate with regard to the children's education were obvious.        By letter of 30 September 1993 the applicant's counsel was requested to indicate whether the applicant wished to pursue his appeal.   On 4 November 1993 his counsel informed the Court that he upheld his appeal and that he intended to amend his submissions.   In reply, the Court of Appeal informed him that it was envisaged to decide upon the appeal without hearing the parties again.        On 21 December 1993 the Rostock Court of Appeal dismissed the applicant's appeal 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 children's well-being and thus complied with S. 1671 paras. 1 and 2 of the German Civil Code (Bürgerliches Gesetzbuch).        The Court of Appeal noted the findings of the District Court and the parties' arguments.   The Court considered in particular that both parties agreed that they were capable of educating the children, and in a position to take care of them.   In the course of the hearing at first instance, the applicant had stated that the marriage had broken down due to the conflicting opinions on the education of their children which had resulted in his having psychological problems.   The agent of the Pasewalk Youth Office had raised doubts as to a joint right of custody on the grounds of the divisions between the parents and the impression that they had not yet overcome all consequences of the divorce proceedings.   Moreover, at that hearing, the parties had agreed that their children should, as a rule, stay with their mother.        In these circumstances, the Court of Appeal, taking into account the mother's refusal, confirmed the District Court's decision to refuse a joint right of custody.   The Court of Appeal, referring to the case- law of the Constitutional Court, found that parents could only educate their children together if they were willing to cooperate in this respect.   Such cooperation could not be enforced by any state measures. However, the applicant himself had conceded conflicting views on the education of the children, and the mother's comments on his appeal, whether or not her apprehensions regarding the applicant were correct, showed that she was not prepared to exercise a joint right to custody.           On 19 March 1985 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde).        The Constitutional Court considered that the applicant's complaint did not raise any issue of fundamental importance, in particular as regards the refusal of a joint right to custody.   In this respect the Constitutional Court found that the Courts concerned had taken the particular circumstances of the case into account, in particular the District Court's opinion that on account of the parents' controversial opinions on the education of their children no joint right to custody could be granted.        Furthermore, the Constitutional Court found that the court decisions that the conditions for granting a joint right of custody were not met in the instant case did not disregard the parental rights.        To the extent that the applicant's submissions related to the proceedings before the Court of Appeal, the Constitutional Court declared his complaints inadmissible for non-exhaustion of the remedies in the proceedings concerned.   Thus the Court of Appeal's decision on the question of legal aid indicated that the applicant's former wife had filed submissions in reply to his appeal and informed him on the prospects of success of the appeal.   He could have, therefore, requested the Court of Appeal to serve the submissions concerned upon him and he could have subsequently filed any further comments. Moreover, the Court of Appeal had informed him that it did not intend to hear the parties again.   It would have been for the applicant to amend his appeal reasoning and to argue that the hearing of the parties was necessary.        This decision was received by the applicant's counsel on 13 March 1994.   B. Relevant domestic law and practice        S. 1671 paras. 1 and 2 of the Civil Code provide as follows:        "(1)   In case of the parents' divorce the competent court      (Familiengericht) decides on which parent should have the right      to custody a common child.        (2)    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."        In a decision of 3 November 1982, the Federal Constitutional Court declared unconstitutional paragraph 4, first sentence, of S. 1671, according to which the right to custody had to be transferred to one of the parents in case of divorce.   The Constitutional Court considered that a joint right to custody was possible in case of divorce if there is a common proposal by the parents to this effect, showing their willingness to share the responsibility for their child after their divorce.   COMPLAINTS   1.    The applicant complains, in his own name and also on behalf of his sons, that the German court decisions awarding the right of custody over their sons to his former wife, thereby refusing his request for a joint right of custody, violated their right to respect for their family life, as guaranteed by Article 8 para. 1 of the Convention.   He considers that a common proposal by the divorced spouses should not be a condition for the granting of a joint right of custody after divorce. He also complains that the courts did not fully establish the relevant facts necessary for a decision on the right of custody over the children; in particular, neither court heard the children and the Court of Appeal did not hear the parties.   2.    The applicant complains under Article 14, taken in conjunction with Article 8, of the Convention that the German courts, in requiring a common proposal of the parents, discriminate against one of the divorced spouses.   3.    The applicant further complains under Article 6 para. 1 of the Convention that the custody proceedings were unfair.   He submits in particular that the children were not heard, and that the Court of Appeal omitted a new hearing of the parties.   Moreover, his former wife's submissions of 14 July 1993 had not been served upon him.   THE LAW   1.    The applicant has filed the application in his own as well as in his sons' name.        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 (No. 12246/86, Dec. 13.7.87, D.R. 53 p. 225).   In the present case, the right to custody over the applicant's sons was awarded to his former wife.    However, the Commission is not required to decide whether or not the applicant is able to lodge his complaints concerning the German courts' decisions on the grant of custody, and the court proceedings, also on behalf of his sons, as the application is anyway inadmissible for the following reasons.   2.    The Commission has first examined the applicant's complaints, in respect of the court decisions on the right of custody, under Article 8 (Art. 8) of the Convention.        Article 8 (Art. 8), so far as relevant, provides as follows:        "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.   Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A no. 138, p. 14, para. 21).        The Commission finds that the German courts' decisions awarding the right of custody over the spouses' children solely to their mother 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 finds that the German courts' decisions to grant the custody over the applicant's sons to his former wife were taken in accordance with S. 1671 paras. 1 and 2 of the German Civil Code in the light of the case-law of the Federal Constitutional Court.   The applicant's submissions do not show that this legal basis was not adequately accessible or that it was not formulated with sufficient clarity.   The interference at issue was, therefore, in accordance with the law within the meaning of Article 8 para. 2 (Art. 8-2).        The Commission further considers that the impugned custody decisions had a legitimate purpose under paragraph 2 of Article 8 (Art. 8-2), namely the protection of the rights of the children concerned.        As regards the question whether the interference complained of was "necessary in a democratic society", the Commission recalls that the Contracting States enjoy a certain margin of appreciation in assessing whether such a need for an interference exists, but it goes hand in hand with European supervision (see, Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A no. 138, p. 15, para. 128; Funke judgment of 25 February 1993, Series A no. 256-A, p. 24, para. 55).        The Commission observes at the outset that the impugned custody decisions were taken in the context of the parents' divorce with a view to determining the best solution for their children's future upbringing and education.        In the present case, the issue before the German courts was whether or not the divorced spouses should be granted a joint right of custody, as requested by the applicant, or, whether, as requested by his former wife, the right of custody should be transferred to her alone.   The applicant had not requested that he should be granted the sole right of custody.   The Commission notes the findings of the German courts that the transfer of the right of custody to the mother was in the best interests of the children concerned.   The Courts relied in particular on reports of the competent Youth Office and on the divorced spouses' statements.   The Commission finds no indication that the custody decisions were not based on due consideration of the interests of the children.   In particular, their refusal of a joint right of custody was not merely reasoned by the attitude of the applicant's former wife, but by the spouses' past differences as to the education of the children which, according to the applicant's statements in the proceedings at first instance, had resulted in their separation and divorce.   Against this background, the reasons for the impugned decisions were both relevant and sufficient.        Moreover, as to the procedural requirements implicit in Article 8 (Art. 8) (cf. Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130, p. 33, para. 71), the Commission finds that the applicant, assisted by counsel, was involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests.        As regards his specific complaints about the course of the court proceedings, the Commission notes that the applicant failed to raise the issue of whether the children should have been heard before the domestic courts.   Moreover, as regards his complaints that the Court of Appeal failed to serve a relevant document on him and further failed to hear the parties, the Commission notes that the Federal Constitutional Court, in its decision of 7 March 1993, refused to examine these matters on the ground that the applicant had failed to have recourse to all procedural remedies.   Thus, while, following the Court of Appeal's decision refusing his request for legal aid, he had been aware of the existence of submissions in reply to his appeal, he had not asked for a copy of these submissions.   Furthermore, despite the Court of Appeal's information that it intended to render a decision without again hearing the parties, he had not insisted upon such a hearing and submitted relevant reasons therefor.   In this situation, the Commission, in accordance with Article 26 (Art. 26) of the Convention, is not required to examine these arguments.        In these circumstances the German authorities did not exceed their margin of appreciation when deciding to transfer the right of custody over the divorced spouses' sons to their mother. Consequently, there is no appearance of a breach of Article 8 (Art. 8).        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 that the court decisions to grant the right of custody to his former wife amount to discrimination contrary to Article 14, in conjunction with Article 8 (Art. 14+8), of the Convention.        The Commission, referring to its above findings under Article 8 (Art. 8) of the Convention, considers that the impugned court decisions were based on a careful examination of the particular circumstances of the instant case.   There is nothing in the case-file to disclose any difference of treatment on the ground of sex or of any other status.        It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).   3.    As regards the applicant's complaints under Article 6 (Art. 6) of the Convention about the alleged unfairness of the proceedings, the Commission refers to its above reasoning regarding the procedural requirements implicit in Article 8 (Art. 8).   The Commission finds that, to the extent that it is required to examine the applicant's complaints, in accordance with Article 26 (Art. 26), there is nothing to indicate that the court proceedings were in breach of Article 6 para. 1 (Art. 6-1).   This part of the application is, therefore, also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)