CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1998

.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. 28422/95                       by Peter HOPPE                       against Germany        The European Commission of Human Rights (First Chamber) sitting in private on 14 January 1998, the following members being present:              MM    M.P. PELLONPÄÄ, President                 N. BRATZA                 E. BUSUTTIL                 A. WEITZEL                 C.L. ROZAKIS            Mrs   J. LIDDY            MM    L. LOUCAIDES                 B. MARXER                 B. CONFORTI                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL                 M. VILA AMIGÓ            Mrs   M. HION            Mr    R. NICOLINI              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 27 July 1995 by Peter HOPPE against Germany and registered on 4 September 1995 under file No. 28422/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      8 October 1996, the observations in reply submitted by the      applicant on 18 December 1996 and his further submissions on      3 March, 29 April and 23 September 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1957, is a German national and resident in Wuppertal.   A.    Particular circumstances of the case        The facts of the case, as they have been submitted by the parties, may be summarised as follows.   a)    Factual background        In December 1992 the applicant and his wife separated.   The spouses' daughter Svenja, born in wedlock in April 1990, stayed with her mother.   In 1994 the applicant's wife instituted divorce proceedings before the Wuppertal District Court (Amtsgericht), claiming that the marriage had broken down.   She requested that custody of Svenja be granted to her.   The applicant requested that custody should be exercised by both parents.   Furthermore, the applicant requested that his right of access to Svenja be determined by court decision. In these and the related proceedings, both spouses were represented by counsel.   b)    The applicant's right of access        On 19 October 1994 the Wuppertal District Court, following hearings on 22 June and 17 October 1994, decided that the applicant was entitled to see Svenja every second Saturday as well as on Boxing Day, Easter Monday and Whit Monday.   The District Court referred to S. 1634 of the Civil Code (Bürgerliches Gesetzbuch).        In its decision, the Court noted that the applicant had previously seen Svenja twice a week, until her mother, on account of Svenja's behaviour, had reduced their contacts.   Thereupon, the applicant had requested a right of access during one day at the week- end and between Wednesday afternoon and Thursday morning.   Svenja's mother had agreed to a right of access every second Saturday.   The Court found that, having due regard to the child's well-being, the applicant's right to see Svenja had to be arranged accordingly so that they could preserve their relationship.        As regards the frequency of visits, the Court noted that all experts heard in the proceedings, i.e. the psychological expert (report of 14 June 1994), the therapeutic pedagogue and a social worker of the Barmen Diaconate Institution (Diakonisches Werk), had stated that the four-year-old child was exposed to a conflict of loyalty, which she experienced as a strong pressure, and that she could not cope with this situation.   While it was true that Svenja was fond of the applicant and would be in a position to see him without fear if her parents managed to create an atmosphere which took the pressure off her, they had not been able to do so.   The frequency of visits as requested by the applicant could not, for the time being, be handled by Svenja.   It appeared that the applicant, for personal reasons, could not agree to a limited access.   Moreover, Svenja's mother had not yet managed to give her such a feeling of security as to permit Svenja to visit the applicant without feelings of fear.   Svenja therefore needed the intervals of two weeks as times of rest in her mother's household.        On 4 November 1994 the applicant lodged an appeal with the Düsseldorf Court of Appeal (Oberlandesgericht).        On 24 November 1994 the Court of Appeal informed the parties of its intention to decide in a written procedure.   The applicant stated his preference for an oral hearing.        On 9 March 1995 the Düsseldorf Court of Appeal granted the parties legal aid for the purposes of the applicant's appeal proceedings against the decision on his right of access.   Moreover, upon the applicant's appeal, the Court of Appeal amended the District Court's decision to the effect that every first visiting weekend per month the applicant was entitled to see Svenja from Saturday morning until Sunday evening.   The remainder of his appeal was dismissed.        The Court of Appeal confirmed the findings of the District Court according to which a regular visit every second week best suited the child's well-being.   In this respect, the Court of Appeal had particular regard to the parents' controversial relations and their impact on the child.   Thus the parents were not yet in a position to have a calm discussion on questions relating to the right of access. Lately, on 21 February 1995, the attempt of a conversation between the parents at the Parents Counselling Service (Elternberatungsstelle) of the local Youth Office (Jugendamt) had failed.   As long as there was no agreement between the parents, any visit was an emotional strain for the child.   The applicant's right of access had to be arranged in view of the continuing conflict between the parents.        In the particular circumstances, the regular visits as decided upon by the District Court best suited both the applicant's wishes as well as the child's well-being.   In this respect, the Court of Appeal noted that the exercise of this right of access had functioned well since October 1994.   In particular, the child had meanwhile calmed down and her sleep was no longer troubled.   The Court of Appeal, in agreement with the parties, further considered the report, dated 19 January 1995, of a social worker of the Elberfeld Diaconate Institution, which had been obtained in the context of the parallel custody proceedings.   According to this report, particularities in Svenja's behaviour had no longer been observed.   The Court of Appeal found that this encouraging development did not yet allow for a significant extension of the applicant's right of access.   However, taking a cautious approach, the visit on the first weekend of every month could be extended to include one stay over night.   Having regard to the psychological expert opinion of 14 June 1994, the objections previously raised by Svenja's mother were no longer valid.   Should she experience any problems, she would have to see to it that Svenja came to regard the visits with a stay over night as a usual matter.   Any further contacts, including a stay over night between every Wednesday and Thursday, routine telephone conversations and common holidays, were not yet possible, but could be envisaged in case that the then decision on access proved successful.        On 13 June 1995 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 accordance with the case-law of the Constitutional Court, both the right of access of a parent not entitled to custody as well as the right of custody of the other parent were protected by the right to respect for family life under the Basic Law (Grundgesetz).   The possibility, pursuant to S. 1634 para. 2 of the Civil Code, to limit or exclude the right of access, if necessary for the child's well- being, ensured that the courts' decisions on the matter were based on the child's well-being.        Furthermore, the Constitutional Court found that the Court of Appeal's decision did not disclose any fundamentally wrong views on parental rights.   Thus, the Court of Appeal had considered the child's well-being in the circumstances of the instant case.   The reasoned decision that the visits could only slowly be extended could not be objected to from a constitutional point of view.   There was no indication that the procedural requirements were not met.   In particular, the applicant had not shown that, following the failure of a conversation between the former spouses at the Parents Counselling Service, the Court of Appeal could not reach the conclusion that a fresh hearing would not permit any new findings.        On 3 April 1996 the Wuppertal District Court amended the decisions on the applicant's right of access to the effect that he was entitled to see his daughter every second weekend between Saturday morning and Sunday evening and also for a period of two weeks of summer holidays.   c)    The custody proceedings        On 24 October 1994 the Wuppertal District Court, following an oral hearing on 17 October 1994, granted a divorce and transferred custody of Svenja to her mother.        The Court, referring to S. 1671 of the Civil Code, found that its decision on custody was, for the time being, in the child's best interest.   In this respect, the Court, having regard to the statements of the psychological expert in the proceedings regarding the applicant's right of access, noted that Svenja's mother lovingly educated her and was only interested in Svenja's well-being.        As to the applicant's request for joint custody, the Court considered that the conditions for joint custody were not met.   In particular, the parents' relations with each other regarding Svenja, as well as the relations with Svenja were not free of conflicts.   The applicant did not accept that Svenja's living situation had changed following her parents' separation and found that, as a four-year-old child, she needed a stable conduct of life without being torn between different apartments and different styles of education.   The Court noted the applicant's interest in Svenja's well-being and his efforts; however, he failed to see that his wishes obstructed Svenja's psychological development.        On 12 December 1994 the applicant lodged an appeal with the Düsseldorf Court of Appeal.        On 15 December 1994 the Court of Appeal requested Svenja's mother as well as the competent Youth Office to comment on the applicant's appeal submissions.   On 19 January 1995 the Elberfeld Diaconate Institution, upon the instructions of the competent Youth Office, submitted its report.   The parties were given the opportunity to comment upon the said report in writing.   The applicant stated his preference for an oral hearing.        On 9 March 1995 the Düsseldorf Court of Appeal dismissed the applicant's request for free legal aid for the purposes of appeal proceedings against the District Court's decision of 24 October 1994, and dismissed the applicant's appeal in this respect.      The Court of Appeal observed that, following a divorce, parents could only have joint custody if they were willing to cooperate in this respect.   However, Svenja's mother was not prepared to do so.   In the proceedings regarding the applicant's right of access, which had been pending since March 1993, the parents had continuously had major disagreements, and the attempt of a conversation at the Parents Counselling Service had finally failed in February 1995.   Custody could, therefore, only be exercised by one of the parents, in this case the child's mother.   While the applicant had requested that, in the alternative, custody be granted to him, he had not raised any serious objections to the District Court's reasoning.        The Court of Appeal also considered that it could decide on the basis of the case-file without an oral hearing with the parties being necessary.        On 13 June 1995 the Federal Constitutional Court refused to admit the applicant's constitutional complaint.        The Constitutional Court considered that the applicant's complaint did not raise any issue of fundamental importance.   In this respect the Constitutional Court recalled that when courts had to decide on the transfer of custody following the parents' divorce, they had to balance the positions of both parents without encroaching upon the parental priority in educational matters.   In such cases, the courts were not, therefore, subject to the strict conditions in respect of interferences with parental rights.   The legislator and, in application of the relevant legal provisions, the courts were entitled to transfer the main responsibility for the education of a child to one parent, if the conditions for joint custody were not met.   Furthermore, the Constitutional Court found that the Court of Appeal's view that the conditions for granting joint custody were not met in the instant case could not be objected to from a constitutional point of view. Moreover, there was nothing to show that the Court of Appeal should have conducted any further inquiries.   B.    Relevant domestic law and practice        S. 1634 paras. 1 and 2 of the Civil Code, as far as relevant, provide as follows:        "(1) A parent who is not entitled to custody has the right of      access to the child.   ...        (2) The competent (family court) may decide on the extent of the      right of access and its implementation, ... The court may limit      or exclude the right of access if this is necessary in the      interest of the child's well-being."        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 over 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 was 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 daughter, that the German court decisions determining his right of access to his daughter violated their right to respect for their family life, as guaranteed by Article 8 para. 1 of the Convention.   He considers that extensive contacts as requested by him are in the interest of his daughter and were only refused because of the negative attitude of Svenja's mother.   He also complains that the courts did not fully establish the relevant facts necessary for a decision on his right of access.   He submits in particular that the Court of Appeal did not hear the parties and an expert, although he had requested such a hearing.   2.    The applicant complains under Article 14 taken in conjunction with Article 8 of the Convention that the German courts, in accepting the negative attitude of Svenja's mother, discriminated against him as Svenja's father.   3.    The applicant also complains under Article 6 para. 1 of the Convention that the proceedings regarding his right of access were unfair.   4.    Moreover, the applicant complains that the German court decisions granting custody of his daughter to his former wife and thereby refusing his request for joint custody violated his and Svenja's 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 joint custody after divorce.   He also complains that the courts did not fully establish the relevant facts necessary for a decision on the custody matter.   He submits in particular that the Court of Appeal did not hear the parties and an expert, although he had requested such a hearing.   5.    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.   6.    The applicant also complains under Article 6 para. 1 of the Convention that the custody proceedings were unfair.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 27 July and registered on 4 September 1995.        On 26 June 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 8 October 1996. The applicant replied on 18 December 1996. He made further submissions on 3 March, 29 April and 23 September 1997.     THE LAW   1.    The applicant lodges various complaints about custody and access matters in his own name and also on behalf of his daughter.        The Government submit that the applicant, who has no custody of his daughter, is not entitled to lodge complaints on her behalf.        In the applicant's view, the question of whether he should be entitled to represent his daughter is closely linked to the merits of the case.        According to Article 25 (Art. 25) of the Convention, the Commission is competent to examine an application lodged by a person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention.        The Commission recalls that in principle a parent who has custody of his or her child is able to introduce an application under Article 25 (Art. 25) of the Convention on behalf of the child.        In a previous case, the Commission accepted the mother of a child under qualified statutory guardianship as the child's representative to the extent that their complaints were identical and related to the guardianship order (No. 10812/84, Dec. 11.7.85, D.R. 53, p. 211). However, the Commission considers that the same considerations cannot apply to a legal situation where, after divorce, a parent has neither the custody or care and control of the children.   This parent cannot introduce an application on their behalf, unless especially empowered to that effect (No. 8045/77, Dec. 4.5.79, D.R. 16, p. 105; No. 28319/95, Dec. 20.5.96, D.R. 85, p. 153).        In the present case, the Commission notes that the applicant does not have custody of his daughter, custody having been awarded to the mother upon the spouses' divorce.   The applicant, therefore, is not empowered to act on his daughter's behalf on the basis of any authority over the child.   Moreover, the applicant has failed to demonstrate that he is otherwise entitled to represent his daughter with respect to this application.        Consequently, the Commission finds that the applicant is not competent under Article 25 (Art. 25) of the Convention to bring any complaints on behalf of his daughter.        It follows that this part of the application is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant complains in his own name that the German court decisions determining his right of access to his daughter, and the proceedings concerned, violated his right to respect for his family life, as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention. He also relies on Articles 6 and 14 (Art. 6, 14) of the Convention.        Article 8 (Art. 8), as far as relevant, reads as follows:        "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 in the interests      ... for the protection of the rights and freedoms of others."        Article 6 para. 1 (Art. 6-1), as far as relevant, provides:        "1.    In the determination of his civil rights and obligations      ..., everyone is entitled to a fair and public hearing ... by [a]      ... tribunal ..."        Article 14 (Art. 14) of the Convention provides:        "The enjoyment of the rights and freedoms set forth in this      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."        The Government maintain that the applicant's complaints are manifestly ill-founded.   They submit that the decisions limiting the applicant's right of access were taken in accordance with German law and were necessary in a democratic society for the protection of the child's well-being.   In particular the Courts had regard to strained relations between the parents which exposed Svenja to a conflict of loyalty.   In this respect, the District Court had heard the parents, a psychological expert as well as a social worker.   The Court of Appeal could base its decision on the first instance files, amended by the report of the Elberfeld Diaconate Institution and the parents' written submissions which confirmed the continuing conflicts between them.   In the absence of relevant new facts, the Court of Appeal had not been required to hold a hearing.   Moreover, there had been no discrimination against the applicant.        The applicant contends that extensive contacts as requested by him are in the interest of his daughter and were only refused because of the negative attitude of Svenja's mother.   In placing Svenja into a situation of loyalty conflict, she had been able to obstruct his right of access.   He also complains that the courts did not fully establish the relevant facts necessary for a decision on his right of access.   He submits in particular that the Court of Appeal did not hear the parties and an expert, although he had requested such a hearing.        The Commission considers, in the light of the parties' submissions, that the applicant's complaint about the decisions on his right of access and the proceedings concerned, in particular as far as the decision-making process is concerned, raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application.   The Commission concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.   3.    The applicant further complains that the German court decisions concerning custody of Svenja, and the proceedings concerned, violated his right to respect for his family life, as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.   He also relies on Articles 6 and 14 (Art. 6, 14) of the Convention in this respect.        The Government consider that these complaints are likewise manifestly ill-founded. They submit in particular that the interference with the applicant's right to respect for his family life was justified under paragraph 2 of Article 8 (Art. 8-2).   In a situation of conflict between the parents, the competent courts could not decide that custody be jointly exercised by them, but had to grant custody to one of them. In the present case, the daughter had been living with her mother since the separation of her parents and, for reasons of continuity, custody could only be granted to her.   Moreover, on the whole, both parents were sufficiently involved in the decision-making process.   In their view, no hearing before the Court of Appeal appeared necessary, as the main consideration had been that the strained relations between the parents did not permit joint custody.        The applicant disagrees.   He submits that custody should not have been granted to the parent refusing the exercise of joint custody and obstructing the other parent's right of access.   Moreover, there had been no sufficient reasons for the Court of Appeal to decide on his appeal without an oral hearing.        The Commission considers, in the light of the parties' submissions, that the applicant's complaint about the decisions on his right of access and the proceedings concerned, in particular as far as the decision-making process is concerned, raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application.   The Commission concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaints, raised in his own name, about the German      court decisions on his right of access and on custody of his      daughter, and the proceedings concerned;        DECLARES INADMISSIBLE the remainder of the application.          M.F. BUQUICCHIO                            M.P. PELLONPÄÄ         Secretary                                 President    to the First Chamber                      of the First Chamber