CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 3 avril 2018

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBF964C40 { width:8.54pt; display:inline-block } .sE2560A07 { width:205.77pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }     FIFTH SECTION DECISION Application no. 43976/17 Sara SANGOI against Germany   The European Court of Human Rights (Fifth Section), sitting on 3   April   2018 as a Committee composed of:   Yonko Grozev, President,   Gabriele Kucsko-Stadlmayer,   Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar, Having regard to the above application lodged on 27 June 2017, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms Sara Sangoi, is an Italian national who was born in 1977 and lives in Nicosia. She was represented before the Court by Mr   Rieck, a lawyer practising in Munich. 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     The applicant has two children, born in 2002 and in 2010, with a German national. The applicant and the children’s father lived in a number of different countries together, before moving to Germany in October 2007. In 2008 and 2009 the applicant moved to Armenia, while the older child (N.) stayed with his father in Germany. Following the applicant’s return to Germany and the birth of the second child, the couple moved to Cyprus in June 2011. In October of that year, the couple separated and the child’s father returned to Germany with N. The applicant stayed in Cyprus with the younger child. The couple divorced in 2013. The application concerns the applicant’s right to contact with N. 4.     Following the separation, the applicant had personal contact with N. in December 2011 and, in irregular intervals, starting from April 2012. In October 2012, N. spent a weekend with her in Italy. In that same month, the applicant and the child’s father concluded an agreement before the Bonn Family Court whereby the child’s father exclusively exercised custody over N. as far as the place of residence and school affairs were concerned, and that the applicant exclusively exercised custody over the younger child in these matters. Furthermore, the applicant could visit N. once a month. N. was to visit her once a month and spend half of his school holidays with her. 5.     The implementation of the agreement proved difficult in practice, in particular as regards the bi-weekly meetings. In 2013, N. saw the applicant at Easter and during the summer holidays. In the summer of 2014, N. spent three weeks in Italy with the applicant. When the applicant was to hand over N. to the child’s father at the end of the holiday, the latter was unable to meet at the agreed time and asked his sister to receive N. The sister was one hour late. The applicant and N. then went to see the custodian for the implementation of contact rights, before whom N. declared that he wanted to go to Cyprus with the applicant and the applicant’s lawyer stated that this stay had been agreed with the child’s father, which had not been the case. N. then stayed in Cyprus for about three months. When the applicant was served a court order to return N. to Germany, she complied with that order in October 2014. Except for the purposes of the expert examination in July   2015, the applicant has not had personal face-to-face contact with N. since. N. refused a meeting with the applicant scheduled for Easter 2015. They are in occasional contact, however, via WhatsApp messages and telephone calls. 6.     In December 2014 the applicant initiated court proceedings concerning contact rights with N. The Bonn Family Court heard the court ‑ appointed expert, the applicant, the child’s father, the Youth Office, and separately – in the presence of the guardian ad litem – the child, who was at this time twelve years of age. Prior to preparing his comprehensive report, the court-appointed expert had talked, individually, to N., the applicant and the child’s father, examined the conduct and interaction of the child and the applicant when they were brought together in July 2015, and also consulted the youth office, the custodian for the implementation of contact rights, the child’s school and the guardian ad litem. Vis-à-vis the expert, N. had, inter alia , stated that he was content with his life in Germany and that the applicant had repeatedly tried to pressure him strongly and emotionally into moving to Cyprus to live with her and his younger brother and, by talking badly about his father, had created loyalty conflicts. He was afraid that she would put pressure on him again when they met. The expert considered that N.’s relationship with his father was positive and a stabilising factor for the child. His father was N.’s main attachment figure. There were no indications that the father had influenced N.’s expressions of his will as regards the applicant. 7.     In its decision of 26 January 2016, the Family Court considered that the expert had recommended that accompanied contact between the applicant and the child be initiated in Germany until there was an improvement in the applicant’s behaviour towards the child, which focused mainly on her own needs and also entailed disrespectful behaviour towards the child’s father and thus brought the child into a loyalty conflict. The expert considered that the child’s father appreciated the importance of the applicant for N.’s development and was, in principle, able and willing to facilitate contact between N. and the applicant. While N. had expressed the need to spend time with the applicant and with his younger brother, he was also very much afraid that he could not assert himself against the applicant’s demands and wishes, because he did not want to hurt her. Their interaction showed little intimacy, and harmonious moments were repeatedly interrupted by the applicant. The expert considered the applicant’s parenting abilities to be limited. At the same time, N. had repeatedly and clearly stated that he wished to meet the applicant, but only under certain conditions, notably that the meetings were neither in Italy nor in Cyprus, and that he did not have to commit to specific dates, which he would have to schedule in advance. N. made similar statements when he was heard by the Family Court in the presence of the guardian ad litem, reiterating that it was important for him that he could largely decide on the frequency and duration of the meetings with the applicant, as he could never anticipate how these would turn out. The applicant had stated that regular contact was important for her and that she needed about two months’ advance notice. 8.     The Family Court concluded that it was impossible to adopt a ruling which reconciled the recommendations of the expert and the contradictory wishes of the child and the applicant as regards the time, place and duration of the contact; only a parental agreement could contain the necessary arrangement. Given the permanent strain experienced by N. as a result of the pressure exercised on him by the applicant and the resulting loyalty conflicts, the court had to make it clear to N. that his needs and wishes were taken seriously and followed. It was up to him to take the initiative and contact the applicant in the manner preferred by him, if his parents could not find a mutual agreement. Therefore, the court held that, in modification of the parental agreement of 2012, there was no court-regulated contact between the applicant and N. 9.     In her appeal to the Cologne Court of Appeal, the applicant requested, inter alia , that contact by Skype of a maximum of one hour twice a month be ordered, as well as three accompanied meetings in Germany of a maximum of three days each. 10.     When heard in person by the Court of Appeal in the presence of his guardian ad litem, N. stated that he was open with regard to the Skype contact desired by the applicant, as long as the calls could be arranged at short notice. With regard to accompanied meetings, he stated that he had previously made bad experiences. The applicant had spoken negatively about his father and put pressure on him to move to Cyprus and the custodian had not intervened as the conversation had been in Italian. He would prefer to see how the Skype contacts turned out before deciding on meetings in person. 11.     By decision of 6 July 2016 the Court of Appeal, without orally hearing the applicant, rejected the appeal, endorsing the decision of the Family Court. It considered that N. had clearly stated that he did not want to have fixed arrangements for contact by Skype with the applicant. As regards the desired ruling on accompanied contact, the court advanced two reasons: first, in the absence of specific times of such contact and other modalities, the content of the desired ruling was not enforceable; and it was not possible to fix specific times for such contact, as the applicant had to travel to Germany each time from Cyprus, where she also had to arrange for the care of her younger child. Secondly, and more importantly, N. had stated that, at the moment, he did not want to have direct personal contact with the applicant due to past experiences. The court noted that he was about to turn fourteen and had suffered enormously from the lasting conflicts between his parents. His wish was to be accorded significant weight. Defying his wish by adopting a contact ruling would openly disregard his will and give him the feeling that his wishes and needs were not relevant in this matter which concerned him directly. This would cause significant feelings of frustration, which would impair his further development. The court saw no indication that his father had pressured him into the statements made; rather, the father, who cared well for the child, had been cooperative throughout the proceedings as regards contact with the applicant, provided she did not bring the child into the conflict. Therefore, the applicant should use the existing possibilities for contact to reassure N. that she would not utilise intensified contact with him to undermine his relationship with his father. 12.     On 2 August 2016 the Court of Appeal rejected the applicant’s request to be heard, emphasising that it had based its decision on two grounds. Even though the applicant could, in an oral hearing, have provided specific dates on which she could meet N., this would not affect the second ground, on which the decision is based, notably the child’s wish not to have direct contact with the applicant at the moment. This ground constituted in and of itself a sufficient basis for the decision, as was evident from the wording (see paragraph 11 above). Thus, the lack of an oral hearing did not affect the outcome of the case. 13.     Following the applicant’s constitutional complaint, the Federal Constitutional Court sought observations from the Land North-Rhine Westphalia. This led to the guardian ad litem hearing N. again, in the absence of other persons, on 14 November 2016. N. stated that he was angry about the never-ending proceedings. He was, in principle, not against contact with the applicant, but he did not feel like seeing her in the coming months, nor did he want to make firm commitments for later. He wanted to have telephone contact with her with positive content to build trust before they met in person, as he continued to fear that she would put pressure on him again and be unwilling to accept his choice to live in Germany, and talk badly about his family members. He could not bear the applicant’s behaviour and, at the moment, did not want to meet her. According to the guardian ad litem, N. increasingly showed psychosomatic symptoms. 14.     On 14 December 2016 the Constitutional Court declined to consider the constitutional complaint without providing reasons (no. 1 BvR 2043/16). The decision was served on the applicant on 2 January 2017. COMPLAINT 15.     The applicant complained under Article 8 of the Convention that she was, in the absence of an enforceable court ruling on contact rights, de facto deprived of contact with her son N., who lived in Germany. The existing contact via WhatsApp was not sufficient. Moreover, the length of the proceedings – over two years – was excessive. THE LAW 16.     Article 8 of the Convention, in so far as relevant, provides 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 ... for the protection of the rights and freedoms of others.” 17.     At the outset, the Court observes that the present case does not concern the ruling out of contact rights by a court (compare and contrast Buchleither v. Germany , no. 20106/13, 28 April 2016; Sommerfeld   v.   Germany [GC], no. 31871/96, ECHR 2003 VIII (extracts)). Rather, the domestic courts were of the opinion that the ruling on contact between the applicant and her son N. could only be adopted by way of a parental agreement, rather than a court order. As the applicant and the child’s father appear unable to reach an agreement, the applicant is de facto deprived of contact with N., as there is no court order on contact that could possibly be enforced. The court ruling on contact desired by the applicant concerns a positive obligation under Article 8 of the Convention, which exists even where a child’s parents fail to cooperate ( Bondavalli v. Italy , no.   35532/12, § 82, 17 November 2015). 18.   While the Court of Appeal did not orally hear the applicant with a view to identifying the necessary modalities for an enforceable court order on contact between her and N. (see Bondavalli , cited above, § 72; Giorgioni   v. Italy , no. 43299/12, § 62, 15 September 2016), the Court observes that the lack of enforceability of the desired ruling was only one of two grounds on which the Court of Appeal relied. It explicitly stated that the second ground, namely the child’s wishes, was more important for its decision (see paragraphs 11 and 12 above). 19.     N. was about fourteen years old at the time of the proceedings before the Court of Appeal and the Federal Constitutional Court. The Court considers that he was old and mature enough to reflect and clearly express his will, which he did. He was heard in person by all three instances. Throughout the proceedings, the wishes he expressed, over a period of two years, were consistent. He was also brought together with the applicant by the court-appointed expert, who assessed their relationship and that with the child’s father. The domestic courts consistently and convincingly argued that there were no indications that the father was not caring well for the child. In particular, he did not try to alienate N. from the applicant. The domestic courts based their decisions, in essence, on the child’s best interests. 20.     The Court considers that the domestic courts also took into account the applicant’s interest. They considered that the applicant and N. had some contact with each other in the form of occasional WhatsApp messages and telephone calls. N. clearly stated that he would, in principle, be willing to meet the applicant but that he had had bad experiences in the past. He was afraid that she would, again, try to pressure him into moving to Cyprus, be unwilling to accept his choice to live in Germany, where he was content living with his father, and that she would again bring him into loyalty conflicts by talking badly about the latter. Therefore, N. wanted to build trust with the applicant by interactions with a positive content before meeting her in person. In light of N.’s wishes, the Court of Appeal’s conclusion that it is for the applicant to make an effort and use the existing possibilities of contact to build such trust (see paragraph 11 above) does not seem unreasonable. In this regard, it has to be reiterated that the domestic courts did not prohibit any personal contact, but refrained from adopting a ruling with specific dates. The applicant could, for example, spend an extended period of time in Germany, aimed at gradually recommencing personal contact with N., bearing in mind that N. had emphasised throughout the proceedings that it was important for him to have flexibility as to the date and time of personal contact. 21.     In the light of the foregoing considerations, the Court concludes that the domestic courts, attaching particular importance to the best interests of the child, including his further development (see paragraph 11 above), struck a fair balance between the interests of the child and those of the applicant (see also Buchleither , cited above, § 43). The domestic courts adduced relevant and sufficient reasons for their decisions and the applicant was involved in the decision-making process, seen as a whole, to a sufficient degree to provide her with the requisite protection of her interests. The Court considers that the domestic authorities did not fail to make adequate and sufficient efforts to safeguard the applicant’s right of contact with her son N. and that they did not overstep their margin of appreciation. 22.     In so far as the applicant complained of the length of the proceedings – slightly over two years for three instances (initiation of the proceedings in December 2014, service of the Federal Constitutional Court’s decision in January 2017) –, it is true that the passage of time results in growing alienation between N. and the applicant, which is why the domestic courts were under a positive obligation to conduct the proceedings speedily (see Ribić v. Croatia , no. 27148/12, § 92, 2 April 2015). However, there are no indications that the domestic courts failed to comply with this obligation: the proceedings before the Family Court lasted one year and two months, during which a comprehensive report was prepared by the court-appointed expert and there are no indications of any delays imputable to the authorities. Moreover, the applicant could have requested interim measures or at least lodged a complaint about inaction ( Untätigkeitsrüge ) to speed up the proceedings (compare and contrast Kuppinger v. Germany , no.   62198/11, 15 January 2015). The proceedings before the Court of Appeal, which heard N. orally, and before the Federal Constitutional Court each lasted less than six months. Furthermore, before the latter court, the applicant did not explicitly complain about the length of the proceedings. Even assuming that the applicant exhausted domestic remedies in this regard, this complaint is manifestly ill-founded. 23.     Accordingly, the application is, as a whole, manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 26 April 2018.   Milan Blaško   Yonko Grozev Deputy Registrar   President