CEDH · PRESS;GENERAL;ENG — 11 octobre 2001

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s6B505E72 { margin:0pt; padding-left:0pt } .s4060989B { margin-left:10.52pt; text-align:justify; padding-left:7.48pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .s75A32C27 { border-collapse:collapse } .s938C1CCA { padding-right:5.4pt; padding-left:5.4pt; vertical-align:top } .s85646119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:12pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS   722   11.10.2001   Press release issued by the Registrar   CHAMBER JUDGMENTS IN THE CASES OF SAHIN v. GERMANY, SOMMERFELD v. GERMANY, & HOFFMANN v. GERMANY   The European Court of Human Rights has today notified in writing judgments in the cases of: Sahin v. Germany (application no. 30943/96),     Sommerfeld v. Germany (no. 31871/96) and     Hoffmann v. Germany (no. 34045/96), none of which is final [1] . (The judgments are available only in English.)   The European Court of Human Rights held, by five votes to two, that there had been: a violation of Article 8 (right to respect for family life) of the European Convention on Human Rights in Sahin v. Germany and     Sommerfeld v. Germany; no violation of Article 8 in   Hoffmann v. Germany; a violation of Article 14 (prohibition of discrimination) taken together with Article 8 in all three cases; a violation of Article 6 (right to a fair hearing) in Sommerfeld v. Germany and Hoffmann v. Germany.   Under Article 41 (just satisfaction) of the Convention, the applicants were awarded the following amounts in German Marks (DEM):     Non-pecuniary damage costs and     expenses (1)     Sahin v. Germany DEM 50,000 DEM 8,000 (2)     Sommerfeld v. Germany DEM 55,000 DEM 2,500 (3)     Hoffmann v. Germany DEM 25,000 DEM 2,500     1.     Principal facts   The applicants, Asim Sahin, Manfred Sommerfeld, and Friedhelm Hoffmann are all German nationals; Mr Sahin was a Turkish national at the time of the events complained of but subsequently obtained German nationality. They were born respectively in 1950, 1953 and 1954. All three had children born out of wedlock concerning whom they were refused access by the German courts. 2.     Procedure and composition of the Court   The applications were lodged with the European Commission of Human Rights on 16 June 1993, 7 June 1995 and 15 July 1996 respectively and transmitted to the European Court of Human Rights on 1 November 1998. On 12 December 2000 the first two cases were declared partly admissible and Hoffmann v. Germany was declared admissible.   Judgment was given by a Chamber of seven judges, composed as follows:   Antonio Pastor Ridruejo (Spanish), President , Georg Ress (German), Lucius Caflisch [2] (Swiss), Ireneu Cabral Barreto (Portuguese), Volodymyr Butkevych (Ukrainian), Nina Vajić (Croatian), Matti Pellonpää (Finnish), judges ,   and also Vincent Berger , Section Registrar .     3.     Summary of the judgment [3]   Complaints   The applicants alleged that the German courts’ decisions to dismiss their requests for access to their children breached Article 8. They also complained of discrimination, relying on Article 14 taken together with Article 8. In Sommerfeld v. Germany and Hoffmann v. Germany the applicants further claimed, relying on Article 6, that they were denied a fair hearing.   Decision of the Court   Article 8   In Sahin v. Germany , the competent national courts, when refusing the applicant’s request for a visiting arrangement, relied on the statements made by the applicant and the child’s mother, witnesses and the comments of the Wiesbaden Youth Office and on expert advice, took into account the strained relations between the parents and found that contacts were not in the child’s interest.       The Court did not doubt that these reasons were relevant. However, in the Court’s opinion, the German courts’ failure to hear the child revealed that the applicant was not sufficiently involved in the access proceedings. It was essential that the competent courts gave careful consideration to what lay in the best interests of the child after having had direct contact with the child. The Regional Court should not have been satisfied with the expert’s vague statements about the risks inherent in questioning the child without even contemplating the possibility of taking special arrangements in view of the child’s young age. In this context, the Court attached importance to the fact that the expert indicated that she had not asked the child about her father. Correct and complete information on the child’s relationship with the applicant as the parent seeking access to the child was an indispensable prerequisite for establishing a child’s true wishes and thereby striking a fair balance between   the interests at stake.   In Sommerfeld v. Germany   the Court observed that the District Court, when refusing the applicant’s request for a visiting arrangement, relied on the statements made by the child, questioned by the District Court in 1994 at the age of thirteen and, in a preceding set of access proceedings, at the age of ten. It had also heard the applicant and the child’s mother. Also considering comments filed by the local Youth Office and material obtained in the first set of access proceedings, the District Court found that contact was not in the child’s interest. The Regional Court endorsed the District Court’s findings.   The Court did not doubt that these reasons were relevant. However, it noted that District Court heard the child and the parents and had regard to material obtained in a first set of access proceedings, including comments filed by a psychologist of the local health services of April 1992. The Court considered that, given the psychologist’s rather superficial submissions in the first set of proceedings, the lapse of time and bearing in mind what was at stake in the proceedings, namely the relations between a father and his child, the District Court should not have been satisfied with only hearing the child as to her wishes on the matter without having at its disposal psychological expert evidence in order to evaluate the child’s seemingly firm wishes. Correct and complete information on the child’s relationship with the applicant as the parent seeking access to the child was an indispensable prerequisite for establishing a child’s true wishes and thereby striking a fair balance between the interests at stake. The Court further recalled that the Regional Court, which had full power to review all issues relating to the request for access, endorsed the District Court findings on the basis of the file.   In the Court’s opinion, the German courts’ failure to order a psychological report on the possibilities of establishing contacts between the child and the applicant revealed that the applicant was not sufficiently involved in the decision-making process.   In Hoffmann v. Germany the Court noted that the competent national courts, when setting aside the applicant’s right of access, relied on the statements made by the applicant and the child’s mother, the comments of the Mülheim Youth Office and the local Diakonisches Werk , and in particular on the statements made by the child, questioned by the District Court at the age of about seven, as well as on expert advice. The courts took into account the strained relations between the parents and found that any further contact would adversely affect the child.   The Court did not doubt that these reasons were relevant. However, the Court recalled that the District Court had regard to several reports on the question of contacts between the applicant and his child J., one of them being based on the experience of meetings between the applicant and J. in a child guidance centre. The applicant, represented by counsel, had the opportunity to comment on those reports. In the Court’s opinion, the applicant was thereby sufficiently involved in the decision-making process. The German courts arrived at the contested decision after weighing up the various competing interests in issue. Having regard to all circumstances, the Court found that the German courts were entitled to consider the refusal of access to be necessary and that their reasons for so concluding were “sufficient”.     Article 14   In all three cases, the Court noted that Germany’s laws on custody and access were amended by the Law on Family Matters of 16 December 1997 (which came into effect on I July 1998) which entitles both the father and mother of a minor child born out of wedlock to have access to their child. These amendments demonstrated that the aims of the German laws applicable at the time of the events in the three cases in question (which occurred prior to 1998) - namely to protect the interests of children and their parents - could have been achieved without making a distinction on the grounds of whether the child concerned was born in or out of wedlock.   Article 6   In Sommerfeld v. Germany and Hoffmann v. Germany the Court noted that in proceedings concerning a natural father’s access to his child born out of wedlock, there was no general right of a further appeal against a first appeal decision. The Court concluded that this limitation on the applicant’s right of access to a court was not compatible with Article   6.     Judge Pellonpää expressed a dissenting opinion in each case and Judge Vajić expressed a joint dissenting opinion in Sahin v. Germany and a separate partially dissenting opinion in Sommerfeld v. Germany and Hoffmann v. Germany , which are annexed to the judgments.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court.   In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] .     Judge elected in respect of Liechtenstein. [3] .     This summary by the Registry does not bind the Court.