STOBER proti Německu

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39485/03
by Wilfried STOBER
against Germany

The European Court of Human Rights (Fifth Section), sitting on 11 December 2006 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar

Having regard to the above application lodged on 17 October 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Wilfried Stober, is a German national who was born in 1951 and lives in Karlsruhe. He is represented before the Court by
Mr W. Theissen, a lawyer practising in Karlsruhe.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant has two children who were born in wedlock in 1986 and 1990. The applicant and the children’s mother were divorced in 1999.
The sole right to custody (alleiniges Sorgerecht) was granted to the mother with whom the children are living. The applicant lodged an application
(no. 4243/02) with the Court against the above decisions which it declared inadmissible on 23 April 2002.

The applicant initially had access rights to the children (Umgangsrecht). However, the relationship between the applicant and the children later deteriorated.

On 28 February 2003, the Karlsruhe District Court excluded the applicant’s access rights to his children for the period of two years.
The Karlsruhe District Court considered the exclusion as being necessary in the interest of the children (Kindeswohl). It had heard the children in 2002 when they were sixteen and twelve years old and also had regard to a report issued by the Youth Office. Both children had declared that they did not want to have any contact with their father and opposed that he would obtain the right of custody. The Karlsruhe District Court considered that, even though a child’s will did not always take priority, the child’s right to have his or her personality respected had to be weighed against the interest of the parent who desired access to the child. The facts as submitted by the applicant clearly showed that he was incapable to take into account his children’s needs and to approach them as appropriate for their age.
The Karlsruhe District Court reasoned that court proceedings could not substitute a debate between a father and his children. The mother had comprehensibly submitted how much the children had suffered from their obligation to appear and give witness in the numerous court proceedings which the applicant had initiated. Those proceedings had put the children under immense pressure. The Karlsruhe District Court referred to a letter by the applicant’s former lawyer which was addressed to the applicant and in which the lawyer reminded the applicant that he would not get closer to his children by filing multiple court claims, press releases and complaints to numerous other institutions. Lastly, the Karlsruhe District Court considered it not to be reasonable to force the father’s access rights upon a child who was mature enough to form its own opinion. The children wished to pursue with their lives at school and with their activities without constantly having to deal with the court proceedings. During the proceedings, the Karlsruhe District Court conducted two oral hearings in 2002 and a further hearing on 25 February 2003 during which both parents were heard.

On 1 July 2003, the Karlsruhe Court of Appeal dismissed the applicant’s appeal. With regard to the older child (born in 1986) who would obtain full age before the two-year period expired, it ordered the removal of the applicant’s access rights until the child reached full age. The Karlsruhe Court of Appeal considered the decision of the Karlsruhe District Court as well-balanced and correct, and found that the prerequisites for the removal of the applicant’s access rights as laid down in section 1684 § 4 of the Civil Code had been met. The Karlsruhe Court of Appeal reiterated that, according to that provision, a decision restricting or removing those rights for a lengthy period or permanently could only be taken if otherwise the child’s well-being would be endangered. The court expressly stressed that such a decision could only be taken if the principle of proportionality had been met, and after having balanced the parent’s interest against the child’s right to have his or her personality protected. The will of the child was an important factor in that respect. This was especially the case if the child had almost reached full age or was otherwise sufficiently mature to grasp the importance of the parent’s right of access to the child. Therefore, a court first had to consider whether the child was sufficiently mature, and, secondly, whether the child’s opposition to the parent’s access was based on justifiable reasons. The Karlsruhe Court of Appeal found that these principles had been correctly applied by the Karlsruhe District Court.
The Karlsruhe Court of Appeal stressed that, according to a letter written to the District Court in March 1999, the applicant had on his own will terminated his access to the children. As an attachment to that letter, the applicant had submitted a letter to his children in which he accused the children to have lied in the court proceedings. Both children had stated before the Karlsruhe District Court that they did not wish to see the applicant any longer because he had called them liars. Before the youth welfare office, the children had said that, when meeting him in the past, they had always brought their friends along in order to prevent the applicant from complaining about and insulting their mother. The Karlsruhe Court of Appeal stressed that the children’s description of the applicant’s behaviour matched with its own impression that the applicant regarded himself as the victim of incompetent courts and authorities in the numerous disputes and proceedings he had initiated. The children obviously opposed the applicant’s behaviour to disregard their own opinion and to talk negatively about a person whom they loved. The children regarded the applicant as the person responsible for the deterioration of their relationship since 1999, and as somebody who would blame them, their mother and the authorities for that deterioration without questioning his own behaviour.

On 19 September 2003, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.

B. Relevant provision of the German Civil Code

Section 1684

“1. The child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child.

2. The parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. ...

3. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties. They may order the parties to fulfil their obligations towards the child.

4. The family courts may restrict or suspend the right of access or the enforcement of previous decisions on access if this is necessary for the child’s welfare. A decision restricting or suspending the right of access or its enforcement for a longer period of time or permanently may only be taken if the child’s well-being were endangered otherwise. The family courts may order in particular that contacts may only take place in the presence of a cooperating third party.”

COMPLAINTS

The applicant complained under Article 8, also read in conjunction with Article 14, of the Convention about the allegedly erroneous court decisions, in particular the decisions removing his access rights to his children for the period of two years. The applicant further complains under Article 6 of the Convention that he did not have an oral hearing before the Karlsruhe Court of Appeal, that the Federal Constitutional Court refused his constitutional complaint without giving any reasons and that the ordinary courts refused to appoint a curator ad litem (Verfahrenspfleger) and his motion to obtain an expert opinion.

THE LAW

I. The applicant complained under Article 8 of the Convention that the German court decisions which removed his access rights to his children violated his right to respect for his family life. Article 8 of the Convention provides:

“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 applicant submitted that the decisions which temporarily removed his access rights amounted to a disproportionate interference with his right to respect for his family. As a parent, he was allegedly discriminated against the other parent. The German courts gave priority to the mother who had deliberately tried to deny him the right of access to his children.
The exclusion of access was only permitted for very important reasons which the German courts had failed to consider sufficiently. As the applicant did not have the right to custody, he should have at least been entitled to the right of access to his children.

The Court recalls that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures which hinder such enjoyment amount to an interference with the right protected by Article 8 (see, amongst others, Johansen v. Norway, judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, pp. 1001-1002, § 52, and Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII). The impugned measures, namely the decisions of the German courts excluding the applicant’s right of access to his children temporarily, amounted to an interference with the applicant’s right to respect for his family life as guaranteed by paragraph 1 of Article 8 of the Convention.

The interference mentioned in the preceding paragraph constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.

The relevant decisions had a basis in national law, namely
section 1684 § 4 of the Civil Code.

The Court is satisfied that the court decisions of which the applicant complained about were aimed at protecting the interests of his children. Therefore, the court decisions were aimed at protecting the “health or morals” and the “rights and freedoms” of the applicant’s children and thus pursued legitimate aims within the meaning of paragraph 2 of Article 8.

In determining whether the impugned measure was “necessary in a democratic society”, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind (see Nekvedavicius v. Germany (dec.), no. 46165/99). Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their margin of appreciation (see Görgülü v. Germany, no. 74969/01, § 41,
26 February 2004, Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55, Bronda v. Italy, judgment of 9 June 1998, Reports 1998-IV, § 59, and, mutatis mutandis, Elsholz cited above, § 48).

Furthermore, a fair balance must be struck between the interests of the child and those of the parent and, in striking such a balance, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular, the parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development
(see Elsholz cited above, § 50, and T.P. and K.M. v. the United Kingdom, no. 28945/95, § 71).

The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. In particular when deciding on custody, the Court has recognised that the authorities enjoy a wide margin. However, a stricter scrutiny is called for as regards any further limitations.
Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed
(see Görgülü cited above, § 42, Elsholz cited above, § 49, and Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002-I).

In the present case, the German courts based their decisions on the consideration that it was in the children’s best interest that the applicant’s access rights were temporarily removed. At first instance, the Karlsruhe District Court found that the facts as submitted by the applicant clearly showed that he was incapable to take into account his children’s needs and to approach them as appropriate for their age. Both children had declared before the Karlsruhe District Court that they did not wish to have contact anymore with the applicant. The Karlsruhe District Court considered that, after having regard to several other sources of evidence, the numerous court proceedings initiated by the applicant had put the children under immense pressure while they simply wanted to pursue with their lives. The Karlsruhe District Court did not consider it reasonable to force the father’s access upon the children.

On appeal by the applicant, the Karlsruhe Court of Appeal found that a decision restricting or suspending the access rights for a lengthy period or permanently under section 1984 of the Civil Code could only be taken if otherwise the child’s well-being would be endangered, and that those prerequisites were met. The Karlsruhe Court of Appeal concluded that the children obviously opposed the applicant’s behaviour and regarded him as the person responsible for the deterioration of their relationship.

The Court considers that, having regard to the circumstances of the case, particularly the children’s age (sixteen and twelve years) and the fact that the Karlsruhe District Court heard the children themselves who explicitly opposed the applicant’s access, the decision to remove his access rights appears to be based on relevant and sufficient grounds which do seem to be neither arbitrary nor manifestly erroneous. Even applying a strict scrutiny as the applicant’s access rights were concerned, the Court cannot find that the German courts did not sufficiently take into account the applicant’s interests. The Court also notes that the Karlsruhe District Court heard the children and had regard to a report by the Youth Office before taking its decision. Bearing in mind that the national courts were in a better position than the Court to strike a fair balance between the interests of the children in living in a peaceful environment and those motivating the steps taken by their father (see mutatis mutandis, Söderbäck v. Sweden, judgment of
28 October 1998, Reports 1998-VII, pp. 3095-96, §§ 30-34), the courts did not exceed the margin of appreciation afforded to them under paragraph 2 of Article 8.

The case does not raise any additional issues as far as Article 14 of the Convention is invoked in conjunction with Article 8 of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

II. The applicant further complains under Article 6 of the Convention that he did not have an oral hearing before the Karlsruhe Court of Appeal. Moreover, he complains that the Federal Constitutional Court refused his constitutional complaint without giving any reasons and that the ordinary courts refused to appoint a curator ad litem (Verfahrenspfleger) and his motion to obtain an expert opinion.

The relevant part of Article 6 § 1 provides that:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. “

The Court reiterates that the absence of a hearing before a second instance may be justified by the special features of the proceedings at issue (Ekbatani v. Sweden, judgment of 26 May 1988, Series A no. 134, § 31; Ivanovski v. the former Yugoslav Rebublic of Macedonia (dec.),
no. 21261/02, 29 September 2005). Furthermore, a hearing may not be necessary when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case-file and the parties’ written observations (see Rippe v. Germany (dec.), no. 5398/03, 2 February 2006; Pahverk v. Sweden (dec.), no. 41042/98, 11 February 2003). In the instant case, the Court finds that the relevant facts had been established by the Karlsruhe District Court which conducted two oral hearings in 2002 and another hearing in February 2003. The applicant was present and heard in all hearings. Moreover, the Karlsruhe District Court had also heard the children. Therefore, the Karlsruhe Court of Appeal was not required by Article 6 to conduct another oral hearing during the appeal proceedings which ended four months later.

As regards the applicant’s complaint that the Federal Constitutional Court did not give any reasons for its decision, the Court recalls that it is acceptable under Article 6 § 1 for a supreme court to dismiss a complaint by mere reference to the relevant legal provisions governing the admissibility of such complaints if the matter raises no fundamentally important legal issue (Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001).
The lack of reasons in the Federal Constitutional Court’s decision thus did not raise an issue under Article 6 § 1. As to the remainder of the applicant’s complaints under Article 6 § 1, the Court notes that the applicant failed to raise these complaints in his constitutional complaint with the Federal Constitutional Court. It finds that, even assuming that the applicant exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention in this respect, the applicant failed to sufficiently substantiate these complaints.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President