FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 37395/08
by Achim BAYERL
against Germany
The European Court of Human Rights (Fifth Section), sitting on 13 October 2009 as a Chamber composed of:
	Peer Lorenzen, President,Renate Jaeger,Karel Jungwiert,Rait Maruste,Mark Villiger,Isabelle Berro-Lefèvre,Mirjana Lazarova Trajkovska, judges,
and ,
Having regard to the above application lodged on 1st August 2008,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Achim Bayerl, is a German national who was born in 1956 and lives in Russe, Bulgaria. He was represented before the Court by Mr J. Arnold, a lawyer practising in Munich.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  Background to the case
The applicant and his wife C., also a German national, lived in Bulgaria where they operated their own company. They have two children, A. born in 2001 and D. born on 8 August 2004. In May 2004 the applicant and C. separated, and one year later C. moved out of the marital home.
On 8 May 2005 C.’s residence permit for Bulgaria expired, she could now stay in Bulgaria only up to ninety days within a six-month period; upon request dated 30 August 2005 C.’s right of residence was for humanitarian reasons prolonged once until 9 November 2005. On 9 May 2005 C. registered as a resident in Olpe, Germany, at her mother’s address. 
With letter dated 11 October 2005 the applicant terminated C.’s employment contract in view of her residence permit status in Bulgaria.
Since April 2005 C. repeatedly travelled to Germany with D. for medical treatment and for visits. In particular, in August 2005 D. underwent surgery in Cologne because of a kidney tumour. On 1 December 2005 C. and D. moved into their own flat in Olpe, but continued also to live in the former marital home in Russe, which had been assigned to C. by the Russe District Court’s decisions of July 2005 and May 2006. 
From September 2006 onwards C. stayed in Germany with D. more often; in December 2006 she moved her household and personal effects from Russe to Olpe.
2.  Proceedings before the Bulgarian courts
In 2004 C. filed a divorce petition with the District Court in Russe. 
In a hearing on 21 April 2005 she informed the applicant and the court that D. had a suspected kidney tumour which she wanted to have treated in Germany. The parties concluded a settlement, approved by the court, whereby the applicant agreed that C. assume custody of D. until the end of the divorce proceedings, and that she could leave Bulgaria with D. at any time. At the same time contact rights for the applicant were set. In July 2005 the Russe District Court refused the applicant’s request that this settlement be modified, awarded C. also custody of A. and assigned the former marital home to her. In September 2005 this decision was modified by the Russe Regional Court to that effect that custody of A. was now awarded to the applicant. In October 2005 C. withdrew her divorce petition. Consequently, the proceedings were discontinued.
The applicant then filed his own divorce petition and on 19 May 2006 the Russe District Court, by way of temporary measure, awarded C. custody of D. and the applicant custody of A. until the end of the divorce proceedings. The District Court also set contact rights for both parties with regard to the other child and assigned the former marital home to C. This decision was upheld by the Russe Regional Court on 14 July 2006.
3.  Proceedings before the German courts
On 6 March 2007 the applicant lodged a request for the return of D. to Bulgaria, or alternatively for contact rights, pursuant to the provisions of the Hague Convention on Civil Aspects of International Child Abduction (hereafter “the Hague Convention”). On 4 July 2007 the Hamm District Court appointed a guardian ad litem (Verfahrenspflegerin) for D. On the same day the Youth Welfare Office submitted a report regarding D.’s social situation. On 16 November 2007, following two oral hearings, in which the District Court heard the applicant, C., D. and the guardian ad litem, it granted the applicant’s request and ordered C. to return D. to Bulgaria. In its decision the District Court mainly relied on a letter from the Bulgarian Ministry of Justice dealing primarily with a request of C. under the Hague Convention in respect of the older son A. as well as on a corresponding private expert opinion submitted by the applicant. It argued that C. had been awarded custody of D. only as a temporary measure until the end of the divorce proceedings. Her custody right therefore had to be interpreted as limited to the territory of Bulgaria. Consequently, the District Court considered the removal of D. to Germany wrongful under Article 3 of the Hague Convention because it violated the applicant’s joint custody right in so far as a change of D.’s residence outside of Bulgaria was concerned.
C. appealed the decision. On 20 December 2007 the Hamm Court of Appeal ordered the applicant to submit a certificate of illegality (Widerrechtlichkeitsbescheinigung) pursuant to Article 15 of the Hague Convention. By a letter dated 7 February 2008, submitted with an English translation, the Bulgarian Ministry of Justice stated that:
“... the care for the child D. is granted to the mother, in accordance with the usual residence of the child. The personal contact with the child [A.] ... – too. This contact has to be realized exactly in Bulgaria. Subsequent changes of the enacted temporary measures, motivated eventually by a changed place of residence of the mother, do not reflect on the executive force of the court decision. ...”
On 22 February 2008, following an earlier oral hearing to which it had summoned D. but had then refrained from hearing him because of his young age, the Court of Appeal ordered C. to adhere to the contact regime set out by the Russe District Court but dismissed the applicant’s request to return D. to Bulgaria. It found that, irrespective of whether German or Bulgarian law was applicable, since C. had sole custody of D. his removal had not been in breach of any custody right of the applicant. It could be deduced neither from the Bulgarian courts’ decisions nor from the provisional character of those decisions that the right was limited to the territory of Bulgaria. The Court of Appeal was not convinced by the reasoning of the Bulgarian Ministry of Justice and the private expert opinion; it found that their interpretation did not follow from the Bulgarian courts’ decisions or the relevant provisions of Bulgarian law and was not substantiated by 
case-law or professional literature. It further found that while a certificate of wrongness was meant to facilitate the determination of whether there was a violation of a custody right it did not bind the court. The decision was served on the applicant’s lawyer on 5 March 2008.
On 31 March 2008 the applicant lodged a constitutional complaint. 
On 15 April 2008 the Federal Constitutional Court refused to accept the constitutional complaint for examination, stating that it was inadmissible without giving further reasons.
B.  Relevant provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Article 1
“The objects of the present Convention are –
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
Article 3
“The removal or the retention of a child is to be considered wrongful where –
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
Article 5
“For the purposes of this Convention –
a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”
Article 15
“The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. ... ”
COMPLAINTS
1.	The applicant complained under Article 8 § 1 of the Convention that the Hamm Court of Appeal had refused to grant his application under the Hague Convention for the return of his son to Bulgaria.
2.	The applicant further complained under Article 6 § 1 of the Convention that the Hamm Court of Appeal’s decision was arbitrary and that the Federal Constitutional Court had not given reasons for its decision.
THE LAW
1.	The applicant complained that the Hamm Court of Appeal’s decision of 22 February 2008 refusing his request to return D. to Bulgaria was arbitrary and hence violated his right to respect for his family life. Article 8, in so far as relevant, provides:
“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.”
The applicant submitted that in deciding that D.’s removal from Bulgaria was not wrongful pursuant to Article 3 of the Hague Convention the Court of Appeal had interpreted Bulgarian law arbitrarily, especially by departing from the opinion of the Bulgarian Ministry of Justice and the private expert opinion submitted by him.
The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see, among many others, Maumousseau and Washington c. France, no. 39388/05, §§ 58-59, 2 June 2008, and Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005). The events under consideration in the instant case amounted to an interference with the applicants’ right to respect for his family life, it being understood that the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition (see, for example, Sylvester v. Austria, nos. 36812/97 and 40104/98, § 55, 24 April 2003). Such interference constitutes a violation of Article 8 of the Convention unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”, namely that the impugned measure was proportionate to the aim pursued.
Concerning the lawfulness of the interference the Court observes that the Court of Appeal based its decision regarding the applicant’s contact and access rights as well as its decision to refuse D.’s return to Bulgaria on the Hague Convention. That Convention, which was approved in the form of a federal statute, is applicable at the level of German domestic law. 
The decision of the Court of Appeal thus had a basis in national law.
Regarding the aim pursued the Court notes first of all that in the preamble of the Hague Convention the signatory States declare their firm conviction “that the interests of children are of paramount importance in matters relating to their custody”. They also express their desire to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access”. The Court further notes that the Hamm Court of Appeal, by applying the provisions of the Hague Convention, in particular by examining the question of whether D.’s removal was “wrongful” under Article 3 of that Convention and having regard to the applicant’s contact and access rights, acted in what it considered to be the child’s best interest (see, mutatis mutandis, Mattenklott v. Germany (dec.), no. 41092/06, 11 December 2006). The interference thus pursued a legitimate aim under paragraph 2 of Article 8, namely the protection of the rights and freedoms of others.
As to the proportionality of the impugned measure the Court first of all observes that the Court of Appeal while refusing to order D.’s return to Bulgaria at the same time confirmed the applicant’s contact rights as set out in the Bulgarian courts’ decisions, thereby keeping the interference with his rights under Article 8 § 1 to a minimum. The Court further notes that the German courts were divided over the issue of whether or not D.’s removal from Bulgarian territory had been wrongful. At first instance, the Hamm District Court found that C. had wrongfully removed D. because her custody right had to be interpreted as limited to the territory of Bulgaria. 
On appeal, the Hamm Court of Appeal however refused to order D.’s return. It argued that the Bulgarian courts had awarded sole custody of D. to C.

The decisions did not contain any indication of a possible limitation of this right to the territory of Bulgaria. The Hamm Court of Appeal explained in detail why it was neither convinced by the private expert opinion submitted by the applicant nor by the certificate of illegality submitted by the Bulgarian Ministry of Justice, and that it was not bound by such a certificate of illegality. Specifically, it stated that nothing in the Bulgarian courts’ decisions suggested that C.’s custody right was confined to Bulgarian territory. In particular, it could not find that such a limitation followed from the provisional nature of the Bulgarian court decisions. This case therefore has to be distinguished from the case of Monory v. Hungary and Romania (cited above, §§ 80-81) in which the Romanian courts had dismissed from the outset the applicability of Article 3 of the Hague Convention, even though the applicant had had joint custody rights. In the present case, the competent German court adduced relevant reasons to justify its decision refusing D.’s return to Bulgaria.
The Court further observes that in view of D.’s surgery in August 2005 as well as C.’s precarious resident permit status in Bulgaria and the fact that the applicant terminated her employment in October 2005 it cannot be considered an abuse of her custody right that C. took D. to Germany and moved with him into her own flat in Olpe in December 2005. Rather, the Bulgarian courts were aware of these circumstances when awarding C. custody of D. in 2006. Moreover, the applicant terminated C.’s employment contract in October 2005.
In assessing whether the reasons adduced by the Court of Appeal were “sufficient” for the purposes of Article 8 § 2 the Court must also determine whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests (see Sahin v. Germany [GC], . 30943/96, § 68, ECHR 2003‑VIII). In this context the Court notes that the applicant, who was represented by his lawyer throughout the proceedings, was heard at two instances. Additionally, D. and the guardian ad litem were heard by the District Court, and the Youth Welfare Office submitted a report. Due to the fact that the issue before the domestic courts was exclusively a question of law, namely whether D. had been wrongfully removed from Bulgaria, and keeping in mind that as a general rule it is for the national courts to assess the evidence before them, including the means used to ascertain the relevant facts (see Sahin, cited above, § 73) the Court is satisfied that the German courts’ procedural approach, especially the Appeal Court’s decision to refrain from hearing D. again, was reasonable under the present circumstances. Hence, the Court finds that the decision‑making process provided the applicant with the requisite protection of his interests.
Having regard to all the circumstances, the Court considers that the reasons given were not only relevant but also sufficient for the purposes of Article 8 § 2. In particular, having regard to the domestic courts’ margin of appreciation in the matter, the interference complained of was not disproportionate to the legitimate aim pursued. In sum, the Court of Appeal’s refusal to return the applicant’s son to Bulgaria does not disclose any violation of Article 8 of the Convention.
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.
2.	The applicant also alleged a violation of Article 6 § 1 of the Convention, regarding an allegedly arbitrary interpretation of the law by Court of Appeal and the lack of reasoning by the Federal Constitutional Court. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court, referring also to its findings under Article 8, considers that this part of the application does not disclose any appearance of a violation of the Convention. If follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
	Claudia Westerdiek	Peer Lorenzen
	Registrar	President