CASE OF ZAUNEGGER v. GERMANY
(Application no. 22028/04)
3 December 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Zaunegger v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
Bertram Schmitt, ad hoc judge,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 20 October 2009,
Delivers the following judgment, which was adopted on the last mentioned date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC AND COMPARATIVE LAW AND PRACTICE
A. Relevant domestic law
1. Relevant provisions of the German Civil Code
By contrast, parents exercising joint parental authority before their separation either because the child was born in wedlock, the parents have married following the child’s birth or they have made a joint custody declaration, retain joint custody following their separation unless the court at the request of one parent awards sole custody to the latter in accordance with the child’s best interest pursuant to Article 1671 of the Civil Code.
2. Case-law of the Federal Constitutional Court
B. Relevant comparative law
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8
Article 8 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.”
Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] 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.”
1. The Government’s submissions
2. The applicant’s submissions
3. The Court’s assessment
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,008.14 (seven thousand and eight euros and fourteen cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses,
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 3 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Schmitt is annexed to this judgment.
DISSENTING OPINION OF JUDGE SCHMITT