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URL: http://www.bailii.org/eu/cases/ECHR/2010/2110.html
Cite as: [2010] ECHR 2110

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FIFTH SECTION

DECISION

Application no. 38102/04
by Reinhard SUDE
against Germany

The European Court of Human Rights (Fifth Section), sitting on 7 December 2010 as a Chamber composed of:

Peer Lorenzen, President,
Karel Jungwiert,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva,
Ganna Yudkivska, judges,
Bertram Schmitt, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 10 October 2004,

Having regard to the declaration submitted by the respondent Government on 16 July 2010 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Reinhard Sude, is a German national who was born in 1951 and lives in Hanstedt. He was initially represented before the Court by Mr J. Sproß, a lawyer practising in Hamburg and subsequently by Mr G. Rixe, a lawyer practising in Bielefeld. The German Government (“the Government”) were represented by their Agent,
Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

Judge Renate Jaeger, the judge elected in respect of Germany, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr Bertram Schmitt to sit as an ad hoc judge in her stead (Article 26 § 4 of the Convention and Rule 29 § 1).

A. The circumstances of the case

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

The applicant has a daughter (“the child”) born out of wedlock in 1992 who suffers from trisomy 21 (commonly referred to as Down’s syndrome).

The applicant acknowledged his paternity of the child before the Bergedorf Youth Office in 1992. As the child’s parents did not make a joint custody declaration (gemeinsame Sorgerechtserklärung), the child’s mother obtained sole custody (alleinige Personensorge) pursuant to Article 1626a § 2 of the German Civil Code (Bürgerliches Gesetzbuch - the “Civil Code”).

The applicant and his former partner had been living together in a relationship since 1990. After having suffered from an occupational accident, from 1995 onwards the applicant was responsible for raising the child, whereas the child’s mother worked to provide the family income. The child attended a primary school where she was integrated into a mainstream class with the help of a specialised education teacher.

In February 2003 the child’s mother left the joint household with the child and took her to live with her parents where she attended a specialised school for disabled children. The child later returned to her previous primary school where she was again integrated into a mainstream class with the help of a specialised education teacher.

The applicant requested that custody be transferred to him on the ground that it would be better for the child’s welfare if she continued to be integrated into a mainstream class, that he was more experienced and thus better suited to raise the child in view of her special needs and that it had been irresponsible of the child’s mother to take her out of her habitual surroundings.

On 17 June 2003 the Winsen (Luhe) District Court dismissed the applicant’s request on the grounds that Article 1671 of the Civil Code was inapplicable in the absence of joint custody and a transfer of custody pursuant to Article 1672 of the Civil Code required the consent of the mother. Furthermore, the conditions for a transfer of custody pursuant to Article 1666 of the Civil Code had not been met.

On 13 May 2004 the Celle Court of Appeal dismissed the applicant’s appeal on the ground that the conditions of Article 1666 of the Civil Code had not been met.

On 8 July 2004 the applicant and the child’s mother reached an agreement concerning the applicant’s contact with his daughter before the Winsen (Luhe) District Court.

On 8 September 2004 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication without giving further reasons (no. 1 BvR 1379/04).

The mother and the child subsequently moved to another place.

On 30 March 2006 the Fürstenwalde District Court rejected a further request for a transfer of custody because the conditions of Articles 1671 and 1672 as well as of Article 1666 of the Civil Code had not been met.

On 27 June 2006 the Brandenburg Court of Appeal rejected the applicant’s appeal and on 16 November 2006 his appeal to be heard.

In parallel proceedings concerning the applicant’s contact with his daughter, the applicant and the child’s mother reached an agreement before the Brandenburg Court of Appeal on 7 December 2006. The agreement replaced the previous one of 8 July 2004.

On 12 April 2007 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication which it held to be inadmissible without giving further reasons (no. 1 BvR 3183/06).

B. Relevant domestic law and practice

1. Relevant provisions of the German Basic Law and Civil Code

Pursuant to Article 6 § 2 of the German Basic Law (Grundgesetz) the care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state oversees the performance of this duty.

The statutory provisions on custody and contact are to be found in the Civil Code. Article 1626 § 1 of the Civil Code provides that the father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a child.

As regards children born out of wedlock, Article 1626a § 1 of the Civil Code provides that his or her parents may exercise joint custody if they make a declaration to that effect (joint custody declaration, Article 1626a § 1 no. 1) or if they marry (Article 1626a § 1 no. 2). Otherwise Article 1626a § 2 provides that the mother obtains sole custody.

If the parents have not merely temporarily separated and if the mother has obtained sole custody in accordance with Article 1626a § 2 of the Civil Code, Article 1672 § 1 of the Civil Code provides that a family court may transfer sole custody of a child to his or her father upon his request with the consent of the child’s mother. The application is to be granted if the transfer serves the child’s interests.

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 a parent awards sole custody to that parent in accordance with the child’s best interests pursuant to Article 1671 of the Civil Code.

Under Article 1666 of the Civil Code, a family court may order the necessary protective measures if a child’s physical, psychological or mental well-being is threatened by negligence and if the child’s parents are unwilling to take those measures themselves. Measures which result in the separation of a child from a parent are permissible only if the child would be at risk otherwise (Article 1666a of the Civil Code).

2. Case-law of the Federal Constitutional Court

In a judgment of 21 July 2010, referring inter alia to the Court’s findings in the case of Zaunegger v. Germany, no. 22028/04, 3 December 2009, the Federal Constitutional Court found that to generally exclude a father of a child born out of wedlock from parental authority in the event that the child’s mother refused her consent, without providing the possibility of the father obtaining a judicial review of whether joint custody or the transfer of sole custody would be in the child’s interests, violated the father’s parental rights guaranteed under Article 6 § 2 of the German Basic Law. The Federal Constitutional Court consequently decided that Articles 1626a § 1 no. 1 and 1672 § 1 of the German Civil Code were unconstitutional and – pending the entry into force of the necessary statutory amendments – had to be applied with the proviso that the family courts transfer joint or sole custody at the request of a parent if such a transfer was expected to be in the child’s interest.

COMPLAINTS

The applicant complained under Article 8 of the Convention that the court decisions refusing him custody of his daughter had infringed his right to respect for his family life, and under Article 14 read in conjunction with Article 8 of the Convention that the application of Article 1626a § 2 and 1672 of the Civil Code amounted to unjustified discrimination against unmarried fathers on the grounds of sex and in comparison with divorced fathers.

THE LAW

Relying on Article 8 taken alone and in conjunction with Article 14 of the Convention, the applicant complained that German law did not provide for joint custody of a child born out of wedlock by his or her parents as from an acknowledgment of paternity. Pursuant to Articles 1626a § 2, 1672 and 1666 of the German Civil Code, the domestic courts had thus denied the applicant’s request for transfer of the child’s custody on the ground that the child’s mother did not consent to it and without reviewing whether a transfer of custody to him would have been in the interests of the child.

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.”

By letter dated 16 July 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration, as far as relevant, provides as follows:

“3. The parties concluded settlement negotiations which failed, however, to reach a successful conclusion.

4. In view of the Court’s judgment in the case of Zaunegger of 3 December 2009, the Federal Government therefore acknowledges – by way of a unilateral declaration – that the Applicant’s right under Article 14 in conjunction with Article 8 of the Convention was violated by the general exclusion of a judicial review of the original assignment of sole parental custody to the mother in the present case.

5. Further considerations concerning Article 8 of the Convention are not necessary in the present case (cf. Zaunegger v. Germany, Judgment of 3 December 2009, No. 22028/04, § 65).

6. In this context the Federal Government has taken account of the fact that in the present case, the Applicant not only addresses the problem of the lack of joint custody of unmarried parents, but that he also applied for sole parental custody under section 1672 (1) of the Civil Code. However, no indications of any other violations of the Convention arise than those in the case of Zaunegger. This is because, with regard to the transfer of sole parental custody under section 1672 (1), first sentence, of the Civil Code (parents living apart where the mother has sole parental custody under section 1626a of the Civil Code), the Applicant is also required to obtain the mother’s consent. In the event that the child’s mother refuses to give her consent, no possibility is open to him of obtaining judicial review.

7. The Applicant’s situation with regard to access has, as evidenced by his submissions, also been clarified (most recent regulation of access rights on 7 November 2006).

8. The acknowledgement that there has been a violation of the Convention is also made with due consideration of the fact that the Applicant’s daughter attains the age of majority in 2010. In this context the Federal Government has regard to the fact that it is for the Court to determine ex post whether the decisions rendered in the national proceedings complied with the requirements laid down in the Convention. For this examination, it is irrelevant whether the lapse of time since then – for which the Applicant bears no responsibility – has, due to the attainment of the age of majority, created an irreversible situation (cf. Süss v. Germany, Judgment of 10 November 2005, no. 40324/98, § 72).

9. If the Court strikes this case from its list, the Federal Government is willing to accept the Applicant’s claim for compensation in the amount of € 8,000.00. This sum would be deemed to settle all claims in connection with the above-mentioned Application against the Federal Republic of Germany and the Länder of Lower Saxony and Brandenburg.

10. In the light of the Court’s judgment in the case of Zaunegger, the Federal Government considers the amount of € 8,000.00 to be reasonable, since the Applicant is merely entitled to a flat amount for procedural costs, and not, on the other hand, to compensation for non pecuniary damage.

11. Like in the case of Zaunegger, the present Application does not reveal any similarities with the case of Elsholz (no. 25735/94). Also like in the case of Zaunegger, the question remains open in the present case whether the national courts would, in the event of a review of the mother’s sole parental custody, have awarded the Applicant sole or joint custody. In addition, the Applicant has had access to his daughter by virtue of the agreements of 2004 and 2006. In view of all of these circumstances, no compensation for non-pecuniary damage can come into consideration.

12. With regard to the procedural costs the Federal Government has taken into consideration the fact that the Applicant pursued two sets of custody proceedings before the national courts, and has thus increased the relevant amount awarded in the Zaunegger case.

13. The Federal Government requests that this Application be struck out of the Court’s list of cases pursuant to Article 37 para. 1 (c) of the Convention. The Federal Government’s acknowledgment of a violation of Article 14 in conjunction with Article 8 of the Convention and its acceptance of the claim for compensation of € 8,000.00 constitutes “[an]other reason” within the meaning of this provision (cf. Van Houten v. the Netherlands, Judgment of 29 September 2005, no. 25149/03).”

By letter of 15 September 2010 the applicant asked the Court to reject the Government’s request to strike out the application. He maintained that their unilateral declaration did not state in relation to whom the applicant was discriminated against and did not address his complaint that the father of a child born out of wedlock was not granted joint custody by operation of law as from the acknowledgment of paternity. He further maintained that the compensatory sum mentioned in the Government’s declaration was unacceptably low and he claimed EUR 25,000 with respect to
non-pecuniary damages and EUR 9.876,65 for costs and expenses.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government - even if the applicant wishes the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI and Haran v. Turkey (striking out), no. 25754/94, § 23, 26 March 2002).

The Court notes that the present case raises the question whether the provisions of the German Civil Code granting the mother of a child born out of wedlock sole custody and making any transfer of custody to the father subject to her consent without providing for judicial review in the event such consent is refused and the related decisions of the domestic courts in the case at hand were in conformity with Article 8 taken alone and read in conjunction with Article 14.

The Court reiterates that in its Zaunegger judgment, while accepting that the initial attribution of sole custody of a child born out of wedlock to the child’s mother was justified for the protection of the child’s interests, it found that there was no reasonable relationship of proportionality between the general exclusion of judicial review of the initial attribution of sole custody to the mother and the aim pursued, namely the protection of the best interests of a child born out of wedlock (Zaunegger v. Germany, no. 22028/04, §§ 55 and 63, 3 December 2009). Thus, the Court found a violation of Article 14 of the Convention taken together with Article 8 and in view of this conclusion did not consider it necessary to determine whether there had also been a breach of Article 8 of the Convention taken alone.

The Court observes that the Government’s declaration contains an acknowledgment that the applicant’s right under Article 14 in conjunction with Article 8 of the Convention were also violated by the general exclusion of judicial review of the initial assignment of sole custody to the child’s mother in the present case.

The Court further notes that the Federal Constitutional Court in a judgment of 21 July 2010, referring inter alia to the Zaunegger judgment, found that the relevant Articles of the German Civil Code (Articles 1626a § 1 no. 1 and 1672 § 1) were unconstitutional. Pending entry into force of the necessary statutory amendments it adopted a transitional and binding regulation to the effect that the said provisions had to be applied with the proviso that the family courts transfer joint or sole custody at the request of a parent of a child born out of wedlock if such transfer was expected to be in the child’s interests.

Having regard to the particular circumstances of the case, the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in the Zaunegger case – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).

In light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).

In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Claudia Westerdiek Peer Lorenzen
Registrar President