European Court of Human Rights

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14448/09
by Markus KOPKA
against Germany

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

Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 16 March 2009,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Markus Kopka, is a German national who was born in 1976 and lives in Planegg. He was represented before the Court by
Mr G. Rixe, a lawyer practising in Bielefeld.

A.  The circumstances of the case

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

The applicant is the father of two children, born in 2003 and 2005.
Since the couple's separation in 2007 the children have been living with their mother.

On 25 July 2007 the mother lodged a request to be granted sole parental authority over the children in order to return with them to her country of origin, Peru.

On 3 December 2007 the Munich District Court (Amtsgericht) rejected the request.

On 9 May 2008 the Munich Court of Appeal (Landgericht) quashed the District Court's decision and granted the mother sole parental authority over both children.

On 20 May 2008 the applicant lodged a complaint which was rejected by the Munich Court of Appeal on 30 June 2008.

On 13 August 2008 the Federal Constitutional Court refused to admit the applicant's constitutional complaint for adjudication. This decision was served on the applicant's counsel on 18 August 2008.

COMPLAINT

The applicant complained under Articles 8 and 6 § 1 of the Convention about the transfer of sole parental authority to the children's mother.

THE LAW

The applicant complained that the proceedings leading to the transfer of sole parental authority to the children's mother had been unfair and violated his right to respect for his family life. He invoked Articles 8 and 6 § 1 of the Convention.

By virtue of Article 35 § 1 of the Convention, the Court may deal only with applications lodged with it within six months from the date on which the final domestic decision was taken. This rule, which reflects the wish of the Contracting Parties not to have old decisions challenged after an indefinite period, serves not only the interests of the Government but also legal stability as an intrinsic value, while also answering the need to leave the applicant time to decide whether to apply to the Court and to prepare his application. This rule also places a time-limit on the supervision provided by the Court and tells both private individuals and State authorities the period beyond which its supervision ceases (see, among other authorities, Kalogeropoulos v. Greece (dec.), no. 28451/02, 10 March 2005, and
Otto v. Germany (dec.), no. 21425/06, 10 November 2009).

The Court reiterates that time starts to run on the date following the date on which the final decision has been pronounced orally in public, or on which the applicant or his representative was informed of it, and expires six calendar months later regardless of the actual duration of those calendar months (see Otto, cited above, with further references).

The Court notes in the instant case that, according to the information contained in the application, the Federal Constitutional Court's decision of 13 August 2008, which was the final domestic decision, reached the applicant's counsel on 18 August 2008. The six-month period provided for in Article 35 § 1 of the Convention therefore started to run on
19 August 2008 and expired on 18 February 2009. However, the first letter including the application signed by the applicant's counsel dated
18 February 2009 reached the Court by fax on 16 March 2009 and thus almost one month after expiry of the six-month period.

The Court takes note of the applicant's counsel's submissions that he posted a parcel containing the application and accompanying documents on 18 February 2009. On 4 March 2009 the parcel was returned to the applicant's counsel. The packaging was damaged and bore the imprint:
“Si non livrable, à retourner en Allemagne import via PFC ERSTEIN”
(“if undeliverable, to be returned to Germany via PFC Erstein”) and “Reportez-vous à l'étiquette d'origine pour l'adresse du destinataire” (“Consult the original label for the recipient's address”). On 4 March 2009 the applicant's counsel once again posted the application, which was returned to him in a damaged state on 13 March 2009. On 16 March 2009 the applicant's counsel re-posted the parcel and, at the same date, sent the application form and impugned decisions by fax to the court. In his accompanying letter, the applicant's counsel submitted that the non-delivery of the application did not fall within the applicant's sphere of responsibility.

The parcel with the application and attachments finally reached the Court on 27 March 2009 with the handwritten remark “erreur code postal envoyée au Havre (76075)” (“wrong costal code, sent to Havre (76075)”).

The Court notes, at the outset, that the applicant attempted to lodge his complaint on the last day before expiry of the six-month period. The Court considers that the applicant, who made full use of the six-month period and was represented by counsel before the Court, could reasonably have been expected to take all necessary precautions to avoid any undue delay in the delivery of his application.

Turning to the circumstances of the present case, the Court notes that the applicant's correspondence concerning the instant application, including the first parcel which was returned to his counsel as being undeliverable, bore the incorrect postal code “76075” instead of the correct postal code “67075” for Strasbourg. The second parcel apparently did not bear any postal code. The Court deduces from this and from the handwritten remark on the parcel which finally reached the Court that the first two parcels failed to reach their destination because of the incorrect address. The Court considers that the applicant's counsel, at least after the first failed delivery attempt, could have been expected to verify whether the address indicated on the parcel was correct. Furthermore, the Court considers that the applicant's counsel, in order to avoid any further delay, might have sent the application by fax already after the first failed delivery attempt on 4 March 2009.
The applicant, who chose to be represented by counsel before the Court, has to be held accountable for the latter's actions and omissions.

Having regard to these circumstances, the Court is not convinced that the applicant, represented by counsel, was prevented through no fault of his own from lodging his application at an earlier date. It follows that the relevant date for the introduction of the instant complaint was
16 March 2009, when the applicant's counsel's fax reached the Court, and thus after expiry of the time-limit on 18 February 2009.

It follows that this application was lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President