Sahin v Germany
| Judgment Date | 20 November 2002 |
Human rights – Private and family life – Discrimination – Applicant refused access to daughter born out of wedlock – Whether refusal of access violating applicant’s right to respect for family life – Whether applicant’s right not to be discriminated against violated – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, arts 8, 14.
The applicant was the father of a child, who was born out of wedlock. The applicant acknowledged paternity and sought access to his child. The mother decided to prohibit contact with the child. The applicant applied to the district court for access. The district court, having regard to the statements made by the parties and the youth office dismissed the request. That provided that custody of a minor child born out of wedlock was exercised by the child’s mother and that the person having custody of the child should determine the father’s right of access unless the guardianship court decided that it was in the child’s interests to have personal contact with the father. The applicant appealed to the Regional Court. That court ordered a psychological expert opinion on the question whether contact with the applicant was in the child’s interest. The expert reached the conclusion that a right of access without prior conversations to overcome the conflicts between the parents was not in the child’s interests. The child, who was five years old, had not been directly asked about her father. The court considered the Civil Code in force at that time and the fact that the court was convinced that the father was motivated by attachment to the child and genuine affection, but held that there was a danger that the differences between the parents might affect the child. The court also ruled that it had not been required to hear the child since questioning her about her relationship with her father would have placed a psychological strain on her. Accordingly it dismissed the appeal. The applicant filed a constitutional complaint with the Federal Constitutional Court complaining that the refusal of access infringed his parental rights and amounted to discrimination. That court refused to entertain his complaint. Thereafter he applied to the European Court of Human Rights complaining that his right to family life under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 had been violated and that the refusal of access could not be considered necessary in a democratic society and, relying on art 14, that he was a victim of discriminatory treatment in that respect. The court held by a majority (see [2002] 3 FCR 321) that there had been both a violation of art 8 and a violation of art 14, taken together with art 8. The matter was referred
to the Grand Chamber at the request of the government of Germany. The government conceded that the applicant’s right under art 8 was engaged but contended that the court had erred in its approach to the margin of appreciation left to national courts and that the application of the Civil Code had not led to discrimination between fathers and children born out of wedlock.
Held – (by a majority) (1) For the purposes of art 8(2), domestic authorities were required to strike a fair balance between the interests of the child and those of the parents. Moreover, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, might override those of the parents. In particular, a parent could not be entitled under art 8 to have such measures taken that would harm the child’s development. Furthermore, when assessing whether the reasons given for the refusal of access were sufficient for the purposes of art 8(2), the court would, at the same time, determine whether the decision-making process, seen as a whole, provided an applicant with the requisite protection of his interests. Whether the process did so depended on the particular circumstances of each case. In the instant case, the German courts procedural approach was reasonable in the circumstances and provided sufficient material to reach a reasoned decision on the question of access. Accordingly there had been no violation of art 8.
(2) The court was required to examine the manner in which domestic legislation was applied to an applicant in particular circumstances, not to examine the legislation in the abstract. In the instant case, because of the inevitable situation of differences between the parents as a consequence of the mother’s deep dislike of the applicant and opposition to him, the German courts found that under the Civil Code on special circumstances could justify the assumption that personal contact with the applicant would nevertheless have permanently beneficial effects on the child’s well-being. Having regard to the fact that the German courts were convinced of the applicant’s responsible motives, his attachment to his child and his genuine affection for her, they placed a burden on him which was heavier than the one on divorced fathers under the Civil Code. Very weighty reasons needed to be put forward before a difference in treatment on the ground of birth out of or within wedlock could be regarded as compatible with the Convention. The same was true for a difference in the treatment of the father of a child born of a relationship where the parties were living together out of wedlock as compared with the father of a chid born of a marriage-based relationship. There were no such reasons in the instant case and accordingly there had been a violation of art 14; Elsholz v Germany[2000] 3 FCR 385 distinguished.
Cases referred to in judgmentAbdulaziz v UK (1985) 7 EHRR 471, [1985] ECHR 9214/80, ECt HR.
Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, [1968] ECHR 1474/62, ECt HR.
Beyeler v Italy App no 33202/96 (28 May 2002, unreported), ECt HR.
Buscemi v Italy App no 29569/95 (16 September 1999, unreported), ECt HR.
Camp and Bourimi v Netherlands[2000] 3 FCR 307, ECt HR.
Covezzi and Morselli v Italy App no 52763/99 (unreported), ECt HR.
Cruz-Varas v Sweden (1991) 14 EHRR 1, [1991] ECHR 15576/89, ECt HR.
East African Asians v UK (1973) 3 EHRR 76, E Com HR.
Elsholz v Germany[2000] 3 FCR 385, [2000] 2 FLR 486, ECt HR.
Glaichauf v Germany App no 9530/81 (14 May 1984, unreported), E Com HR.
Gustafsson v Sweden (1996) 22 EHRR 409, [1996] ECHR 15573/89, ECt HR.
Hokkanen v Finland[1995] 2 FCR 320, [1996] 1 FLR 289, ECt HR.
Ignaccolo-Zenide v Romania [2000] ECHR 31679/96, ECt HR.
Inze v Austria (1987) 10 EHRR 394, [1987] ECHR 8695/79, ECt HR.
K and T v Finland[2001] 2 FCR 673, ECt HR.
Kutzner v Germany[2003] 1 FCR 249, ECt HR.
Mazurek v France (App no 34406/97) (1 February 2000, unreported), ECt HR.
McMichael v UK[1995] 2 FCR 718, ECt HR.
National Union of Belgian Police v Belgium (1976) 1 EHRR 578, [1975] ECHR 4464/70, ECt HR.
NC v Italy App no 24952/94 (18 December 2002, unreported), ECt HR.
Nuutinen v Finland [2000] ECHR 32842/96, ECt HR.
P, C and S v UK[2002] 3 FCR 1, ECt HR.
Rekvényi v Hungary App no 25390/94 (20 May 1999, unreported), ECt HR.
Schmidt v Germany (1994) 18 EHRR 513, [1994] ECHR 13580/88, ECt HR.
Sunday Times v UK [1980] ECHR 6538/74, ECt HR.
TP and KM v UK[2001] 2 FCR 289, ECt HR.
Vidal v Belgium [1992] ECHR 12351/86, ECt HR.
W v UK (1987) 10 EHRR 29, [1987] EHRC 9749/82, ECt HR.
ApplicationThe applicant, Asim Sahin, a German national, by a case originated in an application (no 30943/96) against the Federal Republic of Germany, lodged with the European Commission of Human Rights (the Commission) under former art 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, alleged a violation of arts 8 and 14 of the Convention, contending that the German court decisions dismissing his request for access to his child, born out of wedlock, amounted to a breach of his right to respect for his family life and that he was a victim of discriminatory treatment in this respect. The facts are set out in the judgment.
8 July 2003.
The EUROPEAN COURT OF HUMAN RIGHTS (GRAND CHAMBER) delivered the following judgment. PROCEDURE1. The case originated in an application (no 30943/96) against the Federal Republic of Germany lodged with the European Commission of Human Rights (the Commission) under former art 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71
(1953); Cmd 8969) (the Convention) by Asim Sahin (the applicant), a German national of Turkish origin, on 16 June 1993.
2. The German government (the government) were represented by their agents, Mrs H Voelskow-Thies, Ministerialdirigentin, of the Federal Ministry of Justice, at the initial stage of the proceedings, and subsequently by Mr K Stoltenberg, Ministerialdirigent, also of the Federal Ministry of Justice. The applicant was, exceptionally, granted leave to represent himself (r 36 of the Rules of Court).
3. The applicant alleged, in particular, that the German court decisions dismissing his request for access to his child, born out of wedlock, amounted to a breach of his right to respect for his family life and that he was a victim of discriminatory treatment in this respect. He relied on arts 8 and 14 of the Convention.
4. The application was transmitted to the court on 1 November 1998, when Protocol No 11 to the Convention came into force (art 5(2) of Protocol No 11).
5. The application was allocated to the Fourth Section of the Court (r 52(1)). Within that section, the chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(1), composed of: Mr A Pastor Ridruejo, President, Mr G Ress, Mr L Caflisch, Mr I Cabral Barreto, Mr V Butkevych, Mrs N Vajiæ, Mr M Pellonpää, judges, and Mr V Berger, section registrar. On 12 December 2000 the application was declared partly admissible as regards the applicant’s complaints that the German court decisions...
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