Suss v Germany
| Judge | JUDGE ZUPANCIC (PRESIDENT),JUDGES HEDIGAN,CAFLISCH,BIRSAN,GYULUMYAN,JAEGER,AND MYJER,MR M VILLIGER (DEPUTY SECTION REGISTRAR) |
| Judgment Date | 10 November 2005 |
Human rights – Private and family life – Suspending right of access to child – Welfare of child – Whether violating right to family life – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The applicant’s wife and four-year old daughter (F) moved out of the matrimonial home in August 1989. On 6 December 1992, the applicant had contact with F for the last time and the mother denied the applicant any further contact. Three sets of court proceedings were opened concerning: the custody of F pending the separation of the spouses and the applicant’s access to F; the spouses divorce, custody of F and applicant’s access to F; and the enforcement of the applicant’s access to F. After protracted proceedings F stated to the district court hearing the proceedings that she no longer wished to have contact with her father and refused to adhere to any order for her to do so. In view of F’s stated wish the court deemed it necessary, in the interests of the child’s well being, to prohibit any contact between the applicant and F and therefore suspended the applicant’s access to her. The applicant’s appeal was refused, pursuant to s 1634(2) of the Civil Code that stated that a court could restrict or suspend a right of access if necessary for a child’s welfare. The applicant complained to the European Court of Human Rights that, inter alia, the decision to suspend his right of access to his daughter amounted to a breach of the right to respect for his family life, contrary to art 8 of the European Convention on Human Rights.
Held – In the instant case, the national courts’ decisions to suspend the applicant’s access to his daughter had been made in the child’s best interest, which, due to its serious nature, overrode the applicant’s interests. In the circumstances, the interference with the applicant’s rights had been in accordance with the law, pursued a legitimate aim and was necessary in a democratic society. Accordingly, there had been no violation of art 8 of the Convention.
Cases referred to in judgmentBaumann v Austria [2004] ECHR 76809/01, ECt HR.
Beer v Austria [2001] ECHR 30428/96, ECt HR.
Elsholz v Germany[2000] 3 FCR 385, ECt HR.
Fey v Austria (1993) 16 EHRR 387, ECt HR.
Gorgulu v Germany[2004] 1 FCR 410, [2004] 1 FLR 894, ECt HR.
Hauschildt v Denmark [1989] ECHR 10486/83, ECt HR.
Helmers v Sweden [1991] ECHR 11826/85, ECt HR.
Hokkanen v Finland[1995] 2 FCR 320, [1996] 1 FLR 289, ECt HR.
Hoppe v Germany[2003] 1 FCR 176, [2003] 1 FLR 384, ECt HR.
Johansen v Norway (1996) 23 EHRR 33, ECt HR.
Karner v Austria[2004] 2 FCR 563, [2003] 2 FLR 623, ECt HR.
Mihailov v Bulgaria [2004] ECHR 52367/99, ECt HR.
Nekvedavicius v Germany [2003] ECHR 46165/99, ECt HR.
Nuutinen v Finland [2000] ECHR 32842/96, ECt HR.
Pitkanen v Finland [2004] ECHR 30508/96, ECt HR.
Sablon v Belgium [2001] ECHR 36445/97, ECt HR.
Sahin v Germany[2003] 2 FCR 619, [2003] 2 FLR 671, ECt HR.
Sommerfeld v Germany[2003] 2 FCR 647, ECt HR.
TP and KM v UK[2001] 2 FCR 289, [2001] 2 FLR 549, ECt HR.
ApplicationThe applicant alleged, in particular, that the German court decisions suspending his right of access to his daughter amounted to a breach of the right to respect for his family life guaranteed by art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Invoking art 6 of the Convention, he further claimed that the court proceedings concerned had not been fair. The facts are set out in the judgment of the court.
PROCEDURE1. The case originated in an application (no 40324/98) 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 (the Convention) by a German national, Mr Werner Suss (the applicant), on 10 October 1997.
2. The applicant, who had been granted legal aid, was represented before the court by Mr J Rieck, a lawyer practising in Munich, and, subsequently, by Mr C Plantiko, a lawyer practising in Bonn. The German government (the government) were represented by their Agent, Mr K Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
3. The applicant alleged, in particular, that the German court decisions suspending his right of access to his daughter amounted to a breach of the right to respect for his family life guaranteed by art 8 of the Convention. Invoking art 6 of the Convention, he further claimed that the court proceedings concerned had not been fair.
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) of the Rules of Court). Within that section, the chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(1).
6. By a decision of 20 September 2001, the court declared the application partly admissible.
7. The applicant and the government each filed observations on the merits (r 59(1)).
8. On 1 November 2004 the court changed the composition of its sections (r 25(1)). This case was assigned to the newly composed third section (r 52(1)).
THE FACTS I. The circumstances of the case9. The applicant was born in 1940 and lives in Berlin.
A. Background to the case
10. The applicant married GS in August 1984. Their daughter F was born on 29 November 1984. In August 1989 GS moved out of the matrimonial home together with F who has been living with her mother since then.
11. On 6 December 1992 the applicant had his last contact with F. The mother subsequently denied the applicant any further contact.
12. Three sets of court proceedings concerning the custody of F, the applicant’s right of access and the spouses’ divorce opened before the Charlottenburg District Court (later Tempelhof-Kreuzberg District Court), namely
—no 159 F 9531/89 concerning custody of F pending the separation of the spouses and the applicant’s access to F,
—no 159 F 13061/89 concerning divorce, custody and the applicant’s access to F, and
—no 159 F 10373/92 concerning the enforcement of the applicant’s access to F
B. Proceedings initially regulating the applicant’s access to F pending the separation of the spouses (no 159 F 9531/89)
13. On 7 September 1989, in the context of proceedings before the Charlottenburg District Court concerning custody of F during the period of separation of the spouses, the question of the applicant’s right of access to F was settled. According to the spouses’ agreement, the applicant was entitled to see his daughter once per week on a weekday and from Sunday until Monday morning every second week-end.
14. Subsequently F’s mother denied the applicant any contact with F and the applicant asked the district court for assistance in this matter.
15. On 7 November 1989 Judge S of the Charlottenburg District Court, having heard F and her mother, informed the applicant that contacts between him and his daughter should take place regularly every second weekend and at Christmas. He noted that F was on very good terms with her father. However, further contacts would worsen the very strained relations between the parents and were presently not in the child’s best interest. On 17 November 1989 GS declared that she no longer wished to comply with the settlement of 7 September 1989, as she had been terrorised by the applicant.
16. On 2 January 1990 the district court noted that GS had not complied with the terms of the friendly settlement of 7 September 1989. It observed that GS had failed to furnish evidence for her allegations that the applicant had threatened or sexually harassed GS or F in several letters.
17. On 25 April 1990 the district court decided that during the period of separation of the spouses GS shall have custody of F.
18. On 4 October 1990 the Berlin Court of Appeal, having regard to the parents’ statements made in court and a report of the Tempelhof District Youth Office, dismissed the applicant’s appeal against this decision.
C. Main proceedings on the applicant’s access to F after divorce (no 159 F 13061/89)
1. Proceedings before the district court19. On 16 November 1989 the applicant filed a petition for divorce with the Charlottenburg District Court and requested to be granted custody of F. In the subsequent proceedings, both parties, that is, GS and the applicant, were assisted by counsel.
20. On 13 March 1990 the Charlottenburg District Court, granting the applicant’s motion, issued an interim injunction. Judge S, sitting alone, ordered that the applicant had a right of access to F once a week on a weekday and that F should stay overnight from Sunday until Monday morning every second week. This order replaced the regulation of the applicant’s right of access by the friendly settlement agreement concluded on 7 September 1989. The court considered that contacts between the applicant and F, as provided for in the said agreement, were in the child’s best interest. For months, GS had, however, advanced factual or personal pretexts to prevent contacts. The court noted that it had heard the parties on the question of access on 8 March 1990.
21. GS objected to the interim injunction.
22. On 2 April 1990, at a hearing before the district court, the parties arrived at a new settlement on the applicant’s access to F which replaced the court order of 13 March 1990. According to this agreement, the applicant was entitled to spend every second week-end and certain fixed holidays with F. This arrangement was subsequently only partly observed by GS, and the applicant asked for the enforcement of his right of access under the terms of the settlement.
23. On 21 September 1990 the district court dismissed one of the applicant’s motions to Ord GS to pay a coercive penalty, as GS had not deliberately failed to comply...
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