FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 23130/04 
by Karl-Werner HÜTTNER 
against Germany

The European Court of Human Rights (Fifth Section), sitting on 19 June 2006 as a Chamber composed of:

Mr P. Lorenzen, President
 Mrs S. Botoucharova
 Mr K. Jungwiert
 Mrs M. Tsatsa-Nikolovska
 Mr R. Maruste
 Mr J. Borrego Borrego, 
 Mrs R. Jaeger, judges
and Mrs C. Westerdiek, Section Registrar,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Karl-Werner Hüttner, is a German national who was born in 1955 and lives in Neuwied. He is represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld. The respondent Government are represented by their Deputy Agent, Mr H. –J. Behrens, Ministerialrat, of the Federal Ministry of Justice.

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

1.  The background to the case

On 10 August 1990 the applicant and his wife married. On 30 May 1991 and 28 June 1992 respectively a son and a daughter were born. In 1997 the applicant and his wife separated and the children remained with the wife. On 6 March 1998 the applicant and his wife agreed before the Neuwied District Court on the applicant’s right of access to his children. On 28 August 1998 the applicant and his wife divorced. The court ordered that they should continue to exercise shared custody, but that the children should remain with their mother. On 7 June 1999 the Koblenz Court of Appeal awarded the mother the children’s sole custody. The court based its decision on a psychological expert opinion.

2. The proceedings which are the subject of the present application

On 18 January 2000 the applicant requested the children’s sole custody or at least the right to decide where the children should live (Aufenthaltsbestimmungsrecht) before the Neuwied District Court, stating inter alia that the children’s mother obstructed his right of access.  
On 23 June 2000 the court rejected the applicant’s request. The court did not obtain an expert opinion and did not appoint a curator ad litem (Verfahrenspfleger) for the children, but it heard them and obtained a statement from the Youth Office.

On 18 August 2000 the Koblenz Court of Appeal rejected the applicant’s complaint. It neither heard the children nor appointed a curator ad litem.

On 2 October 2000 the applicant lodged a constitutional complaint with the Federal Constitutional Court arguing that the courts should have obtained a psychological expert opinion and should have appointed a curator ad litem.

On 22 March 2002, while the proceedings before the Federal Constitutional Court were still pending, the applicant again requested the children’s sole custody before the Neuwied District Court.  
On 24 October 2002 the applicant obtained his son’s sole custody by interim measure. On 20 May 2003 the applicant and the children’s mother concluded a friendly settlement which stipulated that the applicant was awarded the son’s sole custody while the mother obtained the daughter’s sole custody.

The applicant informed the Federal Constitutional Court about the decision of 24 October 2002 on 1 June 2004. In a letter dated 16 June 2004 he maintained that there had been no final decision yet.

The Federal Constitutional Court learned about the friendly settlement of 20 May 2003 when examining the court files of the Neuwied District Court and the Koblenz Court of Appeal. Holding that the matter in dispute had been resolved by the friendly settlement and that the applicant had thus lost his standing to pursue his constitutional complaint, the Federal Constitutional Court refused to admit the applicant’s complaint on 28 February 2005.

On 5 April 2005 the applicant submitted the Federal Constitutional Court’s decision of 28 February 2005 to the Court and stated that he had not remembered the friendly settlement of 20 May 2003 when lodging his constitutional complaint and his subsequent application with the Court.

COMPLAINTS

Invoking Article 6 § 1 of the Convention the applicant complained about the length of proceedings before the Federal Constitutional Court. Furthermore, the applicant submitted under Article 6 § 1 of the Convention that the District Court had neither obtained an expert opinion nor appointed a curator ad litem. Moreover, the applicant contested that the Court of Appeal had neither appointed a curator ad litem nor heard the children.

Lastly, the applicant complained under Article 8 § 1 of the Convention about the impugned decisions.

THE LAW

The applicant’s first complaint relates to the length of the proceedings before the Federal Constitutional Court. The applicant held the opinion that the length of proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

1.      The parties’ submissions

The Government argued that the applicant had provided the Court with incomplete and misleading information, as he had failed to disclose that he had entered into a friendly settlement which resolved the matter in dispute. According to the Government, the applicant’s behaviour constituted an abuse of his right to lodge an application. The Government did not consider it credible that the applicant could not have remembered a friendly settlement of such importance.

Furthermore, the Government submitted that the application was manifestly ill-founded in any event, because the length of proceedings before the Federal Constitutional Court was mainly the result of the applicant’s failure to submit all relevant facts to that court. According to the Government the applicant should have withdrawn his constitutional complaint immediately after entering into the friendly settlement on 20 May 2003, since he had lost his locus standi to further pursue his complaint. Hence the Government concluded that the length of proceedings since 20 May 2003 was solely the result of the applicant’s failure to disclose pertinent information. The Government did not consider excessive the remaining length of proceedings, namely 2 years and eight months. In this respect the Government pointed out that the applicant’s constitutional complaint related only to procedural questions and did not concern the applicant’s right of access to his children as such.

The applicant submitted that he had not intentionally presented incomplete information to both the Federal Constitutional Court and the Court, but had rather forgotten about the friendly settlement, as there had been 56 sets of proceedings between him and his divorced spouse over the last years. Moreover, he indicated that his current legal counsel did not represent him during the negotiations of the friendly settlement and thus had no knowledge of it when lodging the constitutional complaint and the application with the Court in the applicant’s name.

Lastly, the applicant maintained that in any event the time which had elapsed between lodging his application with the Federal Constitutional Court on 2 October 2000 and the friendly settlement on 20 May 2003 had already been unreasonably long. He held the opinion that all proceedings relating to custody rights have to be conducted in a speedy manner.

2.  The Court’s assessment

The Court notes that when lodging his application with the Court on 17 June 2004, the applicant did not mention the friendly settlement of 20 May 2003. In his application he complained about certain procedural shortcomings of the proceedings before the Neuwied District Court and the Koblenz Court of Appeal as well as the length of proceedings before the Federal Constitutional Court.

On 18 March 2005, before learning about the Federal Constitutional Court’s decision, the Court communicated the applicant’s complaint about the length of proceedings before the Federal Constitutional Court to the respondent Government.

As regards the alleged abuse of the right of application, the Court recalls that an application may be rejected as abusive under Article 35 § 3 of the Convention, among other reasons, if it was knowingly based on untrue facts (see to abuse of the right of application, Varbanov v. Bulgaria no. 31365/96, § 36, ECHR 2000-X; Popov v. Moldova (no. 1) no. 74153/01, § 48, 18 January 2005; Rehak v. Czech Republic (dec.), no. 67208/01, 18 May 2004; Kérétchachvili v. Georgia (dec.), no. 5667/02, 2 May 2006).

Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information. In the circumstances of the present case, the applicant, represented by legal counsel in the domestic proceedings and the proceedings before the Court, has not furnished any plausible explanation for the failure to inform the Court about the loss of his victim status more than one year before he lodged his application with the Court.

It follows that the application must be rejected as a whole as an abuse of the right of application pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

HUTTNER v. GERMANY DECISION


HUTTNER v. GERMANY DECISION