THE FACTS Whereas, the facts presented by the applicant may be summarised as follows: The applicant is a German national, born in 1932, and at present resident in Prien am Chiemsee. The applicant states that he was engaged to be married to Mrs. B. who had been divorced from her former husband. Mrs. B. had made it a condition of this marriage that she should first bear a child to the applicant. However, after the birth of the child on 29th October, 1964, Mrs. B. refused to marry the applicant, denied that there had ever been an official engagement and on 13th February, 1965, left the applicant's mother's flat where she had been living with the applicant and took the child with her. The applicant states that he believes that Mrs. B. never intended to marry him, but merely pretended to do so in order to induce him to procreate the child which he would not have done, had he not been convinced that Mrs. B. would marry him when the child was born. On 2nd November, 1964, the applicant states that Mrs. B. applied for an official guardian to be appointed for the child. Under Article 40 of the Children and Young Persons Welfare Act (Jugendwohlfahrtsgesetz) 1961, the local Youth Office (Jugendamt) is ipso facto guardian of all illegitimate children born to German mothers in its district and under Article 1589 (2) of the Civil Code, the natural father is not deemed to be in way related to such a child. The applicant admits that he said that he was prepared to be the father of the child (Ich will der Vater des Kindes sein) but maintains that he made it clear that he only meant to say that he was prepared to assume the position of a legitimate father and not that he was admitting the relationship of natural paternity. He maintains that he was deliberately misinterpreted by the Court. He also complains that he was ordered to pay maintenance from the time of birth, although he states that he contributed towards the maintenance of the child from 23rd November, 1964, until 13th February, 1965, and also looked after the baby while the mother went out to work. Furthermore, the child and its mother were living in his mother's flat during this time. On 28h June, 1965, the applicant's appeal was rejected as inadmissible by the Regional Court (Landgericht) in Traunstein. The applicant then addressed an appeal to the Bavarian Constitutional Court, which sent the papers to the Regional Court. On 23rd August, 1965, the applicant was invited to attend the District Court in Rosenheim where he was informed of his legal position. The applicant wrote to the Youth Office and the District Court at Rosenheim expressing his desire that the child should be declared legitimate (Ehelichkeitserklärung). He was informed by letters of 9th and 16th September, 1965, that this was impossible under the provisions of Article 1727 of the Civil Code as the mother was unwilling to give her consent. The applicant then addressed the Federal Constitutional Court and was informed by letters of 10th November and 17th December, 1965, that insofar as he complained of the judgment of the District Court in Rosenheim of 20th May, 1965, declaring his liability to make maintenance payments, a constitutional appeal was inadmissible, as he had failed to exhaust the available legal remedies. With regard to his complaint regarding Article 1589 (2) of the Civil Code which provides that no relationship is deemed to exist between a natural father and an illegitimate child, it was now too late to attack this provision directly by means of a constitutional appeal on account of the time limit imposed by Article 93 (2) and (3) of the Federal Constitutional Court Act. Such an appeal could only be brought against an act of a public authority (in particular the decision of a court) based on this provision. The letter, however, pointed out that the decision of the District Court at Rosenheim was not based on this provision but would have been the same even if that provision has not existed . In the circumstances, the Court did not register his application as an appeal. The applicant was also informed that reforms concerning the relationship between an illegitimate child and its father were under consideration and might result in legislation which would affect his case. On 10th January, 1966, the applicant reported Mrs. B. to the police, requesting a prosecution for fraud on the ground that he had been induced to enter into sexual relations and procreate a child by means of a promise of marriage which was not fulfilled. On 23rd February, 1966, he was informed by the Attorney-General in Munich that a conviction for fraud was improbable and that therefore proceedings would not be taken. On 20th May, 1966, the applicant wrote to the District Court for an order granting his access to his child and received a reply dated 25th May, 1966, informing him that his application could not be granted since the law gave him no right to access to his illegitimate child. The applicant sent petitions to the Federal President and the Federal Parliament, receiving negative replies on 6th June and 26th September, 1966. On 14th October, 1966, he applied to the Bavarian Constitutional Court for access to his child and sent a copy to the District Court at Rosenheim which replied on 9th November, 1966, that a natural father had no right of access to an illegitimate child, but that he could adopt the child if he obtained the consent of its mother. He has been advised by a lawyer that there is no prospect of his application being dealt with by the Bavarian Constitutional Court. It appears that on 9th March, 1967, the applicant was refused legal assistance by the Bavarian Constitutional Court on the ground that his complaint alleging a violation of the Constitution of Bavaria has no prospect of success. His further appeal to the Federal Constitutional Court was, on 8th June, 1967, not accepted for decision, as not being submitted in due form (formwidrig) and in any case, as clearly unfounded. The Court stated that the necessary reform of the law relating to illegitimate children could not be carried out by the Federal or the Bavarian Constitutional Courts but only by the legislature. The Federal Minister of Justice had, however, stated that a Bill to this effect would be placed before the present Parliament. The applicant claims: - the immediate restoration of his human rights and in particular, the recognition of his paternity; - that the judgment of the District Court in Rosenheim of 25th May, 1965, be set aside; - that his child be declared legitimate retrospectively as from birth, even if the mother does not give her consent; - that the child shall live in his flat and be cared for by his mother; - that Mrs. B. be deprived of her right to educate the child; - that the German Government and Mrs. B. be ordered to pay damages for the applicant's mental suffering and material loss. The applicant invokes Articles 3, 6, 8 and 10 of the Convention. Proceedings before the Commission Whereas the proceedings before the Commission may be summarised as follows: The application was lodged with the Secretary to the Commission on 11th October, 1966, and entered in the special register provided for by Rule 13 of the Commission's Rules of Procedure on 29th March, 1967. On 6th September, 1967, the case was submitted to a group of three members for a preliminary examination in accordance with Rule 34 of the Rules of Procedure. On 20th December, 1967, the Commission examined the application and declared inadmissible the applicant's complaint relating to the court order requiring him to make maintenance payments for his illegitimate child, his complaints directed against Mrs. B. and his complaint that the authorities had refused to take criminal proceedings against Mrs. B. At the same time, it decided to give notice to the respondent Government, in according with Rule 45, paragraph 3 (b) of its Rules of Procedure of the applicant's complaint, insofar as it concerned the absence in German law of a legal paternal relationship and accessory rights, in particular, the right of access, between the applicant and his child, and to invite the Government to submit its observations on the question of admissibility. The respondent Government submitted its observations on 21st March, 1968, and the applicant submitted his observations in reply on 4th April, 1968. The respondent Government stated, inter alia, that it had submitted to the Federal Parliament on 7th December, 1967, a Bill on the legal status of illegitimate children (Bundestag - Drucksache V/2370). The applicant in reply challenged the respondent Government's observations as being irrelevant. On 11th July, 1968, the Commission decided to adjourn its decision on admissibility until a conclusion had been reached concerning the Bill referred to in the respondent Government's observations, or, at the latest, until July, 1969. On 18th July, 1969, the President of the Commission ordered under Rule 38, paragraph (2) of the Commission's Rules of Procedure, a further adjournment of the case. He also decided, acting on behalf of the Commission, to invite the respondent Government to inform the Commission as to whether the new Bill on the legal status of illegitimate children had become law and if so, in what manner it affected the applicant's situation. By letter of 31st October, 1969, the respondent Government submitted the following observations: "Referring to the letters of the Secretary to the European Commission of Human Rights of 15th July, 1968, and 23rd July, 1969, the Federal Government has the honour to inform the Commission as follows: The Act on the legal status of illegitimate children of 19th August, 1969, was published in the Federal Gazette (Bundesgesetzblatt, 1969, Part I, p. 1234) after having been passed by the legislative bodies. According to its Article 12, Section 27, it will enter into force on 1st July, 1970. The basis for the new regulation if the legal status of illegitimate children is Article 6, paragraph 5, of the Basic Law. Under this provision, illegitimate children are to be provided by legislation with the same opportunities for their physical and mental development and their place in society as are enjoyed by legitimate children. To give effect to this mandate of the Constitution, the Act of 19th August, 1969, in conformity with the social outlook of today, puts the emphasis on the welfare of the illegitimate child. Discrimination for the reason of illegitimacy shall be avoided or even up as far as is possible. As far as the legal relationship existing between the illegitimate child and its father is concerned, the Act contains such provisions as appear to be suitable for strengthening the legal and practical ties between the two. In this connection, the following provisions are particularly worth mentioning: (1) Article 1 No. 3 of the Act of 19th August, 1969, does away with the provision contained in section 1589, paragraph 2, of the Civil Code. Under section 1589, paragraph 2, of the Civil Code, the illegitimate child and its father are deemed not to be relatives. As has already been observed by the Federal Government in Part II, paragraph (c), of its comments of 21st March, 1968, this provision does not purport to deny the existence of a natural tie between a father and his illegitimate child. Its idea, rather, is that the legal provisions making blood relationship the test shall not apply in the case of a natural father and his child. By cancelling section 1589, paragraph 2, of the Civil Code, the natural relationship is now recognised in virtue of the law. The repeal, at the same time, is an expression of the legislator's concern to encourage and develop the personal relations between father and child and to strengthen the father's sense of responsibility. (2) According to Article 1 No. 25 of the Act of 19th August, 1969, section 1705, sentence 1, of the Civil Code shall read as follows: 'The illegitimate child shall come under the mother's parental power as long as it is a minor.' This solution takes into account that in quite the majority of cases, the parents of an illegitimate child are not living together in a common household and that for this reason, the parental power cannot be exercised by the two of them jointly. The assignment of the parental power to the mother is suitable for practical reasons because the natural link between her and the child is far closer than that connecting the illegitimate child with its father. The father can acquire the parental power even without marrying the mother by adopting the child or by having it declared legitimate. This, it is true, requires the mother's consent. Under section 1727 of the Civil Code, as amended by Article 1 No. 31 of the Act of 19th August, 1969, the mother's consent to a declaration of legitimation can be replaced by that of the guardianship court in cases where, for weighty reasons, it is necessary for the welfare of the child. Also in the case of an adoption can the consent be supplied by the guardianship court in special circumstances, instead of by the mother. Apart from that, the provision added to section 1618 of the Civil Code by Article 1 No. 19 of the Act of 19th August, 1969, provides for the father of the child to be allowed to give the child his name by way of making a declaration to the registrar to that effect, with the consent of both the child and the mother. By giving the child its father's name, the natural tie existing between a father and his illegitimate child becomes apparent also to the outside world. This of particular significance in cases where the father is in charge of the illegitimate child or where other close personal links are existing between him and the child. (3) The Act of 19th August, 1969, affords to a natural father the possibility of exerting his influence on decisions concerning the care for his child's person or property. According to Article 1 No. 24 of the new Act, section 1712 of the Civil Code now reads as follows: 'Before making a decision concerning the care for the child's person or property, the guardianship court should hear the child's father if, in due exercise of its discretion, the court considers it to be for the child's benefit to do so.' In the case of a proposed adoption, the court's obligation of hearing the father goes even beyond this. Section 1747 (a), sentence 1, of the Civil Code, which has been added by Article 1 No. 43 of the Act of 19th August, 1969, reads as follows: 'Before making a decision or allowing the adoption of an illegitimate child, the guardianship court should hear the child's father.' This newly provided for hearing of the father before any decisions concerning the illegitimate child are made, may contribute to strengthening the personal relations between father and child. But in view of the actual conditions mostly prevailing, the new legislation does not intend to create for the father an unrestricted right to be heard; for the father is generally not sufficiently acquainted with the child's circumstances and personality to be able to make any practical contribution to such decisions. Where, on the other hand, a father entertains personal relations with his child, it will, as a rule, be to the child's benefit if he is heard. Thus, the new legal solution adequately safeguards that a father will be heard before any decision is made about his child, provided he has a justified interest in it. (4) Through the Act of 19th August, 1969, the father's right of access (Verkehrsrecht) to the illegitimate child is regulated by law. Under Article 1 No. 25 of this Act, section 1711 of the Civil Code obtains the following wording: 'The question whether, and if so, to what extent, the father shall be given the opportunity of seeing his child, is decided by the person having the care for the child's person. If personal contact with its father benefits to the child, the guardianship court can take the decision. The court is free to alter its decision at any time. Where appropriate, the Children's and Young Persons' Office (Jugendamt) shall mediate between the father and the person entitled to the care of the child's person.' This provision puts the child's welfare in the first place but at the same time considers in a fair way the father's interest in regular personal contacts with his child. The introduction of a general right of access to the child was not justifiable in view of the great dangers possibly resulting for the child from such a right. Frequently the father's visits - in particular, if he tries to interfere with the child's upbringing - endanger the quiet and undisturbed development of the child. In the none-too-rare cases where the relations of the parents are very strained, such visits may well give rise to great psychic conflicts in the child. The new legal solution, which makes the permission for seeing the child dependent on whether or not the latter will benefit by such contacts, is therefore a reasonable and suitable one. By the Act of 19th August, 1969, the legal relations between an illegitimate child and its father are placed on a new footing. If by the time the new Act enters into force, i.e. 1st July, 1970, the applicant is still interested in personal contacts with his child, it will be up to him to come to terms with the child's mother about his right to see the child. If no agreement can be reached on this question between the applicant and the child's mother, the applicant is entitled under the new legal provision (Section 1711 of the Civil Code) to apply to the guardianship court for a decision." By letter of 22nd November, 1969, the applicant submitted the following reply: "I Violation of the fundamental human rights and freedoms guaranteed in the Convention and the Basic Law and, in particular, intentional and continued perversion of justice with respect to Article 8 of the Convention - as regards private live - and Article 3, paragraph (3), of the Basic Law - with regard to blood descent and descent in general. II Failure to call the guilty to account for persecution of innocent persons, as occurred through an intentional perversion of justice in the District Court of Rosenheim (Upper Bavaria) on 20th May, 1965 (Ref.: C 158/65). By virtue of his oath of office (Article 56 of the Basic Law the Federal Chancellor is fully responsible for what happened. A copy of this complaint is being sent to the Federal Attorney-General (Oberbundesanwalt) attached to the Federal Constitutional Court, in accordance with Article 13 of the Convention. The Federal Government is aware that: Descent, in particular blood descent, is one of the inalienable fundamental rights of every human being and forms an integral part of his private life. It is well known that the descent of a child is initiated, even before birth, by a combination of the hereditary characteristics of both parents. In this respect nature draws no distinction between legitimate and illegitimate children. Irrespective of its birth, the child stands in the same relationship to both parents. Although the illegitimate child must accept that the marriage of its parents cannot be enforced, it has the natural right to associate with them. The question of marriage, being an arbitrary law of society, cannot deny the child this natural claim. After all, the child bears the hereditary characteristics of both parents. Contrary to Article 3, paragraph (3), of the Basic Law, the courts of the Federal Republic have for twenty years told the illegitimate child, "You have no business to be related to your father!" The bonds of descent between the illegitimate child and its natural father are broken asunder by official action. This is reminiscent of the Auschwitz methods and spirit of Nazi Germany: "For racial reasons, you have no business to exist" What is more, the courts took it as a matter of course that the guiltless victims of persecution should go to the slaughter without resistance. No mandate from the German people is apparent for breaking asunder of the bonds of descent by official action or for persecution on racial grounds. These are an abuse of power directed against the people! The Federal Government, Parliament and the courts are not entitled to interfere with innate and inalienable human rights. They have no mandate from the people to do so. The Basic Law and the Convention, which is part of the German Law, are the ultimate expression of the will of the people and rank higher than the Civil Code, which is the work of a past generation and has not been adapted to our own. Article 3, paragraph (3), of the Basic Law, states expressly: No one shall be favoured or discriminated against on account of his descent. Article 19, paragraph (1) of the Basic Law provides that, insofar as a fundamental right can be limited by law, the law in question must refer to that right and the Article in which it is stated. This has not been done in the case of Article 1589, paragraph (2), of the Civil Code. Moreover, Article 19, paragraph (2), of the Basic Law states: In no case may the essential content of a fundamental right be encroached upon. This paragraph (2) of Article 1589 of the Civil Code ceased to be valid 20 years ago, when the Basic Law came into force, for it embodies a crime against humanity. The Federal Government, Parliament and the courts cannot deny this state of affairs. Neither can they take any action against it if they want to avoid inhumanity. As appears from the Federal Government's observations to the Commission of 31st October, 1967, the criminal act of perverting Article 3, paragraph (3), of the Basic Law and Article 8 of the Convention is to be intentionally continued until 30th June, 1970. Evidence: Legal Rights of non-legitimate Children Act of 19th August, 1969. With effect from 1st July, 1970, the natural bond of descent between a child and its father is to be limited by interpolation of the parental authority of the mother. Descent from the mother is given preference over that from the father! This is an intentional violation of the principle of equality. The father is to pay and to let the child share his fortune, but he is allowed only as much influence over the child's education as the mother chooses. Furthermore, the child is estranged from its father. By this measure, the legislature favours mothers who for various reasons have tried to have illegitimate children; for example, a woman who makes a false promise of marriage is favoured for the sake of the child. The legislator has also omitted to place an illegitimate child in the custody of the morally worthy parent. The preferences that the child develops for a particular parent are also disregarded. This is further violence against the illegitimate child. The proposal that an illegitimate child should be adopted by its natural father is a crime against human dignity. The father cannot be deprived of what is his by the natural tie of blood. It may be asked since when innocent persons have been objects of legal dispute? Insofar as the Federal Government relies on Article 6, paragraph (3), of the Basic Law, the answer to it is that a claim of blood descent requires fundamentally different treatment from an inheritance claim. The legislator has treated what is essentially similar as dissimilar, and what is essential dissimilar as similar. Innocent fathers are equated with guilty ones. In short: By his very birth, man is not an object of legal dispute and therefore the rejection by the Federal Government of the absolute claims of blood descent, which are an essential part of private life and an inborn and inalienable human right, is contrary to the fundamental rights and freedoms laid down in the Convention and the Basic Law. These rights and freedoms are the unconditional prerogatives of everyone and are subject to no temporal limitation. The truth is not difficult and leaves no room for choice between two alternatives. For these reasons, application is made for judgment to be given against the Government of the Federal Republic of Germany. As to the Federal Government's observations concerning the applicant's person, from his communications 1. of 13th August, 1966, to the German Federal Parliament, 2. of 18th December, 1967, 29th January, 1968 and 24th February, 1968 (directly to the Federal Government), 3. of 4th April, 1968 to the Commission of Human Rights, 4. in the case record at the District Court of Rosenheim (which has been demanded) and the statement of facts contained therein, it is unmistakably clear to the Federal Government that by judgment C 158/65, the applicant, without any acknowledgement on his part, was forced by official action of the Presiding Judge of the District Court at Rosenheim, Dr. Bardroff, to accept an illegitimate child and the absence of all bonds of descent between himself and the child as, furthermore, that the Regional Court of Traunstein, like the Federal Constitutional Court and the Bavarian Constitutional Court, refused to deal with the case. The Public Prosecutor's Offices (Staatsanwaltschaften) have also avoided the issue. The Federal Government is equally avoiding the issue and accordingly its observations make no reference to the original facts. In the proceedings before the Commission, the Federal Government is concealing the truth. The applicant requests the Commission, for the purpose of safeguarding human rights and fundamental freedoms within the meaning of the Convention and fundamental rights within the meaning of the Basic Law, to ask the Federal Government to produce evidence that puts it beyond doubt 1. That C.D., born on 29th October, 1964, is in fact the applicant's child - this to be proved either by administering an oath to the child's mother or by means of an expert opinion based on blood groups and inherited characteristics; 2. that the judgment (C 158/65) of 20th May, 1965 of the District Court of Rosenheim, is, in fact, based on the finding demanded under (1) above; 3. that the intentional perversion of justice in the above judgement against the applicant will be immediately terminated and that the guilty persons will be called to account; 4. that, if C.D. is the child of the applicant, the forcible disruption of the ties of descent will be immediately terminated. Reasons The demand stated under (1) above was known to Presiding Judge, Dr. E. of the District Court, at the hearing on 20th May, if not before; he deliberately ignored it. On this point, the applicant tenders the following evidence (copies attached): 1. Photocopy of the copy of the objection submitted by the applicant's counsel (Dr. F.) to the District Court of Rosenheim on 23rd March, 1965 - Ref. C. 158/65. 2. Photocopy of the applicant's oral and written objection as defendant at the hearing on 20th May, 1965 before the District Court of Rosenheim. 3. Photocopy of the declaration by the defendant's sister as evidence of the correctness of the objection mentioned under (2) above, according to which the mother of the child expressed doubt as to whether the defendant was the child's father. The child's mother, Mrs. B., did not contest the objection raised by the defendant at the hearing on 20th May. The Presiding Judge took cognisance of the objection by asking the defendant, "Who wrote that?" The defendant's counsel answered, "He did", (meaning the defendant). The Presiding Judge then asked the defendant whether he was prepared to admit the claim. He replied, "I want to be father to the child!" The Presiding Judge did not comply with the defendant's desire, as he felt bound to apply Article 1589, paragraph (2) of the Civil Code. So the defendant did not, in fact, admit the claim. Finally, the Presiding Judge confronted the defendant with the child's picture - with as much assurance as if he himself had his hand in the way! (I mean during the act of procreation.) He then pronounced judgment. Dr. E. is aware that, the facts being what they were with regard to the conduct of the child's mother towards the defendant, the defendant could not have admitted the claim in the hearing on 20th May, 1965. For such an admission, a personal declaration by the defendant would have been necessary, e.g. "I admit the claim!" The defendant did not at any time make any such declaration. At the very least, personal conviction on his part would have been necessary for the admission, e.g. "I am the child's father!" Even now, the applicant has not this conviction. After the mother's statement, "I will go if ...!, he cannot be personally convinced. When Dr. E. was interviewed by the Public Prosecutor's Office at Traunstein (Ref: 6 Js 20/68 b), he admitted the defendant's statement, "I want to be father to the child" at the hearing on 20th May, 1965. This shows that he deliberately falsified the record of the hearing. With regard to the conduct of, or rather the perversion of justice by, Judge F. of the District Court of Rosenheim in judgment C 776/67, the applicant refers to the copy sent to the Commission of his complaint of 18th January, 1968, addressed to the Attorney-General (Generalstaatsanwalt) attached to the Court of Appeal of Munich. The proceedings were discontinued by the competent Public Prosecutor's Office at Traunstein as the case record was with the Federal Government. For the facts relating to the child's mother, Mrs. B., the applicant refers to the various communications by him listed above. To conclude: The applicant is the father of the child as the result of judgment C 258/65, which was based on an intentional perversion of justice by the Presiding Judge of the District Court, Dr. E. Paternity has not been proved either by a blood test or by recognition. The Federal Government is not prepared to put an end to the crime of intentional perversion of justice committed against the applicant or to his persecution. The applicant requests that: 1. The perversion of justice and persecution directed against him be immediately terminated; 2. Compensation be granted for his mental suffering and other damage; 3. The guilty persons be called to account." THE LAW Whereas, with regard to the remaining essential complaint that, as a natural father, he has, under German law, no paternal relationship and no rights with respect to his illegitimate child, and in particular, no right of access to his said child, the Commission does not consider it necessary to examine the question whether or not the present legal situation is compatible with Article 8 (Art. 8) of the Convention; Whereas, in any event, the new legislation concerning the status of illegitimate children, which was enacted on 19th August, 1969 (Bundesgesetzblatt, 1969, Part I, p. 1234) and will enter into force on 1st July, 1970, gives a natural father some possibility, not hitherto available, to claim access to, or exert influence over, the situation of his illegitimate child; whereas, furthermore, the Commission notes that the provision of Section 1589, paragraph 2, of the German Civil Code, which provides that the illegitimate child and its father are deemed not to be related, will be abolished by the new legislation; whereas for these reasons, the Commission is of the opinion that the new legislation gives the applicant reasonable satisfaction in regard to his present complaint; and whereas, the Commission therefore finds that there is no object in continuing further the proceedings relating to this application; Now therefore, the Commission decides TO STRIKE THE APPLICATION OFF THE LIST OF CASES.