THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32299/02 
by Werner SÜSS 
against Germany

The European Court of Human Rights (Third Section), sitting on 13 October 2005 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr L. Caflisch
 Mr C. Bîrsan
 Mrs A. Gyulumyan
 Mrs R. Jaeger, 
 Mr E. Myjer, judges
and Mr M. Villiger, Deputy Section Registrar,

Having regard to the above application lodged on 31 July 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Werner Süß, is a German national who was born in 1940 and lives in Berlin.

A.  The circumstances of the case

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

1.  Factual and procedural background

The applicant’s daughter F. was born on 29 November 1984. In August 1989 the applicant and G.S., his then wife, separated. Since then F. has been living with her mother, who was awarded custody of her. On 6 December 1992 the applicant had his last contact with F.

On 23 May 1995 the Berlin Tempelhof-Kreuzberg District Court suspended the applicant’s access to F. This judgment was upheld by the Berlin Court of Appeal on 4 March 1997. On 15 September 1997 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint lodged against the latter judgment.

In his first application (no. 40324/98) to this Court, the applicant complained, in particular, that the said court decisions suspending his access to F. amounted to a breach of his right to respect for his family life. He further claimed that the court proceedings concerned had not been fair. On 20 September 2001, the Court declared admissible these complaints.

The applicant’s second application (no. 63309/00) lodged with the Court concerns the refusal of the German courts to order the disclosure of F.’s whereabouts to him.

2.  The applicant’s renewed request for access

a.  Proceedings in the Zossen District Court

On 1 July 1998, when the amended Law on Family Matters entered into force, the applicant lodged a fresh application to be granted access to his daughter F. with the Zossen District Court. He relied on sections 1684 and 1696 of the Civil Code (see ‘Relevant domestic law’ below). Subsequently, he submitted further observations dated 31 July 1998, 14, 23, 26, 27 and 28 August 1998, 3, 6, 8, 14, 22 and 23 September 1998, 20, 21, 23, 24 and 26 October 1998 and 4, 5, 6 and 8 November 1998. In these submissions the applicant brought several motions for evidence to be taken and urged the court to speed up the proceedings.

On 10 November 1998 the Zossen District Court heard the applicant, G.S. and a representative of the Youth Office. It decided that contacts between the applicant and his daughter F. should cautiously be resumed by an exchange of letters between them via the Youth Office. Furthermore, a curator ad litem (Verfahrenspfleger) should be appointed in order to assist in the resumption of contacts and to represent F.’s interests in the proceedings. The initiation of contacts should last for nine months, during which the proceedings were suspended.

On 19 November 1998 the Zossen District Court appointed W. as F.’s curator ad litem.

On 7 September 1999 the Zossen District Court, on the applicant’s motions, resumed the proceedings. It heard the applicant, G.S., F. and the curator ad litem W.

On 30 September 1999 the Zossen District Court, having regard to the submissions of the parties and F. at the court hearings and to the reports of the Youth Office and the curator ad litem, dismissed the applicant’s request to be granted access to F. It found that the applicant had failed to demonstrate that there were new circumstances due to which the suspension of his access to F. as ordered by the Berlin Court of Appeal in its final judgment on 4 March 1997 should be ended. The court found that in the present proceedings, just as in the proceedings leading to the said judgment, the applicant’s daughter had unequivocally expressed her wish not to have contacts with her father.

The District Court noted that there had been an exchange of letters between the applicant and F. via the Youth Office. The curator ad litem had organised one meeting between them in May 1999, which both F. and the applicant had appreciated. Nevertheless, F. had subsequently stated that she did not wish to have further contacts with her father.

The District Court found that, contrary to the applicant’s view, F. could not be considered as suffering from parental alienation syndrome. She was not unable to express her own view, and was not merely repeating her mother’s views. This was proved by the fact that she had agreed to have contacts with her father in writing and once in person. In her hearing in court, she had not denied having appreciated the meeting with her father. However, she had disapproved her father’s persistent struggle to enforce his right of access to her against her will.

The District Court found that in principle, contacts between a father and his child are in the child’s best interests. However, the firmly expressed will of F., who had almost attained the age of fifteen, not to have further contacts with her father had to be taken seriously. Ordering contacts against her will was not in her best interests. According to the submissions of the curator ad litem, F. was torn apart by her parents’ conflicts. Having to maintain court-ordered contacts with her father would affect her because of her loyalty to her mother, whose deep-rooted negative opinion of her father was known to F. Furthermore, due to the applicant’s readiness to enforce a right of access granted to him by coercive measures, contacts between him and F. could not be expected to take place without problems.

The District Court found that it had not been necessary to order a further expert report. Even if an expert found that F. suffered from parental alienation syndrome, ordering access would be contrary to her well-being, given the conflict of loyalties in which she found herself.

b.  Proceedings in the Brandenburg Court of Appeal

On 4 November 1999 the applicant lodged an appeal against the District Court’s decision, which he reasoned on 3 December 1999. A hearing of the parties scheduled for 4 April 2000 had to be adjourned due to G.S.’s illness.

On 19 May 2000 the Brandenburg Court of Appeal heard the applicant, G.S., F. and the curator ad litem.

On 6 June 2000 the Brandenburg Court of Appeal ordered a psychological expert report on the question of access. Expert H. was notably to address the question whether F.’s persistent refusal to have contacts with her father had to be considered as an expression of her own free will. The applicant subsequently appealed against the court’s decision to order a further expert report and challenged H. for bias. On 19 July 2000 the Federal Court of Justice dismissed the applicant’s appeal as inadmissible, as no appeal lay against the said decision. On 6 September 2000 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against these two decisions.

On 8 September 2000 the applicant challenged the judges dealing with his case at the Court of Appeal for bias, notably arguing that they prolonged the proceedings by ordering a superfluous expert report. He submitted further mostly handwritten observations dated 14, 18 and 20 September 2000 and 7, 12 and 18 October 2000 reasoning his motion. On 25 October 2000 the Brandenburg Court of Appeal dismissed the applicant’s motion for bias. On 10 January 2001 the Federal Court of Justice dismissed the applicant’s appeal as inadmissible, as no appeal lay against the Court of Appeal’s decision in this respect.

On 26 February 2001 the Brandenburg Court of Appeal dismissed the applicant’s motion objecting to the expert H. on grounds of bias and his motion to rectify the minutes of the hearing on 19 May 2000. On 11 April 2001 the Federal Court of Justice dismissed the applicant’s appeal as inadmissible, as no appeal lay against the said decision of the Court of Appeal.

On 22 May 2001 the Brandenburg Court of Appeal granted the applicant legal aid.

On 22 June 2001 expert H. received the court’s case-files. She heard F. on 29 August and 5 October 2001. On 25 October 2001 the Brandenburg Court of Appeal dismissed the applicant’s renewed motion challenging H. for bias. The applicant refused to keep appointments with the expert on 15 November and 13 December 2001. By a letter dated 10 January 2002 the Court of Appeal again invited the applicant to fix an appointment with the expert, but the applicant failed to do so.

On 11 March 2002 expert H. submitted her report, in which she proposed not to grant the applicant access to F. against F.’s firmly expressed will.

On 17 Mai 2002 the Brandenburg Court of Appeal, having heard the applicant, G.S., F., the curator ad litem and the psychological expert in person, dismissed the applicant’s appeal. It further relied on the reports submitted by a representative of the Youth Office. The court found that the applicant could not be granted access to F., because contacts with him, including those in the presence of a third party, were against F.’s will and therefore contrary to her best interests. Ordering contacts with a parent against the firmly expressed will of a child who has almost attained the age of majority would violate the child’s right to privacy (Persönlichkeitsrecht). F. was then seventeen and a half years old. She had expressed her wish not to meet the applicant persistently and in an unequivocal manner already at the hearing by the District Court and when questioned by the curator ad litem, the court-appointed expert and the representative of the Youth Office. In her hearing in court, F. had again stated that she wanted a rest from the applicant and did not want further court proceedings.

The decision was served on the applicant on 11 June 2002.

c.  Proceedings in the Federal Constitutional Court

On 25 June 2002 the applicant lodged a complaint with the Federal Constitutional Court, which he further reasoned in his submissions dated 2 July and 5 July 2002.

Invoking the relevant articles of the German Basic Law as well as Articles 6 and 8 of the Convention, the applicant claimed that the decisions of the family courts ordering that his access to F. remain suspended violated his right to respect for his family life. He further complained that he had not had a fair trial because the curator ad litem had been prohibited by the president of the Court of Appeal to comment on the parental alienation syndrome from which his daughter suffered. According to the applicant, it had been superfluous to order a further report by a psychological expert. This had caused the length of the proceedings in the Court of Appeal to become excessive.

On 16 July 2002 the Federal Constitutional Court, without giving further reasons, refused to admit the applicant’s constitutional complaint, as it was inadmissible.

3.  Subsequent developments

On 29 November 2002 F. attained the age of majority.

B.  Relevant domestic law

At the relevant time, i.e. after the entry into force of the amended Law on Family Matters (Reform zum Kindschaftsrecht) on 1 July 1998, the applicable provision of the Civil Code concerning access to a child born in wedlock was worded as follows:

Section 1684

“1.  The child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child.

2.  The parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. ...

3.  The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties. They may order the parties to fulfil their obligations towards the child.

4.  The family courts may restrict or suspend the right of access or the enforcement of previous decisions on access if this is necessary for the child’s welfare. A decision restricting or suspending the right of access or its enforcement for a longer period of time or permanently may only be taken if the child’s well-being were endangered otherwise. The family courts may order in particular that contacts may only take place in the presence of a cooperating third party.”

Pursuant to section 1696 § 1 of the Civil Code, as in force since 1 July 1998, the courts sitting in family matters must modify their decisions if this is necessary for cogent reasons which have a lasting effect on the child’s well-being.

COMPLAINTS

The applicant complained under Article 8 of the Convention that the decision of the German courts not to grant him access to his daughter F. violated his right to respect for his family life. He argued that contacts between a parent and a child could only be suspended in cases of violence or sexual abuse, not because the other parent having custody was opposed to contacts. Consequently, suspending his contacts to F. even though there had not been any such serious misconduct on his part had been contrary to F.’s best interests.

Invoking Article 6 of the Convention, the applicant complained about the way in which the national courts had taken evidence. In particular, he objected to the decision of the Court of Appeal to order a further psychological expert report. He argued that it should have been obvious to that court that F.’s refusal to have contacts with him had not been the expression of her own free will. In his view F. suffered from parental alienation syndrome and therefore did not have an autonomous will. Furthermore, the family courts had failed to examine the reasons for F.’s refusal of contacts. The Court of Appeal had notably refused to hear the curator ad litem on this issue.

The applicant further complained under Article 6 of the Convention that the proceedings before the Brandenburg Court of Appeal had lasted unreasonably long. In particular, it had taken the said court more than six months to hold its first hearing. Furthermore, the proceedings had been prolonged by the necessity to await the submission of a superfluous expert report.

THE LAW

1.  The applicant claimed that the German courts’ decisions not to grant him access to his daughter F. violated his right to respect for his family life. He invoked Article 8 of the Convention, which, in so far as relevant, provides:

“1.  Everyone has the right to respect for his ... family life ...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The decisions of the German courts refusing the applicant access to his daughter amounted to an interference with the applicant’s right to respect for his family life as guaranteed by Article 8 § 1.

Any such interference with an applicant’s right to respect for his family life will constitute a violation of Article 8 unless it is “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.

The relevant decisions of the domestic courts had a basis in national law, namely section 1684 of the Civil Code as in force at the relevant time.

The Court is satisfied that the impugned court decisions suspending the applicant’s access to F. were aimed at protecting the “health or morals” and the “rights and freedoms” of his daughter. Accordingly, they pursued legitimate aims within the meaning of paragraph 2 of Article 8.

In reviewing whether in the present case the national courts, in the exercise of their margin of appreciation, based their decisions on relevant and sufficient grounds the Court observes that the family courts carefully considered the question of access. The District Court initiated an attempt to cautiously resume contacts between the applicant and his daughter F. with the assistance of the Youth Office and a curator ad litem. However, following one meeting between the applicant and his daughter, then aged almost fifteen, the latter unequivocally and persistently stated that she did not wish to have further contacts. The court observed that F. was torn apart by her parents’ conflicts. It found that in these circumstances, contacts between the child and her father, which were in general in a child’s best interest, were contrary to F.’s well-being. When giving its decision, the court relied on the statements made by the applicant, G.S., F., the curator ad litem and a representative of the Youth Office. The Court of Appeal upheld the District Court’s decision not to order contacts against the express will of F., who had almost attained the age of majority at the relevant time. It had heard the said persons involved again and had consulted a psychological expert.

In these circumstances, the Court is satisfied that the domestic courts struck a proper balance between the interests involved. By trying to overcome the obstacles which hindered contacts between the applicant and his daughter, the national courts complied with their positive obligation to preserve the uniting bonds between father and daughter. In reaching their decision not to order contacts, the courts attached decisive importance to F.’s well-being and thereby to her best interests, which, due to their serious nature, overrode the applicant’s interest to meet her.

The Court further notes that the Court of Appeal consulted a psychological expert in order to evaluate whether F.’s firm objection to any contacts with her father had to be considered as the expression of her true and autonomous will. Thereby, that court secured the protection of the applicant’s interests and his sufficient involvement in the decision-making process (see, mutatis mutandis, Elsholz v. Germany [GC], no. 25735/94, § 52, ECHR 2000-VIII; Sommerfeld v. Germany [GC], no. 31871/96,  
§§ 66-75, ECHR 2003-VIII). Moreover, all persons concerned have been duly heard in the proceedings.

Therefore, the national courts adduced relevant and sufficient reasons to justify their decisions that the applicant’s access to F. remained suspended.

It follows that the applicant’s complaint under Article 8 must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2.  The applicant submitted that his right to a fair hearing had been breached in the proceedings before the German courts. He notably objected to the way in which the courts had taken evidence. Furthermore, he claimed that the length of the proceedings in the Court of Appeal had exceeded a reasonable time. He relied on Article 6 of the Convention, which, in so far as relevant, reads:

“1.  In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ....“

a)  The taking of evidence by the national courts

As regards the applicant’s complaints concerning the national courts’ taking of evidence, the Court recalls that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts  
(see, inter alia, Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46; García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

In so far as the applicant objected to the decision of the Court of Appeal to order a psychological expert report, the Court notes that it was the applicant who had persistently contested throughout the court proceedings that F.’s express wish not to have contacts with him was the expression of her true and autonomous will. It recalls its above findings that due to the importance of the decisions to be taken for the applicant’s right to respect for his family life, the protection of his interests necessitated that he was sufficiently involved in the decision-making process. In order to secure this, the national courts could, inter alia, reasonably consult a psychological expert in order to evaluate the child’s true wishes (see 1. above). Accordingly, the Court finds that the applicant cannot validly argue that he had not had a fair hearing in this respect.

In so far as the applicant complained about the failure of the national courts properly to examine the reasons for F.’s refusal of contacts and to hear the curator ad litem also on this issue, the Court notes that the national courts have taken evidence thoroughly in order to establish the relevant facts. In particular, they heard all persons concerned. In addition to that, the Court of Appeal relied on a psychological expert opinion in order to evaluate F.’s true wishes. In these circumstances, the national courts’ refusal to take further evidence cannot be considered as arbitrary and unfair.

It follows that there is no appearance of a violation of Article 6 § 1 of the Convention in these respects. This part of the application must therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

b)  The length of the proceedings

As regards the applicant’s complaint about the length of the proceedings before the Brandenburg Court of Appeal, the Court observes that the proceedings in that court started on 4 November 1999, when the applicant lodged his appeal. They ended on 11 June 2002, when the Court of Appeal’s decision was served on the applicant. The proceedings thus lasted for some two years and seven months in this level of jurisdiction.

The Court recalls that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and that of the competent authorities. On the latter point, the importance of what was at stake for the applicant in the litigation has to be taken into account. It is thus essential that custody and access cases be dealt with speedily  
(see, inter alia, Nuutinen v. Finland, no. 32842/96, § 110, ECHR 2000-VIII; Niederböster v. Germany, no. 39547/98, § 39, ECHR 2003-IV).

The Court accepts that, not least due to the persistent and heated struggle between the applicant and G.S., the access proceedings in question have been quite complex. It had notably been necessary to hear the parties, F., the curator ad litem and an expert in person and to obtain a psychological expert report on the question of at least limited contacts between the applicant and his daughter.

As for the applicant’s conduct, the Court observes that following the Court of Appeal’s decision on 6 June 2000 to order a psychological expert report, the applicant lodged numerous motions challenging, in substance this intermediate decision, against which no appeal lay. First, he challenged the decision as such and the expert appointed. After the Federal Constitutional Court’s decision dismissing his complaint in this respect on 6 September 2000, he challenged the judges having reached that decision for bias. Subsequently, he again objected to the court-appointed expert. The Federal Court of Justice dismissed his appeal in this respect on 11 April 2001. Only afterwards could the expert be supplied with the  
case-files of the proceedings and resume her examination. The delays caused by these futile appeals, amounting to more than ten months, are therefore imputable to the applicant. In particular, as has been shown above (see 1. and 2.a), the court’s decision to consult a psychological expert was aimed at securing the applicant’s own interests and cannot, therefore, be considered as having unreasonably prolonged the proceedings. Moreover, the applicant caused further delays of at least two months by failing to cooperate with the expert and by again challenging her for bias.

As regards the conduct of the proceedings by the Court of Appeal, the Court observes that the duration of the proceedings which remains imputable to the national court amounts to approximately one year and seven months. There have been no substantial periods of inactivity throughout the proceedings. The first hearing had been fixed some four months after the court received the applicant’s submissions reasoning his appeal; it had to be postponed for approximately one and a half months due to G.S.’s illness. Following the delays caused by the applicant challenging in substance the decision to order an expert report, it took the court-appointed expert some eight and a half months to render her report, which cannot be considered as excessive. The Court of Appeal held its final hearing and rendered its decision some two months after having received that report. Altogether, the Court of Appeal held two hearings and rendered five intermediate decisions, in most cases on the applicant’s motion, during the proceedings.

Moreover, the Court observes that the proceedings were conducted speedily in the two further levels of jurisdiction. While they lasted some fifteen months in the District Court, they were pending for less than a month in the Federal Constitutional Court. Even assuming a certain delay in the proceedings before the Court of Appeal, a delay at that stage may, however, be tolerated if the overall duration of the proceedings cannot be deemed excessive (see, mutatis mutandis, Pretto and Others v. Italy, judgment of 8 December 1983, Series A no. 71, p. 16, § 37; Nuutinen, cited above, § 110).

Having regard to the foregoing, the Court is satisfied that, even taking account of the special diligence necessary in access cases, the length of the proceedings in the Court of Appeal had not been unreasonable.

Consequently, there is also no appearance of a violation of Article 6 § 1 of the Convention in this respect. This part of the application must therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Mark Villiger Boštjan M. Zupančič 
 Deputy Registrar President

SÜSS v. GERMANY (III) DECISION


SÜSS v. GERMANY (III) DECISION