FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4065/04 
by Susanne PARADIS and Others 
against Germany

The European Court of Human Rights (Fifth Section), sitting on 4 September 2007 as a Chamber composed of:

Mr P. Lorenzen, President, 
 Mrs S. Botoucharova, 
 Mr K. Jungwiert, 
 Mr R. Maruste, 
 Mr J. Borrego Borrego, 
 Mrs R. Jaeger, 
 Mr M. Villiger, 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 application was lodged with the Court by a mother, Susanne Paradis, on behalf of herself and her four children Vanessa, Nina, Joshua and Sasha. Ms Paradis, born in 1966, is a German national. Her four children were born in 1985, 1994 and 1996 and are German and Canadian nationals. Ms Paradis currently lives in Hördt, Germany, while the children’s whereabouts are unknown.

The respondent Government are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

A.  The circumstances of the case

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

1. The background to the case

This application is closely related to application no. 4783/03, declared inadmissible by the Court on 15 May 2003.

That application had been lodged by Ms Paradis on behalf of her four children. The Court left open the question as to whether Ms Paradis had to be regarded as an applicant in her own right.

Ms Paradis, a German national, had been married to a Canadian national, Mr O., with whom she has three children (Nina, Joshua and Sasha). She has another daughter by a first marriage (Vanessa). After having left Mr O. in 1997, the Windsor Superior Court (Canada) granted Ms Paradis sole custody of Nina, Joshua and Sasha, while Mr O. was granted access.  
The court ordered Ms Paradis not to remove the children from Canada, unless Mr O. consented to it. In summer 2000 Ms Paradis and the applicants travelled to Germany for a two-week’s stay after having obtained Mr O.’s consent. However, they did not return to Canada after those two weeks had lapsed. Ms Paradis filed a petition for divorce in Germany and requested the sole custody of Nina, Joshua and Sasha. However, the Windsor Superior Court then granted Mr O. the children’s sole custody.  
On 28 September 2001 the Zweibrücken District Court (Germany) rejected Mr O.’s request to return Nina, Joshua and Sasha under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). On 26 June 2002 the Court of Appeal revoked that decision and ordered Ms Paradis to return the children to Mr O. On 8 August 2002 the Federal Constitutional Court refused to admit the complaint lodged by Ms Paradis on behalf of Nina, Joshua and Sasha.

On 17 February 2003 the District Court ordered the court bailiff to execute the Court of Appeal’s decision of 26 June 2002. However, on 18 March 2003 his attempts failed due to the applicants’ explicit refusal.  
On 9 April 2003 the Court of Appeal vested the court bailiff with the right to use force against the applicants.

On 30 April 2003 the Federal Constitutional Court refused to admit the applicants’ complaint.

On 15 May 2003 the Court found that there was no violation of the applicants’ rights under Article 8 of the Convention and declared the application inadmissible as being manifestly ill-founded.

2. The first applicant’s detention

On 19 May 2003 the court bailiff again tried in vain to execute the Court of Appeals’ decision of 26 June 2002. Ms Paradis declared that she had already brought the children to France four weeks ago and refused to disclose their whereabouts. On 21 May 2003 the Zweibrücken District Court ordered Ms Paradis’ coercive detention (Zwangshaft) according to section 33 §§ 1 and 3 of the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit) in order to obtain the children’s whereabouts (see “Relevant domestic law” below).  
It elaborated that the Court of Appeal had already decided in June 2002 that the children should be returned to Mr O. and that any further delay in executing this decision had to be avoided. The court furthermore found that the other coercive measure under section 33 of the Act on Non-Contentious Proceedings, a penalty payment, would not prove to be successful. Under those circumstances the court concluded that Ms Paradis’ detention was proportionate, but clarified that she would be released immediately once the children were returned. It furthermore held that due to the urgent nature of the case it had not been called for to hear Ms Paradis in advance. In this respect the court also pointed out that it had expected Ms Paradis to thwart her coercive detention.

On 27 May 2003 the Court of Appeal rejected the applicants’ complaint and confirmed the lower court’s reasoning.

On 31 July 2003 the Federal Constitutional Court refused to admit Ms Paradis’ complaint.

The applicant Ms Paradis was detained for six months from 2 June 2003 to 1 December 2003. She did not disclose the children’s whereabouts and they appear to be still in hiding.

B.  Relevant domestic law

1. Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit)

Section 33

“(1) If somebody is obliged by court order to carry out an action which merely depends on his will, to omit an action or to tolerate an action, the court may, unless the law provides differently, impose a penalty payment in order to ensure the compliance with its order. If a person has to be returned, the court may order coercive detention independently from the penalty payment. ...

(3) .... Coercive detention (section 1) shall be announced, unless the execution of the court order is particularly urgent or if it has to be expected that the execution of coercive detention will be thwarted. ... Sections 901, 904 to 906, 909 § 1 and 2 and sections 910 and 913 of the Civil Procedure Law Code apply accordingly to the execution of coercive detention. ...”

2. The Code of Civil Procedure (Zivilprozessordnung)

Section 913

“The detention may not exceed six months. After the completion of six months the obligor (Schuldner) is to be released ex officio. “

COMPLAINTS

The present application was lodged by Ms Paradis herself and on behalf of her four children.

The applicants challenged the decision of the Zweibrücken Court of Appeal of 9 April 2003 and the preceding court decisions. Furthermore, they complained about the coercive detention of Ms Paradis.

They invoked Articles 1, 5, 6, 8, 13 of the Convention and Article 3 of Protocol No. 4

THE LAW

A.  Preliminary issues

Regarding Ms Paradis’ right to submit an application on behalf of her children Nina, Joshua and Sasha the Court notes that when the application was lodged on 2 January 2004, Ms Paradis no longer had custody of the children. Therefore, the question arises whether Ms Paradis has standing before the Court to raise complaints on their behalf. Furthermore, the Court observes that her first child is no longer minor and it is unclear whether she has authorized Ms Paradis to represent her before the Court.

However, the Court finds that it does not need to resolve that matter in the present case since it considers that the application is inadmissible in any event for the following reasons.

B.  The complaints against the decision of the Zweibrücken Court of Appeal of 9 April 2003 and the preceding court decisions

As far as the applicants complained about those decisions the Court finds that those complaints are essentially the same as made in the previous application no. 4793/03. This part of the application should therefore be declared inadmissible pursuant to Article 35 §§ 2 (b) and 4 of the Convention.

C. The complaint about the coercive detention of Ms Paradis

The applicants complained that the coercive detention of Ms Paradis was in violation of Article 5 § 1 of the Convention, which reads in its relevant part as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(b)  the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

...”

1.  The complaint by the first applicant Ms Paradis herself

(a)  The Government’s submissions

From the Government’s point of view the first applicant’s complaint was in any event manifestly ill-founded. At the outset the Government stated that the detention of the first applicant fell within the scope of Article 5 § 1 (b) of the Convention, since she had failed to comply with a lawful order by a court. The Government contended that the detention served the execution of the decision of the Zweibrücken Court of Appeal of 26 June 2002, which had ordered the return of the applicants Nina, Joshua and Sasha O. to their father. The disclosure of the latter applicants’ whereabouts had thus been a necessary requirement for the execution of that decision. The Government went on to say that the detention was lawful under domestic law because it had been ordered by a legally binding court decision. Furthermore,  
the Government took the view that the order and the execution of the detention of the first applicant had been proportionate for the following reasons. They firstly pointed out that a less drastic coercive measure like a coercive payment would not have proved to be successful. Secondly,  
the children’s return under the Hague Convention had been of utmost importance, taking precedence over the first applicant’s rights.  
The Government further recalled that the first applicant had already thwarted previous attempts to return her three youngest children to their father. Moreover, the Government elaborated that the domestic authorities had been under the positive obligation to undertake all necessary measures to ensure that the children be returned to their father in order to effectively guarantee the latter’s parental rights under Article 8 of the Convention. Lastly, the Government pointed out that the first applicant had failed to either request the limitation or the lifting of her detention pursuant to section 171 in conjunction with section 109 of the Excution of Sentences Act (Strafvollzugsgesetz).

(b)  The first applicants’ submissions

From the first applicant’s point of view the detention had already been unlawful under domestic law, because it had been disproportionate. The first applicant held the opinion that the domestic courts should have chosen the less drastic coercive payment, which would have been even more effective given her limited financial resources. Moreover, the first applicant contended that the length of her detention had been excessive and had first of all harmed her children. Lastly, the first applicant argued that any coercive measure against her would have been futile and hence disproportionate since it had been clear from the beginning that she would never hand over her children to their father. Furthermore, the first applicant held the opinion that an application for the lifting or the limitation of her detention would not have been an effective remedy within the meaning of Article 35 § 1 of the Convention, since it was the order itself which had been disproportionate and had violated her rights.

(c)  The Court’s assessment

Article 5 § 1 of the Convention requires in the first place that the detention be “lawful”, which includes the condition of compliance with a procedure prescribed by law. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness. A period of detention will in principle be lawful if it is carried out pursuant to a court order (see the Benham v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, pp. 752-753, §§ 40 and 42).

The Government outlined that the applicant’s detention should be examined under Article 5 § 1 (b) as the first applicant had refused to comply with the court order to return the applicants Nina, Joshua and Sasha O.  
to their father. The applicant does not appear to disagree with this assessment and the Court sees no reason to hold otherwise.

Furthermore, it is not in dispute that the detention was ordered by the domestic courts pursuant to section 33 § 1 Sentence 2 of the Act on  
Non-Contentious Proceedings, because the applicant refused to return her youngest three children to their father.

Although the first applicant held the opinion that her detention had already been unlawful under domestic law because it had been disproportionate, the Court considers that this issue falls to be examined together with the question whether the detention was proportionate under the Convention. In respect of the second limb of Article 5 § 1 (b) of the Convention (“to secure the fulfilment of any obligation”) the Court and the Commission held on several occasions that a balance must be drawn between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty (see Nowicka v. Poland, no. 30218/96, § 61, 3 December 2002 and B. v. France, no. 10179/82, Commission decision of 13 May 1987, Decisions and Reports (DR) 52, p. 126). The Court sees no reason not to draw such a balance also in respect of the first limb of Article 5 § 1 (b) of the Convention (“non-compliance with the lawful order of a court”).

As the applicants have not advanced any other reason for the unlawfulness of the detention under domestic law, the Court will proceed to examine whether the domestic authorities struck a fair balance between the importance in a democratic society of securing the compliance with a lawful order of a court, in particular in view of the parental rights of Mr O., and the importance of the right to liberty of the first applicant.

The Court has highlighted on many occasions that the State in which proceedings under the Hague Convention are conducted is under a positive obligation to undertake all necessary measures to reunite the abducted children with the other parent (see Ignaccolo-Zenide v. Romania,  
no. 31679/96, §§ 101-113, ECHR 2001-I; Sylvester v. Austria,  
nos. 36812/97 and 40104/98, §§ 54-72, 24 April 2003; Iglesias Gil and A.U.I. v. Spain, no. 56673/00, §§ 49-63, ECHR 2003-V; Bianchi  
v. Switzerland
no. 7548/04, §§ 78-100, 22 June 2006; Iosub Caras  
v. Romania
, no. 7198/04, §§ 32-40, 27 July 2006).

The Court notes that the first applicant has been obliged to return the three children to their father under the Hague Convention since June 2002. Two attempts on 18 March and 19 May 2003 to return the children failed due to the applicants’ explicit refusal. The Court observes that one of the aims of the Hague Convention is to swiftly return children to the country of their habitual residence to prevent their growing accustomed to their illegal retention. In the present case the children had already been separated from their father for almost two years when the Court of Appeal ordered their return and almost three years had gone by before the District Court ordered the first applicant’s detention. It was therefore of utmost importance not to further prolong their illegal retention. It is true that detention is the most drastic coercive measure provided under domestic law. Yet the first applicant was fiercely determined not to return the children. This was evidenced by the fact that she even sent the children into hiding abroad, as declared towards the court bailiff on 19 May 2003. The imposition of a coercive payment would have been possible, too, but given the steadfast refusal of the first applicant, the Court cannot consider it unreasonable that the District Court found that the imposition of a coercive payment seemed futile against that background.

Having regard to the above considerations and the special circumstances of the case the Court concludes that the order of coercive detention in May 2003 as such does not seem disproportionate.

In this connection the Court stresses that the domestic courts’ decision was solely based on the circumstances prevailing in May 2003.  
Any subsequent developments, as the effect of the detention on the first applicant and her children could not be taken into account by the domestic courts when ordering the detention. Those factors, as for example the length of the detention and the proportionality of its further execution could have only been taken into consideration if the first applicant had applied for the lifting or the limitation of her detention during its execution; she, however, failed to do so.

It is true that an applicant is only obliged under the Convention to exhaust effective and available remedies and that it is for the Government to show that such a remedy exists. However, once the Government has satisfied this burden of proof it is incumbent on the applicant to establish that the remedy advanced by the Government was inadequate or ineffective under the particular circumstances of the case (see, among many other authorities, Selmouni v. France [GC] no. 25803/94, §§ 75 - 76, ECHR 1999-V).

In the instant case the first applicant has been unable to show that an application pursuant to section 171 in conjunction with section 109 of the Excution of Sentences Act, as suggested by the Government, would have been ineffective to lift or limit her detention. The Court therefore concludes that the applicant failed to exhaust domestic remedies in this respect.

Having regard to the above considerations the Court considers that the first applicant’s complaint about the order of detention as such is manifestly ill-founded. As regards the complaints about its execution and its length the Court finds that the applicant did not exhaust domestic remedies.

Thus, the applicant’s complaints should be declared inadmissible pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

2.  The complaint by the remaining applicants

Insofar as the remaining applicants complained about their mothers’ coercive detention and assuming that they may claim to be victims within the meaning of Article 34 of the Convention, they were not parties to the constitutional complaint and therefore did not exhaust domestic remedies. This part of the application should therefore be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

PARADIS AND OTHERS v. GERMANY DECISION


PARADIS AND OTHERS v. GERMANY DECISION