THE FACTS

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

The applicant is a German citizen, born in 1925 and resident in H..

He first wrote to the Commission on 10 December 1967 complaining of
certain proceedings before the courts in H. and C. relating to his
divorce and, in particular, of the evidence given by several witnesses
during these proceedings. The Commission's Secretary replied by letter
of 13 December 1967 explaining the conditions for lodging an
application under Article 25 of the Convention and inviting the
applicant to submit further explanations regarding his complaints. No
further communication was received from the applicant until he
submitted, by letter of 7 September 1969, a complaint against the
respondent Government concerning the custody of his children. Following
further correspondence the present application was registered on 12
November 1969.

From his statements and from documents submitted by the applicant it
appears that he was married in 1956 and that five children, H., E., U.,
L., and S., were born of this marriage in 1957, 1958, 1960, 1962 and
1963 respectively. It further appears that on .. November 1962 the
applicant's wife had brought an action for divorce but had withdrawn
her complaint three days later.

In June 1965 the applicant's wife brought again an action for divorce
in the Regional Court (Landgericht) of H. as a result of which the
marriage was separated by decision of .. April 1966. The Court further
decided that both parties were responsible for the breaking up of the
marriage. The applicant appealed (Berufung) against that decision to
the Court of Appeal (Oberlandesgericht) at C. which dismissed the
appeal on .. November 1967 but decided that the plaintiff, i.e. the
wife, was predominantly responsible for the breaking up of the
marriage. It appears that this decision was communicated to the
applicant's lawyer in C. on .. November 1967 and was received by his
lawyer in H. on .. December 1967. The decision acquired the force of
res judicata three days later.

Subsequently, the courts were called upon to determine the question of
custody of the children, both parents claiming such custody of all
children. It appears that, while the divorce proceedings were still
pending, the mother had considered to remarry and had corresponded with
one Mr. P., a German residing in Spain, who was allegedly between 70
and 80 years of age and whom she intended to join in Spain with the
children. However, the District Court (Amtsgericht), acting on an
application by the applicant, made a provisional order (einstweilige
Anordnung) on .. March 1968 enjoining the mother from removing the
children without the consent of the guardianship court
(Vormundschaftsgericht), pending the decision regarding custody.

Such decision was taken by the H. District Court on .. August 1968. The
Court decided that the applicant should have custody of all five
children but the right of care (Personensorgerecht) and the right of
determining the children's residence (Aufenthaltsbestimmungsrecht)
should be exercised by the H. Youth Office (Jugendamt) acting as
guardian ad litem (Pfleger).

Both the applicant and his ex-wife appealed (Beschwerde) against the
decision of the Regional Court of H.. On .. May 1969 the Court decided
that full custody of the children H., E. and U. should be granted to
the applicant, whereas the mother should have full custody of L. and
S..

The Court found that the situation had changed since the District
Court's decision of .. August 1968 which had refused custody to the
wife on the ground of her unbalanced state of mind. This had been
caused mainly by an over-production of the thyroid gland, an illness
which, according to a medical opinion of the H. Public Health Office
dated .. April 1969, had been cured by a successful operation.
Moreover, both parents had employment now and resided in separate flats
thereby showing the existence of adequate conditions for the upbringing
of the children.

The Regional Court further had in mind the children's well-being.
According to the Court, it was not possible for the applicant to bring
up five children in addition to exercising his profession. This finding
was supported by the two reports of the H. Youth Office dated .. August
1968 and .. January 1969. The Court relied in particular on the report
of August 1968 which contained a psychological opinion on four of the
children. It emerged from this report that L. was closely attached to
her mother, and so was S. according to the confirmation obtained from
her sisters. Moreover, the separation of the five sisters would not
cause any undue emotional stress on them, as no child was alone each
having at least one sister as a companion. The Court concluded that in
any event, the disadvantages of the present solution were less than
those which would arise if all children remained with one parent who
was otherwise already over-occupied.
Both parents then lodged with the Court of Appeal at C. a further
appeal (weitere Beschwerde) against the Regional Court's decision, the
applicant with regard to the custody of L. and S., and the mother with
regard to the custody of U.. However, on .. August 1969, the Court of
Appeal rejected both appeals finding that there had been no violation
of the evidence or its appreciation of the well-being of the children.

It appears that the applicant continues his efforts to regain the
custody of his two youngest daughters. He submits various letters to
the H. District Court and Regional Court requesting that his children,
L. and S. should be returned to his custody. He also submits photocopy
of a letter from the children to the guardianship court, dated ..
September 1969, stating that they did not want to visit their mother
any more but wished to stay with their father. It appears, however,
that another letter was sent on .. September 1970 by the children H.,
E. and U. to the effect that they liked to visit their mother and would
rather stay with her. The applicant alleges that the children had been
forced by their mother to write this letter.

Complaints

The applicant  now complains that the courts wrongly considered him as
being partly responsible for the breaking up of the marriage. He
alleges that he did not want a divorce and that it was entirely his
wife's unbalanced state of mind that caused the marriage to break up.
Nevertheless, he had been considered partly responsible as a result of
false evidence given by a doctor and of the judge's biased opinions.
In fact, the Regional Judge had told him privately in September 1969
that in most divorce cases both parties were at fault, and this was
ample proof of the judge's bias.

The applicant further complains that the courts wrongly refused him
custody of two of his children. He relies on opinions prepared by the
Youth Office and the Public Health Office which allegedly considered
that granting custody to the mother would not be in the interest of the
children's well-being. In fact, this had been recognised by the
District Court which granted him custody of all five children.
According to the applicant, the presiding judge of the Regional Court
of H., Dr. D., made an agreement with his wife's lawyer in accordance
with which the children should be separated and this was accomplished
by that court's decision of .. May 1969. Furthermore, the Court of
Appeal confirmed that decision on illogical grounds and without
clarifying matters further. The applicant contends that the mother is
in no way able to bring up the children who are thus in an immediate
danger regarding their physical and moral well-being.

The applicant alleges violations of Articles 3, 5 (1), 6 (1), 7 and 8
of the Convention. He requests a decision to the effect that the courts
in the Federal Republic of Germany should reconsider the decisions
taken against him, keep an exact record of the proceedings and refrain
from making insulting remarks to him. They should also bring together
his five children who are presently separated.

The applicant also claims damages for himself in the amount of 100,000
DM and for his children L. and S. in the amount of 50,000 DM each.


THE LAW

Whereas, in regard to the applicant's complaints relating to the court
proceedings concerning his divorce, it is to be observed that, under
Article 26 (Art. 26) of the Convention, the Commission may only deal
with a matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law; and whereas the
applicant failed to make an appeal the Federal Court
(Bundesgerichtshof) against the Court of Appeal's decision of ..
November 1967; whereas, therefore, he had not exhausted the remedies
available to him under German law; whereas, moreover, an examination
of the case as it has been submitted, including an examination ex
officio, does not disclose the existence of any special circumstances
which might have absolved the applicant, according to the generally
recognised rules of international law, from exhausting the domestic
remedies at his disposal;

Whereas, therefore, the condition as to the exhaustion of domestic
remedies laid down in Articles 26 and 27 (3) (Art. 26, 27-3) of the
Convention has not been complied with by the applicant;

Whereas the applicant further complains that he was refused the custody
of his daughters S. and L..

Whereas it is true that Article 8 (1) (Art. 8-1) of the Convention
guarantees generally the right to respect for private and family life;

Whereas, however, paragraph (2) of Article 8 (Art. 8-2) provides "that
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 and
morals or for the protection of the rights and freedoms of others".

Whereas the Commission finds that the family life of the parents with
their children does not cease owing to the divorce of the parents;
Whereas furthermore, the award of custody of the children to one parent
inevitably interferes with the family life of the other parent (see
application No. 2808/66, X v. the Federal Republic of Germany);

Whereas, however, the Commission has stated in a number of cases (for
instance Application No. 911/60, Collection of Decisions, Vol. 7, p.
7) that the terms of paragraph (2) of Article 8 (Art. 8-2) of the
Convention left a considerable measure of discretion to the domestic
authorities or courts in taking into account factors in the case which
might appear to them to be critical for the protection of the health
and morals of the child concerned; whereas nevertheless the Commission
has ultimately the duty to judge whether the interference complained
of was justified under the provisions of paragraph (2) (Art. 8-2);

Whereas, in the present case, the German courts have based their
decisions on the ground that it was not possible for the applicant
continually to occupy himself with the bringing up of all his five
children in addition to exercising his profession; that the applicant's
daughter L. was closely attached to her mother and so was his youngest
daughter S.; that the separation of the five sisters would not cause
any undue emotional stress on them as no child was alone each having
at least one sister as a companion; that, in any event, the
disadvantages of separating the children were less than those which
would arise if all children remained with one parent who was otherwise
already over-occupied;

Whereas the Commission finds that the decisions taken by the
appropriate authorities in this respect were reasonable and in no way
exceeded the "margin of appreciation" as regards the measures necessary
in the circumstances for the protection of the health and morals of the
children concerned within the meaning of Article 8 (2) (Art. 8-2) of
the Convention;

Whereas it follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 27,
paragraph (2) (Art. 27-2), of the Convention.

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE