[TRANSLATION]

THE FACTS

The applicant, Mr Armin Tiemann, is a German national who was born in 1941 and lives in Kirchdorf (Germany). He was represented before the Court by Mr Christofer Lenz, a lawyer practising in Stuttgart (Germany).

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

On 26 August 1989 the applicant married a French national. The marriage produced a son and a daughter, born in 1990 and 1994 respectively. The applicant and his wife have been living apart since 9 January 1997.

A.  The particular circumstances of the case with respect to the application against Germany (no. 47458/99)

On 13 January 1997 proceedings for the award of parental responsibility were instituted in the Sulingen District Court (Amtsgericht).

On 14 January 1997 the District Court provisionally granted the applicant the right to determine the children’s place of residence while their parents lived apart.

At a hearing in the District Court on 17 February 1997 the children’s mother stated that she had no intention of unlawfully leaving the Federal Republic of Germany with the children.

On 18 February 1997 the District Court consequently revoked its decision of 14 January 1997 and restored the joint exercise of parental responsibility.

On 7 July 1997, without the applicant’s knowledge and against his wishes, the children’s mother removed them from the family home in order to settle with them at her parents’ home in Montoire-sur-le-Loir (France).

On 25 July 1997 the District Court again granted the applicant the right to determine the children’s place of residence and ordered their mother to return them.

On 6 August 1997 the District Court ruled that the mother’s removal of the children to a different country had been wrongful within the meaning of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

On 28 March 1998 the applicant had the children abducted in Montoire and brought back to him in Germany.

On 27 April 1998 the District Court decided to stay the custody proceedings pending the final decision on an application by the mother for the children’s return.

On 13 May 1998 the District Court dismissed an application by the mother for recognition of an order made on 10 November 1997 by a French court (the Blois tribunal de grande instance) and for the return of the children. The mother appealed against that decision.

On 9 July 1998 the Celle Court of Appeal (Oberlandesgericht) ordered the return of the children to their mother on the basis of the Hague Convention of 25 October 1980.

On 15 July 1998 the applicant lodged a constitutional appeal (Verfassungsbeschwerde) and applied for a stay of execution of the decision of 9 July 1998.

On 16 and 31 July 1998 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a panel of three judges, allowed the  application for a stay of execution, thereby provisionally maintaining the applicant’s home as the children’s place of residence.

On 29 October 1998 the Federal Constitutional Court quashed the decision of 9 July 1998 and remitted the case to the Celle Court of Appeal. It held that the children should have been represented by a guardian in the appeal proceedings. Furthermore, the Court of Appeal had failed to consider the interests of the children in the light of paragraph 1 (b), and of paragraphs 2 and 3 taken together, of Article 13 of the Hague Convention of 25 October 1980. In the Federal Constitutional Court’s view, ordering successive removals of children when first one and then the other parent applied for their return ran counter to the aims of that Convention if the children’s return placed them in an intolerable situation, unless the court concerned found that there were particular facts justifying their return in spite of the risks entailed by a further removal.

On 30 November 1998 the Celle Court of Appeal appointed an expert to assess the state of both parents’ relations with the children, with a view in particular to determining which parent should be awarded custody. The Court of Appeal also appointed a lawyer of the Celle Bar to protect the children’s interests.

On 20 January 1999 the expert submitted his report. In it he concluded that both parents were capable of bringing up the children, although he  stressed the good relationship between the applicant and his children. As regards the children’s place of residence, the expert considered that the desire expressed by the applicant’s son to stay with his father could be explained by the fact that the applicant had influenced his son and undermined his image of his mother, thereby provoking a conflict of loyalties. It had emerged from exploratory discussions, however, that the son had pleasant memories of his stay in France, had made friends through leisure activities such as judo, and had got on well with his maternal grandparents. His grandfather had apparently once kicked him, but it had transpired that he had only been teasing him and had not caused any harm. The expert observed that there were significant differences between the parents’ respective approaches to bringing up their children. The mother took great care to set limits for the children, while the applicant adopted a more liberal attitude towards them, especially towards his son, who was used to having his every whim satisfied. The expert considered that such an approach could have a negative effect in the long term, as the son might become intolerant of frustration and might experience problems. In the expert’s opinion, the children’s mother was in a better position to ensure their well-being because she did not work, and if she was ever temporarily unable to look after them, they could be looked after, supervised and supported by the members of her family, whom they had known for a long time. Where young children were concerned, an arrangement of that kind was more beneficial than employing someone to look after them. Having regard, on the one hand, to the applicant’s age and approach to child-raising, and, on the other hand, to the fact that the children’s mother, who did not have a job, was able to devote herself entirely and exclusively to them, the expert expressed the view that the children should be returned to their mother. He considered that the nine months they had previously spent with her – a subjectively long period for them – had enabled them to settle into those new surroundings.

On 5 February 1999 the Court of Appeal decided to confer on the Diepholz Youth Office (Kreisjugendamt) the right to determine the children’s place of residence pending its ruling on the merits. The Youth Office subsequently recommended that the children should live with their father.

On 19 February 1999 the expert followed up his report with comments on objections submitted by the applicant.

On 8 and 22 February 1999 the applicant challenged the president of the relevant division of the Celle Court of Appeal, another judge of that court and a judge of the Sulingen District Court for bias. He accused the Court of Appeal judges of failing to take sufficient account of the Federal Constitutional Court’s decision by failing to draw a distinction between the application for transfer of residence under the Hague Convention of 25 October 1980 and the assessment of the children’s interests, the latter task being the responsibility of the judges who had to determine the interim measures to be taken in respect of the children after the separation of their parents. He further argued that the judges in question had contravened the principle of impartiality to his disadvantage by describing his attitude as uncooperative. Their bias was also evident, in his submission, from the questions they had put to the expert, from their refusal to allow his requests for an adjournment and for a say in the choice of expert, from the delay in serving judicial decisions and from the fact that a “wanted” notice had been issued on account of his failure to attend a hearing.

On 10 March 1999 the Celle Court of Appeal dismissed the challenges as unfounded.

On the same day the applicant applied to the Federal Constitutional Court for a stay of execution of the Celle Court of Appeal’s decision if it ruled in favour of returning the children to their mother in France, pending the Federal Constitutional Court’s decision on the matter.

On 11 March 1999 the Federal Constitutional Court, sitting as a panel of three judges, allowed the application.

On 12 March 1999, having heard evidence from the parents, the children and the expert, the Celle Court of Appeal ordered the return of the children to their mother at her home in France, the State of their habitual residence for the purposes of the Hague Convention of 25 October 1980. It held that the children’s return to their mother was justified under Article 12 of the Convention of 25 October 1980 as their removal to Germany by their father had been wrongful within the meaning of Article 3 of that Convention. Under that provision, the removal of a child was to be considered wrongful where it was in breach of rights of custody attributed to a person, either jointly or alone, under the law of the State in which the child had been habitually resident immediately before the removal, and where at the time of removal those rights were actually being exercised. The Court of Appeal observed that the two children had been habitually resident in France before being removed to Germany on 28 March 1998. At the time of the removal they had been resident in France for almost nine months. They had been living with their mother in a flat in their grandparents’ house in Montoire. They had adapted well to their new surroundings. As a rule, a stay of six months was sufficient for a place of residence to be considered habitual. The fact that the mother had taken the children to France against their father’s wishes did not preclude her home in Montoire being established as their habitual residence. In general, it was important for children to adapt to living conditions in their new place of residence, and that had occurred in the instant case. The Court of Appeal added that contact between the parents remained desirable, and they would have to abate their mutual distrust.

In accordance with Article 14 of the Convention of 25 October 1980, the Court of Appeal took account of the order issued by the Blois tribunal de grande instance on 10 November 1997 in determining whether there had been a wrongful removal, although it did not avail itself of the specific procedures for recognition of that decision, which had ordered the joint exercise of parental responsibility by both parents. The Court of Appeal further held that the conditions laid down in Article 13 § 1 (b) of the Convention of 25 October 1980 were not satisfied in the instant case. By virtue of that provision, the judicial authority of the requested State was not bound to order the return of children if the person opposing that measure established that there was a grave risk that the child’s return would expose him or her to physical or psychological harm or otherwise place him or her in an intolerable situation.

On the basis of the report drawn up by the expert it had appointed and the statements made by the expert at the hearing, the Court of Appeal, in accordance with the wishes of the children’s lawyer, concluded that the return of the children to their mother would be in their interests. It considered that there was no need to order a second expert opinion, since the applicant’s criticisms had merely referred to scientific theories without casting doubt on the expert’s findings, which, in its view, were clear, consistent and well-founded.

On 31 March 1999 the Federal Constitutional Court, sitting as a panel of three judges, decided not to entertain a constitutional appeal lodged by the applicant against that decision.

On 1 April 1999 the mother brought the two children back to France.

B.  The particular circumstances of the case with respect to the application against France (no. 47457/99)

On 24 July 1997 the children’s mother instituted divorce proceedings in the Blois tribunal de grande instance.

On 5 August 1997 the family-affairs judge of that court authorised her to live apart from her husband, together with her children, at her home in France.

On 3 September 1997 Blois State Counsel and the applicant applied to the Blois tribunal de grande instance, requesting it to order the immediate return of the children to their home in Germany, pursuant to Article 12 of the Hague Convention of 25 October 1980. The applicant further requested that the Sulingen District Court’s decision of 25 July 1997, provisionally granting the applicant the right to determine where the children should live, be declared enforceable or, at the least, recognised in France.

On 25 September 1997 the family-affairs judge of the Blois tribunal de grande instance refused to order the return of the children to Germany. Although he considered the mother’s removal of the children to have been wrongful, he stated that returning the children to Germany would entail a grave risk for them and would in any case place them in an intolerable situation within the meaning of Article 13 § 1 (b) of the Hague Convention. Referring to the case-law of the Court of Cassation, to the effect that a grave risk or an intolerable situation could also result from a further change in the children’s living conditions, the judge concluded that both the separation of the children from their mother and the separation of the brother and sister from each other would cause an immediate risk of psychological harm, and that the sudden return of the children to Germany would place them in an intolerable situation, regard being had to their tender age (one being three years old and the other six and a half).  That situation would be aggravated by the crisis which the couple were undergoing and by the total lack of certainty as to the length of the mother’s separation from her children.

The applicant appealed against that decision.

On 10 November 1997 the family-affairs judge of the Blois tribunal de grande instance issued an order pronouncing the failure of the conciliation process in the divorce proceedings. He decided that parental responsibility should be exercised jointly by the two parents and that the children should be habitually resident with their mother, and granted the father access and staying access, specifying that those rights would not become enforceable until the date on which the order pronouncing the failure of the conciliation process was declared enforceable in Germany.

In a judgment of 10 March 1998 the Orléans Court of Appeal upheld the order of 25 September 1997. Noting that a grave risk of harm or of an intolerable situation within the meaning of Article 13 § 1 (b) of the Hague Convention of 25 October 1980 – cited as justification for retaining children who had been removed – might be entailed by a further change in the children’s living conditions, the Court of Appeal confirmed that separating a three-and-a-half-year-old child from her mother and a brother and sister from each other would cause an immediate risk of psychological harm, and that the sudden return of the children to Germany would place them in an intolerable situation in view of their tender age. It further noted that the mother, who did not work, had always looked after the two children’s everyday needs since their birth and that their return to Germany would entail the end of that state of affairs, especially as the mother’s highly precarious financial situation gave reason to fear that she would be unable to make regular use of the access and staying access to which she would be entitled. The Court of Appeal declared inadmissible the applicant’s application to have the German court’s decision of 25 July 1997 (provisionally granting him the right to determine where the two children should live) recognised or declared enforceable. It also held that that application was ill-founded.

The applicant appealed on points of law against that judgment within the statutory period of two months. He argued in particular that, on the basis of the Hague Convention of 25 October 1980, the judge should have acted swiftly to end the patently illegal situation resulting from the children’s wrongful removal and could only have refused their immediate return if they faced a grave risk, the assessment of which was quite distinct from the assessment of the children’s best interests with regard to a custody measure. In basing its decision on the children’s interest in staying with their mother, the Court of Appeal had, in the applicant’s submission, acted as a court of first instance and exceeded its jurisdiction, in breach of Articles 12, 13 and 19 of the Hague Convention of 25 October 1980.

The applicant further submitted that the immediate return of a wrongfully removed child, even one of tender age, to live with his lawful father in the same conditions as had existed before the wrongful removal could not in any circumstances be regarded as constituting an intolerable situation within the meaning of Article 3 of the Hague Convention.

On 28 March 1998 the applicant had the children abducted in Montoire and brought back to him in Germany. The Blois investigating judge subsequently began a criminal investigation in respect of the applicant for abduction of a minor by a gang and criminal conspiracy.

On 22 June 1999 the Court of Cassation dismissed the applicant’s appeal on points of law.

On 17 June 1999 the children’s mother applied to have the father’s access and staying access revoked as a result of the children’s abduction.

In an order of 30 June 1999 the Blois tribunal de grande instance suspended the applicant’s access and staying access in respect of his daughter during the summer of 1999 and granted him access and staying access in respect of his son.

It appears from the file that, notwithstanding the order of 30 June 1999, the two children spent three weeks of their summer holidays at their father’s home.

On 3 October 1999 the applicant learned from his son that the children’s mother was planning to move to Paris, where she had found a job.

On an unspecified date the applicant applied to the Blois tribunal de grande instance to have the children’s place of residence transferred to his home in Germany. He argued that their mother did not have sufficient time available to ensure the children’s day-to-day upbringing and to give them the care and attention they needed.

On 13 January 2000 the Blois tribunal de grande instance dismissed that application. It pointed out that the children’s return to France had been ordered by the Celle Court of Appeal in the light of the various findings set out in the expert’s psychological report. It observed that the mother’s physical availability, which had been taken into account at the time, had not been the sole factor determining where the children should live. After the applicant had abducted the children, their mother had been unable to see them for a year as a result of his unreasonable attitude. In that context, the children had suffered severe psychological trauma. Since they had returned to their mother, she had found a job, a fact for which she could not be reproached. Although she was now in employment, she had managed, like any other working woman, to organise her children’s everyday lives satisfactorily; the children appeared to be thriving in her company. They attended schools not far from their home and their mother worked in the same area. There was nothing in the file to indicate that the mother’s new circumstances were detrimental to the children or were responsible for the son’s difficulties at school or the daughter’s psychological problems. Those problems had existed before and were the consequence not of the mother’s personal situation but of the conflict between the parents, which was still extremely intense. Noting, however, that since the summer holidays the family situation had calmed down considerably, the court granted the applicant access and staying access in respect of both children, subject to the conditions laid down in the order of 10 November 1997 pronouncing the failure of the conciliation process. It also set the amount of maintenance and the applicant’s contribution to his children’s upkeep and education.

C.  Relevant provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

Article 1

“The objects of the present Convention are:

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

Article 3

“The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

Article 12

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”

Article 13

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”

Article 19

“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”

COMPLAINTS

A.  Complaints against Germany

1.  Relying on Article 8 of the Convention, the applicant alleged that in ordering the return of the children to their mother in France the German courts had infringed his right to respect for his family life. In his submission, the interference with his exercise of that right could not be justified by Article 8 § 2 of the Convention.

He argued that, according to the Court’s case-law, the interests of children should be paramount both in proceedings concerning the award of parental responsibility and in proceedings brought under the Hague Convention of 25 October 1980 with a view to securing a child’s immediate return to the State of his habitual residence. However, the reasons given by the Court of Appeal to justify returning the children to France had been arbitrary and contrary to the children’s interests. The Court of Appeal had not taken into account the children’s psychological difficulties in settling into foreign surroundings, especially as they did not have a sufficient command of French. Their return to France had torn them from their familiar surroundings in Germany, where they had spent most of their lives and where they had a group of friends. The applicant’s son had settled in well to the German school system, which was more suited to his needs than the stricter French system. Furthermore, the Court of Appeal had not taken into account either the children’s desire to stay in Germany or the opinion expressed by the Youth Office. It had also anticipated – wrongly – the final decision on the award of parental responsibility.

2.  Relying on Article 6 of the Convention, the applicant complained that there had been a violation of his right to a fair trial, his right of access to a court and his right to an independent and impartial tribunal.

He contended that the judges of the Celle Court of Appeal were biased, as they had based their decision on an expert psychological report which had been shown to be incorrect by the various expert opinions he had produced. In addition, the judges had arbitrarily passed judgment on his capacity to look after his children. The Court of Appeal had also infringed his right of access to a court. In basing its decision on the children’s interest in staying with their mother, it had acted as a court of first instance, thereby breaching the Hague Convention of 25 October 1980 and precluding the possibility of a wholly impartial ruling by the court with jurisdiction to consider the merits of the case.

The applicant further maintained that the Federal Constitutional Court’s decision of 31 March 1999 had been such as to give rise to reasonable doubts as to that court’s impartiality. The decision had departed from existing precedents, in particular the decisions of 29 October 1998 and 11 March 1999, and the only possible explanation for it was that the German Ministry of Justice had exerted political pressure after holding discussions with the appropriate French authorities.

3.  Lastly, the applicant complained that there had been a violation of Article 14 of the Convention taken together with Articles 6 and 8, and of Article 5 of Protocol No. 7 to the Convention. He submitted that both the expert report referred to above – which, he argued, was manifestly worthless – and the Celle Court of Appeal’s decision of 12 March 1999 discriminated against him on the grounds of his age and sex.

B.  Complaints against France

1.  Relying on Article 8 of the Convention, the applicant complained that the French courts had infringed his right to respect for his family life through their erroneous application of Article 13 § 1 (b) of the Hague Convention of 25 October 1980. In his submission, that provision did not serve as justification for refusing to order the return of the children to their father in Germany. The French courts had acted against the interests of the children, who had no roots in France and were finding it very difficult to adapt to their new surroundings.

The applicant also asserted that his children’s situation had deteriorated even further in the meantime. Their mother had taken them to Paris, where she had found a job. As a result, he argued, she did not have sufficient time available to ensure the children’s day-to-day upbringing and to give them the care and attention they needed. Their living conditions were therefore unsatisfactory. Consequently, the applicant maintained that he would be in a better position to look after them.

2.  Relying on Article 6 § 1 of the Convention, the applicant complained of the decisions of the French courts.

In particular, he criticised the excessive length of the proceedings and the failure to observe the principle of fairness. In his view, the proceedings had lasted longer than was reasonable, having regard to their subject matter and to the fact that under the Hague Convention of 25 October 1980 length of residence in a State could have consequences for the determination of where children should subsequently live. Relying on Article 11 § 2 of the Hague Convention, the applicant submitted that, pursuant to that provision, the judicial or administrative authority concerned was required to reach a decision within six weeks of the commencement of proceedings.

The applicant also alleged a violation of the principle of equality of arms. In that connection, he complained of the incompetence of the interpreter in the Blois tribunal de grande instance and of the absence of an interpreter in the Orléans Court of Appeal and at the hearing of 18 November 1999 in the Blois tribunal de grande instance.

3.  Lastly, the applicant alleged that he had been a victim of a violation of Article 14 of the Convention taken together with Articles 6 and 8, and of Article 5 of Protocol No. 7 to the Convention. He argued that the French courts’ application of the Hague Convention of 25 October 1980 had been erroneous and had discriminated against him. In his submission, there had been no justifiable grounds for leaving the children with their mother, in breach of international treaties.

PROCEDURE

The applications (nos. 47457/99 and 47458/99) were lodged on 14 April 1999 and registered on 15 April 1999.

On 14 April 1999 the applicant submitted a request for an interim measure under Rule 39 of the Rules of Court inviting the French Government to return the children to him pending the outcome of the proceedings in the Court of Cassation and inviting the German Government to stay the execution of the Celle Court of Appeal’s decision of 12 March 1999 during the proceedings before the European Court.

On 20 April 1999 the Court (Fourth Section) unanimously decided not to recommend that the respondent Governments adopt the interim measures requested. It ordered the joinder of the applications.

On 21 June 1999, in accordance with Rule 40, the Registrar of the Fourth Section informed the Contracting Parties concerned of the introduction of the applications and provided a summary of their objects.

In a letter of 19 December 1999, which was received at the Court on 4 January 2000, the applicant submitted a second request for an interim measure under Rule 39 inviting the French Government to transfer the children’s place of residence to his home in Germany pending the outcome of the proceedings in respect of his applications to the Court.

On 3 February 2000 the Court (Fourth Section) unanimously decided not to recommend that the French Government adopt the interim measure requested.

THE LAW

A.  The application against Germany (no. 47458/99)

1.  The applicant submitted that the Celle Court of Appeal’s decision of 12 March 1999 ordering the return of the children to their mother at their place of residence in France had infringed his right to respect for his family life, as guaranteed by Article 8 of the Convention, which provides:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see, among other authorities, the following judgments: McMichael v. the United Kingdom, 24 February 1995, Series A no. 307-B, p. 55, § 86; Johansen v. Norway, 7 August 1996, Reports of Judgments and Decisions 1996-III, p. 1001, § 52; and Bronda v. Italy, 9 June 1998, Reports 1998-IV, p. 1489, § 51). The measure in issue in the instant case clearly amounted to interference with the applicant’s right to respect for his family life within the meaning of Article 8 § 1 of the Convention.

Such interference constitutes a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society” (see the Bronda judgment cited above, p. 1489, § 52).

The Court notes that the impugned measure was based on the provisions of the Hague Convention of 25 October 1980. That convention, which was approved, in accordance with Article 59 § 2 of the Basic Law (Grundgesetz), in the form of a federal statute and promulgated in the Federal Official Gazette (Bundesgesetzblatt – 90 II 206), is applicable in German domestic law.

The Court observes that the provisions in question were applied in order to protect the two children, and there is no reason to consider that the domestic courts relied on them with the aim of removing them from their father, as the latter alleged. On the contrary, the wording of the decisions in issue clearly shows that the judges were guided by the children’s interests and the need to ensure their psychological development.

Consequently, the interference pursued a legitimate aim under paragraph 2 of Article 8, namely the protection of the rights and freedoms of others.

It remains to be determined whether the interference with the applicant’s exercise of his right to respect for his family life was “necessary in a democratic society” within the meaning of Article 8 § 2.

The Court reiterates that in determining whether the impugned measures were “necessary in a democratic society”, it has to consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of paragraph 2 of Article 8. Undoubtedly, consideration of what is in the best interest of the child is always of crucial importance. In these circumstances, it must also be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. It follows from these considerations that the Court’s task is not to take the place of the competent national authorities in regulating parents’ rights, such as the right to exercise parental responsibility, the right of access or the right to determine a child’s place of residence, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation (see, for example, mutatis mutandis, the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55, and the Bronda judgment cited above, p. 1491, § 59).

The Court further reiterates that a fair balance must be struck between the interests of the child and those of the parents (see, for example, the Olsson v. Sweden (no. 2) judgment of 27 November 1992, Series A no. 250, pp. 35-36, § 90, and E.P. v. Italy, no. 31127/96, 16 November 1999, § 62) and that in this regard particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent. In particular, the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development (see the Johansen judgment cited above, p. 1008, § 78).

In the instant case, after carrying out a thorough examination of the family environment the Celle Court of Appeal held that it was in the children’s interests to live with their mother and to avoid a further removal. In reaching that conclusion, the Court of Appeal took into account not only the expert’s findings but also the evidence given at a hearing by the parties, by the lawyer appointed to protect the children’s interests and by the children themselves, in particular the son, who was nine years old at the time, so that it was in a better position to strike a fair balance between the conflicting interests in the case than the European Court is now.

Accordingly, the Court considers that the decision in issue was based on reasons that were not only relevant but also sufficient for the purposes of paragraph 2 of Article 8. In particular, regard being had to the authorities’ margin of appreciation in the matter, the interference complained of was not disproportionate to the legitimate aim pursued.

As regards the applicant’s complaints about the decision-making process, in particular those concerning the incompetence of the expert appointed by the Court of Appeal and that court’s refusal to appoint another expert, the Court observes that the applicant, represented by his counsel, was given the opportunity to submit his arguments and to have knowledge of, and comment on, those of the other party.

In conclusion, there is nothing to suggest that the decision-making process leading to the adoption of the impugned measures by the domestic court was unfair or failed to involve the applicant to a degree sufficient to protect his interests (see the following judgments: W. v. the United Kingdom, 8 July 1987, Series A no. 121, pp. 28-29, §§ 64-65; McMichael, cited above, pp. 55 and 57, §§ 87 and 92; and Johansen, cited above, p. 1004, § 66).

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2.  The applicant maintained that he had not been given a fair hearing by the German courts. He complained, in particular, that the Celle Court of Appeal had arbitrarily based its decision on an expert psychological report that was erroneous and contradictory and that it had refused to take into account his criticisms of the report and to appoint another expert. In his submission, the Court of Appeal’s attitude and the reasoning behind its decision ordering the return of the children to their mother indicated bias on the part of that court. The applicant also criticised the Federal Constitutional Court for dismissing his constitutional appeal and asserted that that court had been subjected to political pressure. He relied on Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal...”

The Court reiterates that it is not its task to substitute its own assessment of the facts and the evidence for that of the national courts; its task is to establish whether the evidence was presented in such a way as to guarantee a fair trial (see X v. Switzerland, application no. 9000/80, Commission decision of 11 March 1982, Decisions and Reports (DR) 28, p. 127). In addition, Article 6 § 1 of the Convention does not lay down any rules on the admissibility or probative value of evidence or on the burden of proof, which are essentially a matter for domestic law (see X v. Belgium, application no. 8876/80, Commission decision of 16 October 1980, DR 23, p. 233, and also, mutatis mutandis, the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 46, and the Windisch v. Austria judgment of 27 September 1990, Series A no. 186, p. 10, § 25).

In the instant case, the Court notes that the decision in issue was reached following adversarial proceedings in which the applicant, represented by his counsel, had the opportunity to submit any observations and evidence he considered necessary and to put forward arguments in support of his submissions. Furthermore, the Celle Court of Appeal carried out a wholly independent assessment of the credibility of the evidence in the light of all the facts of the case before it and gave adequate reasons for the decision it reached. It does not appear that that court drew any arbitrary inferences from the evidence adduced before it or that it went beyond a reasonable interpretation of the legal provisions applicable to the instant case.  In particular, it gave sufficient grounds for its refusal to allow the applicant’s request for another expert opinion, a decision which the Court does not consider unreasonable.

The applicant also complained of bias on the part of the Celle Court of Appeal and the Federal Constitutional Court.

The Court reiterates that impartiality normally denotes absence of prejudice or bias. A distinction can be drawn in this context between a subjective approach, which consists in seeking to determine the personal conviction of a given judge in a given case, and an objective approach, which consists in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see the Piersack v. Belgium judgment of 1 October 1982, Series A no. 53, p. 14, § 30). While the personal impartiality of a judge must be presumed until there is proof to the contrary, under the objective test it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may prompt the suspicion that he is biased.  In this respect even appearances may be of some importance;  accordingly, when it is being decided whether in a given case there is a legitimate reason to fear that a particular court lacks impartiality, the standpoint of the accused is important. It is not decisive, however; the determining factor is whether the fears aroused can be held to be objectively justified (see, for example, the Gautrin and Others v. France judgment of 20 May 1998, Reports 1998-III, pp. 1030-31, § 58).

The Court considers that in the instant case the applicant has not adduced any evidence capable of casting doubt on the independence and impartiality of the courts in question.

Accordingly, examining the proceedings as a whole, the Court finds no appearance of a violation of the right to a fair trial guaranteed by Article 6 § 1.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

3.  The applicant also complained that there had been a violation of Article 14 of the Convention taken together with Articles 6 and 8, and of Article 5 of Protocol No. 7.

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court reiterates that only unjustified differences in the treatment of individuals placed in similar situations may raise an issue under this provision (see, among other authorities, the Rasmussen v. Denmark judgment of 28 November 1984, Series A no. 87, p. 13, § 35, and the Darby v. Sweden judgment of 23 October 1990, Series A no. 187, p. 12, § 31). That condition is not satisfied in the instant case. Consequently, no appearance of discrimination can be found on the basis of the evidence produced by the applicant.

As regards the applicant’s allegation of a violation of Article 5 of Protocol No. 7, which guarantees spouses equality of rights and responsibilities of a private-law character between them, and in their relations with their children during marriage and in the event of its dissolution, the Court observes that this complaint is subsumed by those examined above. Accordingly, it finds that there is no reason to examine it separately.

It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

B.  The application against France (no. 47457/99)

1.  The applicant complained under Article 8 of the Convention that the French courts had infringed his right to respect for his family life.

The Court considers that the French courts’ decisions concerning the right to determine the children’s place of residence amounted to interference with the applicant’s right to respect for his family life within the meaning of Article 8. It will therefore assess whether that interference was justified under Article 8 § 2 of the Convention.

The Court considers that the interference was in accordance with the law, in particular with the relevant provisions of the Hague Convention of 25 October 1980. That convention came into force in France on 1 December 1983 (Decree no. 83-1021 of 29 November 1983) and pursues the legitimate aim of protecting the rights of others. It remains to be determined whether the interference was also “necessary in a democratic society”.

In this connection, in the light of the evidence before it, particularly the real and serious conflicts between the applicant and the children’s mother, the Court considers that the measures taken by the national courts were based on relevant and sufficient grounds. The national courts, which were in a better position than the Court to strike a fair balance between the interests of the children in living in a harmonious household and those motivating the steps taken by their father (see the Söderbäck v. Sweden judgment of 28 October 1998, Reports 1998-VII, pp. 3095-96, §§ 30-34), did not exceed the margin of appreciation afforded to them under paragraph 2 of Article 8 in adopting their decisions, which, moreover, contained a full statement of reasons.

Accordingly, regard being had to the circumstances of the case, the judicial authorities’ decision to grant the children’s mother the right to determine where they should live was not disproportionate.

Lastly, it should be noted that it took more than a year and three months for the applicant’s appeal to the Court of Cassation to be heard. Taken individually, that factor could appear unacceptable in such a sensitive case, in which the passage of time may have irreversible effects on the children’s psychological stability, since they are forced to live in a state of uncertainty as to where they will live. However, the Court is satisfied that the decisions in issue were based on reasons that were not only relevant but also sufficient for the purposes of paragraph 2 of Article 8. It has to be said that the task of the relevant courts, while not capable of justifying any delay, was not easy owing to the sensitive nature of cases of this type, the highly conflictual nature of the instant case (for example, the father had the children abducted on 28 March 1998) and the various interests at stake, including those of the children.

For the reasons set out above, the Court considers that the applicant’s allegation that the length of proceedings in the Court of Cassation was excessive does not raise an issue under Article 8.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2.  As regards the applicant’s complaint about the order issued by the Blois tribunal de grande instance on 13 January 2000 maintaining the mother’s home as the children’s habitual residence and setting out the applicant’s access and staying access arrangements, the Court notes that the order was subject to appeal. Under Article 35 § 1 of the Convention, the Court may only deal with an application after all domestic remedies have been exhausted, according to the generally recognised rules of international law. Consequently, the applicant failed to satisfy the requirement of exhausting the remedies available to him under French law.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

3.  The applicant also complained under Article 6 § 1 of the Convention of the length of the proceedings and of a violation of the principle of equality of arms.

As regards the complaint concerning the length of the proceedings, the Court notes that the proceedings began on 5 August 1997, when the family-affairs judge of the Blois tribunal de grande instance issued an order authorising the mother to live apart from her husband, together with her children. It notes that the proceedings ended on 22 June 1999, the date of the Court of Cassation’s judgment. Consequently, the period to be taken into consideration amounted to one year, ten months and seventeen days. The Court considers that the complaint concerning the length of proceedings is subsumed by the complaint alleging a violation of Article 8 of the Convention. Accordingly, it finds that there is no reason to examine it separately. In view of the complexity of the case, moreover, it does not appear that the proceedings as a whole exceeded a reasonable time.

The applicant also complained of the incompetence of the interpreter in the Blois tribunal de grande instance and of the absence of an interpreter in the Orléans Court of Appeal and at the hearing in the Blois tribunal de grande instance on 18 November 1999. He submitted that he had not had a reasonable opportunity to put his case to the courts concerned and that he had been at a disadvantage in relation to his opponent in those courts.

The Court considers, however, that the applicant, who was assisted by a German-speaking French lawyer, had an adequate opportunity to submit his arguments. Consequently, it finds that there has been no breach of Article 6 of the Convention.

4.  Lastly, as in his application against Germany, the applicant complained that there had been a violation of Article 5 of Protocol No. 7 to the Convention, and of Article 14 of the Convention taken together with Articles 6 and 8.

The Court notes, however, that no appearance of a violation of the provisions relied on can be found from an examination of this complaint on the basis of the evidence produced (see paragraph 3 above in relation to the application against Germany).

It follows that these parts of the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the applications inadmissible.

TIEMANN v. FRANCE AND GERMANY DECISION


tiemann v. france and germany DECISION