THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63309/00 
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 7 November 2000,

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 applicant, Werner Süß, is a German national, who was born in 1940 and lives in Berlin. The respondent Government are represented by their Agent, Mr K. Stoltenberg, Ministerialdirigent, and, subsequently,  
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.  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.

2.  The applicant’s first request for information about his daughter

On 17 July and 13 August 1997 the applicant lodged a motion under Section 1634 § 3 of the Civil Code (see ‘Relevant domestic law’ below) to order G.S. to provide him with further information about their daughter F., notably her current place of residence.

On 23 June 1998 the Zossen District Court, sitting in guardianship matters, dismissed the applicant’s motions. It rendered its decision following a hearing attended by G.S. and F., then aged thirteen.  
The applicant, who had been duly summoned, had not attended the hearing.

In its reasoning, the District Court referred to its final decision of 20 January 1998 according to which the applicant was entitled to one photograph of F. each year together with the final school report in summer. Furthermore, G.S. had been ordered to supply the applicant with copies of the interim school report of 1997/98 and of any further final school reports or reports on subsequent professional training, respectively. The applicant was also entitled to information about his daughter’s health every six months and to immediate notice about any change in her state of health.

The District Court found that the applicant was not entitled to be informed of his daughter’s place of residence and of the address of her school on the ground that such information was contrary to the child’s well-being. It noted that the applicant did not have custody of F. and therefore had no power of co-determination in school matters. His right of access to F. had been suspended. In the court’s view, the applicant claimed the information in question only in order to establish access to F., which was contrary to her best interests. Moreover, G.S. feared reprisals. The court further noted that F., having been heard by the Youth Office and in court on 23 June 1998, refused any contacts with her father.

The District Court also dismissed the applicant’s request for coercive measures, noting that G.S. had complied with the court order of 20 January 1998.

On 9 June 1999 the Potsdam Regional Court, having heard the applicant and G.S., dismissed the applicant’s appeal. The Regional Court considered that the District Court had not exceeded its margin of appreciation when deciding that no information about the child’s whereabouts should be disclosed. Having regard to the strained relations between the parents, this had been in the child’s best interests. The information requested was not of such an importance that it had to be disclosed against G.S.’s express will. The Regional Court took into consideration that in a decision dated 19 November 1998, the District Court had initiated measures to re-establish contacts between the applicant and his daughter cautiously.

3.  The applicant’s second request for information about his daughter

Following the entry into force of the amended Law on Family Matters on 1 July 1998, the applicant lodged a second request to be informed of his daughter’s place of residence on 11 August 1999. He argued that he needed F.’s address in order to be able to maintain a minimum of contacts with her, because having to send letters to her via the Youth Office was discriminating against him.

On 26 October 1999 the Zossen District Court, sitting in family matters, dismissed the applicant’s request. It confirmed that the daughter’s interest to avoid the risk of contacts with the applicant outweighed the latter’s interest to be informed of her address pursuant to Section 1686 of the Civil Code (see ‘Relevant domestic law’ below).

In this connection, the Zossen District Court noted that on 30 September 1999 it had decided in a different set of proceedings instituted by the applicant that his access to F. remained suspended. It had found in that judgment that F., then aged fourteen, had expressly refused any contacts with her father and was crushed between her parents’ conflicting interests. In the case before it, the Zossen District Court therefore had to avoid a deterioration of F.’s tense mental state, which had not least been caused by never-ending court proceedings and examinations by psychological experts.

On 19 June 2000 the Brandenburg Court of Appeal dismissed the applicant’s appeal. Referring to its hearing of the parties on 19 May 2000 in the context of further proceedings concerning the applicant’s right of access, it observed that the relations between G.S. and the applicant remained strained. Therefore, the applicant was not entitled to information about his daughter’s whereabouts. It noted that since the suspension of access about five years ago, F. had only once, in May 1999, seen the applicant outside court. In these circumstances, any risk that the applicant would go to the house where G.S. and F. were living had to be avoided.

On 14 July 2000 the applicant lodged a complaint with the Federal Constitutional Court, comprising two pages. He claimed that the decision of the Brandenburg Court of Appeal not to order the disclosure of his daughter’s address violated his right to respect for his family life, his right to be heard and the principle of equality.

On 30 August 2000 the Federal Constitutional Court, without giving further reasons, refused to admit the applicant’s constitutional complaint.

4.  Subsequent developments

On 3 December 2001 the Zossen District Court ordered G.S. to pay a coercive penalty of 500 Deutschmarks for failure to comply with its order dated 20 January 1998 to supply the applicant with certain information about F.’ personal circumstances.

On 17 May 2002 the Brandenburg Court of Appeal confirmed the judgment of the Zossen District Court delivered on 30 September 1999 that the applicant’s access to F. remain suspended. It found that it would be against the best interests of F., who had almost attained the age of majority, to order contacts against her firmly expressed will.

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

B.  Relevant domestic law

1.  Information about a child’s personal circumstances

Before the entry into force of the amended Law on Family Matters (Reform zum Kindschaftsrecht) on 1 July 1998, the relevant provision of the Civil Code concerning a parent’s right to information about his or her under age child born in wedlock was worded as follows:

Section 1634

“3.  A parent not having custody who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child’s best interests. The guardianship court shall rule on any dispute over the right to information.”

The relevant provision in force since 1 July 1998, Section 1686 of the Civil Code, provides as follows:

“Each parent who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the other parent in so far as this is not contrary to the child’s best interests. The family court shall rule on any dispute.”

2.  Act on Non-Contentious Proceedings

Proceedings in family matters are governed, inter alia, by the Act on  
Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). Pursuant to Sections 27 and 28 of that Act, as applicable to the proceedings concerning the applicant’s first request for information, a further appeal (weitere Beschwerde) to the Court of Appeal lay against a decision of the Regional Court. If an appellant wished to lodge his further appeal in writing, his submissions had to be signed by a lawyer (Section 29 § 1 of the said Act).

COMPLAINT

The applicant complained under Articles 6, 8 and 14 of the Convention about the German court decisions rejecting his first and second request for information about his child’s whereabouts.

THE LAW

A.  The Government’s request that the application be struck out of the Court’s list of cases

By a letter dated 21 May 2003 the Government asked the Court to strike the present application, just as the application no. 40324/98, out of its list of cases pursuant to Article 37 § 1 (c) of the Convention. They noted that F. had attained the age of majority on 29 November 2002. Under German law parents had no right to obtain information about the personal circumstances of their children of full age. Therefore, it was no longer justified to continue the examination of the application.

The applicant contested this view. He argued that the violation of his Convention rights by German courts in the proceedings concerned was not remedied by the fact that his daughter had come of age.

Article 37 § 1 of the Convention provides, as relevant:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

...

(c)  for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court reiterates that it is called to examine the actual circumstances of an applicant’s case before the Court. In the present case, it has to review ex post whether the impugned decisions rendered by the German courts between 23 June 1998 and 30 August 2000 on the applicant’s requests for information complied with Articles 8, 6 and 14 of the Convention. It is not its task to determine whether further information about F.’s personal circumstances should henceforth be given to the applicant (see, mutatis mutandis, Karner v. Austria, no. 40016/98, § 26, ECHR 2003-IX; Mihailov v. Bulgaria (dec.), no. 52367/99, 9 September 2004). For the Court’s assessment, it is therefore irrelevant whether the national courts’ decisions or indeed the lapse of time since then – for which the applicant bears no responsibility – have created an irreversible situation.

Accordingly, the Court finds no reason for not continuing the examination of the present application. It therefore rejects the Government’s request that the application be struck out of its list of cases under  
Article 37 § 1 (c) of the Convention.

B.  The Government’s objection of non-exhaustion of domestic remedies

In the Government’s view, the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention in both sets of proceedings concerned.

As regards the applicant’s first request for information, the Government observed that the applicant’s motions had been dismissed by the Zossen District Court on 23 June 1998 and by the Potsdam Regional Court on 9 June 1999. They argued that the applicant had failed to lodge a further appeal to the Court of Appeal pursuant to Sections 27 et seq. of the Act on Non-Contentious Proceedings as applicable at the relevant time  
(see ‘Relevant domestic law’ above). Furthermore, he had not lodged a complaint with the Federal Constitutional Court against the decision of the Court of Appeal on this further appeal.

As to the applicant’s second request for information, the Government maintained that the applicant’s constitutional complaint had in fact been inadmissible, as the applicant had failed to substantiate his complaint sufficiently.

The applicant contested this view. He conceded that he had neither lodged a further appeal to the Court of Appeal nor a complaint to the Federal Constitutional Court in respect of his first request for information. However, he had failed to do so merely because he had been wrongly informed by the Potsdam Regional Court that he was obliged to be represented by a lawyer before the Court of Appeal.

As to his second request for information, the applicant maintained that he had sufficiently substantiated his complaints throughout the proceedings in the German courts. He argued that the deliberations of the Federal Constitutional Court, following which it had decided not to admit his complaint, were confidential. Consequently, the true reasons for this decision were neither known to him nor to the Government.

The Court recalls that, whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism,  
it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34; Elçi and Others v. Turkey, nos. 23145/93 and 25091/94, § 604, 13 November 2003).

As regards the applicant’s first request for information, the Court observes that the Potsdam Regional Court finally dismissed this request on 9 June 1999. It is uncontested that the applicant neither lodged a further appeal to the Court of Appeal nor a complaint to the Federal Constitutional Court in this respect. In case the applicant had wished to lodge his further appeal in writing, he could have mandated a lawyer, if necessary after having applied for legal aid, in order to be duly represented in the proceedings.

It follows that the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention with respect to his first request for information. Consequently, this part of the application must be rejected as inadmissible pursuant to Article 35 § 4 of the Convention.

As regards the applicant’s second request for information, the Court notes that the Federal Constitutional Court had refused to admit the applicant’s constitutional complaint without giving further reasons for its decision. In particular, in its decision that court had not found the applicant’s complaint to be inadmissible for a lack of substantiation.  
In these circumstances, it is not the function of the Court to substitute itself for the Federal Constitutional Court and to speculate why that court had decided not to admit the complaint. It is notably not for the Court to determine whether or not the Constitutional Court had considered or should have considered the applicant’s complaint as sufficiently substantiated and therefore as admissible (see argumentum a fortiori Uhl v. Germany, no. 64387/01, 6 May 2004).

The Court concludes that in respect of his second request for information the applicant exhausted all remedies in the family courts and obtained a decision of the Federal Constitutional Court in compliance with the formal requirements and time-limits laid down in domestic law. Therefore, the Court considers that the applicant has complied with the requirement under Article 35 § 1 of the Convention in this respect.

C.  Complaint under Article 8 of the Convention

The applicant claimed that the German courts’ decisions rejecting his second request for information about F.’s whereabouts violated his right to respect for his family life as protected by 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.”

It was undisputed between the parties that the domestic courts’ decisions rejecting the applicant’s second request for information about his daughter’s whereabouts amounted to an interference with his right to respect for his family life as guaranteed by Article 8 § 1. The Court takes the same view.

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”.

It was undisputed before the Court that the decisions at issue had a basis in national law, namely Section 1686 of the Civil Code as in force at the relevant time.

In the Government’s view, the court decisions had been rendered in the child’s best interests, and therefore pursued a legitimate aim. This was contested by the applicant, who argued that the decisions had in fact disregarded F.’s well-being.

The Court finds that the decisions not to order the disclosure of F.’s whereabouts to the applicant were intended to avoid a deterioration of F.’s mental state and were therefore aimed at protecting the “health or morals” and the “rights and freedoms” of the applicant’s daughter. Accordingly, they pursued legitimate aims within the meaning of paragraph 2 of Article 8.

The Government maintained that the interference with the applicant’s right to respect for his family life had been necessary in a democratic society. The applicant’s request to be informed about his daughter’s whereabouts had obviously been aimed at resuming contacts with F. However, the applicant’s access to F. had been suspended at the relevant time just in order to secure F.’s well-being. In these circumstances, it would have been contrary to F.’s best interests to inform the applicant of her address, and thereby to enable him to circumvent the suspension of his access to F.

The applicant argued that the refusal of the German courts to order the disclosure of his daughter’s whereabouts had violated his parental rights and had been contrary to his daughter’s best interests. The suspension of his access to F. had already breached his right to respect for his family life. Therefore, the refusal to inform him about his daughter’s address because of this prohibition of contacts had equally been in breach of Article 8.

In reviewing whether in the present case the domestic courts, in the exercise of their margin of appreciation, based their decisions on relevant and sufficient grounds the Court observes that for both courts sitting in family matters, F.’s best interests had been decisive in reaching their decisions. The Zossen District Court had noted that in its decision taken about a month earlier the applicant’s access to F. had remained suspended in order to protect F.’s health and well-being. Because of this, the District Court concluded that F.’s interest to avoid the risk of contacts with the applicant outweighed the applicant’s interest to be informed of her address. The Brandenburg Court of Appeal, which had heard the parties in the pending access proceedings, had reached the same conclusion. Both courts had placed the applicant in a position enabling him to put forward all arguments in favour of being informed of his daughter’s whereabouts.

The Court is aware that in cases in which a parent’s access to his or her child has been suspended, receiving information about the child’s personal circumstances is of vital importance for a parent in order to preserve at least a last tenuous bond with the child. Therefore, the Court must subject the domestic courts’ decisions on such issues to close scrutiny when reviewing them in the light of the Convention.

The Court observes, however, that in a decision of the Zossen District Court of 20 January 1998 G.S. had been ordered to supply the applicant with all essential information on F.’s personal circumstances.  
This comprised, in particular, photos of F., school reports and information on F.’s current state of health in regular intervals. In its impugned decisions, the domestic courts had merely refused to order that, in addition to the above information, the applicant also be informed of his daughter’s address. They had found the disclosure of F.’s address would circumvent the suspension of the applicant’s access to her.

Having regard to the foregoing, the Court considers that the German courts could reasonably find F.’s interest in having no potential contacts with her father against her will to outweigh the applicant’s interest in knowing her exact whereabouts. This information would arguably have enabled him to circumvent the suspension of his access to F. The Court is therefore satisfied that the national authorities, acting within their margin of appreciation, based their decisions on relevant and sufficient grounds.  
The ensuing interference with the applicant’s right to respect for his family life was therefore proportionate to the legitimate aims pursued.

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.

D.  Complaint under Article 6 § 1 of the Convention

The applicant submitted that the decisions of the German courts rejecting his second request for information about his daughter’s whereabouts also violated his right to a fair hearing. In particular, the courts sitting in family matters had not sufficiently reasoned their decisions. He invoked  
Article 6 § 1 of the Convention, which, in so far as relevant, reads:

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

The Court recalls that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument (see, amongst many others, García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I).

The Court notes that in their decisions both the Zossen District Court and the Brandenburg Court of Appeal set out clearly the reasons why they had refused to order the disclosure of F.’s whereabouts to the applicant.  
They found that the applicant’s right of access to F. had been suspended in order to protect F.’s best interests. Consequently, he was not to be informed of his daughter’s address, so that he was not placed in a position to circumvent this suspension of contacts.

Accordingly, the Court finds that the applicant cannot validly argue that these decisions lacked reasons. It follows that there is no appearance of a violation of Article 6 § 1 of the Convention. This part of the application must therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

E.  Complaint under Article 14 of the Convention, read in conjunction with Article 8

The applicant further maintained that in rejecting his second request for information about his daughter’s whereabouts the German courts, which had always found in favour of G.S., had discriminated against him. He relied on Article 14 of the Convention, which provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex ...”

The Court observes that both the Zossen District Court and the Brandenburg Court of Appeal had clearly based their impugned decisions on the finding that the daughter’s interest to avoid the risk of contacts with the applicant outweighed the latter’s interest to be informed of her address. The national courts had noted that F.’s refusal of any contacts with the applicant had been caused by the strained relations between her parents.  
In the Court’s view, these considerations do not reflect any difference of treatment on grounds of gender, but take account of a factual situation and of a child’s best interests.

Accordingly, the Court finds that there is no appearance of a violation of Article 14 of the Convention, taken together with Article 8. This part of the application must therefore equally be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Rejects the Government’s request that the application be struck out of the list of cases;

Declares the application inadmissible.

Mark Villiger Boštjan M. Zupančič 
 Deputy Registrar President

SÜSS v. GERMANY (II) DECISION


SÜSS v. GERMANY (II) DECISION