GÖRGÜLÜ v. GERMANY (ECHR DECISION ON ADMISSION)

DECISION AS TO THE ADMISSIBILITY OF Application no. 74969/01
by Kazim GÖRGÜLÜ against Germany

The European Court of Human Rights (Third Section), sitting on 20 March 2003 as a Chamber composed of Mr I. Cabral Barreto, President, Mr G. Ress, Mr P. Kūris, Mr B. Zupančič, Mr J. Hedigan, Mrs M. Tsatsa-Nikolovska, Mr K. Traja, judges, and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 18 September 2001,
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

A. The circumstances of the case

1. Factual background

The applicant is the father of the child Christofer, born out of wedlock on 25 August 1999 in Leipzig.

The applicant met the child’s mother, (Ms M.) in 1997. In 1998, they planned to get married, but Ms M. cancelled the wedding. Nevertheless, their relationship continued until the beginning of 1999. The applicant found out about Ms M.’s pregnancy in May 1999. According to the applicant, he and Ms M. agreed at that time that the applicant would take care of the child. Subsequently, the applicant inquired after Ms M. and her unborn child on a weekly basis, but was not able to contact her as of July 1999.

Directly after birth on 25 August 1999, Ms M. gave Christofer for adoption. The Wittenberg Youth Office, as Christofer’s curator (Amtsvormund), notified Mr and Ms B., who were registered as prospective adoptive parents and who had previously adopted a child. They fetched Christofer from hospital four days later and took him home.

In October 1999, the applicant heard about Christofer’s birth and Ms M.’s giving the child for adoption. In November 1999, he went to the Leipzig Youth Office with the intention of adopting Christofer himself. Since Ms M. had not given any details regarding the paternity, the Youth Office refused to give the applicant any information regarding Christofer.

On 30 November 1999, Ms M. accompanied the applicant to the Youth Office and confirmed that he was Christofer’s father, whereupon the applicant obtained his son’s birth certificate.

Following an official acknowledgement of paternity and a request for custody rights on 10 January 2000, the applicant initiated paternity proceedings before the Wittenberg Court on 12 January 2000.

After he had acknowledged paternity again on 2 May 2000 and submitted to a medical blood analysis, the Wittenberg District Court confirmed that the applicant was Christofer’s father on 20 June 2000.

Since December 1999, the applicant has been married under Islamic law to Ms C, a German national. He lives with his wife and one of her two children.

2. Custody and access proceedings

On 10 January 2000, the applicant requested the Wittenberg District Court to transfer custody of Christofer to him.

On 30 August 2000, the Wittenberg District Court appointed Ms F. as curator ad litem (Verfahrenspfleger) to represent Christofer’s interests in the custody proceedings.

During a hearing held on 25 September 2000, the District Court decided that a meeting between the applicant and Ms C. and Mr and Ms B. should be arranged and that first contacts between the applicant and Christofer should be planned and implemented. On 13 October 2000, the applicant and Ms C. met Mr and Ms B. Up to December, four meetings took place between the applicant and his son in the presence of Christofer’s foster parents. Since December 2000, no more meetings have taken place since Christofer was ill and his foster parents considered such meetings to be too much of a burden for a young child.

On 11 January 2001, the applicant lodged an application with the Wittenberg District Court, sitting as a court competent in family matters, in order to obtain access to his son. Ms F was also appointed curator ad litem for the purposes of the access proceedings.

On 8 February 2001, the Wittenberg District Court, by way of an interim measure, ordered that the applicant should have access to Christofer on six consecutive Saturdays for first one, later two, three, and eight hours.

On 16 February 2001, following the Youth Office’s appeal, the Naumburg Court of Appeal suspended the execution of the District Court’s interim decision pending proceedings before it. The applicant was permitted to see Christofer once a month for two hours in the presence of Mr and Ms B. or a third person.

On 9 March 2001, the Wittenberg District Court decided to transfer the sole custody of Christofer to the applicant pursuant to section 1672 (1) of the Civil Code (Bürgerliches Gesetzbuch). Based on Ms F.’s observations and on interviews with the parties, the District Court was convinced that the applicant was willing and able to give Christofer a home and family and that granting the applicant sole custody was in the child’s best interest. The District Court recalled that during the meetings between the applicant and Christofer, the child had shown no aversion towards the applicant and had not suffered any harm. Contacts between the applicant and Christofer in general therefore did not pose a threat to the child’s well-being. The District Court stated that such contacts could already have taken place much earlier if the competent authorities had not obstinately pursued the adoption proceedings, thereby preventing any contact between father and child. The District Court found that, should Christofer stay with his foster parents and later find out about his background, he risked being subjected to an identity conflict. Such a conflict would pose a greater threat to the child’s well-being than separating him from his foster family after what might eventually amount to two years, in particular with regard to Christofer’s stable state of mind. While noting that this decision on custody would not have any instant practical effects, in particular not on the rights of the foster parents, the District Court found it important quickly to adapt Christofer to the new situation. It considered it imperative that the meetings and contacts that had begun to take place in September 2000 should continue, in order to prevent a change of residence from becoming a sudden, incisive break in Christofer’s life. It also found that if the child should move in with his father, he should pay frequent visits to his foster family. In similar cases, such visits had led to positive results.

On 10 April 2001, the Naumburg Court of Appeal, upon the Youth Office’s appeal and a second appeal lodged by Mr and Ms B., revoked the interim decision on access of 8 February 2001. It found that following the Wittenberg District Court’s decision granting the applicant custody of Christofer, which included unlimited access, the object of the dispute had disappeared.

On 27 April 2001, the Naumburg Court of Appeal, upon the Youth Office’s appeal against the District Court’s custody decision, decided to suspend the execution of the custody decision until it had decided on the appeal. It also discharged Ms F., Christofer’s curator ad litem, finding that she had exceeded her authority and was no longer impartial. Ms E., a social worker, was appointed new curator ad litem.

On 19 June 2001, the Wittenberg District Court, by way of an interim measure, granted the applicant access to his son on three days for two hours respectively and starting the end of July 2001, on every Saturday for eight hours. It ordered Mr and Ms B. to co-operate and obliged them to find substitute dates for any cancelled meeting. As in the custody proceedings, Ms F. was discharged and Ms E. was appointed as new curator ad litem.

On 20 June 2001, the Naumburg Court of Appeal revoked the District Court’s decision of 9 March 2001 and rejected the applicant’s request for custody of Christofer. It also suspended the applicant’s access to his son until 30 July 2002.

In its decision, the Court of Appeal found that transferring custody to him was not only not in the child’s best interest, but even detrimental to his well-being. In this respect it had regard to a psychological report submitted by a certified pedagogue (pedagogic psychology) of the Sachsen-Anhalt Youth Office dated 30 January 2001, a medical report of a paediatrician dated 19 January 2001 and a report of Ms E. dated 6 June 2001. It also relied on its own experience in such matters and on its knowledge of the facts.

The Court of Appeal considered that the applicant was in a position to care for Christofer. It noted that he was married to Ms C., a German national, who had already raised two children herself and who would support him. The applicant could also offer other objective assets for raising a child, i. e. a house with a separate room for Christofer. The Court of Appeal was also convinced that although he had never gone to school himself nor completed any higher education, the applicant was, with the assistance of Ms C., able to further Christofer’s education.

However, separating the child from his foster family was not in Christofer’s best interest, as a deep social and emotional bond had evolved between the child and his foster family. Christofer had lived with Mr and Ms B. for one year and ten months which, in the court’s view, constituted an “infinite amount of time” (“einen unendlichen Zeitraum”) for a child of Christofer’s age. In this situation, a separation from Mr and Ms B. would lead to severe and irreparable psychological damage on the part of the child, especially as he had already experienced the separation from his natural mother, which in itself had been a traumatic event. It would be impossible to convey the necessity of a separation to such a young child, especially as the applicant was a stranger to Christofer.

The Court of Appeal regarded the above reports as sufficient to assess the case before it and therefore found that there was no need for further expert opinions, as there was no reason to expect that they would come to different conclusions in favour of the applicant. It found that any remaining doubts as to this point were to the applicant’s detriment (“zu Lasten des Kindesvaters”).

Moreover, the Court of Appeal, based on the above-mentioned psychological report and the report of the curator, found that the suspension of access was in Christofer’s best interest. Having regard to the unrest and insecurity occasioned by the unresolved legal dispute, any contact with his natural father would be a physical and psychological strain for the child. Suspending access for a certain time would allow Christofer to regain the necessary inner repose and emotional balance.

On 31 July 2001, the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint about the Naumburg Court of Appeal’s decision of 20 June 2001.

3. Adoption proceedings

On 2 November 1999, Ms M. consented to Christofer’s adoption before a public notary.

On 19 January 2001, the Wittenberg District Court in its function as a court competent in guardianship matters, received Mr and Ms B.’s request for permission to adopt Christofer and to change his name to Robert. This request was written and signed before a public notary and contained the Wittenberg Youth Office’s consent to the adoption, acting as Christofer’s legal representative.

On 23 February 2001, Mr and Ms B. requested that the District Court dispense with the applicant’s consent. In case the applicant should obtain custody of Christofer, Mr and Ms B. requested the District Court to order that the child should not be removed from their home.

On 28 December 2001, following the applicant’s refusal to consent to the adoption of Christofer, the District Court decided to replace his missing consent by court order. It found that by then, a parent-child relationship had developed between Christofer and his foster parents and that no such relationship existed between Christofer and the applicant. An adoption would thus not interfere with any existing bonds between the applicant and his son. The District Court based its decision on the decision of the Naumburg Court of Appeal of 20 June 2001, finding that since then, the situation hadn’t changed, so that it was also not necessary to interview the child again. Finally, it found that the applicant’s attempts to see his child, along with his character and background, were of no concern in this examination of what was in the best interests of Christofer.

On 23 January 2002, the applicant appealed against this decision. The appeals proceedings are currently pending before the Dessau Regional Court.

B. Relevant domestic law

1. Custody and access

The statutory provisions on custody and access are to be found in the Civil Code.

Section 1626 (1) reads as follows:

“The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. The parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.”

According to section 1626 a (2), the mother of a child born out of wedlock exercises custody if no other agreement has been reached between the parents. In such a case, provided that the parents have separated not only temporarily, the father may, with the mother’s consent, request that custody of a child be transferred to him entirely or in part pursuant to section 1672 (1). If the mother’s custody has been suspended for an indefinite time, as is the case if she consents the child’s adoption (section 1751 (1)), the family court shall transfer custody to the other parent, if this is in the child’s best interest (section 1687 (2) in connection with section 1751 (1)).

Pursuant to section 1632 (1), custody includes the right to demand that a child be returned from anyone who unlawfully withholds this child. If parents want to remove their child from a foster family after a lengthy period of time, the family court may order that the child continue to live at the foster home, if and as long as a removal would endanger the child’s well-being (section 1632 (4)).

According to section 1684, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare.
A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office authority or an association.

2. Adoption

Under section 1741 (1) the adoption of a child is permissible if it is in the interest of the child’s well-being and if it can be expected that parent-child relations will develop between the person applying for the permission to adopt and the child. According to section 1746 (1), the child concerned must consent to the adoption. If the child is incapable of entering into legal transactions or under fourteen years of age, only the child’s legal representative may give the necessary consent.

An adoption may only take place with the natural parents’ consent (section 1747 (1)). As regards the adoption of a child born out of wedlock, section 1747 (3) provides that if the father has requested that custody be transferred to him pursuant to section 1672 (1), the adoption of the child may only be pronounced following a decision on the father’s request.

According to section 1748, the competent court, upon the child’s request, shall substitute its consent for that of a parent in case of a gross and persistent failure to fulfil parental duties towards the child or in the case where a parent is indifferent towards the child if, in the absence of an adoption, the child would suffer a disproportionate disadvantage. If the child is born out of wedlock and the mother has sole custody pursuant to section 1626a (2), the competent court shall substitute the father’s consent if the failure to adopt would cause the child to suffer disproportionate disadvantages (section 1748 (4)).

Proceedings in family matters and adoption proceedings are governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit).

If a parent does not consent to the adoption, the competent court initiates substitution proceedings (Ersetzungsverfahren) which lead to a substitution order (Ersetzungsbeschluss). This decision to substitute its consent for the consent of the child’s parent becomes operative (wirksam) once it has acquired legal force (Rechtskraft) (section 53 (1)). In case of imminent danger, the court may order that the decision become operative immediately. The substitution order is subject to appeal (sofortige Beschwerde) pursuant to Section 60 (1).

An adoption may only be ordered once the substitution order has acquired legal force. Section 56 e provides that an adoption order is not subject to appeal, nor may it be amended once it has been issued.

The Eighth Book of the German Social Code (Sozialgesetzbuch VIII) regulates the administrative support in child and family matters, e.g. the role of the local youth offices in preliminary adoption proceedings (Section 51 of the Social Code VIII). In substitution proceedings before guardianship courts, the youth offices are held to inform the parent concerned that his or her consent may in special cases be substituted by a court order. They are further obliged to advise the parent about the various kinds of aid accorded by the state in order to allow the child to be raised in his or her own family, unless the child has lived with the potential adoptive parents for a longer period of time and a return to the child’s proper family would occasion severe and lasting damage to the child’s physical and mental condition. In adoption proceedings, youth offices are required to inform the guardianship court about their previous involvement.

If the parents of the child are not married and do not have custody of the child, the youth offices are obliged to inform and advise the father of the child on the exercise of his rights under Section 1747 § 1 and § 3 of the Civil Code.

3. Proceedings before the Federal Constitutional Court

According to Article 93 § 1 (4a) of the Basic Law, the Federal Constitutional Court rules on constitutional complaints which may be lodged by any person who considers that the public authorities have infringed one of his or her fundamental rights or one of his or her rights as guaranteed under Articles 20 (4), 33, 38, 101, 103 and 104 of the Basic Law.

The composition and functioning of the Federal Constitutional Court are governed by the Federal Constitutional Court Act. Sections 90 to 96 of that Act concern constitutional complaints lodged by individuals.

According to section 90 (1), any person who claims that one of his basic rights or one of his rights under Articles 20 § 4, Articles 33, 38, 101, 103 and 104 of the Basic Law has been violated by public authority may lodge a complaint of unconstitutionality with the Federal Constitutional Court. These rights include rights regarding the fairness of proceedings and the rule of law, and the right to family life.

Section 90 (2) rules that if a legal remedy to the alleged violation exists, the complainant is held to exhaust the available remedies prior to lodging a constitutional complaint. In exceptional cases, where a case is of general interest or where the complainant would suffer severe and irrevocable damages if held to exhaust legal remedies, the Federal Constitutional Court may decide even if prior legal remedies have not been exhausted.

If the Federal Constitutional Court finds that a court decision violated an individual’s rights under the Basic Law, it revokes the decision under section 95 (2) or remands the case back to a competent court.

COMPLAINTS

1. The applicant complained that the Court of Appeal’s decisions refusing custody and access amounted to a violation of his rights to respect for his family life and to a fair proceeding.

2. He also submitted that the pending adoption proceedings violated his parental rights. In this respect, he maintained that he was not informed about his parental rights by the local Youth Office and complained that an adoption order would be final and not open to appeal.

3. The applicant finally complained of discriminatory behaviour on the side of the German authorities on account of his religion and lack of higher education. He invoked Articles 6, 8, 9 and 14 of the Convention.

THE LAW

A. Custody and acess proceedings

1. The Naumburg Court of Appeal’s decisions of 10 April and 27 April 2001

The applicant complained that the Court of Appeal’s interim suspension of his custody and access rights by way of its decisions of 10 and 27 April 2001 violated his rights under Articles 8, 6, 9 and 14 of the Convention.

The Government considered this part of the applicant’s submissions to be inadmissible, as the legal disputes that the above decisions had been dealing with provisionally had in the meantime been resolved by decisions of the District Court and the Court of Appeal in the main proceedings. They also declared these points inadmissible for non-exhaustion of domestic remedies, noting that the applicant had not raised these points in his complaint to the Federal Constitutional Court and that even where he did (e.g. the applicant’s allegations that he had not been informed by the Youth Office about his rights), he had failed to substantiate them.

The applicant reiterated that the above decisions had violated his rights, as they had suspended his rights to access his son, which had already been violated by Mr and Ms B.’s behaviour.

With regard to this matter, the Court agrees with the Government’s submissions. It considers this part of the application to be likewise manifestly ill-founded.

2. The Naumburg Court of Appeal’s decision of 20 June 2001

a) Article 8 of the Convention

The applicant complained that the Youth Office’s refusal to take action in the applicant’s interest and the Court of Appeal’s ensuing final dismissal of his requests for custody and access to his son amounted to a violation of his right to respect for family life under Article 8 of the Convention, which 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 the rights and freedoms of others.”

While admitting that the impugned court decision had interfered with the applicant’s right to respect for family life under Article 8 § 1, the Government alleged that this interference was in accordance with German law, i. e. sections 1678 § 2 and 1684 § 4 of the Civil Code. They also found that refusing the applicant custody of and access to his son had aimed at protecting the paramount interests of the child and had been necessary to reach the aforementioned aim.

As regards the refusal of custody, the Government observed that when determining what best serves a child’s interest, courts have a wide margin of appreciation, which admittedly varies with the nature of the issues and the importance of the interests at stake. The Government went on to note that where a considerable amount of time had elapsed since a child was first taken into care, a parent’s interest in reuniting the family may give way to the interest of the child that there be no renewed change in his family situation.

The Government noted that in its decision, the Court of Appeal had attached great importance to the fact that Christofer had been living with his foster parents since he was four days old, which the Court of Appeal considered to be an “infinite amount of time” for one so young. The Government considered it objectively reasonable to give consideration to the child’s awareness of time. They agreed with the Court of Appeal that separating Christofer from his foster family after he had already been separated from his natural mother after childbirth constituted a second rift in his life which could have adverse effects on his further development. The Government observed that the refusal to transfer custody to the applicant weakened his position in the adoption proceedings, as his withheld consent to the adoption was thus easier to replace. Nevertheless, they could find no mistake in the Court of Appeal’s assessment of the case.

The Government maintained that due to the “high degree of probability and of the substantial risk of impending harm to the child’s welfare” if he were separated from the foster family, the Court of Appeal was not required to consider whether letting Christofer remain with the foster family temporarily could have reduced the above-mentioned harm to an acceptable level. There had been no indication that the child’s situation would change in the foreseeable future. The Court of Appeal also did not need to deal with the applicant’s abilities to alleviate the mental harm occasioned by a separation from the foster family, as even an ideal parent would not be able to keep the harm caused within reasonable limits.

As regards the refusal of access, the Government noted that when deciding to limit a parent’s access to his or her child, the States’ margin of appreciation is subject to a stricter examination due to the danger for the parent’s and child’s common family life that the suspension of access brings with it.

However, the Government denied that the Youth Office had actively prevented the applicant from seeing Christofer, noting that when the applicant first came to the Youth Office, his paternity had not been established. Besides, paternity has to be substantiated before family courts, so that the applicant’s comments to the Youth Office were irrelevant. The Youth Office was neither obliged nor in a position to establish the father’s identity. It was also not required to inform the applicant on his rights with regard to custody because the obligation to counsel parents without custody rights (Section 51 of the Social Code VIII) only exists with regard to adoption proceedings, not custody or access proceedings. The Government further noted that suspending the applicant’s right of access to his son was necessary in the sense of Article 8 § 2. The Government agreed with the reasoning of the decision of the Court of Appeal in that the conflicts between the foster parents and the applicant had caused disquiet and uncertainty in the foster family and that this tension was felt by Christofer. A continuance of this situation would have posed a danger for the child’s welfare.

The Government submitted that a parent’s right of access to his or her child presupposes a certain level of cooperation between the parent and the foster parents. With a view to the emotional strain caused by disputes between these two factions, the Government did not find it unreasonable that the parties be separated for one year in order to calm their emotions.

The applicant maintained that he included his complaint against the Youth Office’s inactivity in helping him reunite with his son in the constitutional complaint that he submitted to the Federal Constitutional Court. He complained that the Youth Office and the foster parents continued to deny him access to his son, even after the one year time-limit ordered by the Court of Appeal in its decision had elapsed. The applicant submitted that by not taking Christofer’s right to know his real family into account, the Court of Appeal had not acted in the child’s best interest and found it incomprehensible that the foster parents’ rights were put above his own as Christofer’s natural father. He alleged that by not allowing him to see Christofer or exercise custody, while placing Christofer in a foster family and leaving him there, the Youth Office had helped to create a situation that would be very difficult to reverse.

The Court is aware of the fact that the applicant and Christofer have at no time lived together and that this may be of relevance when striking a balance between the conflicting rights and interests of the applicant and the rights of Mr and Ms B. and Christopher.

With regard to the applicability of Article 8 § 1 to the present case, the question of whether a family community existed before or not is not relevant, as the close family ties between the applicant and his son suffice to constitute family life within the sense of Article 8 § 1 of the Convention.

Regarding an interference with the applicant’s right under Article 8, the Court considers, in the light of the parties’ submissions, that this aspect of the complaint raises serious issues of fact and law under the Convention, the determination of which require an examination of the merits. The Court concludes therefore that this part of the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention.
No other ground for declaring it inadmissible has been established.

b) Article 6 of the Convention

The applicant complained that the proceedings before the Court of Appeal were not fair, contrary to Article 6 of the Convention. In particular, he criticised the expert reports that the Court of Appeal had relied on in its decision and the fact that the counsel representing the Youth Office in the appeal proceedings was at the same time representing Christofer’s foster parents in the adoption proceedings. He also complained about the allegedly unreasonable dismissal of Ms F., the first curator ad litem involved in the proceedings before the District Court.

Article 6, as far as relevant, reads as follows:

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

The Government submitted that the applicant participated in court proceedings and that his submissions were accepted and considered by the Court of Appeal. He was heard before court in person and was granted legal aid. The Government observed that the applicant’s interests were taken into account in the decision-making process. Contrary to the applicant’s allegations, Ms E., the second curator ad litem, had met with the applicant before preparing her expert report and had visited his home, albeit in his absence.

As regards the dismissal of Ms F. as curator ad litem, the Government maintained that the applicant was barred from regarding this as a violation of his rights, as Ms F. was appointed to protect Christofer’s rights, but not the applicant’s.

As regards the allegations that the legal counsel representing the Youth Office in appeals proceedings also represented the foster parents in other proceedings, the Government noted that this complaint was not raised before the Federal Constitutional Court, so that with regard to this matter, the applicant did not exhaust the remedies available under German law. In any event, the legal counsel concerned was representing Christofer in court proceedings, who was legally represented by the Youth Office. Even if the applicant’s allegations were true, the Government failed to see how this could violate his rights under the Convention.

The applicant complained that in the process of preparing an expert opinion, the second curator ad litem, Ms E., had not spoken with him directly and had visited his house in his absence. As regards the psychological report submitted by a certified pedagogue, the applicant referred to a critical report submitted by the first curator ad litem, Ms F., in answer to this report, in which she gave a detailed account of why the psychological report had not been prepared with the diligence required.

As regards his allegations concerning the legal counsel of the Youth Office in appeals proceedings, the applicant maintains that the fact that this lawyer was at the same time also representing the foster parent’s in other proceedings led to a considerable conflict of interests.

The Court notes that these issues are closely linked to the issues complained of under Article 8 of the Convention. They cannot be regarded as separate issues and must therefore be examined further together with the applicant’s submissions under Article 8.

c) Other issues

The applicant complained that the Court of Appeal’s decision on custody and access discriminated against him, as the Youth Office and the respective courts had declared him unfit to raise his son on account of his being a Muslim and of his lack of higher education.

The Government observed that the decision of the Court of Appeal was only based on concerns relating to Christofer’s welfare, but not on the applicant’s religion, nationality or origin.

The applicant maintained that his suitability due to his origins and religion were also questioned by the Court of Appeal.

The Court, having examined the documents at its disposal, finds that the Court of Appeal did not base its decision on considerations relating to the applicant’s religion or origin.

There is therefore no appearance of a violation of Article 14 in conjunction with Articles 6, 8 and 9 of the Convention. This part of the application is thus manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

B. Adoption proceedings

The applicant finally complained about the pending adoption proceedings. He submitted that the Youth Office did not inform him of his rights in adoption proceedings and that the pending adoption proceedings violated his rights as a parent. The applicant invoked Articles 6 and 8 of the Convention, in conjunction with Articles 14 and 9.

The Government submitted that the applicant’s complaints about the Youth Office’s failure to inform him of his rights are inadmissible, as he failed to substantiate this point before the Federal Constitutional Court.

In any event, the Youth Office was not required to inform the applicant about his rights, as at the relevant time (November 1999), paternity had not as yet been established and adoption proceedings had not as yet been initiated, as the request for permission to adopt Christofer only arrived at the competent court on 19 January 2001.

The Government submitted that the adoption proceedings are still pending and thus considered the applicant’s complaint to be premature. The Government asserted that the applicant was obliged to await the outcome of the appeal lodged against the court decision to replace his consent of 28 December 2001. Even if the applicant’s appeal were dismissed by the Dessau Regional Court and an adoption order were issued, he could lodge a constitutional complaint against both the substitution order and the adoption order.

Regardless of the exhaustion of domestic remedies, the Government stressed that the applicant was part of the decision-making process before the Wittenberg District Court and that consent to an adoption could only be substituted if otherwise the child would be submitted to a disproportionate disadvantage.

The applicant maintained that he had exhausted domestic remedies by including his complaints concerning the Youth Office’s failure to inform him correctly in his constitutional complaint. He also argued that adoption proceedings had already begun on 1 November 1999, when Ms M. had consented to Christofer’s adoption.

The applicant complained that as a parent without custody of Christofer, his refusal to consent to an adoption could be overridden by a final court decision to replace the missing consent. He maintains that the substitution order of 28 December 2001 was issued without a prior hearing and without the District Court’s having heard his wife.

He further complained that Ms M. and the Youth Office had both consented to Christofer’s adoption before a public notary before a decision on custody had been passed.

The Court notes that the applicant’s appeal against the court decision to replace his consent is still pending before the Dessau Regional Court. If the Regional Court were to dismiss the applicant’s appeal against the substitution order, the Wittenberg District Court would most likely issue an adoption order.

The Court is aware of the fact that the applicant as the natural father is in a delicate procedural position. Even if he were to lodge a constitutional complaint against a final decision substituting his consent, this would not stay or suspend the adoption proceedings. However, the Federal Constitutional Court could decide to suspend the proceedings by way of an interim order, taking into account that in adoption proceedings, a final decision could have serious implications for both the child and the father.

The Court notes that following an adoption order, the applicant could also complain against this order before the Federal Constitutional Court. Despite the final and binding nature of adoption orders, such orders may be revoked by decisions of the Federal Constitutional Court according to Section 95 § 2 of the Law of the Federal Constitutional Court. In adoption cases, where revoking the decision would occasion severe damages to third parties or would run counter to the general interest, the Federal Constitutional Court may declare that a violation has occurred without immediately revoking the adoption order. When that occurs, in particular when adoption proceedings were not conducted in a proper manner, the matter is remitted to a court of appeal and proceedings are reopened.

Given the above circumstances, the Court considers a constitutional complaint to be an effective remedy within the meaning of Article 35 § 4 of the Convention.

As the appeals proceedings are still pending before the Dessau Regional Court and the applicant could still contest a negative decision before the Federal Constitutional Court, the Court finds that this part of the application is premature and is thus to be rejected for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaints concerning a violation of his right to respect for his family life and to a fair hearing in the custody and access proceedings; Declares the remainder of the application inadmissible.

Vincent Berger
Ireneu Cabral Barreto
Registrar President