GÖRGÜLÜ v. GERMANY (ECHR JUDGMENT SUMMARY)

ECHR; SUMMARY PRESS RELEASE BY THE REGISTRAR; 26.02.2004

The European Court of Human Rights has today notified in writing a judgment [1] in the case of Görgülü v. Germany (application no. 74969/01). The Court held unanimously that there had been:

• a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, concerning the refusal to give the applicant custody and access rights;
• no violation of Article 8 concerning the decision-making process;
• no violation of Article 6 § 1 (right to a fair hearing).

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 15,000 euros (EUR) for non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in English.)

1. Principal facts

The applicant, Kazim Görgülü, is a Turkish national of Zaza origin, who was born in 1969 and lives in Krostitz, Germany.

On 10 January 2000 Mr Görgülü applied to Wittenberg District Court for custody of his son, Christofer, who was born out of wedlock on 25 August 1999 and given up for adoption without his father’s consent. Mr Görgülü had never lived with Christofer’s mother and had married another woman.

Various meetings were arranged between the applicant and his son. On 8 February 2001 the court adopted an interim measure in which contact between Christofer and his father was to be gradually increased from one to eight hours on six consecutive Saturdays. On 9 March 2001 the court gave the applicant sole custody of Christofer, finding that it was in the child’s best interests.

However, on 20 June 2001, Naumburg Court of Appeal rejected the applicant’s request for custody. The court considered that, although the applicant was in a position to care for his son - together with his wife, who had already raised two children - granting custody would not be in Christofer’s best interests, on the grounds that a deep social and emotional bond had developed between him and his foster family, with whom he had lived for a year and ten months, and that he would suffer severe and irreparable psychological damage if separated from them. The court also decided to suspend the applicant’s access rights until 30 July 2002, in the interests of Christofer’s emotional stability, having taken into consideration the unrest and insecurity involved in an unresolved legal dispute.

2. Procedure and composition of the Court

The application was lodged on 18 September 2001 and declared partly admissible on 20 March 2003. Judgment was given by a Chamber of seven judges, composed as follows: Lucius Caflisch (Swiss), President, Georg Ress (German), Pranas Kūris (Lithuanian), Boštjan Zupančič (Slovenian), John Hedigan (Irish), Margarita Tsatsa-Nikolovska (Macedonian), Kristaq Traja (Albanian), judges, and also Vincent Berger, Section Registrar.

3. Summary of the judgment [2]

Complaints
The applicant alleged that being refused access to and custody of his son violated his right to respect for his family life. He relied on Article 8 (right to respect for private and family life). He also complained about the unfairness of the proceedings before the Court of Appeal, relying on Article 6 § 1 (right to a fair hearing).

Decision of the Court

Article 8 :

Refusal of custody

The Court noted that the fact that the applicant and Christofer had never lived together might be of relevance when striking a balance between the conflicting rights and interests of the applicant and those of Christofer’s foster parents. However Article 8 obliged Germany to try to reunite natural parents with their children. The effective respect for family life also required that future relations between parent and child must not be determined by the mere passage of time.

The Court conceded that an immediate separation from his foster family might have had negative effects on Christofer’s physical and mental welfare. However, bearing in mind that the applicant was Christofer’s biological parent and undisputedly willing and able to care for him, the Court was not convinced that the (German) Court of Appeal examined all possible solutions to the problem. In particular, it did not appear to have examined whether it would be viable to unite Christofer and the applicant under circumstances that would minimise the strain on Christofer. The (German) court apparently only focused on the imminent effects which a separation from his foster parents would have, without considering the long-term effects of a permanent separation from his natural father. The solution envisaged by the district court, namely to increase and facilitate contacts between the applicant and Christofer, who would at an initial stage continue to live with his foster family, was seemingly not taken into consideration. The Court recalled that the possibilities of reunification would diminish over time and eventually be destroyed altogether if a biological father and child were not allowed to meet each other at all, or only so rarely that no natural bond would be likely to be formed between them. The Court, therefore, found a violation of Article 8.

Refusal of access rights

As regards the suspension of access rights, the Court observed that until June 2001, the applicant was only able to see his child six times. The (German) court of appeal’s decision rendered any form of family reunion and the establishment of any kind of further family life impossible. The Court recalled that it was in Christofer’s interests for his family ties to be maintained, as severing such ties meant cutting him off from his roots, which could only be justified in very exceptional circumstances. There was no evidence of such exceptional circumstances in the case in question. By revoking all decisions that would have granted the applicant access to his son, the court of appeal did not fulfil the positive obligation imposed by Article 8 to unite father and son. Even after the year had elapsed in July 2002, the applicant’s attempts to obtain access to his son had still not been successful. The reasons relied on by the court of appeal to suspend the applicant’s access to his child for one year, were insufficient to justify such a serious interference in the applicant’s family life. There had, therefore, been a violation of Article 8.

The decision-making process

The Court noted that the applicant, assisted by counsel, had the opportunity to present his arguments in writing and orally. He was placed in a position enabling him to put forward all arguments in favour of obtaining custody and access rights and he also had access to all relevant information which was relied on by the courts. The Court further noted that the evidential basis for the court of appeal’s decision included the evidence submitted before the district court. The court of appeal additionally ordered a report on the child’s well-being and the applicant’s and foster parents’ housing facilities. The Court was therefore satisfied that the procedural requirements implicit in Article 8 were complied with and that the applicant was sufficiently involved in the decision-making process. There had, therefore, been no violation of Article 8.

Article 6 § 1

The Court found no indication that the procedures or decisions adopted by the domestic courts were unfair, in particular as the applicant, represented by legal counsel, had the opportunity to challenge the contents of the expert opinions during the court proceedings. Concerning the proceedings before the Court of Appeal, there had, therefore, been no violation of Article 6 § 1.

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The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments.

[1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17‑member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] This summary by the Registry does not bind the Court.