Application no. 61595/15
The European Court of Human Rights (Fifth Section), sitting on 25 September 2018 as a Committee composed of:
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 8 December 2015,
Having deliberated, decides as follows:
1. The applicant, Mr Michael Schneider, is a German national who was born in 1958 and lives in Fulda-Edelzell. He was represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case: The applicant’s previous application to the Court (no. 17080/07)
3. The applicant wished to be granted contact with the boy F., who was born in March 2004 and whose biological father the applicant claimed to be, against the will of F.’s legal parents, Mr and Mrs H. The spouses lived with F. in the United Kingdom and raised him together with their daughter. They submitted that it was possible that the applicant was F.’s biological father, but that it was also possible that Mr H. was his biological father. They preferred not to verify the paternity of F. in the interest of their family relationship.
4. On 20 October 2005 the Fulda District Court dismissed the applicant’s requests for contact with F. twice per month and for regular information on the boy’s development. On 9 February 2006 the Frankfurt am Main Court of Appeal dismissed the applicant’s appeal, as well as his request to be allowed to offer F. gifts on special occasions. On 20 September 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint.
5. In its judgment of 15 September 2011 in application no. 17080/07, the Court found a violation of Article 8 of the Convention, because the domestic courts had not fairly balanced the competing interests involved in the decision-making process. They had failed to give any consideration to whether, in the particular circumstances of the case, contact between F. and the applicant was in F.’s best interest. Furthermore, they had not examined whether allowing the applicant’s request at least to be given information about F.’s personal development was in the child’s best interest or in the applicant’s overriding interest. The domestic courts had thus not given sufficient reasons to justify their interference with the applicant’s right to respect for his private life for the purposes of Article 8 § 2 of the Convention. The Court awarded the applicant 5,000 euros (EUR) in respect of non-pecuniary damage and EUR10,000 in respect of costs and expenses. The judgment became final on 15 December 2011.
2. Proceedings at issue in the applicant’s present application to the Court
6. On 16 January 2012 the applicant requested the reopening of the proceedings concerning his rights to contact with, and information about the personal development of F. before the Frankfurt am Main Court of Appeal (see paragraph 4 above). On 22 August 2013 that court ordered the reopening of these proceedings (Zwischenbeschluss). It found that Section 35 of the Introductory Act to the Code of Civil Procedure, according to which Article 580 no. 8 of the Code of Civil Procedure – which provided that an action for retrial lay against final judgments of the civil courts if the European Court of Human Rights had found a violation of the Convention or the Protocols thereto and if the civil courts’ judgment was based on that violation – did not apply to proceedings terminated by a final judgment prior to 31 December 2006 (see paragraph 10 below) and was to be interpreted in a restrictive manner. Decisions on parent and child matters with continuing effects (KindschaftssachenmitDauerwirkung), such as contact rights, became final in a formal sense, but did not have the effect of res judicata, as there was a possibility, at any point in time, that such order on contact rights might be modified (see paragraph 10 below). Consequently, Mr and Mrs H. did not have a legally valid interest in the finality of that order, that is, against the proceedings being reopened. Furthermore, Germany had to abide by the Court’s judgment and the applicant could not institute a new set of proceedings concerning contact rights in Germany due to the lack of jurisdiction by the German courts, given that the child resided in the United Kingdom (see paragraph 11 below).
7. On 19 March 2014 the Federal Court of Justice, on the appeal of Mr and Mrs H., quashed that decision and dismissed the request for the reopening of the proceedings. It considered that the Convention did not require Contracting States to provide for the reopening of civil proceedings for the purposes of executing a judgment by the Court. Therefore, it did not raise an issue under the Convention that the legislature had chosen a cut-off date when introducing the possibility to reopen civil proceedings following a judgment by the Court. The fact that the present case concerned contact rights with a child and that the respective court order did not obtain the effect of res judicata could not justify a different result. The date on which the decision of the last specialised court became final in a formal sense was decisive. In fact, because there was a possibility for an order such as the one at stake in the present case to be modified at any point in time, there was no need to reopen the proceedings in order to arrive at a decision respecting the applicant’s Convention rights. This was true in the present case even though the German courts did not have jurisdiction and the applicant would have to initiate a new set of proceedings in the United Kingdom. The Brussels IIa Regulation’s provisions linking jurisdiction to the habitual residence of the child served to protect the child’s best interests. The courts in the United Kingdom had to take the Court’s judgment into account just as the German courts would have to.
8. On 19 May 2015 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (no. 2 BvR 1170/14). It found that the Federal Court of Justice’s interpretation of Section 35 of the Introductory Act to the Code of Civil Procedure, taken in conjunction with Section 48 § 2 of the Family Matter Act and Article 580 no. 8 of the Code of Civil Procedure (see paragraph 10 below), had not been arbitrary. Moreover, that interpretation had not disregarded the applicant’s fundamental rights, also taking into account that the applicant’s paternity of F. was possible but not established. Nor had the Federal Court of Justice disregarded the impact of the Court’s case-law and the binding nature of its judgments. The introduction of a cut-off date for the reopening of civil proceedings following a judgment by the Court did not raise an issue under the Convention and the Court had not indicated, in its judgment in the applicant’s case, a specific measure for providing redress to the applicant beyond the payment of just satisfaction. While Article 46 § 1 of the Convention provided that a judgment was only binding for the respondent State, the Court’s case-law constituted de facto guidance for interpreting the Convention beyond the individual case at issue. The Federal Court of Justice’s assessment that the United Kingdom courts had to take the Court’s judgment into account, just as the German courts would have to, was thus not at odds with the Convention. The decision was served on the applicant’s counsel on 12 June 2015.
3. The Resolution of the Committee of Ministers of the Council of Europe
9. On 22 February 2017 the Committee of Ministers of the Council of Europe, at its 1278thsession, concluded its examination of the execution of the Court’s judgment of 15 September 2011 in the case of Schneider (cited above), by adopting Resolution ResDH(2017)63, the relevant parts of which read:
“The Committee of Ministers, …
Having examined the action report provided by the government indicating the measures adopted in order to give effect to the [judgment] … (see document DH‑DD(2016)1431); …
DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in [this case] and DECIDES to close the examination thereof.”
Document DH-DD(2016)1431 on information about the measures taken to comply with the judgment in the case of Schneider (cited above) provides:
“… Individual measures
The compensation awarded in the sum of €15,000 was received by the Applicant on 13 March 2012.
After the Court’s judgment became final and binding, the Applicant applied to the family courts once again for access to the child, of which he claims to be the biological father. The Frankfurt [am Main Court of Appeal] has examined whether, and, if so, to what extent access to the child by the Applicant would serve the child’s best interests. For its examination, the court issued an order of 13 September 2012 for evidence to be taken in the form of an expert report. After this order for the taking of evidence was made, the married couple, Mr. and Mrs. H., filed a motion for bias against the court division, which was rejected by decision of 19 March 2013. By its judgment of 22 August 2013, the Frankfurt [am Main Court of Appeal] granted the [Applicant’s] request for reopening of the access proceedings. The Federal Court of Justice upheld the complaint by Mr. and Mrs. H against this decision. The Federal Court of Justice rejected the [Applicant’s] request for reopening by decision of 19 March 2014 (File No. XII ZB 511/13) and, having regard to the fact that the child is domiciled in the UK, referred the Applicant to the competent courts in the United Kingdom.
… General measures
… After the judgment of the ECHR [in the case of Anayo v. Germany (no. 20578/07, 21 December 2010)], the Federal Court of Justice implemented its findings by explicitly making reference to the [judgment’s] remarks and the Convention. The decision by the Federal [Court of Justice] … (File No. XII ZB 280/15) states that if the right to access is to conform to Article 8 of the Convention in the interpretation of the Court, … it is not acceptable to regard a child’s biological father merely as a troublemaker in the protected legal family and thus to establish a presumption against any contacts being in the child’s best interest. Even if the existing ties to the legal family are to be strongly taken into account, this may not turn into such a kind of presumption.
… Legislative measures
On 17 October 2012 the Federal Government adopted a draft bill to strengthen the legal position of biological, non-legal fathers in the field of access and information rights. The bill came into force on 13 July 2013. The bill provides the following:
· If the biological father has shown a sustained interest in the child, he has a right of access to the child if such access is in the child’s best interests. This applies independently of whether the biological father already has a social-family relationship with the child or not.
· Furthermore, the biological father is granted the right to information about the child’s personal circumstances to the extent that this does not run contrary to the child’s best interests.
· The condition for obtaining the right of access and information is that the claimant is in fact the biological father. The biological paternity of the claimant is therefore to be examined during the proceedings on access or information, and is to be ascertained if necessary by the taking of evidence. The bill provides accompanying procedural rules in order to make it possible to ascertain biological paternity in disputed cases. Pursuant to these procedural rules, under certain conditions, tests must be undergone to answer the preliminary question of biological descent. This is designed to ensure that mothers or any other persons cannot refuse to undergo the necessary tests as a means of preventing biological fathers from asserting their rights. …”
B. Relevant domestic law and practice
10. The relevant domestic law and practice as regards the reopening of civil proceedings terminated by a final judgment has recently been summarised in Storck v. Germany (dec.), no. 486/14, §§ 42-43, 26 June 2018. In accordance with Section 48 § 2 of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction Modification and Reopening of Proceedings (“Family Matter Act”), Section 35 of the Introductory Act to the Code of Civil Procedure is applicable to the reopening of proceedings concerning matters falling within the scope of the Family Matter Act, which includes parent and child matters, such as contact rights (see Sections 1 and 151 of the Family Matter Act). Section 48 § 1 of the Family Matter Act provides that the family court of first instance may rescind or modify a final decision that has continuing effect, if the factual or legal circumstances forming the basis of the decision have thereafter significantly changed.
C. Relevant European Union law
11. Article 8 § 1 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“Brussels IIa Regulation”)[, repealing Regulation (EC) No. 1347/2000,] provides that the courts of that member State in which the child is habitually resident at the time the court is seized shall have jurisdiction in matters of parental responsibility over a child.
12. The applicant, relying on Articles 1, 6 § 1, 8, 13, 14 and 46 of the Convention, complained of the domestic courts’ refusal to reopen the civil proceedings following the Court’s judgment in his case (Schneider v. Germany, no. 17080/07, 15 September 2011) finding a violation of Article 8 of the Convention. He submitted that the domestic courts were obliged to reopen those proceedings as Germany had to abide by the Court’s judgment. It was possible to interpret the respective provisions of domestic law in a Convention-friendly yet methodologically defendable manner so as to allow for the reopening of the proceedings. Bearing in mind that the decision in question became final in a formal sense but did not have the effect of res judicata, F.’s legal parents had no legitimate interest in the proceedings not being reopened. Due to the lack of jurisdiction, it was not possible to initiate a new set of proceedings before the German courts. It would render his rights illusory, if he had to initiate a new set of proceedings in the United Kingdom. The relevant United Kingdom law was similar to German law at the time of the initial proceedings, in respect of which the Court found a violation of Article 8 of the Convention, and the United Kingdom was not bound by the Court’s judgment in his previous case. It was thus not foreseeable when he might obtain a decision that respected his Convention rights, which was also not in line with the obligation that proceedings on contact rights be conducted speedily. The Court was competent rationemateriae to examine his complaints because he suffered a continuing violation of his rights under Article 8 of the Convention and because the domestic courts had dismissed his request for reopening based, at least in part, on new aspects. The refusal to reopen the proceedings had also breached his right to a fair trial, his right of access to a court and his right to equal treatment in that respect, and his right to an impartial tribunal.
13. The Court observes that the Convention complaints before it relate to the refusal of the domestic courts to reopen civil proceedings concerning the applicant’s right to contact with, and information about the personal development of F., following the Court’s judgment in the applicant’s previous case, in which it had found a violation of Article 8 of the Convention in respect of the initial set of these proceedings. The complaints raise questions as to the execution of the Court’s judgment in the applicant’s previous case and the powers of the Court and the Committee of Ministers in this respect in view of Article 46 of the Convention. The relevant general principles have recently been summarised in Storck v. Germany (dec.), no. 486/14, § 94, 26 June 2018, with further references.
14. In so far as the applicant alleges that he has been the victim of a continuing violation, the Court reiterates that it had found, in the applicant’s first case, a violation of Article 8 of the Convention because the domestic courts had not fairly balanced the competing interests involved in the decision-making process and had thus not given sufficient reasons to justify their interference for the purposes of Article 8 § 2 of the Convention (see paragraph 5 above). However, such a balancing of the competing interests must take into account all the relevant factors as of the moment in which the assessment is made and could only be done upon the request of the party concerned. The Court is cognisant that the German courts would not have jurisdiction for a new set of proceedings concerning the applicant’s rights to contact with, and information about the personal development of, F., in the light of Article 8 § 1 of the Brussels IIa Regulation (see paragraph 11 above) and F.’s habitual residence in the United Kingdom. Nonetheless it cannot conclude that the requirement for the applicant to initiate a new set of proceedings before the United Kingdom, rather than German, courts turns the – procedural – violation found in the applicant’s first case into a continuing violation within the meaning of the Court’s case-law (seeStorck, cited above, §§ 94‑95,with further references).
15. It thus has to be determined whether the present complaint concerns a “new issue” undecided by the Court’s judgment in the applicant’s previous case. The Court notes that the Federal Court of Justice, when it rejected the applicant’s request for reopening of the proceedings, argued that the domestic law, as applicable at the relevant time, did not allow for the reopening of civil proceedings following a judgment of the Court finding a breach of the Convention and that there was no exception to be made for proceedings concerning rights to contact with a child (see paragraph 7 above). It did not examine any substantive arguments as to whether or not the applicant was entitled to contact with, and information about the personal development of, F. This weighs in favour of finding that no “new issues” have been considered in these proceedings and the Court is not competent rationemateriae to examine the applicant’s complaint (see Storck, cited above, § 96, with further references).
16. The Committee of Ministers closed the examination of the execution of the judgment in the applicant’s previous case only after the completion of the domestic proceedings leading up to the present application and that it was aware of the outcome of those proceedings (see paragraph 9 above). The present case thus differs from VereingegenTierfabrikenSchweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/03, § 67, ECHR 2009, where the Committee of Ministers ended its supervision of the execution of the Court’s judgment, noting that the applicant was entitled to request the revision of the impugned judgment, when in fact the domestic court had already refused to reopen the proceedings. The present application thus does not concern a “new issue” within the meaning of the Court’s case-law on Article 46 of the Convention.
17. The Convention and its case-law, in principle, do not require the reopening of civil proceedings following a judgment of the Court finding a violation of the Convention in each and every case. In its judgment in the applicant’s previous case, the Court did not specifically indicate that reopening the proceedings would be the most adequate individual measure to provide redress to the applicant. Reiterating that it does not have jurisdiction, save in the cases under Article 46 §§ 4 and 5 of the Convention, to verify whether a Contracting Party has complied with the obligations imposed on it by one of its judgments, the Court also takes note of the assessment of the Federal Court of Justice and the Federal Constitutional Court that it was not necessary to reopen the civil proceedings at issue in order for the applicant to obtain a decision respecting his Convention rights. In particular, given the subject matter and the absence of a res judicata effect, the applicant can initiate a new set of proceedings before the United Kingdom courts, which would have to take into account the Court’s judgment in his previous case (see paragraphs 7-8 above).
18. In the light of the foregoing and in view of Article 46 of the Convention, the Court concludes that it is not competent rationemateriae to examine the applicant’s complaints alleging a violation of his rights under Article 8 of the Convention taken alone or in conjunction with Article 13 of the Convention.
19. In so far as the applicant alleged a violation of his rights under Article 6 of the Convention taken alone or in conjunction with Article 14 of the Convention, the Court reiterates that Article 6 § 1 of the Convention is, in principle, not applicable rationemateriae to proceedings concerning an application to reopen civil proceedings following the finding of a violation by the Court, but that there are exceptions to this rule (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 44-51, ECHR 2015). In the present case, domestic law did, at the material time, not provide for the reopening of civil proceedings (see paragraph 10 above), and the reopening proceedings at issue were not similar in nature and scope to ordinary appeal proceedings, and did not entail a fresh consideration of the case (compare and contrast ibid., §§ 46-51). The Court therefore concludes that Article 6 of the Convention was not applicable rationemateriae to the reopening proceedings at issue.
20. It follows that the application, as a whole, must therefore be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 October 2018.
Milan Blaško YonkoGrozev
Deputy Registrar President