BAUER v. GERMANY (European Court of Human Rights) Application no. 5318/17

FIFTH SECTION
DECISION
Application no. 5318/17
Alfred BAUER
against Germany

The European Court of Human Rights (Fifth Section), sitting on 8 January 2019 as a Committee composed of:

André Potocki, President,
Angelika Nußberger,
Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,

Having regard to the above application lodged on 13 January 2017,

Having regard to the unilateral declaration submitted by the respondent Government on 8 October 2018 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Alfred Bauer, is a German national who was born in 1957 and lives in Wöllstein. He was represented before the Court by Mr I.-J. Tegebauer, a lawyer practising in Trier.

2. The German Government (“the Government”) were represented by one of their Agents, Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection.

3. The applicant complained under Article 8 of the Convention that the domestic courts’ refusal to grant him access to his daughter violated his rights under Article 8 of the Convention.

4. The application was communicated to the Government.

THE LAW

5. The applicant complained about the German family courts’ decision not to grant him contact with his biological daughter, but only to provide him with information about her twice a year. He relied on Article 8 of the Convention.

6. After the failure of attempts to reach a friendly settlement, by a letter of 8 October 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They submitted that the decisions of the family courts in the present case were not consistent with a decision of the Federal Court of Justice that had been given a few months later. They therefore requested the Court to strike out the application in accordance with Article 37 of the Convention.

7. The declaration provided as follows:

“The Federal Government acknowledges that the Applicant’s rights arising from Article 8 of the Convention were violated by the decision of Dieburg Local Court of 7 March 2016 (file no. 50 F 608/13 UG), and by that of Frankfurt am Main Higher Regional Court of 20 July 2016 (file no. 6 UF 98/16).

If the Court were to strike this Application out of its list of cases, the Federal Government is prepared to accept the Applicant’s compensation claim in the amount of EUR 8,700.00. This sum of EUR 8,700.00 would be deemed to settle all claims of the Applicant in connection with the above-mentioned Application against the Federal Republic of Germany and the Land of Hesse, in particular for compensation for damage suffered by him (including non-pecuniary damage), as well as costs and expenses. In light of the Court’s rulings in similar cases, the Federal Government considers the amount of EUR 8,700.00 to be reasonable.

The Federal Government therefore requests that this Application be struck out of the Court’s list of cases pursuant to Article 37 (1) (c) of the Convention. The Federal Government’s acknowledgement of a violation of Article 8 of the Convention and its acceptance of a claim for compensation in the amount of EUR 8,700.00 constitute an “other reason” within the meaning of that provision.”

8. By a letter of 24 October 2018, the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that a decision to strike the application out of the list of cases would not enable him to file an action for reopening the proceedings before the family courts pursuant to Article 580 § 1 no. 8 of the Civil Code of Procedure. Only a judgment of the Court would entitle him to request the reopening of the proceedings under that provision. Therefore, if the application were struck out of the list of cases, the applicant would still not be able to have contact with his daughter, in spite of the acknowledgement of a violation of Article 8 of the Convention by the Government.

9. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

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

10. It also reiterates that, in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

11. To this end, the Court has examined the declarationin the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75‑77, ECHR 2003‑VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).

12. The Court has established in a number of cases, including cases brought against Germany, its practice concerning complaints about the violation of the right of access of biological fathers to their children and the conformity of the decision-making process with Article 8 of the Convention (see, for example, Fröhlich v. Germany, no. 16112/15, 26 July 2018; Schneider v. Germany, no. 17080/07, 15 September 2011; and Anayo v. Germany, no. 20578/07, 21 December 2010).

13. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

14. Moreover, in the light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine). In this respect the Court would add that it is not convinced that the applicant can only obtain the reconsideration of his request for access to his daughter by a Court judgment finding a violation (see, a contrario and mutatis mutandis, Dridi v. Germany, no. 35778/11, § 25, 26 July 2018). The applicant has the possibility to request modification of the contact order at any point in time or to propose the commencement of new contact proceedings as decisions in German law on parent or child matters with continuing effects, such as contact rights, become final in a formal sense, but do not have the effect of res judicata (compare Schneider v. Germany (dec.), no 61595/15, §§ 7, 10 and 17, 25 September 2018).

15. The Court considers that the amount offered by the Government should be paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

16. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

17. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government’s declaration under Article 8 of the Convention and directs in consequence:

(a) that the respondent State is to pay the applicant EUR 8,700 (eight thousand seven hundred euros), within three months from the date of notification of this decision, in respect of pecuniary and non-pecuniary damage as well as costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 31 January 2019.

MilanBlaško                                           André Potocki
Deputy Registrar                                       President

Leave a Reply

Your email address will not be published.

*

code