Erwin WILDGRUBER v Germany - 42402/05 [2008] ECHR 167 (29 January 2008)

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The European Court of Human Rights (Fifth Section), sitting on
29 January 2008 as a Chamber composed of:

Peer Lorenzen, President,
Snejana Botoucharova,
Volodymyr Butkevych,
Margarita Tsatsa-Nikolovska,
Rait Maruste,
Javier Borrego Borrego,
Renate Jaeger, judges,

Having regard to the above applications lodged on 7 November 2005 and 8 November 2005 respectively,

The applicant, Mr Erwin Wildgruber, is a German national who was born in 1935 and lives in Harmstorf. He is represented before the Court by
Mr G. Rixe, a lawyer practising in Bielefeld.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant and Mrs W-L (born in 1965) married in May 1994.
Their son P. was born on 30 November 1994. The applicant also adopted Mrs W-L’s son J. M., who had been born on 19 April 1991. Since the spouses’ separation in May 1997 both children have lived with Mrs W-L.

The applicant then entered into a relationship with another woman, Ms N. They had a daughter (A.) born in 1998.

On 16 October 2006 the Court declared inadmissible an application (no. 32817/02) brought by the applicant concerning his right of contact with his children.

On 13 January 1998 the applicant filed a divorce petition with the Winsen (Luhe) District Court. By submissions dated 15 January 1998 he requested sole custody of the two children J. M. and P. or, alternatively, that the parents’ joint custody be maintained and that the children permanently reside with him. On 27 February 1998 Mrs W-L requested sole custody of their children. Both parties were represented by counsel throughout the proceedings before the domestic courts.

In March and April 1998 the District Court (Judge R.) requested the parties and their insurers to submit all information necessary for the adjustment of the parties’ pension rights (Versorgungsausgleich).
The information requested reached the court by July 1998.

On 14 September 1998 the Harburg Youth Office submitted a report.
It argued that in view of their continual quarrels, Mrs W-L and the applicant were unable to exercise custody of their children jointly.

On 18 September 1998 the District Court held a hearing in which it heard the parties, a representative of the Youth Office and J. M. The latter declared that he wanted to reside with his mother.

In two notes for the records dated 14 January and 16 March 1999 the District Court judge stated that, given that he had to replace other colleagues in urgent matters, he had to deal with voluminous cases concerning the custody of adult persons and in view of his increased caseload, he could not currently take the present proceedings further.

On 7 April 1999 the Harburg Youth Office confirmed that it was impossible for the parties to agree on issues concerning their children and urged the court to decide speedily.

On 17 May 1999 and on 21 June 1999 the Winsen (Luhe) District Court refused requests by the applicant to separate the divorce proceedings from the proceedings concerning ancillary matters (Folgesachen), in particular custody and maintenance, and to grant the divorce ahead of those proceedings. It found that the legal requirements to do so laid down in Article 628 of the Code of Civil Procedure (see Relevant domestic law below) had not been met. There had not been an extraordinary delay in the divorce proceedings. This was, as a rule, only the case when proceedings had been pending for more than two years. Moreover, the applicant was not suffering undue hardship as a result of the fact that the decision on the divorce and on all ancillary matters would be given at the same time.

On 28 June 1999 the applicant refused to return the children to their mother following the exercise of his right of access. He absconded with them and did no longer send J. M. to school, arguing that he could not protect him from reprisals from Mrs W-L’s family.

By an interim order of 20 July 1999 the District Court, having held a hearing in the presence of the parties on 16 July 1999 concerning the applicant’s divorce petition and all ancillary matters, awarded Mrs W-L sole custody of J. M. and P. and ordered the applicant to return the children immediately to her.

On 27 August 1999 the court cancelled the hearing scheduled for that day to pronounce its judgment and fixed another hearing instead, arguing that in view of recent events both children would have to be heard again on the question of custody.

On 5 October 1999 the applicant lodged a disciplinary complaint and a motion for bias against District Court Judge R., arguing that he had delayed the proceedings and had proved to be biased in the hearing on 16 July 1999 as he had reprimanded him for not returning the children to their mother.

On 4 November 1999 the Celle Court of Appeal allowed the applicant’s complaint of bias, referring to Judge R.’s submissions dated
13 October 1999. The latter had stated that following the applicant’s unfounded accusations, he had no longer felt able to conduct the proceedings in an impartial manner. By a decision of the same day and following an exchange of observations between the parties, the court also dismissed the applicant’s appeal against the District Court’s decision awarding sole custody to Mrs W-L by way of an interim injunction and the order that he return the children.

By submissions dated 6 December 1999 the applicant requested the court to expedite the proceedings. He further proposed on 2 March 2000 that the court consult an expert psychologist.

On 22 March 2000 District Court Judge D., who had been assigned the case, held a hearing on a request by the applicant for rectification of the record of the hearing on 16 July 1999. It decided on 19 April 2000 that only Judge R. had authority to change the minutes.

On 11 May 2000 the applicant requested the court to separate the divorce proceedings from the proceedings concerning the ancillary matters and asked the court to appoint J. M. and P. a guardian ad litem. He later withdrew his request to separate the proceedings.

On 16 October 2000 the District Court, having held a further hearing on the question whether the minutes of the hearing of 16 July 1999 should be rectified, decided that it did not have jurisdiction to do so.

On 28 December 2000 the District Court ordered the applicant to submit additional information on his income. The applicant sent the requested documents to the court on 22 February 2001.

On 5 April 2001 the applicant requested the District Court also to apportion the increase in the spouses’ assets during their marriage (Zugewinnausgleich) in the course of the divorce proceedings.

On 3 May 2001 the applicant lodged a complaint of failure to act (Untätigkeitsbeschwerde) with the Celle Court of Appeal, which was followed up by additional reasons on 16 May 2001.

On 12 July 2001 the Celle Court of Appeal dismissed the applicant’s complaint of failure to act as inadmissible, as no appeal lay to it.
An extraordinary appeal might lie in cases in which a court failed to expedite the proceedings in a manner which amounted to a denial of justice. The court conceded that the divorce proceedings had been dealt with slowly since December 1999 and have only been expedited by the District Court’s decision of 28 December 2000. However, it was no longer necessary to decide whether proceeding in this manner amounted to total inactivity.
The District Court had fixed a date for a hearing on 15 August 2001 in the meantime and the applicant had withdrawn his request to separate the divorce proceedings from the proceedings on the ancillary matters.
The requirements for a complaint of failure to act were thus no longer met.

On 15 August 2001 the District Court held a hearing on the applicant’s claim for apportionment of the increase in the spouses’ assets during their marriage and his renewed request to separate the divorce proceedings from the ancillary matters.

On 7 September 2001 the District Court delivered a partial judgment on the applicant’s request for apportionment of the increase in the spouses’ assets during their marriage, in which it ordered Mrs W-L to inform the applicant of what assets she owned in February 1998.

On 23 October 2001 the District Court refused the applicant’s request to separate the divorce proceedings from the ancillary matters, pursuant to Article 628 of the Code of Civil Procedure. The court found that the refusal to separate the proceedings had delayed the decision on the divorce petition. This did not, however, cause undue hardship to the applicant, as he had caused the delays. By lodging an unfounded criminal and disciplinary complaint against Judge R. he had caused the latter to consider himself biased. Following the change of judges, he had pursued his unfounded requests for rectification of the record. He had then applied for apportionment of the increases in the spouses’ assets during the marriage, which had further prolonged the proceedings for an unspecified period of time.

By submissions dated 26 October 2001 the applicant lodged an appeal against the partial judgment of 7 September 2001, which he withdrew on 27 November 2001.

On 11 January 2002 the Celle Court of Appeal dismissed as inadmissible an extraordinary appeal by the applicant (außerordentliche Beschwerde) lodged on 16 December 2001 against the District Court’s decision dated 23 October 2001, as no appeal lay against the District Court’s decision. Even assuming that such an appeal lay, it would be ill-founded. The District Court’s decision had not entailed undue hardship for the applicant as he had also requested the court to apportion the increase in the spouses’ assets during their marriage when the proceedings had already been pending for more than three years.

On 27 October 2002 the applicant lodged a complaint with the Celle Court of Appeal that the District Court had failed to act.

On 12 December 2002 District Court Judge E. informed the applicant that she had been assigned the case in July 2002 and that, in view of the court’s backlog, delays in dealing with the voluminous file were inevitable.

On 2 January 2003 the applicant amended his action; Mrs W-L subsequently replied in writing.

On 20 March 2003 the District Court heard J. M. The latter explained that he had refused to meet his father as he felt disadvantaged by the applicant vis-à-vis his brother and his half-sister, but that he supported contact of his younger brother with his father.

On 18 and 23 April and 26 May 2003 the applicant made submissions concerning the custody of the two children and requested that a guardian
ad litem be appointed and that the court consult an expert psychologist on the question of custody.

On 30 April 2003 the District Court held a further hearing. It heard the parties in person on the divorce petition, on custody, the apportionment of the increase in the spouses’ assets during their marriage and on maintenance.

By judgment of 8 July 2003, the Winsen (Luhe) District Court granted the parties’ divorce and awarded Mrs W-L sole custody of J. M. and P. (Article 1671 § 2 of the Civil Code; see Relevant domestic law below).
This guaranteed them continuity and was in their best interests, given that the children had been living with their mother for the past six years and had built up a stable social environment at their present place of residence.

Moreover, the children’s statements in court had shown that they could not reasonably be ordered to reside with their father. For the past year, J. M. had refused to visit his father. P. had declared that he was happy to visit his father every other weekend and would sometimes like to be able to visit him more often. However, he had been irritated by the court’s suggestion to reside with his father and to visit his mother, which showed that he had taken it for granted that he would live with his mother.

The court disagreed with the applicant’s view that Mrs W-L should not be granted custody because she had frustrated contact with their children in the past. Despite numerous accusations by the applicant, which he had listed in detail for every visit, that Mrs W-L manipulated their children to his detriment, the applicant could in fact see them quite regularly following a settlement between the parties in court. In so far as Mrs W-L had cancelled visits saying that the children were ill, her decisions had not proved to be arbitrary. Moreover, the applicant had not shown that he was better placed to secure a good school education for the children. In particular, he had not sent J. M. to school for a period of some five months in 1999 when he had absconded with the children. Thus, Mrs W-L had proved to be better able than the applicant to tolerate their children’s relationship with the other parent. Furthermore, contrary to the applicant’s submission, the fact that he had received an award for his managerial skills at work was irrelevant to the question whether he should be awarded custody. His contradictory allegations that Mrs W-L was both mentally ill and only had an eye to her financial benefit showed that cooperation between the parents and thus an award of joint custody of the children was impossible.

The court found that it had not been necessary to appoint the children a guardian ad litem for the proceedings. Both children had been old enough to express their views sufficiently clearly when heard by the court.
Moreover, despite their differing views, the parties had set out their children’s interests conclusively in the proceedings. There was nothing to indicate that a guardian ad litem could have detected further issues which had not been raised by the parties.

The District Court further decided on the adjustment of the divorced couple’s pension rights, on the maintenance the applicant had to pay Mrs W-L and their two children and fixed the amount of money Mrs W-L had to pay the applicant to apportion the increase the spouses’ assets during their marriage.

On 11 August 2003 the applicant appealed against the District Court’s judgment as regards custody, maintenance and the adjustment of the divorced couple’s pension rights. He submitted detailed reasons for his appeal on 17 October 2003 and again requested the court to appoint the children a guardian ad litem and to consult an expert psychologist.
He stressed that Mrs W-L had twice been ordered on pain of a fine to comply with the court orders granting him contact with his sons.

The applicant and Ms N. married in December 2003, when the District Court’s judgment granting the divorce became final.

On 13 January 2004 the Court of Appeal held a hearing. The applicant withdrew his appeal in so far as it concerned maintenance payments.

By a decision of 27 January 2004 the Celle Court of Appeal dismissed the applicant’s appeal against the District Court’s judgment.

Endorsing the reasons given by the District Court, it found that awarding sole custody of J. M. and P. to Mrs W-L was in the children’s best interest. It added that Mrs W-L, who had not been working, had always been the person to whom the children related more closely. The fact that J. M. had refused to visit his father for a year did not warrant the conclusion that Mrs W-L was unable to educate the children. It was unclear whether Mrs W-L was responsible for his refusal. Children of J. M.’s age (twelve years) were developing more and more a mind of their own and attempted to assert their will against that of their parents. J. M. felt disadvantaged by his father vis-à-vis P. and A. He knew that he was not the applicant’s natural son.
As Mrs W-L had been in close contact with J. M.’s natural father again during the past years, J. M. found himself in a conflict which of itself could explain his refusal to meet the applicant. The Court of Appeal further agreed with the District Court that it had not been necessary to appoint the children a guardian ad litem.

On 1 March 2004 the applicant lodged a complaint with the Federal Constitutional Court against the judgment of the Winsen (Luhe) District Court dated 8 July 2003 and the decision of the Celle Court of Appeal dated 27 January 2004.

On 21 April 2005 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 1 BvR 510/04).

The Constitutional Court found that the applicant’s complaint about the length of the proceedings was inadmissible. Given that the proceedings before the family courts had been terminated, the applicant no longer had a legal interest in a decision by the Constitutional Court. Moreover, the applicant had lodged a complaint of failure to act before the family courts, but had failed to lodge a constitutional complaint against the decision of the Court of Appeal dated 12 July 2001 rejecting his complaint of failure to act.

The Constitutional Court further argued that the applicant’s complaints concerning the procedure followed by the Court of Appeal were in any event ill-founded. That court had not fundamentally disregarded the applicant’s parental rights as protected by the Basic Law.
The Court of Appeal had not been obliged to hear the children in person because the District Court had already explained in a convincing manner in its judgment of 8 April 2003 why it was not convinced that J. M.’s wishes had been influenced by Mrs W-L. Moreover, the Court of Appeal had not been obliged to consult an expert to determine P.’s true wishes in order to respect the applicant’s constitutional rights. The District Court had reasonably interpreted P.’s statements to the effect that he did not want any fundamental changes to the custody rights of his parents. There had also been no need to consult an expert for other reasons. In particular, the District Court had convincingly explained that Mrs W-L had proved more capable of tolerating more or less regular contact by the applicant with their children, whereas the applicant had prevented any contact by Mrs W-L with their children, in disregard of court orders, for five months.

On 15 February 2002 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Winsen (Luhe) District Court dated 23 October 2001 and of the Celle Court of Appeal dated 11 January 2002. He argued that the decisions of the family courts had infringed his right to remarry and his right to effective legal protection against the unreasonable length of the divorce proceedings. Moreover, he was disadvantaged in respect of his procedural rights compared to Mrs W-L, who could appeal against a decision to separate the divorce proceedings from the ancillary matters, whereas he could not appeal against the decision not to separate the proceedings.

On 21 April 2005 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 1 BvR 347/02). It found that the applicant did not have a legal interest in its decision. The District Court’s judgment granting the divorce had become final. Moreover, in so far as he complained about the restrictions on his right to remarry, the Court of Appeal had found in accordance with the constitutional requirements that the applicant had delayed the divorce proceedings by claiming the apportionment of the increase in the spouses’ assets during their marriage when the proceedings had already been pending for more than three years. He had acted in a contradictory fashion in that he had contributed to the delays on the one hand, but had requested that the proceedings be expedited by separating the divorce petition from the ancillary matters on the other.

In cases in which a child’s parents permanently live apart, the court grants a parent’s request to terminate the parents’ joint custody and to award him or her sole custody if it is to be expected that this is in the child’s best interests (Article 1671 § 2 of the Civil Code).

Article 622 et seq. of the Code of Civil Procedure lay down procedural rules for divorce proceedings and ancillary matters.

In so far as, in the case of divorce, a decision has to be taken on maintenance payments, the adjustment of pension rights or the apportionment of the increase in the spouses’ assets during their marriage, and one of the spouses requests a decision on these issues in due time, the court has to try these issues together with and at the same time as the divorce petition (ancillary matters). If the divorce is granted, the court will decide on the ancillary matters simultaneously (Article 623 § 1 of the Code of Civil Procedure).

Moreover, a spouse’s request to be granted sole custody of a child is an ancillary matter if lodged in due time. However, the court can separate this matter from the divorce proceedings at the request of one of the spouses (Article 623 § 2 of the Code of Civil Procedure).

Under Article 628 of the Code of Civil Procedure, the court may grant a divorce prior to its decision on ancillary matters, in particular if, due to its duty to decide on ancillary matters at the same time, the decision on the divorce petition would be postponed to the extent that the delay, regard being had also to the importance of the ancillary matters, would cause undue hardship.

The applicant complained under Articles 8 and 6 of the Convention that the domestic courts had awarded Mrs W-L sole custody of their two sons despite the fact that she had mental problems, had not sufficiently attended to the children’s school education and had constantly attempted to estrange the children from him. His complaint could not be countered by the argument that there could be continuity in the children’s upbringing only if they stayed with their mother as this situation had been caused by the undue delays in the proceedings.

Moreover, the courts’ decision-making process had been defective.
They had failed to consult an expert psychologist on the children’s true wishes and on each of their parents’ ability to tolerate their relationship with the other parent and had declined to appoint the children a guardian
ad litem. Furthermore, the Court of Appeal had not heard the children itself. The family courts had also not had at their disposal a recent report from the Youth Office.

The applicant further complained under Articles 6 and 8 of the Convention about the length of the proceedings, in particular before the District Court and the Court of Appeal, which had resulted in custody of his sons being awarded to Mrs W-L for reasons of continuity.

Invoking Article 13 of the Convention, the applicant claimed that he had not had an effective remedy to complain before the Court of Appeal and the Federal Constitutional Court of the excessive length of the custody proceedings.

In relation to the divorce proceedings, the applicant complained under Articles 8 and 12 of the Convention that the family courts’ refusal to decide on his divorce petition separately under Article 628 of the Code of Civil Procedure despite his age and the fact that he wished to legitimise his daughter A., had breached his right to remarry.

Relying on Articles 6 and 8 of the Convention, he argued that the duration of the divorce proceedings had been excessive.

He further claimed that he had not had an effective remedy within the meaning of Articles 6 and 13 of the Convention to complain of an undue restriction on his right to remarry and about the duration of the divorce proceedings.

Furthermore, relying on Article 6, read in conjunction with Article 14, of the Convention, he complained that he had been disadvantaged in the proceedings compared to Mrs W-L. The latter would have had a right to appeal against the decision to separate the divorce proceedings from the ancillary matters, whereas for the applicant no appeal lay against the decision not to separate the proceedings.

The applicant complained that the decision of the domestic courts to award sole custody of their children to Mrs W.-L. and the procedure followed by them had infringed his rights under Articles 8 and 6 of the Convention.

The Court considers that these complaints fall to be examined under Article 8 alone, which, in so far as relevant, provides:

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.”

The Court finds that the domestic courts’ decision to award sole custody to Mrs W-L interfered with the applicant’s right to respect for his family life as guaranteed by Article 8 § 1.

Any such interference with this right 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”.

The custody decision of the family courts was based on Article 1671 § 2 of the Civil Code. It was aimed at protecting the best interests of J. M. and P. and was therefore taken for the protection of their health and their rights and freedoms.

In determining whether the award of sole custody of J. M. and P. to Mrs W-L was “necessary in a democratic society” the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. The national authorities having the benefit of direct contact with all the persons concerned, the Court’s task is to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their margin of appreciation (see, inter alia, Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55; Elsholz v. Germany [GC], no. 25735/94, § 48, ECHR 2000-VIII; and Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003-VIII). The Court has recognised that, in contrast with issues of parental contact, the authorities enjoy a wide margin of appreciation when deciding on custody (see, inter alia,
C. v. Finland, no. 18249/02, § 53, 9 May 2006).

The Court further reiterates that it cannot satisfactorily assess whether the reasons adduced by the national courts to justify measures of interference were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the parent has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests (see, inter alia, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR 2001-V; Sommerfeld, cited above, § 66; and C. v. Finland, cited above, § 56).

In reviewing whether the domestic courts based their decision to award sole custody to Mrs W-L on relevant grounds, the Court observes that the family courts considered this to be in the children’s best interests. It agrees with the applicant that the fact that the children lived with their mother while the custody proceedings were pending before the domestic courts for more than seven years cannot alone be decisive in awarding custody to her. It reiterates in this context that effective respect for family life requires that future relations between parent and child not be determined by the mere passage of time (see Sylvester v. Austria, nos. 36812/97 and 40104/98, § 69, 24 April 2003, and Görgülü v. Germany, no. 74969/01, § 45,
ECHR 2004-...). However, the domestic courts based their decision on a number of further considerations. In particular, when heard in court, both sons had confirmed that they were willing to live with their mother. Moreover, the courts found that Mrs W-L had always been the person to whom the children related more closely and that she was better able to accept the children’s contacts with the other parent. Accusations uttered by the applicant to the effect that she was mentally ill and unable to secure the children’s continuous school education had proved unfounded.
Furthermore, in view of the parents’ inability to communicate and to cooperate, the courts reasonably considered it necessary - for the protection of the children’s interests - not to maintain the parents’ joint custody, but to award one of them, Mrs W-L, sole custody.

In assessing whether these reasons for awarding sole custody to Mrs W-L were also sufficient for the purposes of Article 8 § 2, the Court will notably have to determine whether the decision-making process, seen as a whole, provided the applicant with the requisite protection of his interests.

The Court notes in this respect that the applicant, who was represented by counsel throughout the proceedings, availed himself of the opportunity to put forward his arguments in favour of awarding sole custody to him.
He was heard in person by the District Court and the Court of Appeal and made ample submissions in writing. The evidential basis for the courts’ decision also included Mrs W-L’s oral and written submissions and the results of the District Court’s hearing of both J. M. and P.

The Court further observes that, despite the applicant’s request, the family courts declined to consult an expert psychologist on the children’s true wishes and on each of their parents’ ability to tolerate their relationship with the other parent. The family courts also refused the applicant’s request to appoint the children a guardian ad litem and the Court of Appeal did not hear them again. The courts had also not had before them a recent report from the Youth Office.

However, as a general rule it is for the domestic courts to assess the evidence before them, including the means to ascertain the relevant facts.
In particular, domestic courts are not always required to consult an expert psychologist on questions related to custody; this issue depends on the specific circumstances of the case, having due regard to the age and maturity of the child concerned (see, mutatis mutandis, Sommerfeld, cited above, § 71; Elsholz, cited above, § 52; and Luig v. Germany (dec.), no. 28782/04, 5 September 2007). In the present case, J. M. was almost twelve and P. eight and a half years old when they were heard by the District Court. Their statements as reasonably interpreted by the family courts were sufficiently clear and, as confirmed also by the Federal Constitutional Court, the courts had no reason to doubt that they reflected the children’s true wishes. The Court observes in this connection that the family courts examined and rejected the applicant’s allegation that the children had been manipulated by their mother. Likewise, having regard to the facts before it, in particular the frequency of the applicant’s contact with his sons and the fact that he had abducted them for several months, the family courts could reasonably conclude without having recourse to an expert psychologist that Mrs W-L was more capable than the applicant of tolerating contact between their children and the other parent and should therefore be awarded sole custody.

Having regard to the evidence which the family courts obtained in order to reach their decision on custody, the Court is also not convinced that these courts were obliged to appoint the children a guardian ad litem in order to be able to assess the children’s best interests and thus to safeguard the applicant’s procedural rights under Article 8. Both Mrs W-L and the applicant had availed themselves of the opportunity to submit arguments on behalf of their children. In view of this, there was no indication that a guardian ad litem could raise further issues not yet raised by the parties
(see Paradis and Others v. Germany (dec.), no. 4783/03, 15 May 2003). Moreover, as the Court of Appeal had at its disposal the entire case files of the proceedings before the District Court as well as further written and oral submissions by the parties, and as the District Court had heard the children less than eleven months earlier, the Court is not convinced that the Court of Appeal should have heard the children again in person in order to respect the applicant’s procedural rights (contrast Elsholz, cited above, § 53).
It further notes in this connection that the family courts did not have before them a recent report from the Youth Office. However, in confirming that the parties were unable to exercise custody jointly, the old reports in any event did not contradict the custody decisions later taken by the family courts and there were no new considerations evident which had to be taken into account.

Having regard to the wide margin of appreciation the national authorities enjoy as regards questions of custody, the Court is satisfied that the domestic courts’ procedural approach provided adequate material on which to reach a reasoned decision on custody while sufficiently involving the applicant in the decision-making process.

It follows that this part of the application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

In the applicant’s submission, the duration of the custody proceedings, which had lasted for approximately seven years and four months, had been excessive. He relied on Articles 6 and 8 of the Convention.

The Court finds that this complaint falls to be examined under
Article 6 § 1 alone which, in so far as relevant, reads:

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

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. The existence of an effective remedy to complain about the length of the custody proceedings

The applicant further took the view that there had not been an effective remedy for him to complain about the duration of the proceedings concerning custody of his children. In particular, he had not been able to obtain redress before the Court of Appeal or the Federal Constitutional Court. He relied on Article 13 of the Convention in this respect, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint either and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

The applicant complained of an infringement of his right to (re)marry and to found a family as a result of the protracted length of the divorce proceedings. He relied on Articles 12 and 8 of the Convention. Article 12 provides:

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

The Court observes that the applicant raised the present complaint with respect to the interim decision of the District Court, upheld on appeal, not to separate the divorce proceedings from the ancillary matters. Assuming the exhaustion of domestic remedies, it reiterates that if national legislation allows divorce, which is not a requirement of the Convention, Article 12 secures for divorced persons the right to remarry without unreasonable restrictions (see F. v. Switzerland, judgment of 18 December 1987, Series A no. 128, p. 18, § 38, and Aresti Charalambous v. Cyprus, no. 43151/04, § 56, 19 July 2007). The Court would not exclude that a failure to conduct divorce proceedings within a reasonable time could in certain circumstances raise an issue under Article 12 of the Convention (see Aresti Charalambous, cited above, § 56).

The Court notes that in the present case the District Court refused to separate the divorce proceedings from the ancillary matters and grant the applicant’s divorce on 23 October 2001, that is when the divorce proceedings had been pending for approximately three years and nine months. Having regard to all the circumstances of the case, in particular the overall duration of the proceedings at that time and the applicant’s own conduct, the Court finds that, despite his age and the fact that he had had a daughter with the woman he wished to marry, the applicant’s situation was not such that the very essence of his right to marry was impaired. There is therefore no appearance of a violation of Article 12.

Therefore, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The applicant further argued that the divorce proceedings had been unreasonably long. He also claimed that he had not had an effective remedy to complain about the undue restriction on his right to remarry and about the duration of the divorce proceedings. Moreover, he had been disadvantaged in his procedural right to appeal compared to the opposing party. He relied on Articles 6, 8, 13 and 14 of the Convention.

The Court has examined the applicant’s complaints concerning the conduct of the divorce proceedings, which he brought after having obtained a decision of the Federal Constitutional Court in respect of interim decisions of the family courts, as submitted by him. However, having regard to all material in its possession, the Court finds that, in so far as this part of the application is compatible ratione materiae with the provisions of the Convention, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application must also be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

Decides to adjourn the examination of the applicant’s complaints concerning the duration of the custody proceedings and the existence of an effective remedy to complain about the length of these proceedings;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Erwin WILDGRUBER v Germany - 42402/05 [2008] ECHR 167 (29 January 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/167.html Cite as: [2008] ECHR 167