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FIFTH
SECTION
CASE OF KUPPINGER v. GERMANY
(Application
no. 41599/09)
JUDGMENT
STRASBOURG
21 April
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Kuppinger v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 29 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 41599/09) against the
Federal Republic of Germany lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a
German national, Mr Bernd Kuppinger (“the applicant”), on
30 July 2009.
- The
applicant was represented by Mr G. Rixe, a lawyer practising in
Bielefeld. The German Government (“the
Government”) were represented by their Agent, Mrs Almut
Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry
of Justice.
- On
23 March 2010 the
President of the Fifth Section decided to give notice of the
application to the Government. In accordance with Protocol no.
14, the application was allocated to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Heidelberg.
- The
applicant is the father of a son born out of wedlock on 21 December
2003. Shortly after the child was born, the mother refused the
applicant any contact with the child. In 2004 the applicant
unsuccessfully attempted to establish contact with his son.
- On
19 May 2005 the applicant lodged a request for the regulation of
contact rights with the Frankfurt/Main District Court (Amtsgericht).
On 29 May 2005 the court served the request on the mother and
requested the Youth Office to submit comments, which were submitted
on 29 August 2005, following a reminder by the court. On 7 October
2005 the court scheduled a hearing for 27 October 2005, which was
postponed at both parties’ request to 1 December 2005.
- Both
parties having agreed to institute supervised contacts, the District
Court ordered the Youth Office to name, within a time-limit of one
month, a suitable institution to supervise the visits. It further
decided to issue a decision on contact rights after having been
informed about the concrete dates for contacts.
- Between
October 2005 and May 2006 the Youth Office unsuccessfully attempted
to mediate an agreement on a suitable institution.
- On
31 May 2006 the District Court informed the parties that it would
attempt to find a suitable institution on its own motion. On 6 June
2006 the District Court ordered that contact visits should be
supervised by a centre for psychological counselling. Between July
and October 2006, five supervised contacts took place.
- On
30 October 2006 the District Court requested the counselling centre
to submit a report. On 5 December 2006 the Youth Office, following a
further reminder by the court, submitted a report by the counselling
centre dated 9 November 2006. Both the Youth Office and the counsel
centre did not have any objections to contacts between father and
son. The next step should be to limit the supervision to the
accompanied handover of the child. However, having regard to the
mother’s opposition, the Youth Office was not in a position to
propose how contact rights should be established.
- On
12 December 2006 the District Court informed the parties of its
intention to hear expert opinion on the regulation of access rights
and invited the parties to submit comments within two weeks. On 22
December 2006 and 11 January 2007 new counsel for the applicant
requested to be granted access to the case file and asked the court
to allow submissions within 14 days after the receipt of the
case-file that was returned by letter of 16 January 2007. On 5
February 2007 the applicant’s counsel submitted her comments.
- On
8 February 2007 the District Court commissioned a psychological
expert and ordered her to submit the expert opinion within three
months.
- On
5 March 2007 the applicant requested the District Court to regulate
further contact rights by interim order. On 27 March 2007 the
District Court rejected the applicant’s request on the grounds
that a regulation of contact rights had to be based on the result of
the expert examination. It pointed out that the expert had declared
that she would be able to terminate her report by the end of April,
if both parents attended the proposed meetings.
- On
29 March 2007 the Youth Office declared that it did not have any
objections to further contacts. On 12 April 2007 the applicant
requested the applicant to hold a hearing on his interim request.
- On
19 April 2007 the District Court scheduled a second hearing for 16
May 2007. On 16 May 2007 the District Court heard the Youth Office,
the person accompanying the visits and the expert. The applicant
declared that he refused being examined by the expert.
- By
interim order of 22 May 2007 the District Court, following expert
recommendation, ordered that supervised visits should take place
every Thursday afternoon. Between 14 June and 12 July 2007 five
contact visits took place. The applicant having lodged a complaint
about the supervisor, the latter declared that he was not available
to supervise further contacts.
- On
8 June 2007 the applicant declared that he was now ready to be
examined by the expert. On 9 July 2007 the expert informed the court
that the applicant had failed to attend the arranged meeting. On 12
July 2007 the applicant submitted that he had appeared in time, but
that the expert had not opened the door. He requested the court to
terminate the examination without his cooperation, as he had lost
confidence in the expert.
- On
19 July 2007 the applicant had his last contact with his son.
- On
31 July and 14 August 2007 the applicant requested the District Court
to impose enforcement measures on the mother, who objected to further
contacts. On 24 August 2007 the District Court, in separate
proceedings, imposed enforcement measures on the mother.
- On
26 July 2007 the District Court requested the expert to terminate the
examination. On 7 September 2007 the expert submitted her report, in
which she noted that the parents were unable to cooperate and
recommended the continuation of supervised visits. On 7 September
2007 the District Court served the expert opinion on the parties and
ordered the Youth Office to propose an institution which could
arrange supervised visits. On 5 October 2007 the court asked the
parties if a suitable institution had been found. In October and
November 2007 the applicant, following several extensions of the
time-limit set, submitted extensive comments.
- On
22 November 2007 the District Court held a third hearing. While the
expert recommended the continuation of supervised contacts, the Youth
Office declared that it was difficult to find an institution to
supervise the contacts and recommended a suspension of contact
rights.
- On
4 December 2007 the District Court informed the parties about its
intention to appoint a curator ad litem to represent the
child’s interests. On 6 and 13 December 2007 the parties
objected. On 20 December 2007 the court appointed a curator ad
litem and asked her to submit comments within two months. Both
parties lodged complaints against the appointment which were
withdrawn on 7 and 12 February 2008, respectively.
- Between
February and April 2008 the curator informed the court about her
attempts to institute contact visits. During the following months,
the curator and the Youth Office attempted to induce the parties to
conclude a parental agreement on the modalities of supervised
contacts.
- On
8 April 2008 the applicant requested the District Court to issue a
decision. On 15 May 2008 the District Court informed the parties that
the parents had concluded an agreement on contacts which should be
executed within a short period of time. On 19 May 2008 the District
Court informed the parties that the proceedings were suspended as
long as the agreement on contact rights was executed. On 6 June 2008
the Youth Office informed the court that supervised visits could be
envisaged for mid-August.
- On
26 August 2008 the applicant requested the District Court to order
the Youth Office to refrain from issuing legal opinions and to
respect binding court orders. On 12 September 2008 the District Court
rejected the request.
- On
11 February 2009 the institution which had been commissioned to
supervise the contacts proposed a first contact for 28 February 2009.
On 24 February 2009 the mother informed the court that she objected
to a further cooperation with the supervising institution.
- On
26 February 2009 the curator ad litem submitted a report on
her activities since January 2008. Upon request, the court extended
the time limit for the Youth Office to 31 May 2009 and for the mother
to 28 April 2009. On 25 May 2009 the Youth Office submitted the final
report by the supervising institution dated 7 March 2009, according
to which the mother had failed to support the exercise of contact
rights.
- On
7 May 2009 the mother requested the court to hold a hearing. On 23
June 2009 the applicant, represented by new counsel, filed extensive
submissions, and requested the court to issue an interim order and to
schedule a hearing. On 30 July 2009 the District Court scheduled a
hearing for 3 September 2009.
- On
6 August 2009 the applicant, represented by counsel, lodged a
constitutional complaint, complaining about the length of the
proceedings and about the lack of an effective remedy.
- On
17 August 2009 the applicant requested the court to re-schedule the
hearing because of his holiday plans. On 24 August 2009 the court
postponed the hearing to 24 September 2009. On 3 September 2009 the
court postponed the hearing to 15 October 2009 in order to take into
account the absence of the competent person in the Youth Office. On
21 September 2009 the Court of Appeal declared the applicant’s
complaint against the postponement inadmissible. On 24 September 2009
the District Court, upon the mother’s request, further
postponed the hearing to 26 October 2009. On 2 October 2009 the
District Court postponed the hearing to 29 October 2009 because of
the absence of the curator ad litem.
- In
the meantime, on 13 October 2009 the Court of Appeal rejected the
applicant’s complaint against the further postponement, as the
scheduling of a hearing was not subject to a legal remedy. With
regard to the length of the proceedings, the Court of Appeal found as
follows:
“In the instant case, the numerous postponements
have created a situation which is unacceptable in the light of the
requirement to expedite the proceedings ... Contact proceedings have
been pending since 2005. Contacts have taken place sporadically only;
a final decision has not been given. On 23 June 2009 the applicant
requested the issue of an interim order. The repeated postponements
of the hearing cause a factual delay which amounts to a denial of
justice or a suspension of the proceedings.”
The
Court of Appeal noted, however, that it was not competent to order
the District Court to hold the hearing on a specific date.
- On
15 October 2009 the District Court postponed the hearing upon the
curator’s request to 2 November 2009. On 2 November 2009 the
hearing took place, on 9 November 2009 the court heard the child.
- On
21 December 2009, following further submissions filed by the parents
and by the Youth Office, the District Court suspended the applicant’s
contact rights for one further year. The District Court considered
that the child, who last saw his father two and a half years before,
and had been burdened by the proceedings, had to be given time, inter
alia to cope with his entry into school.
- On
5 January 2010 the applicant lodged a motion with the District Court
to amend its decision of 21 December 2009 with respect to the
father’s right to be informed about the child’s personal
circumstances. On 22 March 2010 the District Court decided on this
request.
- On
30 December 2009 the applicant lodged an appeal with the Frankfurt
Court of Appeal (Oberlandesgericht). By interim decision of
12 May 2010 the Court of Appeal, having held a hearing on 15
April 2010, ordered six contact visits to take place between May and
August 2010. In October 2010, the main proceedings were still pending
before the Court of Appeal.
II. RELEVANT DOMESTIC LAW
- As
from 1 September 2009, proceedings in family matters are governed by
the Act on Procedure in Family Matters and Non-Contentious Matters
(Gesetz über das Verfahren in Familiensachen und in
Angelegenheiten der freiwilligen Gerichtsbarkeit), section 155 of
which reads as follows:
“(1) Parent and child matters referring
to the child’s place of abode, access rights or the surrender
of the child, as well as proceedings based on a threat to the child’s
welfare must be conducted as a matter of priority and expediently.
(2) In proceedings pursuant to subsection (1)
the court shall discuss the case with the parties at a hearing. The
hearing shall take place at the latest one month after the
proceedings have been instituted. The court shall hear the Youth
Office during this hearing. This hearing may only be postponed for
compelling reasons. Proof of the reasons for the need for the
postponement must be furnished when the request for the postponement
is made.
(3) The court shall order the parties ... to
appear in person at the hearing.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Articles 6 and 8 of the Convention about
the length of the proceedings regarding the determination of his
contact rights in respect of his son. The Court, as master of the
characterisation to be given in law to the facts of the case (see
Kutzner v. Germany, no. 46544/99, § 56, ECHR
2002 I), considers that the complaint raised by the applicant
under Article 8 is closely linked to his complaint under Article 6
and will accordingly be examined solely under Article 6 § 1 of
the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
applicant maintained that the overall duration of the proceedings was
in breach of the “reasonable time” requirement of Article
6 § 1 of the Convention.
- The
Government contested that argument. According to the Government, the
length of the proceedings was primarily due to the parties’
obstructive conduct.
- The
Court notes that the applicant, in his submissions to the Court,
exclusively complained about the length of the proceedings before the
Frankfurt District Court, thus delimiting the scope of his complaint.
The period to be taken into consideration thus began on 19 May 2005
when the applicant lodged his request with the District Court and
ended on 22 March 2010 when the District Court decided on the
applicant’s request to amend its decision of 21 December 2010.
It thus lasted four years and ten months for one level of
jurisdiction.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII). In cases relating to civil status, what is at
stake for the applicant is also a relevant consideration, and special
diligence is required in view of the possible consequences which the
excessive length of proceedings may have, notably on enjoyment of the
right to respect for family life (Laino v. Italy [GC],
no. 33158/96, § 18, ECHR 1999-I).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
- In
this context the Court places special emphasis on the importance of
what was at stake for the applicant. It reiterates that in particular
in cases concerning a person’s relationship with his or her
child there is a duty to exercise exceptional diligence in view of
the risk that the passage of time may result in a de facto
determination of the matter (compare Süß v. Germany,
no. 40324/98, § 100, 10 November 2005). This holds particularly
true if a very young child is concerned. In line with that, the Court
has found that the overall length of contact proceedings can exceed a
reasonable time within the meaning of Article 6 § 1 even if
there did not appear to be any excessive period of inactivity before
the domestic courts (compare Skugor v. Germany, no. 76680/01,
§ 73, 10 May 2007).
- The
Court notes that the applicant’s son was one and a half years
of age when the applicant instituted contact proceedings in May 2005.
The last contact between father and child took place in July 2007,
when the child was three and a half years old. The particular
circumstances of the case placed the court under a specific
obligation to take special precautions in order to avoid any
unnecessary delays, such as adhering to a very close time-schedule
and supervising the taking of evidence.
- The
Court accepts that the access proceedings were of a certain
complexity because of the extremely tense relations between the
parties.
- With
regard to the applicant’s own conduct, the Court considers that
the applicant’s ambiguous stance toward the court-appointed
expert caused a delay of at least one month. While it appears to be
true that the applicant’s repeated requests for extensions of
time-limits and hearings to be re scheduled caused a certain
delay of the proceedings, this does not account in any way for the
overall length of them.
- The
Court also accepts that the Frankfurt District Court’s
endeavours to find a suitable institution to supervise the contacts
between the applicant and his child were complicated by the fact that
the parents were not capable of coming to an agreement on this point.
However, the Court is not convinced that the District Court took all
possible steps to expedite the proceedings once it had become clear
that the parents were unable to compromise.
- The
Court further observes that the District Court appointed a curator ad
litem only on 20 December 2007, that is, more than two and a half
years after the contact proceedings had been instituted, even though
it must have been clear at a very early stage of the proceedings that
the serious tensions between the parents necessitated appointment of
a curator.
- The
Court appreciates that the German legislator, as from 1 September
2009, introduced new legislation which is aimed at encouraging the
courts to comply with their duty to exercise special diligence in
contact proceedings by obliging them to treat these matters as a
priority and expediently and to schedule a hearing within a month
after the proceedings have been instituted (section 155 of the Act on
Procedure in Family Matters and Non-Contentious Matters see §
36, above). It observes, however, that only a short period of the
present proceedings took place after 1 September 2009.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED
VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained under Article 13 of the Convention that
he did not have at his disposal an effective domestic remedy for his
complaint concerning the length of the proceedings.
Article
13 reads as follows:
“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
Government did not contest this argument.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The Court has already held that there is no effective
remedy under German law capable of affording redress for unreasonable
length of civil proceedings (see Sürmeli v. Germany
[GC], no. 75529/01, §§ 103-108, ECHR 2006-VII, and Rumpf
v. Germany, no. 46344/06, § 51, 2 September 2010).
- Accordingly,
the Court considers that the applicant did not have an effective
remedy within the meaning of Article 13 of the Convention which could
have expedited the contact right proceedings or provided adequate
redress for delays that had already occurred.
- There
has therefore been a violation of Article 13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 25,000 euros (EUR) in respect of non pecuniary
damage for the suffering and anxiety caused by the excessive length
of the proceedings, which had resulted in his child being alienated
from him. He further claimed an additional amount of EUR 10,000 as
regards the lack of an effective remedy before the national courts.
The applicant considered that when awarding non-pecuniary damage, the
Court had to take into account the State’s degree of fault.
- The
Government contested these arguments and argued that the applicant’s
claims were excessive.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards award him EUR 5,200
under that head.
B. Costs and expenses
-
The applicant also claimed EUR 1,798.74 corresponding to his lawyer’s
fees in connection with the constitutional complaint regarding the
length of the proceedings, EUR 500 for the increased costs before the
domestic courts and EUR 3,245.73 for those incurred before the Court.
He pointed out that the Court, in its judgment of Rumpf v.
Germany, (cited above, § 82), had found that the lawyer’s
fees before the Federal Constitutional Court in length-of-proceedings
cases were to be awarded irrespective of the fact that a
constitutional complaint was insofar not an effective remedy.
-
The Government contested these claims. They submitted that the costs
for the proceedings before the Federal Constitutional Court could not
be claimed, as the Court, in its judgment of Sürmeli v.
Germany, had found that a constitutional complaint was not an
effective remedy against proceedings that lasted too long. As regards
the costs incurred before the Court, the Government maintained that
the applicant had failed to indicate the number of actual hours spent
by his lawyer on the case, which made it impossible to judge whether
the amount claimed was reasonable.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. With regard to the sum claimed by the
applicant for his expenses before the Federal Constitutional Court,
the Court observes that the applicant’s counsel, in his
constitutional complaint dated 6 August 2009, expressly referred to
the Sürmeli judgment, which made clear that the
constitutional complaint did not constitute an effective remedy with
regard to the excessive length of proceedings. Conversely, in the
Rumpf case, the applicant lodged his constitutional complaint
in 2005 and thus without knowledge of the Sürmeli
judgment, which was issued on 8 June 2006. It follows that the
counsel in the instant case could not reasonably consider that the
constitutional court constituted an effective remedy with regard to
his length complaint. Regard being had to these consideration, the
Court rejects the claim for expenses in the proceedings before the
Federal Constitutional Court. Ruling on an equitable basis, the Court
finds it reasonable to award the sums claimed for the increased costs
before the domestic courts and for the proceedings before the Court
in full.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months,
(i) EUR
5,200 (five thousand two hundred euros) in respect of non pecuniary
damage;
(ii) EUR
3,745.73 (three thousand seven hundred forty-five euros and
seventy-three cents) in respect of costs and expenses;
(iii) any
tax that may be chargeable to the applicant on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 April 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
