CASE OF SUSS v. GERMANY (No. 1)
No violation of Art. 8;No violation of Art. 6-1
Mark Villiger
9. The applicant was born in 1940 and lives in Berlin. 10. The applicant married G.S. in August 1984. Their daughter F. was born on 29 November 1984. In August 1989 G.S. moved out of the matrimonial home together with F. who has been living with her mother since then. 11. On 6 December 1992 the applicant had his last contact with F. The mother subsequently denied the applicant any further contact. 12. Three sets of court proceedings concerning the custody of F., the applicant’s right of access and the spouses’ divorce opened before the Charlottenburg District Court (later Tempelhof-Kreuzberg District Court), namely 13. On 7 September 1989, in the context of proceedings before the Charlottenburg District Court concerning custody of F. during the period of separation (Getrenntleben) of the spouses, the question of the applicant’s right of access (Umgangsrecht) to F. was settled. According to the spouses’ agreement, the applicant was entitled to see his daughter once per week on a weekday and from Sunday until Monday morning every second week-end. 14. Subsequently F.’s mother denied the applicant any contact with F. and the applicant asked the District Court for assistance in this matter. 15. On 7 November 1989 Judge S. of the Charlottenburg District Court, having heard F. and her mother, informed the applicant that contacts between him and his daughter should take place regularly every second week-end and at Christmas. He noted that F. was on very good terms with her father. However, further contacts would worsen the very strained relations between the parents and were presently not in the child’s best interest. On 17 November 1989 G.S. declared that she no longer wished to comply with the settlement of 7 September 1989, as she had been terrorised by the applicant. 16. On 2 January 1990 the District Court noted that G.S. had not complied with the terms of the friendly settlement of 7 September 1989. It observed that G.S. had failed to furnish evidence for her allegations that the applicant had threatened or sexually harassed G.S. or F. in several letters. 17. On 25 April 1990 the District Court decided that during the period of separation of the spouses G.S. shall have custody of F. 18. On 4 October 1990 the Berlin Court of Appeal, having regard to the parents’ statements made in court and a report of the Tempelhof District Youth Office, dismissed the applicant’s appeal against this decision. 19. On 16 November 1989 the applicant filed a petition for divorce with the Charlottenburg District Court and requested to be granted custody of F. In the subsequent proceedings, both parties, that is, G.S. and the applicant, were assisted by counsel. 20. On 13 March 1990 the Charlottenburg District Court, granting the applicant’s motion, issued an interim injunction. Judge S., sitting alone, ordered that the applicant had a right of access to F. once a week on a weekday and that F. should stay overnight from Sunday until Monday morning every second week. This order replaced the regulation of the applicant’s right of access by the friendly settlement agreement concluded on 7 September 1989. The court considered that contacts between the applicant and F., as provided for in the said agreement, were in the child’s best interest. For months, G.S. had, however, advanced factual or personal pretexts to prevent contacts. The court noted that it had heard the parties on the question of access on 8 March 1990. 21. G.S. objected to the interim injunction. 22. On 2 April 1990, at a hearing before the District Court, the parties arrived at a new settlement on the applicant’s access to F. which replaced the court order of 13 March 1990. According to this agreement, the applicant was entitled to spend every second week-end and certain fixed holidays with F. This arrangement was subsequently only partly observed by G.S., and the applicant asked for the enforcement of his right of access under the terms of the settlement. 23. On 21 September 1990 the District Court dismissed one of the applicant’s motions to order G.S. to pay a coercive penalty, as G.S. had not deliberately failed to comply with the terms of the settlement dated 2 April 1990 on the relevant occasion. The applicant’s appeal was to no avail. On 17 December 1990 G.S. asked for the suspension of the applicant’s access to F. Apparently no decision has been rendered upon this motion. 24. On 6 May 1991 the District Court, following a hearing in the presence of G.S. and the applicant, adjourned the proceedings concerning the parties’ divorce and related family matters, as the parties failed to reach an agreement concerning the custody of and the access to F. 25. In August and September 1991 the applicant asked for the preparation of an psychological expert opinion concerning custody of and access to F., to which G.S. objected. 26. The applicant’s first motion dated 20 September 1991 to challenge the single District Court Judge S. for bias, inter alia because the judge refused to order a psychologiacal expert opinion about the question of access, was dismissed by the Berlin Court of Appeal on 25 October 1991. The applicant’s second motion dated 14 November 1991 to challenge Judge S. for similar reasons was rejected on 23 December 1991. 27. On 16 April 1992 the District Court dismissed the applicant’s request for an interim injunction granting him access to his child during the Easter holidays. 28. On 25 May 1992 the District Court, following a hearing in which the parties persistently cursed at each other and at the judge, ordered the preparation of a psychological expert opinion regarding the child. The expert notably was to address the question whether the applicant’s access to F. should be broadened in order to secure permanent contacts between them. 29. The court-appointed psychological expert L.L. rendered her report on 28 April 1993. According to the expert, it was in the child’s best interest to limit contacts with the applicant to four hours every fortnight or even to exclude the applicant’s access to F. for a year. She argued in particular that the applicant failed to realise his daughter’s increasing objections against close physical contacts with him. In her view, the applicant was out of touch with reality and showed signs of querulance and delusion; however, G.S. also tried to influence F. in her favour. 30. On 18 December 1992 G.S. announced that she retracted her consent to the settlement on access dated 2 April 1990 and that she would no longer allow contacts between F. and the applicant, because F. no longer wished to meet the applicant. 31. Meanwhile, in a letter dated 18 January 1993, Judge S., referring to all three sets of proceedings, informed the parties’ representatives that the files were out of control and that it was intended to deal with the parties’ numerous motions soon. Judge S. also announced that the enforcement of previous agreements and decisions would be secured. 32. On 21 June 1993 the Charlottenburg District Court, with Judge S. sitting alone, held a further hearing on divorce, custody and related family matters. It notably heard the applicant and G.S., assisted by their respective counsel, on the question of the applicant’s contacts with F. G.S. refused to accept the court’s proposal of a friendly settlement regulating, inter alia, the applicant’s access to his daughter. 33. On 26 July 1993 the applicant lodged a motion for an interim injunction granting him access to F. on one day every second week-end. 34. Subsequently, the case, which had until then been processed by single Judge S., was assigned to Judge H., when S. fell ill and retired. H. subsequently explained that it was not necessary to render a decision upon the applicant’s motion for an interim injunction granting access, as the case was altogether ready for decision. 35. On 3 and 20 September 1993 the applicant objected to the expert L.L. on grounds of bias. He argued that the expert had accused him of having sexually abused F. 36. On 29 October 1993 the District Court dismissed the applicant’s motion objecting to the expert for bias as inadmissible. On 21 January 1994 the Berlin Court of Appeal dismissed the applicant’s appeal, finding that it had been lodged out of time. 37. The hearing on 31 March 1994 was preceded by a questioning of the child in which F. had indicated that she did not want to meet her father. At the hearing, which was attended by the applicant, G.S. and their respective counsels, the applicant challenged Judge H. on grounds of bias. The hearing was adjourned because of this motion. The applicant withdrew his motion on 3 April 1994. His repeated further motions of 5 May 1994, because of which another hearing before the District Court had to be adjourned, and of 16, 18, 20 and 23 June 1994 were to no avail. In its respective decisions, the Berlin Court of Appeal found in particular that the delays in the proceedings had been caused by the applicant’s various motions challenging the District Court judge and the expert for bias. This had necessitated the adjournment of the proceedings before the District Court until the decision of the Court of Appeal. 38. After the District Court had fixed another date for a hearing on 6 October 1994, the applicant filed further motions for bias against Judge H. on 25 September 1994 and on 23 and 27 October 1994. He argued, inter alia, that H. wanted to cover up G.S.’s ill-treatment of her son, had refused to consult another expert and that her treatment of the case was comparable to offences committed by a former official of the GDR, from which H. originated. On 4 November 1994 the Berlin Court of Appeal, having regard to Judge H.’s official statement in which she had disqualified herself following the applicant’s persistent allegations, decided that she was disqualified. 39. In a hearing in camera before Judge R. of the Berlin Tempelhof-Kreuzberg District Court on 9 January 1995, F. indicated that she no longer wanted to visit her father. Confronted with her former positive statements about her father, she replied that she did not love him anymore and that she would not care if he died. She expressed the fear that her father might commit suicide and might kill her as well. She stated that she wanted to live together with her mother and that she felt happy with her mother, her mother’s new partner and her brothers. She emphasised that she would refuse to see her father even if the Court ordered her to do so. Half of her lifetime had been dominated by her parents’ quarrel, and she was sick of constantly having to appear in court because of this. 40. In letters dated 6, 8 and 9 January 1995 the applicant challenged Judge R. for bias, inter alia because she had refused to order another expert report, and requested to adjourn the hearing. On 10 January 1995 the District Court, with Judge R. sitting alone, dismissed the applicant’s motions for bias against her as inadmissible, arguing that they had merely been lodged to protract the proceedings. 41. At the hearing on 10 January 1995, at which the applicant and G.S. were present, Judge R. gave a copy of the minutes of F.’s hearing on the previous day to the applicant. The hearing then had to be adjourned following the applicant’s appeal against the decision on his motion for bias. In a statement of 12 January 1995, Judge R. declared that she was not biased but that she was convinced that a settlement with the applicant was impossible. The applicant then lodged two further motions challenging Judge R. for bias. 42. On 14 February 1995 the Berlin Court of Appeal dismissed the applicant’s appeal against the District Court’s decision of 10 January 1995 and his further motions challenging R. On 29 March 1995 the Federal Court of Justice dismissed the applicant’s appeals against the decisions of the Berlin Court of Appeal of 4 November 1994 and 14 February 1995 as inadmissible, as no appeal lay against these decisions. In several further submissions to the District Court, the applicant again requested the court to order another expert report, arguing that his daughter had been indoctrinated by G.S., and again challenged Judge R. for bias. 43. On 23 May 1995 the Berlin Tempelhof-Kreuzberg District Court, with Judge R. sitting alone, held a further hearing attended by the applicant, G.S. and their respective counsel. The court dismissed the applicant’s two motions challenging R. for bias as inadmissible, as they were merely aimed at preventing a decision. It noted that the applicant, who was awarded the opportunity to lodge motions and comment on G.S.’s motions, refused to make any statements at the hearing, but had set out his views in numerous detailed written submissions to the court. The applicant then requested to grant him custody of F. or at least an ample right of access. 44. The District Court granted the divorce and awarded G.S. custody of F. and her half-brother, born in wedlock but stemming from the relationship between G.S. and her new partner. The applicant’s access to F. was suspended. In reaching its decision, the court had regard to the statements made by both parties at their hearings on 6 May 1991 and on 21 June 1993 before Judge S., as well as to the hearing of G.S. on 23 May 1995. 45. As regards custody of F., the District Court noted that the applicant had not objected to G.S.’s motion to be granted custody. It considered that F., then aged ten, had shown close links to her mother and her new family. There was no indication of any danger to her further development if she remained with her mother. It was, therefore, not necessary to take into account outdated expert reports or to hear witnesses. 46. As to the applicant’s right of access, the court deemed it necessary, in the interest of the child’s well-being, to prohibit any contacts with F. It noted that the persistent quarrel between her parents constituted a heavy burden on F. The child now attempted to cope with this conflict by suppressing her memory of meetings with her father and by seeking as much distance as possible from him. The court found that it could not ignore the determined wish of the child as expressed at the hearing of 9 January 1995. It was therefore obliged to suspend the applicant’s access to F. It argued that a child’s welfare was more important than a father’s right of access. 47. The applicant’s further two motions challenging Judge R. for bias were to no avail. 48. On 3 July 1995 the applicant lodged an appeal against the District Court’s judgment delivered on 23 May 1995 with the Berlin Court of Appeal. His requests on 31 October 1995 and 17 June 1996 for an interim injunction ordering access were, following hearings, dismissed on 24 November 1995 and 23 July 1996 respectively by the Berlin Court of Appeal. That court found that, given F.’s express resistance against meeting the applicant and the time which had elapsed since their last contact, a decision on the applicant’s access to F. necessitated further findings of fact, notably the report of a psychological expert. 49. On 22 March 1996 the Berlin Court of Appeal ordered an expert report on the question if and to what extent contacts between the applicant and his daughter were in F.’s best interest. It appointed as expert T.S., a certified psychologist acting as expert for different family courts since 1987. 50. On 4 March 1997 (decision served on 20 March 1997) the Berlin Court of Appeal, following an oral hearing on 7 February 1997 in the presence of the applicant, his counsel, G.S.’s counsel and the expert T.S., dismissed the applicant’s appeal. 51. The Court of Appeal notably found that it was in F.’s best interest to exclude the applicant’s right of access pursuant to Section 1634 § 2, second sentence, of the Civil Code (see paragraph 63 below). In reaching this conclusion, the court relied on the report dated 30 December 1996, comprising fifty-six pages, and the oral hearing on 7 February 1997 of the psychological expert T.S. The expert had questioned and examined F. on five occasions and each of her parents on eight occasions respectively. Given the refusal of both F. and G.S. to meet the applicant in the presence of the expert, the latter had questioned them all separately. Having regard to the findings of this expert, the court noted that F., then aged twelve, had a negative attitude towards her father. The court, like the expert, considered that the negative attitude of the child towards the applicant might have partly been caused by the mother’s influence, though not to the extent believed by the applicant. The court noted that according to the expert, the parents’ ongoing quarrels had placed a great strain on the child. The court acceded to the findings of the expert that, in view of F.’s intensive resistance against any contact with her father, enforcing such contacts might cause her serious psychological harm. The court further found that the expert opinion on the question whether it was in F.’s best interest to have contacts with her father was exhaustive and conclusive. Accordingly, it had not been necessary to appoint a second expert or a psychiatric expert as requested by the applicant. 52. The Court of Appeal further explained that it did not consider it suitable to limit in time the prohibition on access, as it could not be foreseen whether, if at all, F. might give up her resistance. Both parents were under an obligation to contribute to a change in her attitude. The main responsibility lay with F.’s mother, who would have to overcome her own negative feelings towards the applicant in order to influence F. and to improve her father’s image. If the applicant respected his daughter’s wish to keep distance for a longer period of time, there would be a possibility to resume contacts carefully at a later stage. The Court of Appeal, referring to Sections 50 a § 3, first sentence, and 50 b § 3, first sentence, of the Act on Non-Contentious Proceedings (see paragraphs 64-65 below) considered that it had not been required to hear F. and her mother personally. 53. In a letter to the applicant dated 6 April 1997, the presiding judge of the Court of Appeal explained, inter alia, that G.S.’s allegations that F. had been sexually abused by the applicant had not been addressed in the court’s judgment as they had been irrelevant. Moreover, he informed the applicant that the court had refrained from hearing F. again pursuant to Section 50 b § 3, first sentence, of the Act on Non-Contentious Proceedings. Given the lengthy and embittered dispute, the court had not considered it justifiable to subject F. to the strains caused by yet another hearing, as she had repeatedly expressed her will in an unequivocal manner. 54. On 17 February 1998 the Berlin Court of Appeal dismissed the applicant’s objection against the decision that the costs of the proceedings before the Regional Court of some 8,000 Deutschmarks, which notably comprised the expenses of the expert T.S., be borne by him. On 20 December 1999 the Berlin Court of Appeal dismissed the applicant’s objection against the decision that half of the costs for the expert report rendered by L.L. be borne by him. Several further objections and appeals concerning the costs of the proceedings, including a motion to challenge a judge of the Berlin Court of Appeal for bias, were to no avail. 55. In the context of separate proceedings concerning the applicant’s request of 23 July 1992 for the enforcement of his right of access under the terms of the agreement of 2 April 1990, the District Court held a hearing on 9 November 1992, with Judge S. sitting alone. Following the hearing, the District Court stated that the parties had agreed that the applicant should have contact with F. on her birthday and on Christmas for three hours respectively, and on three days during the Christmas holidays. 56. On 28 November 1992 the District Court, with Judge G. sitting alone, granted the applicant access to F. for three hours on her birthday by way of an interim injunction. G.S. subsequently withdrew her appeal against this injunction. 57. On 11 March 1993 the District Court informed the parties that the request for enforcement of access had been settled at the hearing on 9 November 1992. 58. The applicant repeated requests for enforcement measures and for an amendment of the decision on access. The mother suggested to join the proceedings no. 159 F 13061/89 and no. 159 F 10373/92. On 22 June 1993 the District Court informed the parties that all motions concerning access be processed in the context of the proceedings no. 159 F 13061/89. 59. On 21 April 1997 the applicant, represented by counsel, lodged a complaint with the Federal Constitutional Court. Referring to the Court of Appeal’s decision of 4 March 1997 in the proceedings no. 159 F 13061/89, he complained in his two-page submissions that the suspension of access to his child violated his parental rights and was contrary to the child’s well-being. He complained that the expert appointed in the appeal proceedings had been misled by G.S. and that further expertise had been necessary. He also noted that G.S. had not appeared at the court hearing. In his view, he was blamed for his lengthy struggle to secure his right of access. Subsequently, upon query, the applicant filed a further document. On 11 May 1997 the applicant filed further submissions in support of his lawyer’s observations. 60. On 15 September 1997 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. 61. On 30 August 2000 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint concerning his request for further information about his daughter, notably her current address. The said proceedings are the subject matter of the application no. 63309/00 before the Court. Moreover, on 16 July 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint concerning the rejection of his renewed request for access to F. In the course of these proceedings, the applicant met his daughter once in May 1999. The latter proceedings are the subject matter of the application no. 32299/02 before the Court. 62. On 29 November 2002 F. attained the age of majority. The applicant had not been granted a right of access to her until then. 63. At the relevant time, i.e. before the entry into force of the amended Law on Family Matters (Reform zum Kindschaftsrecht) on 1 July 1998, the relevant provision of the Civil Code concerning access to a child born in wedlock was worded as follows: Section 1634 “1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing. 2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under section 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare.” 64. Proceedings in family matters are governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). Pursuant to Section 50 a § 1 of that Act, in its version in force at the relevant time, in proceedings concerning parental custody the family court shall, as a rule, hear a child’s parents in person. Section 50 a § 3 provides that the family courts may dispense with such a hearing only for sound reasons. 65. Pursuant to Section 50 b § 1 of the said Act, in proceedings concerning parental custody the family court hears the child concerned in person if the child’s affinities, ties or will are relevant for the decision. It also does so if it is necessary to obtain a direct impression of the child in order to establish the facts of the case. Pursuant to Section 50 b § 2, in proceedings concerning parental custody the family court always hears in person a child who has attained the age of fourteen and is not legally incapacitated. The family courts may dispense with such a hearing only for sound reasons (Section 50 b § 3).