CASE OF HUB v. GERMANY
Violation of Article 6 - Right to a fair trial
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
4. The applicant was born in 1964 and lives in Berlin. 5. The applicant is the father of a son (S.), born on 30 July 1990. In 1997 the applicant and the child’s mother (K.) separated. S. remained with his mother. In 1998 the applicant and S.’s mother were divorced. 6. On 21 January 1998 the Pankow District Court awarded K. sole custody of S. and decided that the applicant would be entitled to personal contact with his son every other weekend. In September 1998, however, the applicant ceased to have contact with his son. 7. On 7 October 1998 the applicant requested the Pankow District Court to impose a coercive fine on the mother to enforce his access rights. The District Court registered his request under file number 11 F 4813/98. 8. Between 9 November 1998 and 10 March 1999 the parties and the Youth Office submitted observations. 9. On 17 May 1999 the applicant withdrew his request and stated that he now wished the court to mediate between the parents with a view to reaching an agreement on the applicant’s contact rights according to section 52a of the Non-Contentious Proceedings Act (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit – see “Relevant Domestic Law” below). The District Court pursued the applicant’s modified request under the same file number (11 F 4813/98). 10. On 13 August 1999 the District Court heard S., who declared that he wished to see his father only occasionally under the supervision of a third person. 11. At a hearing held on 23 August 1999 the parents agreed on supervised contact for the applicant. 12. On 18 October 1999 the District Court held a further hearing at which the parties declared that the court currently did not need to take any action. 13. On 22 February 2000 the applicant applied for the appointment of a guardian ad litem and a contact supervisor (Umgangsbegleitperson) arguing that the mediation proceedings had failed. 14. On 10 March 2000 the District Court appointed a guardian ad litem and set down the case for hearing on 5 April 2000. However, that hearing was postponed to 15 May 2000 as agreed with the parties. 15. On 5 June 2000 a further hearing was held, and on 14 June 2000 the District Court ordered supervised contact for a period between late June and mid-December. 16. On 6 September 2000 the guardian ad litem informed the court that no contact had taken place. 17. On 28 September 2000 the District Court asked the contact supervisor to comment on the failure to have contact established between the applicant and his son. In October and November 2000 the District Court reminded the contact supervisor of its request of 28 September 2000 and unsuccessfully attempted to contact the latter by phone. 18. On 26 November 2000 the applicant asked the court to continue the proceedings. 19. On 11 December 2000 the District Court sent a further reminder to the contact supervisor and requested the parties to comment on the question as to whether the mediation proceedings should be continued. 20. On 5 January 2001 the applicant asked the District Court to continue the mediation procedure. 21. On 20 March 2001 the District Court decided to continue the proceedings after the parties had agreed on a one-off supervised contact. 22. On 6 July 2001 the contact centre informed the District Court that the contact supervisor had been replaced with another person, and on 11 July 2001 the District Court appointed that person as contact supervisor. 23. On 14 August 2001 the District Court received the contact supervisor’s report, according to which S. refused to see his father. 24. On 22 September 2001 the applicant asked the District Court to declare that the mediation proceedings had failed and to commission an expert report. 25. On 22 November 2001 the District Court heard S. again, who firmly declared that his father no longer existed for him. 26. On 27 November 2001 the District Court commissioned a psychological expert report on the question of contact. That expert informed the court on 25 February 2002 that he could be biased. Accordingly, the mother’s representative challenged the expert for bias on 26 March. On 10 April 2002 the District Court ordered the expert to stop his examinations, and on 6 June 2002 the mother withdrew her challenge of bias. On 13 June 2002 the District Court ordered the expert to continue his examinations. 27. On 11 September 2002 the District Court requested the expert to consider further questions raised by the applicant. 28. On 19 November 2002 the expert informed the court that K. had refused to attend a meeting with the expert until mid-January 2003. Subsequently, the District Court asked K. to ensure that a meeting was held by the end of 2002. On 2 January 2003 the District Court asked all persons involved in the proceedings to support the expert in the preparation of his report. On 16 January 2003 the expert informed the District Court that for the time being K. was unwilling to meet the expert. On 23 January 2003 the District Court ordered K. to cooperate with the expert within two months and announced that further measures would be taken in the event of non-compliance. 29. On 2 April 2003 the expert informed the court that a meeting had been held with K. on 13 March 2003, that the applicant and his son had called each other and that the applicant considered withdrawing his application. 30. On 30 April 2003, at the applicant’s request of 11 April 2003, the District Court ordered the expert to swiftly continue his examination. On 30 June 2003 the expert gave his report in which he suggested a suspension of the applicant’s contact with S. for a period of two years. 31. On 21 October 2003 the District Court heard S., who insisted that he did not wish to see his father any longer. 32. At an oral hearing held on 22 October 2003 the applicant announced that he would withdraw his application. However, on 19 November 2003 the applicant insisted on a court decision. 33. On 10 December 2003 the District Court, relying on the expert’s report, suspended the applicant’s rights to access for two years. 34. On 30 December 2003 the applicant appealed to the Berlin Court of Appeal, and on 18 January 2004 he submitted his statement of grounds of appeal, which the court received on 2 February 2004. 35. On 13 May 2004 the Berlin Court of Appeal upheld the decision of the District Court, arguing that S. had suffered from the persistent conflict between his parents about the applicant’s contact rights and from the respective proceedings, which had been pending now for more than five years and which had led to lasting psychological damage to the child. In order to protect himself, the boy refused to expose himself to this conflict, by refusing to see his father. 36. On 30 June 2004 the applicant lodged a constitutional complaint with the Federal Constitutional Court, which the Federal Constitutional Court refused to admit on 14 July 2004. 37. On 19 July 2004 the decision was served on the applicant. 38. Proceedings in family matters are governed by the NonContentious Proceedings Act (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). Pursuant to section 52a of that Act the family court shall mediate between the parents at the request of one parent if one parent claims that the other parent is obstructing the implementation of a court decision on contact with a child they have in common.