375
8.7.2003

Press release issued by the Registrar

GRAND CHAMBER JUDGMENTS IN THE CASES OF

SAHIN and SOMMERFELD v. GERMANY

The European Court of Human Rights has today delivered at a public hearing its judgments in the cases of Sahin v. Germany (application no. 30943/96) and Sommerfeld v. Germany (application no. 31871/96).

In Sahin v. Germany the Court held

• by twelve votes to five that there had been no violation of Article 8 of the European Convention on Human Rights; and
• unanimously that there had been a violation of Article 14 taken together with
  Article 8.

In Sommerfeld v. Germany the Court held

• by fourteen votes to three that there had been no violation of Article 8;
• by ten votes to seven that there had been a violation of Article 14 taken together with Article 8;
• unanimously that there had been a violation of Article 14 taken together with Article 8 in that the possibility of a further appeal in the access proceedings had been excluded under a former statutory provision; and
• unanimously that it was not necessary to examine separately the applicant’s complaint under Article 6, whether taken alone or in conjunction with Article 14.

Under Article 41 (just satisfaction) of the Convention, the Court awarded each applicant 20,000 euros (EUR) for non-pecuniary damage. For costs and expenses it awarded Mr Sahin EUR 4,500 and Mr Sommerfeld EUR 2,500.

1.  Principal facts

Asim Sahin, born in 1950, was a Turkish national at the relevant time. He subsequently acquired German nationality. He is the father of a child born outside marriage in June 1988. He acknowledged paternity and regularly fetched his daughter for visits until October 1990, when the mother prohibited further contact. In December 1990 he applied unsuccessfully to the Wiesbaden District Court for a right of access. His subsequent appeals were dismissed.

Manfred Sommerfeld, born in 1953, is a German national. He is the father of a child born outside marriage in 1981. He acknowledged paternity and lived with the child’s mother until they separated in 1986. The mother then prohibited any contact with the child. On 2 October 1990 Mr Sommerfeld applied to the Rostock District Court for access, but withdrew the request on 1 July 1992 after his daughter had repeatedly said that she did not want contact with him. He submitted a second application in September 1993. This was refused by the District Court in June 1994 and Mr Sommerfeld’s subsequent appeals were dismissed.

2.  Procedure and composition of the Court

The applications were lodged with the European Commission of Human Rights on 16 June 1993 and 7 June 1995 respectively and transmitted to the European Court of Human Rights on 1 November 1998. On 12 December 2000 both cases were declared partly admissible.

In its Chamber judgments in these cases, delivered on 11 October 2001, the European Court of Human Rights held, by five votes to two, that there had been a violation of Articles 8 and 14 of the Convention in both cases. In Sommerfeld the Court further held, by six votes to one, that there had been a violation of Article 6 § 1. Under Article 41 (just satisfaction) of the Convention, Mr Sahin was awarded 50,000 German marks (DEM) for non-pecuniary damage and Mr Sommerfeld DEM 55,000. They were awarded DEM 8,000 and DEM 2,500 respectively for costs and expenses.

On 9 January 2002 the Government requested that both cases be referred to the Grand Chamber [fn]and on 27 March 2002 the panel of the Grand Chamber accepted that request.

Judgment was given by a Grand Chamber of 17 judges, composed as follows:

Luzius Wildhaber (Swiss), President,
Christos Rozakis (Greek),
Georg Ress (German),
Sir Nicolas Bratza (British),
Antonio Pastor Ridruejo (Spanish),
Elisabeth Palm (Swedish),
Pranas Kūris (Lithuanian)
Riza Türmen (Turkish),
Françoise Tulkens (Belgian),
Peer Lorenzen (Danish),
Karel Jungwiert (Czech),
Josep Casadevall (Andorran),
Hanne Sophie Greve (Norwegian),
Rait Maruste (Estonian),
Egil Levits (Latvian),
Mindia Ugrekhelidze (Georgian),
Antonella Mularoni (San Marinese), judges,

and also Paul Mahoney, Registrar.

3.  Summary of the judgment

Complaints

The applicants complained that the German courts’ decisions to dismiss their requests for access to their children, born outside marriage, breached Article 8 (right to respect for family life) of the European Convention on Human Rights. They also complained of discriminatory treatment contrary to Article 14 (prohibition of discrimination) taken together with Article 8. Mr Sommerfeld made a further complaint under Article 6 § 1 (right to a fair hearing) taken alone and in conjunction with Article 14.

Decision of the Court

Article 8 of the Convention

The Court reiterated that, under Article 8, the domestic authorities were required to strike a fair balance between the interests of the child and those of the parents. In these cases the German courts had given relevant reasons for their decisions refusing access: the serious tensions between the parents and the risk that visits would adversely affect the child’s development in Sahin; and the express wish of the child, aged 13, not to see her biological father and the risk of seriously disturbing her emotional and psychological balance by forcing her to do so in Sommerfeld.

In assessing whether those reasons were sufficient, the Court had regard to whether the decision-making process had adequately protected the applicants’ interests. It noted that they had been able to submit all their arguments in favour of obtaining visiting rights and had had access to all relevant information relied on by the courts. In Sommerfeld the Court stated that it would be going too far to say that domestic courts were always required to involve a psychological expert on the issue of granting access to a parent not having custody. Having had the benefit of direct contact with the child, the District Court had been well placed to evaluate her statements and establish whether or not she had been able to make up her own mind. In Sahin the Court stated that it would be going too far to say that domestic courts should always hear evidence from a child in court on the issue of access. As the child had been only five years old at the relevant time, the court had been entitled to rely on the findings of the expert. There had been no cause to doubt her professional competence. The Court was satisfied that the German courts had proceeded reasonably in the circumstances of both cases and had provided sufficient material to reach a reasoned decision on the question of access. The procedural requirements implicit in Article 8 had therefore been met.

Article 14 taken together with Article 8

The Court observed that, at the relevant time, divorced fathers of children born within marriage were legally entitled to access to their children, which could if necessary be restricted or suspended in the child’s interest. Fathers of children born outside marriage could only have access if the child’s mother agreed or they obtained a court ruling that such contact was in the child’s interest.

The question before the Court was whether the law had been applied in these cases in such a way as to result in an unjustified difference of treatment between the applicants and divorced fathers. In applying the relevant section of the Civil Code to the Sahin case, the German courts had found that only special circumstances could justify the assumption that personal contacts with the father would have permanently beneficial effects on the child’s well-being. Having regard to the fact that they were convinced of his responsible motives, his attachment to his daughter and his genuine affection for her, they had placed a burden on him that was heavier than the one on divorced fathers. In Sommerfeld, although the German courts appeared to have dealt with the father’s claim in the same way as for a divorced father, they had explicitly adhered to the standard of whether access was "in the best interest of the child" and, in doing so, had given decisive weight to the mother’s initial prohibition of access and placed a burden on the applicant which was heavier than the one on divorced fathers.

Very weighty reasons had to be advanced for treating fathers of children born outside marriage differently from fathers of children born within marriage. No such reasons had been discerned in these cases. There had accordingly been a violation of Article 14 taken together with Article 8.

In Sommerfeld the Court found that there had been a further violation of Article 14 taken together with Article 8 because the applicant had been unable to lodge a further appeal, whereas a divorced father would have been able to. That difference in treatment had been expressly provided for in a former statutory provision.

In Sahin Judge Rozakis, joined by Judge Tulkens, expressed a partly dissenting opinion. Judge Ress, joined by Judges Pastor Ridruejo and Türmen, also expressed a partly dissenting opinion. Both these opinions are annexed to the judgment.

In Sommerfeld Judges Wildhaber, Palm, Lorenzen, Jungwiert, Greve, Levits and Mularoni expressed a joint partly dissenting opinion. Judge Ress, joined by Judges Pastor Ridruejo and Türmen, expressed a partly dissenting opinion.. Both these opinions are annexed to the judgment.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human Rights
F – 67075 Strasbourg Cedex
Contacts: Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)
Joanna Reynell (telephone: +00 33 (0)3 90 21 42 15)
Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)
Fax: +00 33 (0)3 88 41 27 91

The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court.

[fn] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.