Human Rights Committee
Seventy-ninth session
20 October - 7 November 2003
Decision of the Human Rights Committee
under
the Optional Protocol to the International Covenant
on Civil and Political Rights*
- Seventy-ninth session -
Communication No. 1003/2001
The Human Rights Committee, established under article
28 of the International Covenant on Civil and Political
Rights,
Meeting on 22 October 2003
Adopts the following:
Decision on admissibility
1. The author of the communication is P. L. , an Irish national,
who also purports to submit the communication on behalf
of his three sons, R. J. L., D. M. L. and T. P. L., who
have dual nationality (Irish and German) and were born on
23 May 1984 (R. J. L.), 24 November 1986 (D. M. L.) and
on 27 June 1990 (T. P. L.). The author claims that he and
his sons are victims of violations by Germany (1) of
articles 14, paragraph 1, and 23, paragraph 4, and his sons
of a violation of article 24, paragraph 1, of the International
Covenant on Civil and Political Rights ("the Covenant").
The author is not represented by counsel.
1.2 On 7 February 2002, the Committee, acting through
its Special Rapporteur on new communications, decided
to separate its consideration of the admissibility and
the merits of the communication.
The facts as submitted by the author
2.1 On 20 November 1994, the author's wife left the family
home together with her and the author's three sons. The
District Court of Ratingen (Amtsgericht Ratingen),
by interim injunction of 25 November 1994, granted her
the sole right to determine the domicile of the children
and, by decision of 19 March 1996, preliminary sole custody
of the children during the time of separation of the spouses.
On or about 21 June 1996, the Higher Regional Court of
Düsseldorf (Oberlandesgericht Düsseldorf) rejected
the author's appeal against the decision of 19 March 1996.
His constitutional complaint against the decisions of
the lower courts was dismissed by the Federal Constitutional
Court (Bundesverfassungsgericht) on 2 April 1997.
On 28 April 1997, the author submitted an application
to the European Commission of Human Rights, which was
declared inadmissible on 19 January 1998.
2.2 By judgment of 27 October 1998, the District Court
of Ratingen pronounced the divorce of the spouses. Custody
was granted to the mother, since the Court considered
her better placed to ensure the welfare of the children.
It based its findings on a hearing of the three sons,
each of whom had expressed his preference to stay with
the mother. The Court rejected the author's argument that
the mother had manipulated the children prior to the hearing,
finding that their bonds with the mother were stronger
than those with the author, which was considered understandable,
given that the children had stayed with the mother throughout
the time of separation. The decision to grant sole custody
to the mother would also enable the children to retain
continuity in schooling and to remain in familiar surroundings.
As to visiting rights, the Court granted the author visiting
rights twice a month on weekends and for several weeks
during the holiday period.
2.3 In his appeal dated 18 December 1998, the author
requested the Düsseldorf Higher Regional Court to quash
the judgment of the District Court and grant custody to
him. He argued that the mother neglected the children,
that she was frequently absent, rarely cooked for them,
failed to ensure their health care and neglected their
bodily hygiene. Allegedly, the children even showed signs
of physical abuse. The author reiterated that the mother
exercised pressure on the children and manipulated their
statements before the courts. In the alternative, if custody
was not to be granted to him, the author requested extended
visiting rights.
2.4 By decision of 1 March 1999, the Higher Regional
Court dismissed the author's appeal without scheduling
another hearing of the children. It considered that he
was not better placed to ensure the children's welfare
than the mother. Unlike the mother, the author had previously
failed to cooperate with the Child Welfare Office of Ratingen.
Moreover, allocation of sole custody to the mother was
required to ensure continuity for the children and was
consistent with their express wish to stay with the mother.
The District Court's ruling on visiting rights was upheld,
in the interest of not further destabilizing the children.
2.5 On 4 April 1999, the author faxed a constitutional
complaint to the Federal Constitutional Court, without
however enclosing copies of the impugned decisions of
the lower courts. At the top of the fax cover, it was
stated: "Advance fax […] (without enclosures)". By letter
of 7 April 1999, the Federal Constitutional Court informed
the author that so as to comply with the one-month deadline
for lodging a constitutional complaint, a complainant
must not only submit but also substantiate the complaint
within the one-month period after the final decision of
the lower court. This required submission of all relevant
documents, in particular court decisions, before the end
of that period, even in cases where a complaint was submitted
on a preliminary basis for purposes of complying with
the deadline. The author was advised that his complaint
did not meet these requirements, since the judgments of
1 March 1999 and of 27 October 1998 had not been enclosed
with the fax of 4 April 1999. It was therefore impossible
for the Court to examine whether these decisions violated
the author's constitutionally guaranteed right to protection
by the courts. Insofar as the author had submitted the
constitutional complaint on behalf of his sons, the letter
raised doubts as to whether he was authorized to represent
them as a non-custodial parent. It concluded that it was
too late for supplementing the complaint, since the one-month
period following the service (5 March 1999) of the decision
of the Düsseldorf Higher Regional Court had expired on
6 April 1999.(2)
2.6 On 9 April 1999, the author's complaint, dated 4
April 1999 but carrying the postmark of 6 April 1999,
was delivered to the Federal Constitutional Court by post,
this time including copies of the relevant court decisions.
By letter of 14 April 1999, the author was again advised
that the one-month period for lodging a constitutional
complaint had expired on 6 April 1999 and that he had
failed to substantiate his complaint prior to that date.
2.7 On 16 March 2000, the author applied to the District
Court of Ratingen for transfer of the custody of the children
to him. He asked the Court to issue an interim order to
that effect, and argued that the mother continually failed
to take proper care of the children, which was reflected
in their poor school performance as well as their deplorable
state of health. The author requested the Court to appoint
a legal guardian (Verfahrensbetreuer) to represent
the interests of his children during the legal proceedings
and to schedule another hearing of the children, who allegedly
had stated their preference to live with him.
2.8 On 14 June 2000, the author challenged the competent
judge on grounds of alleged bias, alleging that she had
described his arguments in favour of another hearing of
the children as "pure fantasies", attributable to his
living in "an unreal world". His motion to have her replaced
by another judge was declared ill-founded by the Higher
Regional Court of Düsseldorf on 12 July 2000, on the basis
that, in family law matters, judges were entitled to express
their opinion to the parties, as long as they remained
open to new and better arguments and arrangements.
2.9 By decision of 28 September 2000, the District Court
of Ratingen rejected the author's motion to transfer custody
to him, considering that the ongoing tensions between
the ex-spouses were the main cause for the problems the
children faced in school. The author himself, by his refusal
to cooperate with the youth authorities, as well as his
constant criticism of the mother, had himself exacerbated
these tensions. Since the children had reiterated their
wish to stay with the mother during a second hearing conducted
by the Court, it found no reason to review its previous
decision to grant sole custody to the mother. The author's
immediate appeal against that decision was dismissed by
the Higher Regional Court of Düsseldorf on 7 December
2000. No constitutional complaint was lodged in relation
to these or any subsequent proceedings.
2.10 On 24 May 2001, the author, seeking extra-judicial
relief in his matter, submitted a petition to the Petitions
Committee of the German Federal Parliament and, on 8 September
2001, to the Minister of Youth, Family, Women and Health
of the State of Northrhine-Westphalia, each time without
success.
The complaint
3.1 With regard to his claim under article 14, paragraph
1, the author submits that the courts frequently denied
his requests for the children to be heard and ignored
evidence presented by him concerning the mother's neglect,
if not abuse, of the children. The excessive length of
the proceedings had led to the further deterioration of
their physical and psychological state. Moreover, the
application of the principle of free jurisdiction (Freie
Gerichtsbarkeit) permitted the family courts not to
apply the procedural rules which would bind all other
jurisdictions, thus leaving the judges wide discretion
in evaluating evidence and in defining the child's "best
interest".
3.2 The author submits that the award of sole custody
to his ex-wife disenfranchised him to such an extent that
he was not even allowed to speak to the children's doctors
or teachers. In the absence of a distinction between custody
and legal guardianship under German family law, he was
unable to participate in any important decision regarding
his sons. Thus, his wife was able to have her sons naturalized
in Germany without even informing him. The author considers
that this situation is in breach of his right to equality
of spouses under article 23, paragraph 4, of the Covenant.
3.3 The author alleges that the failure of the German
courts and authorities to put an end to the mother's neglect
of the children, ranging from failure to take care of
their health and education to instances of abuse, constitutes
a denial of their right to the necessary protection by
the State, in violation of articles 23, paragraph 4, and
24, paragraph 1, of the Covenant.
3.4 The author claims that he and his sons have exhausted
all domestic remedies, since the Higher Regional Court
of Düsseldorf, as the highest responsible court, rejected
both his appeals on 1 March 1999 and 7 December 2000,
respectively. He argues that a constitutional complaint
to the Federal Constitutional Court is not an effective
remedy in family law matters, because this Court regularly
dismisses complaints against custody decisions of lower
courts, as it is not competent to adjudicate on family
law issues as such.
3.5 The author observes that the same matter is not being
and has not been examined under another procedure of international
investigation or settlement, since his application to
the European Commission on Human Rights, which had been
declared inadmissible on 19 January 1998, dealt with the
decision of the German courts to grant his ex-wife preliminary
sole custody of the children for the duration of the separation,
and therefore with proceedings which were entirely different
from the final award of custody and the rejection of his
request to transfer custody to him, which constituted
the subject matter of his communication to the Human Rights
Committee.
The State party's submission on the admissibility
of the communication
4.1 By note verbale of 4 October 2001,(3) the
State party submitted its observations on the admissibility
of the communication. It challenges admissibility on the
basis that the author has not exhausted all available
domestic remedies.
4.2 The State party argues that the author failed to
lodge a constitutional complaint with the Federal Constitutional
Court against the decisions of the Düsseldorf Higher Regional
Court of 1 March 1999 within the one-month period following
the impugned decision, as required by section 93 (1) (4)
of the Law on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz).
It was not sufficient that the author posted his complaint
on 6 April 1999 - the last day of the one-month period
-, since a complaint must reach the Court by the end of
the legal period; the author's complaint reached the Court
only on 9 April 1999 and was therefore not registered.
4.3 In order to meet the deadline the author was not
dependent on the postal service, since he was in possession
of a fax machine. Therefore, he could simply have faxed
his complaint on 5 or 6 April 1999 to the Federal Constitutional
Court.
4.4 Moreover, the registrar of the Court, in his letter
of 14 April 1999, informed the author that if he wished
a judge to decide on the question of admissibility of
the complaint, he should so inform the Court. However,
the author preferred not to take up this opportunity.
4.5 Lastly, the State party submits that, contrary to
the author's view, a constitutional complaint would not
have been a priori a futile remedy.
Comments by the author
5. By letter of 28 November 2001, the author responded
to the State party's observations on admissibility and,
by letter of 18 February 2002, furnished additional information.
He argues that the State party seeks to absolve itself
of its responsibilities by means of a pure technicality
(his failure to enclose the relevant court decisions with
the complaint faxed on 4 April 1999), despite his repeated
efforts to exhaust all remedies available under German
law. Apart from his constitutional complaint of 4 April
1999, which reached the Federal Constitutional Court the
same day by fax, he had lodged two similar complaints,
which were dismissed by the Constitutional Court on 2
April 1997 (see para. 2.1) and on 29 December 1997.
Issues and proceedings before the Committee
6.1 Before considering any claims contained in a communication,
the Human Rights Committee must, in accordance with article
87 of its rules of procedure, decide whether or not it
is admissible under the Optional Protocol to the Covenant.
6.2 The Committee has ascertained that, insofar as the
impugned decisions (5) are concerned, the same
matter is not being examined under another procedure of
international investigation or settlement for purposes
of article 5, paragraph 2 (a), of the Optional Protocol.
It recalls, in this context, that the author's application
to the European Commission of Human Rights dealt with
issues other than those before the Committee, namely the
judgments of 19 March 1996 and of 21 June 1996, awarding
temporary custody to the mother for the duration of the
separation (see para. 2.1).
6.3 The Committee has noted the parties' arguments relating
to the question of exhaustion of domestic remedies. In
particular, it notes the State party's observation that,
in order for a complainant to comply with the one-month
deadline following service of the final decision of the
lower courts, a constitutional complaint must reach the
Federal Constitutional Court before the end of that period,
and that all relevant documents, in particular the impugned
court decisions, must accompany the complaint in substantiation
thereof in order to enable an examination by the Constitutional
Court as to whether the complainant's constitutional rights
have been violated. It has noted the author's argument
that he made repeated efforts to exhaust domestic remedies,
by lodging three constitutional complaints relating to
the same subject matter, despite the alleged ineffectiveness
of this remedy in family law matters.
6.4 The issue before the Committee is whether, for purposes
of exhausting all available domestic remedies, in accordance
with article 5, paragraph 2 (b), of the Optional Protocol,
the author was required to lodge a constitutional complaint
against the decisions of the Ratingen District Court of
27 October 1997 and of 28 October 2000, as well as the
decisions of the Düsseldorf Higher Regional Court of 1
March 1999 and of 7 December 2000, and, if so, whether
he pursued this remedy in accordance with the procedural
requirements prescribed by law.
6.5 The Committee observes that, in addition to ordinary
judicial and administrative appeals, authors must also
avail themselves of all other judicial remedies, including
constitutional complaints, in order to fulfill the requirement
of exhaustion of all available domestic remedies, insofar
as such remedies appear to be effective in the given case
and are de facto available to the author. (6)
The Committee notes that the author's constitutional complaints
of 29 July 1996 and of 15 July 1997, which were dismissed
by the Constitutional Court on 2 April 1997 and 29 December
1997, respectively, related to legal proceedings different
from the final award of custody to his ex-wife, which
was the subject matter of the complaint faxed to the Constitutional
Court on 4 April 1999. The dismissal of these constitutional
complaints was therefore without prejudice to the prospect
of success of the latter complaint. Moreover, the Committee
notes that the author has failed to substantiate his contention
that a constitutional complaint is generally ineffective
in family law matters. The Committee concludes that, to
exhaust all available domestic remedies, the author should
have availed himself of the opportunity of lodging a constitutional
complaint against the decisions of the German courts granting
final custody to his ex-wife and rejecting subsequent
applications for transfer of custody. Such a complaint
could not ipso facto be considered an ineffective
remedy, in the specific circumstances of the case.
6.6 As to whether the author pursued this remedy in accordance
with the procedural requirements prescribed by law, the
Committee notes that he failed to furnish copies of the
decisions of the Ratingen District Court of 27 October
1998 and of the Düsseldorf Higher Regional Court of 1
March 1999 (award of post-divorce custody to the mother),
when he faxed his complaint to the Federal Constitutional
Court on 4 April 1999. These documents reached the Court
only on 9 April 1999, after the expiry of the legal one-month
deadline on 6 April 1999. That the author was not, at
that point, represented by counsel and that he was possibly
unaware of this requirement cannot justify his failure
to comply with the procedural prerequisites of section
93 (1) of the Law on the Federal Constitutional Court.
(7)
6.7 Insofar as the author claims that the rejection of
his application for transfer of custody, on 28 September
2000, by the Ratingen District Court and, on 7 December
2000, by the Düsseldorf Higher Regional Court violated
his and his sons' rights under articles 14, paragraph
1, 23, paragraph 4, and 24, paragraph 1, of the Covenant,
the Committee notes that the author did not lodge a constitutional
complaint against these decisions.
6.8 In the light of the foregoing, the Committee concludes
that the author failed to exhaust all available domestic
remedies.
7. The Committee therefore decides:
(a) That the communication is inadmissible under article
5, paragraph 2 (b), of the Optional Protocol;
(b) That this decision shall be communicated to the author,
and, for information, to the State party.
__________________________
[Adopted in English, French and Spanish, the English text
being the original version. Subsequently to be issued
also in Arabic, Chinese and Russian as part of the Committee's
annual report to the General Assembly.]
* The following members of the Committee participated
in the examination of the present communication: Mr. Abdelfattah
Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal Bhagwati,
Ms. Christine Chanet, Mr. Franco Depasquale, Mr. Maurice
Glèlè Ahanhanzo, Mr. Walter Kälin, Mr. Ahmed Tawfik Khalil,
Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Martin
Scheinin, Mr. Ivan Shearer, Mr. Hipólito Solari Yrigoyen,
Mr. Roman Wieruszewski and Mr. Maxwell Yalden.
Notes
1. The International Covenant on Civil and Political
Rights and the Optional Protocol entered into force for
the State party respectively on 23 March 1976 and 25 November
1993.
2. Undisputedly, 5 April 1999 was a public holiday in
Germany.
3. After numerous additional submissions had been received
from the author, the communication was transmitted to
the State party on 7 August 2001, under rule 91 of the
Committee's Rules of Procedure.
4. Section 93 (1) of the Law on the Federal Constitutional
Court provides, in pertinent part, that "[t]he constitutional
complaint must be lodged and substantiated within one
month".
5. The communication only relates to the decisions of
the Ratingen District Court of 27 October 1997 and of
28 October 2000, as well as the decisions of the Düsseldorf
Higher Regional Court of 1 March 1999 and of 7 December
2000. See para. 3.6.
6. See Communication No. 433/1990, A.P.A. v. Spain,
Decision on admissibility of 25 March 1994, UN Doc. CCPR/C/50/D/433/1990,
28 March 1994, at para. 6.2.
7. See ibid.