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
1.  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.
2.  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.
3.  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
4.  The applicant was born in 1953 and lives in Heidelberg.
5.  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.
6.  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.
7.  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.
8.  Between October 2005 and May 2006 the Youth Office unsuccessfully attempted to mediate an agreement on a suitable institution.
9.  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.
10.  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.
11.  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.
12.  On 8 February 2007 the District Court commissioned a psychological expert and ordered her to submit the expert opinion within three months.
13.  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.
14.  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.
15.  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.
16.  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.
17.  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.
18.  On 19 July 2007 the applicant had his last contact with his son.
19.  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.
20.  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.
21.  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.
22.  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.
23.  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.
24.  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.
25.  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.
26.  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.
27.  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.
28.  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.
29.  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.
30.  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.
31.  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.
32.  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.
33.  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.
34.  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.
35.  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
36.  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
37.  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 ...”
38.  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.
39.  The Government contested that argument. According to the Government, the length of the proceedings was primarily due to the parties’ obstructive conduct.
40.  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
41.  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
42.  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).
43.  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).
44.  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.
45.  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).
46.  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.
47.  The Court accepts that the access proceedings were of a certain complexity because of the extremely tense relations between the parties.
48.  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.
49.  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.
50.  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.
51.  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
52.  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.”
53.  The Government did not contest this argument.
54.  The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
55.  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).
56.  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.
57.  There has therefore been a violation of Article 13 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
58.  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
59.  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.
60.  The Government contested these arguments and argued that the applicant’s claims were excessive.
61.  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
62.   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.
63.   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.
64.  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
65.  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
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that there has been a violation of Article 13 of the Convention;

4.  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;

5.  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