هيثم الفقى
07-23-2009, 10:39 PM
THE FACTS
Whereas, the facts presented by the applicant may be summarised as
follows:
The applicant is a German national, born in 1932, and at present
resident in Prien am Chiemsee.
The applicant states that he was engaged to be married to Mrs. B. who
had been divorced from her former husband. Mrs. B. had made it a
condition of this marriage that she should first bear a child to the
applicant. However, after the birth of the child on 29th October, 1964,
Mrs. B. refused to marry the applicant, denied that there had ever been
an official engagement and on 13th February, 1965, left the applicant's
mother's flat where she had been living with the applicant and took the
child with her. The applicant states that he believes that Mrs. B.
never intended to marry him, but merely pretended to do so in order to
induce him to procreate the child which he would not have done, had he
not been convinced that Mrs. B. would marry him when the child was
born.
On 2nd November, 1964, the applicant states that Mrs. B. applied for
an official guardian to be appointed for the child. Under Article 40
of the Children and Young Persons Welfare Act (Jugendwohlfahrtsgesetz)
1961, the local Youth Office (Jugendamt) is ipso facto guardian of all
illegitimate children born to German mothers in its district and under
Article 1589 (2) of the Civil Code, the natural father is not deemed
to be in way related to such a child.
The applicant admits that he said that he was prepared to be the father
of the child (Ich will der Vater des Kindes sein) but maintains that
he made it clear that he only meant to say that he was prepared to
assume the position of a legitimate father and not that he was
admitting the relationship of natural paternity. He maintains that he
was deliberately misinterpreted by the Court. He also complains that
he was ordered to pay maintenance from the time of birth, although he
states that he contributed towards the maintenance of the child from
23rd November, 1964, until 13th February, 1965, and also looked after
the baby while the mother went out to work. Furthermore, the child and
its mother were living in his mother's flat during this time.
On 28h June, 1965, the applicant's appeal was rejected as inadmissible
by the Regional Court (Landgericht) in Traunstein. The applicant then
addressed an appeal to the Bavarian Constitutional Court, which sent
the papers to the Regional Court. On 23rd August, 1965, the applicant
was invited to attend the District Court in Rosenheim where he was
informed of his legal position.
The applicant wrote to the Youth Office and the District Court at
Rosenheim expressing his desire that the child should be declared
legitimate (Ehelichkeitserklärung). He was informed by letters of 9th
and 16th September, 1965, that this was impossible under the provisions
of Article 1727 of the Civil Code as the mother was unwilling to give
her consent.
The applicant then addressed the Federal Constitutional Court and was
informed by letters of 10th November and 17th December, 1965, that
insofar as he complained of the judgment of the District Court in
Rosenheim of 20th May, 1965, declaring his liability to make
maintenance payments, a constitutional appeal was inadmissible, as he
had failed to exhaust the available legal remedies.
With regard to his complaint regarding Article 1589 (2) of the Civil
Code which provides that no relationship is deemed to exist between a
natural father and an illegitimate child, it was now too late to attack
this provision directly by means of a constitutional appeal on account
of the time limit imposed by Article 93 (2) and (3) of the Federal
Constitutional Court Act. Such an appeal could only be brought against
an act of a public authority (in particular the decision of a court)
based on this provision. The letter, however, pointed out that the
decision of the District Court at Rosenheim was not based on this
provision but would have been the same even if that provision has not
existed . In the circumstances, the Court did not register his
application as an appeal. The applicant was also informed that reforms
concerning the relationship between an illegitimate child and its
father were under consideration and might result in legislation which
would affect his case.
On 10th January, 1966, the applicant reported Mrs. B. to the police,
requesting a prosecution for fraud on the ground that he had been
induced to enter into ***ual relations and procreate a child by means
of a promise of marriage which was not fulfilled. On 23rd February,
1966, he was informed by the Attorney-General in Munich that a
conviction for fraud was improbable and that therefore proceedings
would not be taken.
On 20th May, 1966, the applicant wrote to the District Court for an
order granting his access to his child and received a reply dated 25th
May, 1966, informing him that his application could not be granted
since the law gave him no right to access to his illegitimate child.
The applicant sent petitions to the Federal President and the Federal
Parliament, receiving negative replies on 6th June and 26th September,
1966.
On 14th October, 1966, he applied to the Bavarian Constitutional Court
for access to his child and sent a copy to the District Court at
Rosenheim which replied on 9th November, 1966, that a natural father
had no right of access to an illegitimate child, but that he could
adopt the child if he obtained the consent of its mother. He has been
advised by a lawyer that there is no prospect of his application being
dealt with by the Bavarian Constitutional Court.
It appears that on 9th March, 1967, the applicant was refused legal
assistance by the Bavarian Constitutional Court on the ground that his
complaint alleging a violation of the Constitution of Bavaria has no
prospect of success. His further appeal to the Federal Constitutional
Court was, on 8th June, 1967, not accepted for decision, as not being
submitted in due form (formwidrig) and in any case, as clearly
unfounded. The Court stated that the necessary reform of the law
relating to illegitimate children could not be carried out by the
Federal or the Bavarian Constitutional Courts but only by the
legislature. The Federal Minister of Justice had, however, stated that
a Bill to this effect would be placed before the present Parliament.
The applicant claims:
- the immediate restoration of his human rights and in particular, the
recognition of his paternity;
- that the judgment of the District Court in Rosenheim of 25th May,
1965, be set aside;
- that his child be declared legitimate retrospectively as from birth,
even if the mother does not give her consent;
- that the child shall live in his flat and be cared for by his
mother;
- that Mrs. B. be deprived of her right to educate the child;
- that the German Government and Mrs. B. be ordered to pay damages for
the applicant's mental suffering and material loss.
The applicant invokes Articles 3, 6, 8 and 10 of the Convention.
Proceedings before the Commission
Whereas the proceedings before the Commission may be summarised as
follows:
The application was lodged with the Secretary to the Commission on 11th
October, 1966, and entered in the special register provided for by Rule
13 of the Commission's Rules of Procedure on 29th March, 1967.
On 6th September, 1967, the case was submitted to a group of three
members for a preliminary examination in accordance with Rule 34 of the
Rules of Procedure.
On 20th December, 1967, the Commission examined the application and
declared inadmissible the applicant's complaint relating to the court
order requiring him to make maintenance payments for his illegitimate
child, his complaints directed against Mrs. B. and his complaint that
the authorities had refused to take criminal proceedings against Mrs.
B.
At the same time, it decided to give notice to the respondent
Government, in according with Rule 45, paragraph 3 (b) of its Rules of
Procedure of the applicant's complaint, insofar as it concerned the
absence in German law of a legal paternal relationship and accessory
rights, in particular, the right of access, between the applicant and
his child, and to invite the Government to submit its observations on
the question of admissibility.
The respondent Government submitted its observations on 21st March,
1968, and the applicant submitted his observations in reply on 4th
April, 1968.
The respondent Government stated, inter alia, that it had submitted to
the Federal Parliament on 7th December, 1967, a Bill on the legal
status of illegitimate children (Bundestag - Drucksache V/2370).
The applicant in reply challenged the respondent Government's
observations as being irrelevant.
On 11th July, 1968, the Commission decided to adjourn its decision on
admissibility until a conclusion had been reached concerning the Bill
referred to in the respondent Government's observations, or, at the
latest, until July, 1969.
On 18th July, 1969, the President of the Commission ordered under Rule
38, paragraph (2) of the Commission's Rules of Procedure, a further
adjournment of the case. He also decided, acting on behalf of the
Commission, to invite the respondent Government to inform the
Commission as to whether the new Bill on the legal status of
illegitimate children had become law and if so, in what manner it
affected the applicant's situation.
By letter of 31st October, 1969, the respondent Government submitted
the following observations:
"Referring to the letters of the Secretary to the European Commission
of Human Rights of 15th July, 1968, and 23rd July, 1969, the Federal
Government has the honour to inform the Commission as follows:
The Act on the legal status of illegitimate children of 19th August,
1969, was published in the Federal Gazette (Bundesgesetzblatt, 1969,
Part I, p. 1234) after having been passed by the legislative bodies.
According to its Article 12, Section 27, it will enter into force on
1st July, 1970.
The basis for the new regulation if the legal status of illegitimate
children is Article 6, paragraph 5, of the Basic Law. Under this
provision, illegitimate children are to be provided by legislation with
the same opportunities for their physical and mental development and
their place in society as are enjoyed by legitimate children. To give
effect to this mandate of the Constitution, the Act of 19th August,
1969, in conformity with the social outlook of today, puts the emphasis
on the welfare of the illegitimate child. Discrimination for the reason
of illegitimacy shall be avoided or even up as far as is possible.
As far as the legal relationship existing between the illegitimate
child and its father is concerned, the Act contains such provisions as
appear to be suitable for strengthening the legal and practical ties
between the two.
In this connection, the following provisions are particularly worth
mentioning:
(1) Article 1 No. 3 of the Act of 19th August, 1969, does away with the
provision contained in section 1589, paragraph 2, of the Civil Code.
Under section 1589, paragraph 2, of the Civil Code, the illegitimate
child and its father are deemed not to be relatives. As has already
been observed by the Federal Government in Part II, paragraph (c), of
its comments of 21st March, 1968, this provision does not purport to
deny the existence of a natural tie between a father and his
illegitimate child. Its idea, rather, is that the legal provisions
making blood relationship the test shall not apply in the case of a
natural father and his child.
By cancelling section 1589, paragraph 2, of the Civil Code, the natural
relationship is now recognised in virtue of the law. The repeal, at the
same time, is an expression of the legislator's concern to encourage
and develop the personal relations between father and child and to
strengthen the father's sense of responsibility.
(2) According to Article 1 No. 25 of the Act of 19th August, 1969,
section 1705, sentence 1, of the Civil Code shall read as follows:
'The illegitimate child shall come under the mother's parental power
as long as it is a minor.'
This solution takes into account that in quite the majority of cases,
the parents of an illegitimate child are not living together in a
common household and that for this reason, the parental power cannot
be exercised by the two of them jointly. The assignment of the parental
power to the mother is suitable for practical reasons because the
natural link between her and the child is far closer than that
connecting the illegitimate child with its father.
The father can acquire the parental power even without marrying the
mother by adopting the child or by having it declared legitimate. This,
it is true, requires the mother's consent. Under section 1727 of the
Civil Code, as amended by Article 1 No. 31 of the Act of 19th August,
1969, the mother's consent to a declaration of legitimation can be
replaced by that of the guardianship court in cases where, for weighty
reasons, it is necessary for the welfare of the child. Also in the case
of an adoption can the consent be supplied by the guardianship court
in special circumstances, instead of by the mother.
Apart from that, the provision added to section 1618 of the Civil Code
by Article 1 No. 19 of the Act of 19th August, 1969, provides for the
father of the child to be allowed to give the child his name by way of
making a declaration to the registrar to that effect, with the consent
of both the child and the mother. By giving the child its father's
name, the natural tie existing between a father and his illegitimate
child becomes apparent also to the outside world. This of particular
significance in cases where the father is in charge of the illegitimate
child or where other close personal links are existing between him and
the child.
(3) The Act of 19th August, 1969, affords to a natural father the
possibility of exerting his influence on decisions concerning the care
for his child's person or property. According to
Article 1 No. 24 of the new Act, section 1712 of the Civil Code now
reads as follows:
'Before making a decision concerning the care for the child's person
or property, the guardianship court should hear the child's father if,
in due exercise of its discretion, the court considers it to be for the
child's benefit to do so.'
In the case of a proposed adoption, the court's obligation of hearing
the father goes even beyond this.
Section 1747 (a), sentence 1, of the Civil Code, which has been added
by Article 1 No. 43 of the Act of 19th August, 1969, reads as follows:
'Before making a decision or allowing the adoption of an illegitimate
child, the guardianship court should hear the child's father.'
This newly provided for hearing of the father before any decisions
concerning the illegitimate child are made, may contribute to
strengthening the personal relations between father and child. But in
view of the actual conditions mostly prevailing, the new legislation
does not intend to create for the father an unrestricted right to be
heard; for the father is generally not sufficiently acquainted with the
child's circumstances and personality to be able to make any practical
contribution to such decisions. Where, on the other hand, a father
entertains personal relations with his child, it will, as a rule, be
to the child's benefit if he is heard. Thus, the new legal solution
adequately safeguards that a father will be heard before any decision
is made about his child, provided he has a justified interest in it.
(4) Through the Act of 19th August, 1969, the father's right of access
(Verkehrsrecht) to the illegitimate child is regulated by law. Under
Article 1 No. 25 of this Act, section 1711 of the Civil Code obtains
the following wording:
'The question whether, and if so, to what extent, the father shall be
given the opportunity of seeing his child, is decided by the person
having the care for the child's person. If personal contact with its
father benefits to the child, the guardianship court can take the
decision. The court is free to alter its decision at any time.
Where appropriate, the Children's and Young Persons' Office (Jugendamt)
shall mediate between the father and the person entitled to the care
of the child's person.'
This provision puts the child's welfare in the first place but at the
same time considers in a fair way the father's interest in regular
personal contacts with his child.
The introduction of a general right of access to the child was not
justifiable in view of the great dangers possibly resulting for the
child from such a right. Frequently the father's visits - in
particular, if he tries to interfere with the child's upbringing -
endanger the quiet and undisturbed development of the child. In the
none-too-rare cases where the relations of the parents are very
strained, such visits may well give rise to great psychic conflicts in
the child.
The new legal solution, which makes the permission for seeing the child
dependent on whether or not the latter will benefit by such contacts,
is therefore a reasonable and suitable one.
By the Act of 19th August, 1969, the legal relations between an
illegitimate child and its father are placed on a new footing.
If by the time the new Act enters into force, i.e. 1st July, 1970, the
applicant is still interested in personal contacts with his child, it
will be up to him to come to terms with the child's mother about his
right to see the child. If no agreement can be reached on this question
between the applicant and the child's mother, the applicant is entitled
under the new legal provision (Section 1711 of the Civil Code) to apply
to the guardianship court for a decision."
By letter of 22nd November, 1969, the applicant submitted the following
reply:
"I Violation of the fundamental human rights and freedoms guaranteed
in the Convention and the Basic Law and, in particular, intentional and
continued perversion of justice with respect to Article 8 of the
Convention - as regards private live - and Article 3, paragraph (3),
of the Basic Law - with regard to blood descent and descent in general.
II Failure to call the guilty to account for persecution of innocent
persons, as occurred through an intentional perversion of justice in
the District Court of Rosenheim (Upper Bavaria) on 20th May, 1965
(Ref.: C 158/65).
By virtue of his oath of office (Article 56 of the Basic Law the
Federal Chancellor is fully responsible for what happened.
A copy of this complaint is being sent to the Federal Attorney-General
(Oberbundesanwalt) attached to the Federal Constitutional Court, in
accordance with Article 13 of the Convention.
The Federal Government is aware that:
Descent, in particular blood descent, is one of the inalienable
fundamental rights of every human being and forms an integral part of
his private life. It is well known that the descent of a child is
initiated, even before birth, by a combination of the hereditary
characteristics of both parents. In this respect nature draws no
distinction between legitimate and illegitimate children.
Irrespective of its birth, the child stands in the same relationship
to both parents. Although the illegitimate child must accept that the
marriage of its parents cannot be enforced, it has the natural right
to associate with them. The question of marriage, being an arbitrary
law of society, cannot deny the child this natural claim. After all,
the child bears the hereditary characteristics of both parents.
Contrary to Article 3, paragraph (3), of the Basic Law, the courts of
the Federal Republic have for twenty years told the illegitimate child,
"You have no business to be related to your father!" The bonds of
descent between the illegitimate child and its natural father are
broken asunder by official action.
This is reminiscent of the Auschwitz methods and spirit of Nazi
Germany: "For racial reasons, you have no business to exist" What is
more, the courts took it as a matter of course that the guiltless
victims of persecution should go to the slaughter without resistance.
No mandate from the German people is apparent for breaking asunder of
the bonds of descent by official action or for persecution on racial
grounds. These are an abuse of power directed against the people!
The Federal Government, Parliament and the courts are not entitled to
interfere with innate and inalienable human rights. They have no
mandate from the people to do so. The Basic Law and the Convention,
which is part of the German Law, are the ultimate expression of the
will of the people and rank higher than the Civil Code, which is the
work of a past generation and has not been adapted to our own.
Article 3, paragraph (3), of the Basic Law, states expressly:
No one shall be favoured or discriminated against on account of his
descent.
Whereas, the facts presented by the applicant may be summarised as
follows:
The applicant is a German national, born in 1932, and at present
resident in Prien am Chiemsee.
The applicant states that he was engaged to be married to Mrs. B. who
had been divorced from her former husband. Mrs. B. had made it a
condition of this marriage that she should first bear a child to the
applicant. However, after the birth of the child on 29th October, 1964,
Mrs. B. refused to marry the applicant, denied that there had ever been
an official engagement and on 13th February, 1965, left the applicant's
mother's flat where she had been living with the applicant and took the
child with her. The applicant states that he believes that Mrs. B.
never intended to marry him, but merely pretended to do so in order to
induce him to procreate the child which he would not have done, had he
not been convinced that Mrs. B. would marry him when the child was
born.
On 2nd November, 1964, the applicant states that Mrs. B. applied for
an official guardian to be appointed for the child. Under Article 40
of the Children and Young Persons Welfare Act (Jugendwohlfahrtsgesetz)
1961, the local Youth Office (Jugendamt) is ipso facto guardian of all
illegitimate children born to German mothers in its district and under
Article 1589 (2) of the Civil Code, the natural father is not deemed
to be in way related to such a child.
The applicant admits that he said that he was prepared to be the father
of the child (Ich will der Vater des Kindes sein) but maintains that
he made it clear that he only meant to say that he was prepared to
assume the position of a legitimate father and not that he was
admitting the relationship of natural paternity. He maintains that he
was deliberately misinterpreted by the Court. He also complains that
he was ordered to pay maintenance from the time of birth, although he
states that he contributed towards the maintenance of the child from
23rd November, 1964, until 13th February, 1965, and also looked after
the baby while the mother went out to work. Furthermore, the child and
its mother were living in his mother's flat during this time.
On 28h June, 1965, the applicant's appeal was rejected as inadmissible
by the Regional Court (Landgericht) in Traunstein. The applicant then
addressed an appeal to the Bavarian Constitutional Court, which sent
the papers to the Regional Court. On 23rd August, 1965, the applicant
was invited to attend the District Court in Rosenheim where he was
informed of his legal position.
The applicant wrote to the Youth Office and the District Court at
Rosenheim expressing his desire that the child should be declared
legitimate (Ehelichkeitserklärung). He was informed by letters of 9th
and 16th September, 1965, that this was impossible under the provisions
of Article 1727 of the Civil Code as the mother was unwilling to give
her consent.
The applicant then addressed the Federal Constitutional Court and was
informed by letters of 10th November and 17th December, 1965, that
insofar as he complained of the judgment of the District Court in
Rosenheim of 20th May, 1965, declaring his liability to make
maintenance payments, a constitutional appeal was inadmissible, as he
had failed to exhaust the available legal remedies.
With regard to his complaint regarding Article 1589 (2) of the Civil
Code which provides that no relationship is deemed to exist between a
natural father and an illegitimate child, it was now too late to attack
this provision directly by means of a constitutional appeal on account
of the time limit imposed by Article 93 (2) and (3) of the Federal
Constitutional Court Act. Such an appeal could only be brought against
an act of a public authority (in particular the decision of a court)
based on this provision. The letter, however, pointed out that the
decision of the District Court at Rosenheim was not based on this
provision but would have been the same even if that provision has not
existed . In the circumstances, the Court did not register his
application as an appeal. The applicant was also informed that reforms
concerning the relationship between an illegitimate child and its
father were under consideration and might result in legislation which
would affect his case.
On 10th January, 1966, the applicant reported Mrs. B. to the police,
requesting a prosecution for fraud on the ground that he had been
induced to enter into ***ual relations and procreate a child by means
of a promise of marriage which was not fulfilled. On 23rd February,
1966, he was informed by the Attorney-General in Munich that a
conviction for fraud was improbable and that therefore proceedings
would not be taken.
On 20th May, 1966, the applicant wrote to the District Court for an
order granting his access to his child and received a reply dated 25th
May, 1966, informing him that his application could not be granted
since the law gave him no right to access to his illegitimate child.
The applicant sent petitions to the Federal President and the Federal
Parliament, receiving negative replies on 6th June and 26th September,
1966.
On 14th October, 1966, he applied to the Bavarian Constitutional Court
for access to his child and sent a copy to the District Court at
Rosenheim which replied on 9th November, 1966, that a natural father
had no right of access to an illegitimate child, but that he could
adopt the child if he obtained the consent of its mother. He has been
advised by a lawyer that there is no prospect of his application being
dealt with by the Bavarian Constitutional Court.
It appears that on 9th March, 1967, the applicant was refused legal
assistance by the Bavarian Constitutional Court on the ground that his
complaint alleging a violation of the Constitution of Bavaria has no
prospect of success. His further appeal to the Federal Constitutional
Court was, on 8th June, 1967, not accepted for decision, as not being
submitted in due form (formwidrig) and in any case, as clearly
unfounded. The Court stated that the necessary reform of the law
relating to illegitimate children could not be carried out by the
Federal or the Bavarian Constitutional Courts but only by the
legislature. The Federal Minister of Justice had, however, stated that
a Bill to this effect would be placed before the present Parliament.
The applicant claims:
- the immediate restoration of his human rights and in particular, the
recognition of his paternity;
- that the judgment of the District Court in Rosenheim of 25th May,
1965, be set aside;
- that his child be declared legitimate retrospectively as from birth,
even if the mother does not give her consent;
- that the child shall live in his flat and be cared for by his
mother;
- that Mrs. B. be deprived of her right to educate the child;
- that the German Government and Mrs. B. be ordered to pay damages for
the applicant's mental suffering and material loss.
The applicant invokes Articles 3, 6, 8 and 10 of the Convention.
Proceedings before the Commission
Whereas the proceedings before the Commission may be summarised as
follows:
The application was lodged with the Secretary to the Commission on 11th
October, 1966, and entered in the special register provided for by Rule
13 of the Commission's Rules of Procedure on 29th March, 1967.
On 6th September, 1967, the case was submitted to a group of three
members for a preliminary examination in accordance with Rule 34 of the
Rules of Procedure.
On 20th December, 1967, the Commission examined the application and
declared inadmissible the applicant's complaint relating to the court
order requiring him to make maintenance payments for his illegitimate
child, his complaints directed against Mrs. B. and his complaint that
the authorities had refused to take criminal proceedings against Mrs.
B.
At the same time, it decided to give notice to the respondent
Government, in according with Rule 45, paragraph 3 (b) of its Rules of
Procedure of the applicant's complaint, insofar as it concerned the
absence in German law of a legal paternal relationship and accessory
rights, in particular, the right of access, between the applicant and
his child, and to invite the Government to submit its observations on
the question of admissibility.
The respondent Government submitted its observations on 21st March,
1968, and the applicant submitted his observations in reply on 4th
April, 1968.
The respondent Government stated, inter alia, that it had submitted to
the Federal Parliament on 7th December, 1967, a Bill on the legal
status of illegitimate children (Bundestag - Drucksache V/2370).
The applicant in reply challenged the respondent Government's
observations as being irrelevant.
On 11th July, 1968, the Commission decided to adjourn its decision on
admissibility until a conclusion had been reached concerning the Bill
referred to in the respondent Government's observations, or, at the
latest, until July, 1969.
On 18th July, 1969, the President of the Commission ordered under Rule
38, paragraph (2) of the Commission's Rules of Procedure, a further
adjournment of the case. He also decided, acting on behalf of the
Commission, to invite the respondent Government to inform the
Commission as to whether the new Bill on the legal status of
illegitimate children had become law and if so, in what manner it
affected the applicant's situation.
By letter of 31st October, 1969, the respondent Government submitted
the following observations:
"Referring to the letters of the Secretary to the European Commission
of Human Rights of 15th July, 1968, and 23rd July, 1969, the Federal
Government has the honour to inform the Commission as follows:
The Act on the legal status of illegitimate children of 19th August,
1969, was published in the Federal Gazette (Bundesgesetzblatt, 1969,
Part I, p. 1234) after having been passed by the legislative bodies.
According to its Article 12, Section 27, it will enter into force on
1st July, 1970.
The basis for the new regulation if the legal status of illegitimate
children is Article 6, paragraph 5, of the Basic Law. Under this
provision, illegitimate children are to be provided by legislation with
the same opportunities for their physical and mental development and
their place in society as are enjoyed by legitimate children. To give
effect to this mandate of the Constitution, the Act of 19th August,
1969, in conformity with the social outlook of today, puts the emphasis
on the welfare of the illegitimate child. Discrimination for the reason
of illegitimacy shall be avoided or even up as far as is possible.
As far as the legal relationship existing between the illegitimate
child and its father is concerned, the Act contains such provisions as
appear to be suitable for strengthening the legal and practical ties
between the two.
In this connection, the following provisions are particularly worth
mentioning:
(1) Article 1 No. 3 of the Act of 19th August, 1969, does away with the
provision contained in section 1589, paragraph 2, of the Civil Code.
Under section 1589, paragraph 2, of the Civil Code, the illegitimate
child and its father are deemed not to be relatives. As has already
been observed by the Federal Government in Part II, paragraph (c), of
its comments of 21st March, 1968, this provision does not purport to
deny the existence of a natural tie between a father and his
illegitimate child. Its idea, rather, is that the legal provisions
making blood relationship the test shall not apply in the case of a
natural father and his child.
By cancelling section 1589, paragraph 2, of the Civil Code, the natural
relationship is now recognised in virtue of the law. The repeal, at the
same time, is an expression of the legislator's concern to encourage
and develop the personal relations between father and child and to
strengthen the father's sense of responsibility.
(2) According to Article 1 No. 25 of the Act of 19th August, 1969,
section 1705, sentence 1, of the Civil Code shall read as follows:
'The illegitimate child shall come under the mother's parental power
as long as it is a minor.'
This solution takes into account that in quite the majority of cases,
the parents of an illegitimate child are not living together in a
common household and that for this reason, the parental power cannot
be exercised by the two of them jointly. The assignment of the parental
power to the mother is suitable for practical reasons because the
natural link between her and the child is far closer than that
connecting the illegitimate child with its father.
The father can acquire the parental power even without marrying the
mother by adopting the child or by having it declared legitimate. This,
it is true, requires the mother's consent. Under section 1727 of the
Civil Code, as amended by Article 1 No. 31 of the Act of 19th August,
1969, the mother's consent to a declaration of legitimation can be
replaced by that of the guardianship court in cases where, for weighty
reasons, it is necessary for the welfare of the child. Also in the case
of an adoption can the consent be supplied by the guardianship court
in special circumstances, instead of by the mother.
Apart from that, the provision added to section 1618 of the Civil Code
by Article 1 No. 19 of the Act of 19th August, 1969, provides for the
father of the child to be allowed to give the child his name by way of
making a declaration to the registrar to that effect, with the consent
of both the child and the mother. By giving the child its father's
name, the natural tie existing between a father and his illegitimate
child becomes apparent also to the outside world. This of particular
significance in cases where the father is in charge of the illegitimate
child or where other close personal links are existing between him and
the child.
(3) The Act of 19th August, 1969, affords to a natural father the
possibility of exerting his influence on decisions concerning the care
for his child's person or property. According to
Article 1 No. 24 of the new Act, section 1712 of the Civil Code now
reads as follows:
'Before making a decision concerning the care for the child's person
or property, the guardianship court should hear the child's father if,
in due exercise of its discretion, the court considers it to be for the
child's benefit to do so.'
In the case of a proposed adoption, the court's obligation of hearing
the father goes even beyond this.
Section 1747 (a), sentence 1, of the Civil Code, which has been added
by Article 1 No. 43 of the Act of 19th August, 1969, reads as follows:
'Before making a decision or allowing the adoption of an illegitimate
child, the guardianship court should hear the child's father.'
This newly provided for hearing of the father before any decisions
concerning the illegitimate child are made, may contribute to
strengthening the personal relations between father and child. But in
view of the actual conditions mostly prevailing, the new legislation
does not intend to create for the father an unrestricted right to be
heard; for the father is generally not sufficiently acquainted with the
child's circumstances and personality to be able to make any practical
contribution to such decisions. Where, on the other hand, a father
entertains personal relations with his child, it will, as a rule, be
to the child's benefit if he is heard. Thus, the new legal solution
adequately safeguards that a father will be heard before any decision
is made about his child, provided he has a justified interest in it.
(4) Through the Act of 19th August, 1969, the father's right of access
(Verkehrsrecht) to the illegitimate child is regulated by law. Under
Article 1 No. 25 of this Act, section 1711 of the Civil Code obtains
the following wording:
'The question whether, and if so, to what extent, the father shall be
given the opportunity of seeing his child, is decided by the person
having the care for the child's person. If personal contact with its
father benefits to the child, the guardianship court can take the
decision. The court is free to alter its decision at any time.
Where appropriate, the Children's and Young Persons' Office (Jugendamt)
shall mediate between the father and the person entitled to the care
of the child's person.'
This provision puts the child's welfare in the first place but at the
same time considers in a fair way the father's interest in regular
personal contacts with his child.
The introduction of a general right of access to the child was not
justifiable in view of the great dangers possibly resulting for the
child from such a right. Frequently the father's visits - in
particular, if he tries to interfere with the child's upbringing -
endanger the quiet and undisturbed development of the child. In the
none-too-rare cases where the relations of the parents are very
strained, such visits may well give rise to great psychic conflicts in
the child.
The new legal solution, which makes the permission for seeing the child
dependent on whether or not the latter will benefit by such contacts,
is therefore a reasonable and suitable one.
By the Act of 19th August, 1969, the legal relations between an
illegitimate child and its father are placed on a new footing.
If by the time the new Act enters into force, i.e. 1st July, 1970, the
applicant is still interested in personal contacts with his child, it
will be up to him to come to terms with the child's mother about his
right to see the child. If no agreement can be reached on this question
between the applicant and the child's mother, the applicant is entitled
under the new legal provision (Section 1711 of the Civil Code) to apply
to the guardianship court for a decision."
By letter of 22nd November, 1969, the applicant submitted the following
reply:
"I Violation of the fundamental human rights and freedoms guaranteed
in the Convention and the Basic Law and, in particular, intentional and
continued perversion of justice with respect to Article 8 of the
Convention - as regards private live - and Article 3, paragraph (3),
of the Basic Law - with regard to blood descent and descent in general.
II Failure to call the guilty to account for persecution of innocent
persons, as occurred through an intentional perversion of justice in
the District Court of Rosenheim (Upper Bavaria) on 20th May, 1965
(Ref.: C 158/65).
By virtue of his oath of office (Article 56 of the Basic Law the
Federal Chancellor is fully responsible for what happened.
A copy of this complaint is being sent to the Federal Attorney-General
(Oberbundesanwalt) attached to the Federal Constitutional Court, in
accordance with Article 13 of the Convention.
The Federal Government is aware that:
Descent, in particular blood descent, is one of the inalienable
fundamental rights of every human being and forms an integral part of
his private life. It is well known that the descent of a child is
initiated, even before birth, by a combination of the hereditary
characteristics of both parents. In this respect nature draws no
distinction between legitimate and illegitimate children.
Irrespective of its birth, the child stands in the same relationship
to both parents. Although the illegitimate child must accept that the
marriage of its parents cannot be enforced, it has the natural right
to associate with them. The question of marriage, being an arbitrary
law of society, cannot deny the child this natural claim. After all,
the child bears the hereditary characteristics of both parents.
Contrary to Article 3, paragraph (3), of the Basic Law, the courts of
the Federal Republic have for twenty years told the illegitimate child,
"You have no business to be related to your father!" The bonds of
descent between the illegitimate child and its natural father are
broken asunder by official action.
This is reminiscent of the Auschwitz methods and spirit of Nazi
Germany: "For racial reasons, you have no business to exist" What is
more, the courts took it as a matter of course that the guiltless
victims of persecution should go to the slaughter without resistance.
No mandate from the German people is apparent for breaking asunder of
the bonds of descent by official action or for persecution on racial
grounds. These are an abuse of power directed against the people!
The Federal Government, Parliament and the courts are not entitled to
interfere with innate and inalienable human rights. They have no
mandate from the people to do so. The Basic Law and the Convention,
which is part of the German Law, are the ultimate expression of the
will of the people and rank higher than the Civil Code, which is the
work of a past generation and has not been adapted to our own.
Article 3, paragraph (3), of the Basic Law, states expressly:
No one shall be favoured or discriminated against on account of his
descent.