X. v. THE FEDERAL REPUBLIC OF GERMANY - 2699/65 [1968] ECHR 9 (01 April 1968)

[align=left]THE FACTS

Whereas the facts presented by the Applicant may be summarised as
follows:

The Applicant was born in 1924 in Danzig and is a lawyer now living in
West Berlin. He has lodged the present Application also on behalf of
his minor son, Ulrich X., born in Berlin in 1950. The Applicant affirms
that he is legally entitled to represent his son, although the German
courts have awarded custody to the boy's mother, his divorced wife.

The Applicant has previously lodged an Application (No. 1959/63) which
was declared inadmissible by the Commission on 22nd April, 1965. The
Applicant himself refers to the facts and arguments of that Application
which were summarised in the decision as follows:

"During the war the Applicant was conscripted and served in the German
army. At the end of hostilities he received an identity card from the
allied authorities in Leipzig giving his nationality as 'a citizen of
the Free State of Danzig - until determination (bis zur Klärung)'. At
present he is in possession of a passport issued by the allied
authorities in Berlin giving his nationality as 'undecided (ungeklärt)
- Free State of Danzig'.

The Applicant was married in 1949 to a woman who was a lawyer and a
German citizen, but in 1959 the marriage was dissolved. In 1960 custody
of the Applicant's son was transferred to his maternal grandparents and
civil suits relating to custody and alimony are apparently pending
before the courts in Berlin . On .. July, 1961, the Applicant was
ordered to pay alimony of 100 DM monthly to his son by a decision of
the District Court of Tiergarten. The Applicant has lodged an appeal
against this order.

During the proceedings the Applicant requested the application of the
laws of Danzig, i.e. Article 1653 of the Civil Code (BGB) in its Danzig
version. He submitted that, according to the Hague Convention of 12th
June, 1902, (acceded to by Germany in 1904, by Poland and Danzig in
1929) and to German law (Article 19 of the Introductory Act to the
Civil Code), questions of legal representation of minors (gesetzliche
Vertretung) and custody (Sorgerecht) shall be determined by the laws
of the country of which the father is a national. Consequently, these
rights belong to the Applicant:

During these proceedings, the right of legal representation of the
child was given to his mother, the case being termed 'Ulrich X.,
represented by his mother, Dr. H. X. v. Dr. G. X.'. The Applicant
protested and demanded that the Danzig rules should be followed and he
alleged that the non-observance of these rules implied a
non-recognition of his own and his son's status as citizens of the Free
State of Danzig.
At a hearing of the alimony proceedings on .. October, 1961 before the
Regional Court of Berlin, the Applicant requested that the case should
be adjourned pending the outcome of certain revision proceedings
(Restitutions-Verfahren) pending before the Court of Appeal of Berlin,
presumably concerning his divorce. This request was rejected on the
same day and the Applicant announced the he would lodge an appeal
(sofortige Beschwerde). As he needed time for preparing his appeal, he
asked that a new session be fixed. His ex-wife opposed the appeal and,
at the suggestion of the presiding judge, she requested a judgment in
default arising from his failure to plead on the issue
(Versäumnisurteil). This was granted to her.

On .. November, 1961, the Applicant lodged a complaint (Einspruch),
as well as a request for a stay of execution, both of which were
rejected by the same court on .. December, 1961, and on appeal
(sofortige Beschwerde) by the Court of Appeal of Berlin on .. February,
1962.

On .. November, 1961, the Applicant lodged an application for a
rectification of the facts as contained in the decision of .. October,
1961. During a hearing on .. March, 1961, the Applicant requested that
two judges of the Court should withdraw from the case, but his request
was rejected on .. March, 1962, by the Regional Court of Berlin. His
appeals (sofortige Beschwerde) were likewise rejected by the Court of
Appeal (Kammergericht) of Berlin and by the Federal Court
(Bundesgerichtshof) on .. September, 1962, and .. January, 1963,
respectively. During his appeals, he requested without success that the
hearing of the case should be adjourned in accordance with Article 3
(2) of the Act of the Allied High Commission for Berlin of 17th March,
1950, and that certain questions concerning the application of Article
9 of the Potsdam Agreement of 1945 should be put to the British
Military Commander in Berlin. A constitutional complaint was rejected
by the Federal Constitutional Court on .. July, 1963. All these
instances refused to rule on the question as to who had the right to
represent the child legally on the ground that this issue was
irrelevant in proceedings concerning the alleged lack of impartiality
on the part of two judges. The Constitutional Court stated, however,
in its introduction to the decision, that the Applicant's son was
legally represented by the Applicant.[/align]

[align=left]
The Applicant states that he is of Polish origin and that he wished to
give his son an education which makes the child aware of his ethnic
background inter alia, by teaching him the Polish language. This aim
will be frustrated by his son's being brought up by his German
grandparents. In this respect, he refers to Article 2 of the Genocide
Convention which prohibits the transfer of a child from one ethnic
group to another. He further states that, by the non-recognition of his
son's status as a citizen of Danzig, his son will be liable to German
military service."

In his previous Application the Applicant had alleged violations of
Articles 6, 8 and 14 of the Convention and of Article 2 of the
Protocol.

By the Commission's decision of 22nd April, 1965, the complaint
concerning the alleged violations of Article 8 in the proceedings
relating to the custody of his son and to the payment of alimony to
this divorced wife was declared inadmissible for non-exhaustion of
domestic remedies, the other complaints were declared to be manifestly
ill-founded.

On 5th August, 1965, the Applicant demanded a reconsideration
(Einspruch) of his Application. He was informed that no appeal was
provided for and that, in accordance with Article 27, a new application
could not be dealt with if it was substantially the same as a matter
which had already been examined, and contained no relevant new
information.

His present Application relates to two series of proceedings, one
concerning the custody of his son, the other his right to be visited
by his son. The facts as appearing from the Applicant's submissions and
the documents submitted by him may be summarised as follows:

As concerns the custody (elterliche Gewalt), it was at first awarded
to the Applicant by decision of the District Court (Amtsgericht) of
Berlin-Tiergarten on .. December, 1959, but given to the mother on
appeal by decision of the Regional Court (Landgericht) of Berlin on ..
July, 1960. This decision was confirmed against the Applicant's further
appeal by the Court of Appeal (Kammergericht) on .. October, 1960.

The Applicant subsequently submitted new arguments to the District
Court of Berlin-Tempelhof-Kreuzberg and applied for a change of the
previous decision. He alleged that the mother was obviously not able
to give his son a proper education and that, therefore, the custody
should be given back to him. The District Court rejected his request
by decision of .. April, 1961. The Applicant lodged an appeal
submitting inter alia that he and his son were citizens of Danzig and
that, consequently, the law of Danzig should be applied. According to
Article 1636 of the old German Civil Code as it was in force in Danzig
before the war, the right to the custody of his son would belong to the
father. But the Regional Court confirmed the decision of the District
Court on .. November, 1962. The Applicant lodged a further appeal
repeating his former arguments and alleging furthermore that he had not
been granted a hearing in accordance with the law, since he had not
been given sufficient time to reply to a certain expert opinion
(Gutachten).
The Applicant also submitted that by the decision concerned he was
prevented from giving his son an education in the language and culture
of his Polish ancestors. The Court of Appeal rejected the Applicant's
further appeal on .. May, 1965, stating, inter alia, the following
reasons:

The Applicant and his son are German citizens and consequently German
law is applicable. Whether they are at the same time citizens of Danzig
is of no interest. Even if he were a citizen of Danzig the Applicant
could not claim the right granted by Article 1636 of the Civil Code in
its Danzig version, as this particular provision is no longer in force.
For the rest, however, there is no essential difference in following
one or the other version of the Civil Code, as according to both
versions a decision concerning the custody should not be altered unless
strongly required in the interest of the child. The Applicant had not
been denied a hearing in accordance with the law, as the expert opinion
concerned had been known to his lawyer a long time before the Court's
decision. Whether, and to what extent, the Applicant's son should be
educated in the Polish language and culture is only to be decided by
the parent to whom the custody has been awarded. It is up to the
Applicant to try to arouse the interest of his son in the ethnic
background of his ancestors during his visits.

As concerns the right of visit (Besuchsrecht) the District Court of
Berlin-Tempelhof-Kreuzberg in a decision of .. December, 1961, had made
the following provisions: The son may visit his father on every third
Sunday of each month and on every second holiday (Feiertag) between 10
a.m. and 6 p.m. This decision was confirmed on appeal by the Regional
Court on .. April, 1962. Further requests of the Applicant for a change
of these decisions were rejected by the Court of Appeal on .. October,
1964, and .. July, 1966.

On .. December, 1964, the Applicant made another request to be visited
by his son during every second weekend as he wanted more time to
instruct his son in the Polish language and culture. He now alleged not
only to be a citizen of Danzig but also to be citizen of Poland and
requested the application of the Polish law. His request was rejected
by the District Court on .. February, 1966, and the Court of Appeal on
.. February, 1967. The Courts stated again that the Applicant was a
German citizen and that there was no reason to alter the provision made
by the Court in 1961. The Court of Appeal added, however, that, even
if he were a Polish citizen, the Applicant could not claim a change of
the provisions made with regard to the right to receive visits since
there was no essential difference between German and Polish law.

It appears that under the above-mentioned decisions, the boy has lived
with his mother since 1960 and that the Applicant is entitled to be
visited by his son on one Sunday every month and on every second
holiday. The Applicant states in his present Application that this is
not sufficient time to give him an education in the Polish language and
culture. He affirms that both he and his son are citizens of Danzig and
Poland but not of Germany and submits a birth certificate of his father
which, however, does not contain any indication of nationality.

The Applicant alleges

(1) an infringement of the "freedom to live in accordance with the
thinking of one's home countries" (Article 5);

(2) a refusal of the right to a fair hearing in that his submissions
were not taken into account by the courts (Article 6);

(3) refusal of instruction in the native language and of an education
according to the ethnical background (Article 8);

(4) interference with the freedom of thought with regard to his own
nation (Article 9).

He states that the object of his claim is to "maintain the nationality
of Danzig and Poland".

THE LAW

Whereas, the Commission first observes that the Applicant in his
previous application complained inter alia of certain proceedings
relating to the custody of his son; whereas the Commission further
observes that this part of the previous Application was rejected on the
ground that the Applicant had not exhausted the domestic remedies
within the meaning of Article 26 (Art. 26) of the Convention; whereas,
in his present Application, which also relates to the custody of his
son, the Applicant repeats his complaints as to the said court
proceedings but has added new complaints with regard to subsequent
proceedings;

Whereas, in respect of the Applicant's complaints concerning the
decisions awarding the custody of his son to his divorced wife, it is
true that Article 8 (Art. 8) of the Convention guarantees generally the
right to respect for private and family life;

Whereas, however, paragraph (2) of Article 8 (Art. 8-2) provides "that
there shall be no interference by a public authority with the exercise
of this right except such as is in accordance with the law and is
necessary in a democratic society ... for the protection of health and
morals, or for the protection of the rights and freedoms of others";

Whereas the Commission finds that the family life of the parents with
their children does not cease owing to the divorce of the parents;

Whereas, however, with regard to divorce and other cases where the
communal life of the parents is interrupted, it is legitimate, or even
necessary, for the national law to provide rules governing the
relationship between parents and children which differ from the rules
which are applicable when the family unit is still maintained;

Whereas it is to be observed, that the competent public authorities,
when called upon to give a decision in this respect, particularly take
into consideration the interest of the child (see Article 1671 of the
German Civil Code); whereas the Commission has frequently stated that
the terms of paragraph (2) (Art. 8-2) leave a considerable measure of
discretion to the domestic courts when deciding on questions concerning
the custody of the children of divorced parents (see Application No.
1449/62, X v. the Netherlands - Yearbook VI, p. 262);

Whereas it is clear that the courts have in a series of proceedings
taken full account of the situation of each parent in relation to the
general wellbeing of the child; whereas there is no indication that the
courts, in reaching their various findings, have interfered with the
Applicant's family life in a manner which is not permitted under
paragraph (2) (Art. 8-2);

Whereas an examination of the case as it has been submitted, including
an examination made ex officio, does not therefore disclose any
appearance of a violation of the rights and freedoms set forth in the
Convention;

Whereas it follows that this part of the Application is manifestly
ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2)
of the Convention;[/align]

[align=left]Whereas, insofar as the Applicant complains that the courts refused to
apply Polish law or that they misinterpreted certain provisions of
national law, an examination of the case as it has been submitted,
including an examination made ex officio, does not disclose any
appearance of a violation of the rights and freedoms set forth in the
Convention and especially in the Articles invoked by the Applicant;

Whereas, in respect of the judicial decisions complained of, the
Commission has frequently stated that in accordance with Article 19
(Art. 19) of the Convention its only task is to ensure observance of
the obligations undertaken by the parties in the Convention; whereas,
in particular, it is not competent to deal with an application alleging
the errors of law or fact have been committed by domestic courts,
except where the Commission considers that such errors might have
involved a possible violation of any of the rights and freedoms
limitatively listed in the Convention;

Whereas, in this respect, the Commission refers to its decisions Nos.
458/59 (X. v. Belgium - Yearbook III, p. 233) and 1140/61 (X. v.
Austria - Collection of decisions, Vol. 8, p. 57); and whereas there
is no appearance of a violation in the proceedings complained of;
whereas it follows that also this part of the Application in manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention;

Whereas, the Applicant further complains that he was not given a fair
hearing in the proceedings regarding the custody of his child, that he
is denied the possibility to educate his son in the Polish language and
culture and complains of the decisions determining his right to be
visited by his son;

Whereas, insofar as the Applicant complains that he was not given a
fair hearing in the proceedings regarding the custody of his child; it
is to be observed that the Applicant had; both before the lower courts
and before the Court of Appeal; a full opportunity to make his
submissions on all points at issue and, in particular, on the expert
opinions which had been brought to the knowledge of his lawyer before
the regional Court's decision;

Whereas, insofar as the Applicant complains that he has been prevented
from educating his son in the Polish language and culture, it is to be
observed that the right of education is an integral part of the custody
which has been entrusted to the mother and the Applicant therefore no
longer has a right to determine the manner in which that education is
carried out;

Whereas, insofar as he complains of the decisions determining his right
to be visited by his son, it is to be observed that the Applicant has,
in fact, been granted the right of visit within certain limits fixed
by the competent courts; in this respect, too, it is to be observed
that the national courts enjoy a certain margin of appreciation which
they have in no way exceeded in the present case;

Whereas, in regard to the above complaints an examination of the case
as it has been submitted, including an examination made ex officio,
does not disclose any appearance of a violation of the rights and
freedoms set forth in the Convention and in particular in Articles 5,
6, 8 and 9 (Art. 5, 6, 8, 9); whereas it follows that these parts of
the Application are manifestly ill-founded within the meaning of
Article 27, paragraph (2) (Art. 27-2), of the Convention;

Whereas, in regard to the Applicant's complaint that the German courts
in their decisions refused to recognise him and his son as nationals
of Danzig and Poland, it is to be observed that the Convention, under
the terms of Article 1 (Art. 1); guarantees only the rights and
freedoms set forth in Section I of the Convention; and whereas, under
Article 25, paragraph (1) (Art. 25-1), only the alleged violation of
one of those rights and freedoms by a Contracting Party can be the
subject of an application presented by a person, non-governmental
organisation or group of individuals;

Whereas otherwise its examination is outside the competence of the
Commission ratione materiae; whereas no right to the recognition of a
particular nationality is as such included among the rights and
freedoms guaranteed by the Convention; whereas in this respect the
Commission refers to its previous decisions, Nos. 288/57 (X. v. the
Federal Republic of Germany - Yearbook I, p. 209) and 1262/61 (C v.
Austria); whereas it follows that this part of the Application is
incompatible with the provisions of the Convention within the meaning
of Article 27, paragraph (2) (Art. 27-2) of the Convention.

Now therefore the Commission declares this application inadmissible.[/align]