23 ينويو 2014

د.اشرف شمس الدين

آخـــر الــمــواضــيــع

النتائج 1 إلى 3 من 3

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

  1. #1

    افتراضي 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]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  2. #2

    افتراضي

    [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]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

  3. #3

    افتراضي

    [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]
    مكتب
    هيثم محمود الفقى
    المحامى بالاستئناف العالى ومجلس الدولة
    المستشار القانونى لنقابة التمريض ا مساعد أمين الشباب لدى منظمة الشعوب العربية لحقوق الانسان ودعم الديمقراطية ا مراقب عام دائم بمنظمة الشعوب والبرلمانات العربية ا مراسل ومحرر صحفى ا

المواضيع المتشابهه

  1. TWENTY-ONE DETAINED PERSONS v. GERMANY - 3139/67 [1968] ECHR 15 (06 April 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:35 AM
  2. Dr. M. G. SOLTIKOW v. the FEDERAL REPUBLIC OF GERMANY - 2257/64 [1968] ECHR 5 (05 Apr
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 7
    آخر مشاركة: 07-19-2009, 12:34 AM
  3. X. v. THE NETHERLANDS - 2648/65 [1968] ECHR 8 (06 February 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:29 AM
  4. X. v. SWEDEN - 3071/67 [1968] ECHR 12 (07 February 1968)
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:28 AM
  5. X. & CO. (ENGLAND) LTD v. THE FEDERAL REPUBLIC OF GERMANY - 3147/67 [1968] ECHR 1
    بواسطة هيثم الفقى في المنتدى Decisions of The European Court of Human Rights
    مشاركات: 0
    آخر مشاركة: 07-19-2009, 12:26 AM

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