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Article 19, paragraph (1) of the Basic Law provides that, insofar as
a fundamental right can be limited by law, the law in question must
refer to that right and the Article in which it is stated. This has not
been done in the case of Article 1589, paragraph (2), of the Civil
Code. Moreover, Article 19, paragraph (2), of the Basic Law states:

In no case may the essential content of a fundamental right be
encroached upon.

This paragraph (2) of Article 1589 of the Civil Code ceased to be valid
20 years ago, when the Basic Law came into force, for it embodies a
crime against humanity.

The Federal Government, Parliament and the courts cannot deny this
state of affairs. Neither can they take any action against it if they
want to avoid inhumanity.

As appears from the Federal Government's observations to the Commission
of 31st October, 1967, the criminal act of perverting Article 3,
paragraph (3), of the Basic Law and Article 8 of the Convention is to
be intentionally continued until 30th June, 1970.

Evidence: Legal Rights of non-legitimate Children Act of 19th August,
1969.

With effect from 1st July, 1970, the natural bond of descent between
a child and its father is to be limited by interpolation of the
parental authority of the mother.

Descent from the mother is given preference over that from the father!
This is an intentional violation of the principle of equality.

The father is to pay and to let the child share his fortune, but he is
allowed only as much influence over the child's education as the mother
chooses. Furthermore, the child is estranged from its father.

By this measure, the legislature favours mothers who for various
reasons have tried to have illegitimate children; for example, a woman
who makes a false promise of marriage is favoured for the sake of the
child.

The legislator has also omitted to place an illegitimate child in the
custody of the morally worthy parent. The preferences that the child
develops for a particular parent are also disregarded. This is further
violence against the illegitimate child.

The proposal that an illegitimate child should be adopted by its
natural father is a crime against human dignity. The father cannot be
deprived of what is his by the natural tie of blood. It may be asked
since when innocent persons have been objects of legal dispute?

Insofar as the Federal Government relies on Article 6, paragraph (3),
of the Basic Law, the answer to it is that a claim of blood descent
requires fundamentally different treatment from an inheritance claim.
The legislator has treated what is essentially similar as dissimilar,
and what is essential dissimilar as similar. Innocent fathers are
equated with guilty ones.

In short:

By his very birth, man is not an object of legal dispute and therefore
the rejection by the Federal Government of the absolute claims of blood
descent, which are an essential part of private life and an inborn and
inalienable human right, is contrary to the fundamental rights and
freedoms laid down in the Convention and the Basic Law.

These rights and freedoms are the unconditional prerogatives of
everyone and are subject to no temporal limitation. The truth is not
difficult and leaves no room for choice between two alternatives.

For these reasons, application is made for judgment to be given against
the Government of the Federal Republic of Germany.

As to the Federal Government's observations concerning the applicant's
person, from his communications

1. of 13th August, 1966, to the German Federal Parliament,

2. of 18th December, 1967, 29th January, 1968 and 24th February, 1968
(directly to the Federal Government),

3. of 4th April, 1968 to the Commission of Human Rights,

4. in the case record at the District Court of Rosenheim (which has
been demanded) and the statement of facts contained therein,

it is unmistakably clear to the Federal Government that by judgment C
158/65, the applicant, without any acknowledgement on his part, was
forced by official action of the Presiding Judge of the District Court
at Rosenheim, Dr. Bardroff, to accept an illegitimate child and the
absence of all bonds of descent between himself and the child as,
furthermore, that the Regional Court of Traunstein, like the Federal
Constitutional Court and the Bavarian Constitutional Court, refused to
deal with the case. The Public Prosecutor's Offices
(Staatsanwaltschaften) have also avoided the issue.

The Federal Government is equally avoiding the issue and accordingly
its observations make no reference to the original facts.

In the proceedings before the Commission, the Federal Government is
concealing the truth.

The applicant requests the Commission, for the purpose of safeguarding
human rights and fundamental freedoms within the meaning of the
Convention and fundamental rights within the meaning of the Basic Law,
to ask the Federal Government to produce evidence that puts it beyond
doubt

1. That C.D., born on 29th October, 1964, is in fact the applicant's
child - this to be proved either by administering an oath to the
child's mother or by means of an expert opinion based on blood groups
and inherited characteristics;

2. that the judgment (C 158/65) of 20th May, 1965 of the District Court
of Rosenheim, is, in fact, based on the finding demanded under (1)
above;

3. that the intentional perversion of justice in the above judgement
against the applicant will be immediately terminated and that the
guilty persons will be called to account;

4. that, if C.D. is the child of the applicant, the forcible disruption
of the ties of descent will be immediately terminated.

Reasons

The demand stated under (1) above was known to Presiding Judge, Dr. E.
of the District Court, at the hearing on 20th May, if not before; he
deliberately ignored it. On this point, the applicant tenders the
following evidence (copies attached):

1. Photocopy of the copy of the objection submitted by the applicant's
counsel (Dr. F.) to the District Court of Rosenheim on 23rd March, 1965
- Ref. C. 158/65.

2. Photocopy of the applicant's oral and written objection as defendant
at the hearing on 20th May, 1965 before the District Court of
Rosenheim.

3. Photocopy of the declaration by the defendant's sister as evidence
of the correctness of the objection mentioned under (2) above,
according to which the mother of the child expressed doubt as to
whether the defendant was the child's father.

The child's mother, Mrs. B., did not contest the objection raised by
the defendant at the hearing on 20th May.

The Presiding Judge took cognisance of the objection by asking the
defendant, "Who wrote that?" The defendant's counsel answered, "He
did", (meaning the defendant).

The Presiding Judge then asked the defendant whether he was prepared
to admit the claim. He replied, "I want to be father to the child!"

The Presiding Judge did not comply with the defendant's desire, as he
felt bound to apply Article 1589, paragraph (2) of the Civil Code. So
the defendant did not, in fact, admit the claim.

Finally, the Presiding Judge confronted the defendant with the child's
picture - with as much assurance as if he himself had his hand in the
way! (I mean during the act of procreation.) He then pronounced
judgment.

Dr. E. is aware that, the facts being what they were with regard to the
conduct of the child's mother towards the defendant, the defendant
could not have admitted the claim in the hearing on 20th May, 1965. For
such an admission, a personal declaration by the defendant would have
been necessary, e.g. "I admit the claim!" The defendant did not at any
time make any such declaration. At the very least, personal conviction
on his part would have been necessary for the admission, e.g. "I am the
child's father!" Even now, the applicant has not this conviction. After
the mother's statement, "I will go if ...!, he cannot be personally
convinced.

When Dr. E. was interviewed by the Public Prosecutor's Office at
Traunstein (Ref: 6 Js 20/68 b), he admitted the defendant's statement,
"I want to be father to the child" at the hearing on 20th May, 1965.
This shows that he deliberately falsified the record of the hearing.

With regard to the conduct of, or rather the perversion of justice by,
Judge F. of the District Court of Rosenheim in judgment C 776/67, the
applicant refers to the copy sent to the Commission of his complaint
of 18th January, 1968, addressed to the Attorney-General
(Generalstaatsanwalt) attached to the Court of Appeal of Munich. The
proceedings were discontinued by the competent Public Prosecutor's
Office at Traunstein as the case record was with the Federal
Government.

For the facts relating to the child's mother, Mrs. B., the applicant
refers to the various communications by him listed above.

To conclude:

The applicant is the father of the child as the result of judgment C
258/65, which was based on an intentional perversion of justice by the
Presiding Judge of the District Court, Dr. E. Paternity has not been
proved either by a blood test or by recognition.

The Federal Government is not prepared to put an end to the crime of
intentional perversion of justice committed against the applicant or
to his persecution.

The applicant requests that:

1. The perversion of justice and persecution directed against him be
immediately terminated;

2. Compensation be granted for his mental suffering and other damage;

3. The guilty persons be called to account."

THE LAW

Whereas, with regard to the remaining essential complaint that, as a
natural father, he has, under German law, no paternal relationship and
no rights with respect to his illegitimate child, and in particular,
no right of access to his said child, the Commission does not consider
it necessary to examine the question whether or not the present legal
situation is compatible with Article 8 (Art. 8) of the Convention;

Whereas, in any event, the new legislation concerning the status of
illegitimate children, which was enacted on 19th August, 1969
(Bundesgesetzblatt, 1969, Part I, p. 1234) and will enter into force
on 1st July, 1970, gives a natural father some possibility, not
hitherto available, to claim access to, or exert influence over, the
situation of his illegitimate child; whereas, furthermore, the
Commission notes that the provision of Section 1589, paragraph 2, of
the German Civil Code, which provides that the illegitimate child and
its father are deemed not to be related, will be abolished by the new
legislation; whereas for these reasons, the Commission is of the
opinion that the new legislation gives the applicant reasonable
satisfaction in regard to his present complaint; and whereas, the
Commission therefore finds that there is no object in continuing
further the proceedings relating to this application;

Now therefore, the Commission decides TO STRIKE THE APPLICATION OFF THE
LIST OF CASES.
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