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Successful constitutional complaint against exclusion of right of contact in the matter of Görgülü

Press Release No. 55/2005 of 23 June 2005

Order of 10 June 2005
1 BvR 2790/04

1 BvR 2790/04

In a dispute about contact that has now continued for more than five years, between a father and the foster parents of his illegitimate son, the Federal Constitutional Court has again decided in favour of the father. The father's constitutional complaint against the decision of the Fourteenth Senate of the Naumburg Higher Regional Court (Oberlandesgericht, OLG), which excludes him - altering the provisional decision on contact made by the Wittenberg Local Court (Amtsgericht, AG) - from his right of contact, was largely successful. In this matter, the Federal Constitutional Court had already granted a temporary injunction on 28 December 2004, enabling the complainant to have contact to his child until the decision on the constitutional complaint (Press release no. 117/2004 of 29 December 2004). The First Chamber of the First Senate has now, in deciding in the principal proceedings, found that the Higher Regional Court's exclusion of the right of contact voluntarily violates the complainant's right to his lawful judge and his right as a parent, since the Higher Regional Court was not authorised to alter the decision on contact of the Local Court. In this respect, the order of the Higher Regional Court was overturned. The provisional decision on contact of Wittenberg Local Court therefore remains in effect.

Facts of the case:

The complainant, the father of a child who was born illegitimate in 1999 and is living with foster parents, has for years been attempting, in a number of judicial proceedings, to have custody transferred to himself and to be granted a right of contact. In response to his individual application, the European Court of Human Rights found in February 2004 that the exclusion of contact was a violation of the European Convention on Human Rights. Notwithstanding this, the Fourteenth Senate of the Naumburg Higher Regional Court prohibited the complainant's exercise of the right of contact to his child. After further legal disputes, Wittenberg Local Court, by way of temporary injunction, granted the complainant a right of contact to his son.

The Fourteenth Senate of Naumburg Higher Regional Court, in connection with a complaint of failure to act that had been filed against the Local Court, altered the Local Court's temporary injunction again and excluded contact between the complainant and his child until the final decision of the Local Court. The constitutional complaint filed against the decision of the Higher Regional Court, which was preceded by the granting of a temporary injunction by the Federal Constitutional Court, was successful.

The decision is essentially based on the following considerations:

1. The Higher Regional Court altered the decision on contact of the Local Court to the detriment of the complainant without giving understandable reasons to show why it is entitled to do this in the proceedings relating to the complaint of failure to act. The court applied to with a complaint of failure to act may examine only the failure to act of the court of first instance. If the complaint of failure to act is well-founded, the court of first instance may only be directed to continue the proceedings. However, the court is not authorised to alter a decision at first instance, as happened in the present case. In addition, the court circumvented the provisions of the Code of Civil Procedure, under which a temporary injunction on the right of contact granted by the Local Court is non-appealable. In doing this, the Higher Regional Court arbitrarily deviated from the principle of the right to one's lawful judge.

2. In addition, the court did not take sufficient account of the judgment of the European Court of Human Rights, in accordance with which the complainant must be granted contact to his child. Instead of attempting to realise a right of contact, the Higher Regional Court, violating the binding force of statute and law, ended a right of contact that had already been ordered (by the Local Court) and thus ended a situation that was in compliance with the European Convention on Human Rights. Admittedly, the Higher Regional Court would not have been bound in its legal assessment by the decision of the European Court of Human Rights. But this can only be of significance if the court was competent to make a decision on the merits. However, that was not the case here. It should be noted that the submissions of the foster parents, in which they stated that the anticipated adoption prevented contact, do not justify deviating from the decision of the European Court of Human Rights. On the contrary, the conduct shown by the foster parents to date gives rise to doubts as to whether the adoption they desire would even be appropriate from the point of view of the welfare of the child.

Order of 10 June 2005 - 1 BvR 2790/04 -

Karlsruhe, 23 June 2005