PROCEDURE

The case originated in three applications (nos. 21980/06, 26944/07 and 36948/08) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the German national, Mr Iradj Kuhlen-Rafsandjani (“the applicant”), on 29 May 2006, 6 June 2007 and 11 July 2008 respectively.

The applicant, who had been granted legal aid, was represented by Ms C. Krüger-Rauch, a lawyer practising in Schifferstadt. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, Federal Ministry of Justice.

The applicant alleged, in particular, that the length of two sets of proceedings concerning custody of his children had been excessive.

On 9 December 2009 the President of the Fifth Section decided to give notice of the applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1939 and lives in Heidelberg.

A. Background to the case

The applicant and his former wife married in 1996. They have two children, a son born in December 1992 and a daughter born in May 1996. Until 1997 the applicant assumed a major part of the child care while the mother completed her studies. In July 1997 the couple separated and the children remained with the mother. The applicant had regular contact with his children until the beginning of 1998 when the mother and children moved from Heidelberg to Rees in North Rhine-Westphalia. Following the move the mother's parents assumed a large part of the child care because the mother was in full-time employment.

The applicant subsequently found that his regular contacts with the children were obstructed by the mother and her parents and lodged an application for the regulation of his contact rights (Umgangsrecht) with the Emmerich District Court in March 1998. By a court decision of 23 July 1998 (file no. 5 F 105/98) he was granted contact with his children every second and fourth weekend of the month from 6 p.m. Friday to 6 p.m. Sunday.

Since disputes regarding the applicant's contact with his children persisted, the applicant instituted further proceedings for the regulation of his contact rights. At the same time, proceedings for a provisional decision on custody were opened, as well as divorce proceedings which also dealt with the issues of custody and contact rights as ancillary matters (Folgesachen). The proceedings were to a large extent conducted jointly until the applicant's former wife's petition for divorce was granted by a judgment dated 29 November 2001 and custody of the children was decided as an ancillary matter to the divorce. However, no decision on the applicant's contact rights was taken at that time.

The parties continued to argue about the applicant's contact rights with the children and regular contact was interrupted repeatedly and for longer intervals. The applicant instituted several further proceedings for the regulation of his contact rights on his own behalf and on behalf of his children, as well as proceedings to restrict contact between the children and their grandparents who, according to the applicant, were manipulating the children so as to alienate them from him. A court settlement on the regulation of the applicant's contact rights, concluded on 9 September 2002, was never accepted by the applicant, and he later challenged it.

B. The proceedings concerning custody of the children and the applicant's contact rights

1. The proceedings before the divorce

On 31 August 1998 the applicant filed an application with the Emmerich District Court to be granted contact with his children in accordance with the aforementioned decision of 23 July 1998, arguing that the mother was not complying with the regulations set out therein. The proceedings were instituted under file no. 5 F 272/98. At approximately the same time custody proceedings were opened before the same court under file no. 5 F 283/98. A first hearing in the custody and contact rights proceedings was held on 29 September 1998, during which the older child was heard.

In 1999 the applicant's wife filed a petition for divorce with the Emmerich District Court under file no. 5 F 18/99.

A joint hearing in the custody, contact rights and divorce proceedings took place on 22 April 1999. The parties agreed to the commissioning of an expert opinion on a possible regulation of custody and contact rights. They further agreed that until the completion of the expert opinion the contact of the applicant with his children should be provisionally regulated by the acting judge in cooperation with the Kleve child protection agency (Kinderschutzbund).

On 28 April 1999 the District Court ordered an expert opinion on the question of what attribution of custody rights and – should sole custody be awarded to the mother – what contact with their father would be in the children's best interest.

In the meantime the applicant had supervised contact in cooperation with the Kleve child protection agency, as determined for the transitional period following the hearing of 22 April 1999. However, by written submissions dated 12 August 1999 he revoked his approval of the supervised contacts and applied to the District Court for contact in accordance with the regulations set out in the court's decision of 23 July 1998, as his attempts to exercise his contact rights in August and September 1998 had been to no avail.

At a court hearing on 28 September 1999 the parties agreed that from 15 October 1999 the applicant would be entitled to visit his children every fortnight, accompanied by a representative of the Kleve child protection agency, and that he could have telephone contact with the children every two weeks at a set time. Nevertheless, it appears that regular contact between the father and the children ceased temporarily during the year 2000.

The expert opinion was finalised on 31 August 2000. The mother had previously cancelled appointments for appraisals in connection with the drawing up of the expert opinion, thereby delaying its completion.

In view of the repeated disputes between the parents and the fact that the children had been living with the mother for a considerable time and were settled, the expert recommended that sole custody be transferred to her. However, finding that the mother and grandparents were influencing the children against their father, she proposed that the question of where the children should reside (Aufenthaltsbestimmungsrecht) be referred to the Rees Youth Welfare Office (Jugendamt) with a view to ensuring the establishment of regular contact between the applicant and his children. The expert further recommended that the applicant be granted contact every second weekend on Saturday and Sunday from 10 a.m. to 6 p.m. at the children's home in Rees and suggested that the applicant should be entitled to spend holidays of one or several weeks with the children at his home in Heidelberg.

At a further joint hearing in the separate custody, contact rights and divorce proceedings on 19 October 2000, the District Court again heard the parties, as well as the Kleve child protection agency, which had been appointed as the children's curator ad litem (Verfahrenspfleger). The mother requested sole custody of the children for the duration of the separation of the spouses. The applicant asked to be granted contact rights in accordance with his request as reformulated on 18 October 2000 including, in addition to regular contact at the weekends, the right to spend the second Christmas holiday and half of each of the summer, autumn and Easter holidays with his children. The curator ad litem emphasised, in particular, that the son's apparent rejection of his father was due to the influence of the mother and the grandparents and recommended that regular contact between the son and the father be re-established as soon as possible.

On 9 November 2000, in the separate custody proceedings, the District Court decided to provisionally grant sole custody of the children to the mother. The District Court found that relations between the parents had deteriorated to the extent that joint custody was no longer in the children's best interest and since the children's main focal point and familiar environment remained with the mother it was in their interest that sole custody be awarded to her. However, the District Court deprived the mother of the right to determine the children's place of residence because her past behaviour had demonstrated that she was not willing to accept regular contact between the father and his children. It appointed the Kleve District Youth Welfare Office as the children's guardian in this respect (Aufenthaltsbestimmungsrechtspfleger). The District Court reserved its decision on the details of the applicant's contact rights until further consultation with the guardian.

On 13 December 2000 the applicant appealed against the attribution of sole custody to the mother and requested legal aid for the appeal proceedings. By a decision of 17 May 2001 in the divorce proceedings the District Court suspended the custody proceedings conducted as an ancillary matter to the divorce proceedings pending the decision of the Düsseldorf Court of Appeal on the applicant's appeal.

On 21 May 2001 the Düsseldorf Court of Appeal dismissed the applicant's request for legal aid in the appellate proceedings on the ground that his claim was devoid of any prospect of success. The Court of Appeal confirmed that, in view of the tensions and lack of cooperation between the parents, the transfer of sole custody to the mother was in the children's best interest. Furthermore, by transferring the right to determine the children's place of residence to the Kleve District Youth Welfare Office, the District Court had set the stage for implementing regular contact between the father and his children.

Regarding the contact rights proceedings, the applicant or his counsel reminded the District Court on several occasions that the question of contact rights was still outstanding. By a decision dated 18 June 2001 the District Court, in view of failed mediation attempts by the guardian, set a deadline of 20 July 2001 for the parties to reach an agreement on the contact rights, failing which these would have to be determined by a court decision after consultation with the guardian. The District Court referred to the expert report and stressed that the implementation of the applicant's contact rights could no longer be delayed.

By a letter dated 12 July 2001 the District Court asked the parties whether a decision in the divorce and ancillary custody proceedings could be taken solely on the basis of the written submissions of the parties. On 18 July 2001 the applicant's counsel agreed.

On 27 August 2001 the Düsseldorf Court of Appeal dismissed the applicant's appeal against the decision of the District Court dated 9 November 2000 in the proceedings regarding the provisional attribution of sole custody to the mother (5 F 283/98), referring to the reasoning given in its decision of 21 May 2001.

By written submissions of 4 October 2001 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Emmerich District Court of 9 November 2000 and the Düsseldorf Court of Appeal of 27 August 2001 regarding the provisional regulation of custody.

By a joint judgment (Verbundurteil) of 29 November 2001 the District Court granted the wife's petition for divorce and transferred sole custody of the children to her. The court again found that, in view of the lack of cooperation between the parents on matters concerning their children, as demonstrated in particular in the previous separate proceedings on the provisional regulation of custody, joint custody was not an option. Since the children's main focal point for several years had been their mother, sole custody had to be awarded to her.

The applicant appealed on 18 February 2002 and requested to be granted joint custody with the mother and to leave the right to determine the children's place of residence with a guardian.

By written submissions of 7 March 2002 the Kleve District Youth Welfare Office recommended that sole custody remain with the mother but at the same time the right to determine the children's place of residence should lie with the District Youth Welfare Office.

On 10 May 2002 a hearing took place before the Düsseldorf Court of Appeal to which the children had also been summoned. The children attended the hearing but were not heard by the Court of Appeal.

By a decision of 26 June 2002 the Düsseldorf Court of Appeal partially varied the judgment of the District Court dated 29 November 2001 (5 F 18/99). It confirmed the attribution of sole custody to the mother but, with a view to enabling and encouraging regular contact between the father and his children, appointed the Kleve District Youth Welfare Office as guardian as far as the right to determine the children's place of residence was concerned.

By written submissions dated 30 July 2002 the applicant lodged a constitutional complaint against the decisions of the District Court of 29 November 2001 and the Court of Appeal of 26 June 2002 complaining, in particular, that the children had not been heard by either the District Court or the Court of Appeal.

The proceedings regarding the applicant's contact rights following the divorce

Following the divorce the parties continued to argue about the applicant's contact rights. The applicant unsuccessfully objected twice to the participation of the acting judge in the respective proceedings (5 F 272/98). On 5 September 2002 a hearing took place. The applicant did not attend in person but was represented by counsel. The parties, the children's guardian and their curator ad litem were heard. The applicant, represented by his counsel, and his former wife entered into a court settlement (Prozessvergleich) stipulating that the applicant should have contact with the children every fortnight on Saturdays or Sundays from 2 p.m. in the mother's presence and by prior agreement with her. The parties further agreed that with effect from 2003 they would plan at least one holiday per year with the children at approximately the same place and time, so as to enable the applicant to meet the children regularly for a period of several days during the holidays. The applicant was further granted the right to visit the children at their mother's house on the occasion of the Iranian public holidays at a time to be previously agreed with the mother.

The applicant subsequently challenged the court settlement on the ground that he had not authorised counsel to enter into such agreement. He further alleged that the agreement was void since it did not sufficiently take into account the interests of the children and had therefore been concluded contra bonos mores. On 10 July 2003 a hearing took place which was attended by the applicant and a representative of the Kleve Youth Welfare Office in its capacity as guardian. The mother did not attend. On 28 August 2003 the District Court rejected the applicant's further application for a decision on his contact rights since the court settlement of 5 September 2002 constituted a binding agreement between the parties in this regard. On 2 April 2004 the Düsseldorf Court of Appeal dismissed the appeal and confirmed that the settlement was neither invalid nor void and had therefore effectively terminated the proceedings.

On 4 October 2004 the applicant filed an application with the Emmerich District Court to modify the settlement and extend his contact rights with a view to enabling him to spend holidays with his children at his home in Heidelberg and to have contact with them for part of the Easter and Christmas holidays. Proceedings were instituted under file no. 5 F 271/04.

On 20 January 2005 the District Court appointed a curator ad litem for the children. A hearing took place on 11 March 2005, during which the children were heard. By a decision of 2 May 2005 the District Court ordered an expert psychological opinion on the question of what regulation of the father's contact rights would be in the children's best interest and whether the mother and the grandparents were facilitating regular contact between the children and their father. For the period until finalisation of the expert opinion the applicant was granted unaccompanied contact with the children every fortnight on Saturdays or Sundays from 10.00 a.m. to 6 p.m.

On 31 August 2005 the District Court, referring to the considerable length of the proceedings in connection with the determination of the applicant's contact rights, discharged the appointed expert on the ground that she had announced that she could not provide an opinion before February 2006. A new expert was appointed who agreed to provide an opinion by the end of November 2005. The applicant objected to the new expert on the ground that she did not have the necessary professional qualifications and refused to be examined by her. An expert opinion could therefore not be established.

On 10 March 2006 a further hearing took place, during which the parties, the curator ad litem and the guardian were heard. By a decision of 29 March 2006 the District Court amended the court settlement of 5 September 2002 and granted the applicant access to his children every second weekend on Saturdays or Sundays from 10.00 a.m. to 6 p.m. but refrained from regulating the applicant's contact rights for the holidays since at the hearing of 11 March 2005 the children had objected to spending holidays alone with their father. The court further found that there was no evidence that the children had been manipulated by their grandparents. It specified that in reaching its conclusion it could not rely on an expert opinion because the father had refused to be examined by the appointed expert.

Following an appeal by the applicant on 10 April 2006, reasoned on 9 May 2006, a hearing took place before the Düsseldorf Court of Appeal on 2 March 2007, during which the parties, the children and their guardian were heard. The curator ad litem could not attend. On 20 March 2007 the Düsseldorf Court of Appeal dismissed the applicant's appeal and held that an extension of the applicant's contact rights could not be granted, mainly because the children had objected and thus it could not be in their interest. The Court of Appeal also found that while it was probable that the children had been negatively influenced by the mother's family as regards their father, the applicant's fixation on the conflict with the grandparents was partly responsible for the difficulties in finding a practicable regulation of his contact rights with the children.

On 15 May 2007 the Düsseldorf Court of Appeal dismissed a complaint by the applicant that his right to be heard had been infringed in the proceedings.

On 12 June 2007 the applicant lodged a constitutional complaint against the decision of the Emmerich District Court of 29 March 2006, as well as the decisions of the Düsseldorf Court of Appeal of 20 March 2007 and 15 May 2007 in the proceedings instituted under file no. 5 F 271/04. He also complained about the court settlement dated 5 September 2002 in the proceedings 5 F 272/98 and the related decisions of the Düsseldorf Court of Appeal of 2 April 2004.

In February 2008 the applicant filed a request to spend summer holidays with his children at his home in Heidelberg from 23 July to 3 August 2008 (file no. 5 F 33/08). A hearing took place on 21 May 2008, during which the parents and the children were heard. By a decision of 6 June 2008 the District Court rejected the request since the children had objected to spending the holidays with him; the request therefore could not be regarded as being in their interest. On 19 August 2008 the Düsseldorf Court of Appeal dismissed an appeal against that decision, since because of the passage of time a decision in the matter was no longer required.

3. The decisions of the Federal Constitutional Court

(a) The separate custody proceedings (file no. 5 F 283/98) 42. On 7 December 2005 the Federal Constitutional Court declined to consider the constitutional complaint (file no. 1 BvR 1716/01) concerning the separate custody proceedings (5 F 283/98) in which the applicant challenged the provisional attribution of sole custody to the mother. The decision was served on the applicant on 20 December 2005. (b) The divorce and ancillary custody proceedings (file no. 5 F 18/99) 43. By a decision of 17 October 2006 (file no. 1 BvR 1400/02) the Federal Constitutional Court declined to consider the applicant's constitutional complaint regarding the attribution of sole custody to the mother as an ancillary matter to the divorce proceedings. Since the applicant had failed to inform the Federal Constitutional Court of his new address the decision could only be served on him on 9 December 2006. 44. The Federal Constitutional Court held that the applicant's parental rights as guaranteed by the Basic Law included an obligation for the courts to conduct custody proceedings in such a way as to obtain a reliable basis for a decision founded on the child's wellbeing. Section 50 b § 1 of the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit, see “II. Relevant Domestic Law“ below), which required the court to hear a child in person, reflected the constitutional requirement to take the child's wishes into account when taking decisions on custody. A decision in line with the child's concerns could only be taken after the child had been given the opportunity to disclose its personal relations with the other family members during the proceedings. 45. The Federal Constitutional Court pointed out that it was questionable in the case at hand whether the proceedings had satisfied these requirements since the lower courts had not given any convincing reasons why the children had not been heard. However, there was no need to take a decision in this respect because in any event the applicant could not claim to have suffered a particularly serious disadvantage since his complaint did not have any prospect of success even if remitted to the lower courts. As had been established in the decision of the District Court of 29 March 2006 in the proceedings instituted subsequently under file no. 5 F 271/04 regarding the applicant's contact rights, it had been difficult for years to regulate the father's contact rights with his children. At a hearing that had taken place in those proceedings it had transpired that the children were rather opposed to an extension of the applicant's contact rights. (c) The contact rights proceedings (file no. 5 F 272/98 and file no. 5 F 271/04) 46. By a decision of 4 January 2008, served on the applicant on 12 January 2008, the Federal Constitutional Court (file no. 1 BvR 1544/07) declined to consider his constitutional complaint regarding the proceedings for the regulation of his contact rights, instituted under file no. 5 F 272/98 and file no. 5 F 271/04.

C. The proceedings instituted on behalf of the applicant's children

On 15 March 2001 the applicant lodged a separate application with the Emmerich District Court on behalf of and in the name of his children for the regulation of the children's contact rights with respect to their father. On 4 July 2001 (file no. 5 F 134/01) the District Court dismissed his request as inadmissible on the ground that the determination of contact arrangements between the father and the children was already the subject of the still pending proceedings under file no. 5 F 272/98.

On 24 July 2001 the applicant lodged a complaint against that decision, providing a statement of the grounds of appeal on 10 August 2001. On 10 September 2001 he was informed by the Düsseldorf Court of Appeal that there existed doubts as to his entitlement to represent his children in the proceedings. On 7 November 2001 the Düsseldorf Court of Appeal dismissed the appeal as inadmissible. It found that the applicant could not represent the children in the proceedings since the power of representation was part of the right to custody which in proceedings no. 5 F 283/98 had been transferred solely to the mother, with the exception of the right to determine the children's place of residence.

By written submissions dated 11 December 2001 the applicant lodged a complaint with the Federal Constitutional Court against the decisions of the District Court and Court of Appeal and further argued that Article 1671 of the German Civil Code in its current version was unconstitutional. By a decision of 7 December 2005, served on the applicant on 20 December 2005, the Federal Constitutional Court declined to consider the applicant's constitutional complaint (File no. 1 BvR 2127/01).

D. The proceedings regarding the grandparents' contact rights

On 9 January 2001 the applicant requested the District Court to prohibit any contact by the grandparents with his children and alternatively to grant them contact only in the presence of a third person to be determined by the children's guardian. The applicant argued that the grandparents were setting the children against him and obstructing the exercise of his contact rights.

The applicant had already lodged a similar application in previous proceedings (5 F 155/99), which had been rejected by a decision of the District Court dated 9 November 2000.

On 12 February 2001 the District Court granted the applicant's request for legal aid for the alternative motion but rejected it for his main application since the latter was devoid of any prospect of success. The Court held that even though the grandparents might have a negative impact on the children's relations with their father, a complete ban on their contact with the children was neither practicable, owing to the proximity of their respective homes, nor in the children's interest, given the close relations between them and their grandparents.

On 22 March 2001 the parties were heard by the District Court, and on 5 April 2001 the court rejected the application. It found that preventing contact between the children and their grandparents could in no way help to ensure regular contact between the applicant and his children but would to the contrary further obstruct such an aim. In view of the close relationship between the mother, children and the grandparents and the fact that the grandparents assumed a considerable part of the child care, a prohibition of contact with the children was neither practicable nor in the children's best interest.

Following an appeal lodged by the applicant on 10 May 2002, a hearing took place before Düsseldorf Court of Appeal. By a decision of 17 May 2002 the Court of Appeal rejected the applicant's request for legal aid for the appellate proceedings since his appeal was devoid of any prospect of success. On 3 June 2002 the Düsseldorf Court of Appeal dismissed the appeal since there was nothing to establish that contact with their grandparents was contrary to the children's wellbeing and there was no evidence that the grandparents had obstructed contact between the children and their father or had damaged their relationship.

On 17 October 2006 (1 BvR 1194/02) the Federal Constitutional Court declined to consider the applicant's constitutional complaint that his parental rights had been violated by the decisions of the lower courts. It held that the right to determine the contact of the children with third persons was part of the right of custody which had been awarded solely to the mother. The applicant's parental rights could therefore not be directly affected by the contact of his children with third persons and his own contact rights could be affected only indirectly. However, a limitation on the contact rights of third persons with the children could not entail any binding regulation of the applicant's contact with his children and he could thus not claim that his own rights were affected.