Görgülü case

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The OLG Naumburg , before which several negotiations took place.

" Case Görgülü " is the summary term for several German family law disputes in which a Turkish citizen living in Germany , Kazim Görgülü , fought for years about parental care for his son and about a right of access to him.

After the birth, the German mother unilaterally released the son for adoption without Görgülü's consent . Görgülü and the mother were not married to each other. The case caused a stir because decisions by the Wittenberg District Court in favor of Görgülü were repeatedly overturned by the Naumburg Higher Regional Court . The European Court of Human Rights declared a decision by the Higher Regional Court of Naumburg to be incompatible with the European Convention on Human Rights , and further decisions by the Higher Regional Court of Naumburg were overturned by the Federal Constitutional Court.

Of far-reaching importance in this case, which has been pending since 1999, is on the one hand a decision by the Federal Constitutional Court on the obligation of German courts to take into account the decisions of the European Court of Human Rights, and on the other hand a decision by the Federal Court of Justice on the conditions under which an illegitimate father is the sole parental authority Care can be obtained for his child when the mother has given up the child for adoption.

Sequence of events

Beginning

Görgülü and the future mother of their son began an illegitimate partnership in 1997; this lasted until the beginning of 1999. In May 1999, Görgülü found out about the pregnancy of his former partner, who from July 1999 refused any further contact with him. She gave birth to the child on August 25, 1999; the next day she gave it up for adoption and instructed the youth welfare office to take care of it for adoption applicants. She did not give the father's personal details. The child was placed in foster care. On November 1, 1999, the mother gave her consent to the adoption in a notarized deed. She repeated this declaration with notarial deeds dated September 24, 2002 and March 31, 2005. The youth welfare office was appointed official guardian.

Görgülü only found out about the birth of the child and the intended adoption in October 1999. With the judgment of the local court in Wittenberg on June 20, 2000, his paternity was finally established. On January 18, 2001, the child's foster parents applied for adoption. After the official guardian had agreed to the adoption, the Wittenberg Guardianship Court replaced the father's consent by a decision of December 28, 2001. Following an appeal by Görgülü, the child's application to replace the father's consent to adoption was withdrawn.

The Wittenberg District Court assigned Görgülü both a right of access by an interim order of February 8, 2001 and parental custody by a resolution of March 9, 2001 . By decision of June 20, 2001, the 14th civil senate of the Naumburg Higher Regional Court - with the reversal of opposing decisions by the Wittenberg District Court - rejected Görgülü's application for custody and ruled out Görgülü's right of access to his child for a limited period. The OLG justified this with the fact that Görgülü was able to look after his child, but that the separation of the child from his foster family, with whom he had developed a deep social and emotional bond, caused severe irreversible psychological damage to the child would lead. A constitutional complaint by Görgülü against this was not accepted by the Federal Constitutional Court (BVerfG) for a decision on July 31, 2001.

The decision of the ECHR

The European Court of Human Rights (ECHR), 3rd section, decided in a judgment of February 26, 2004 on the Görgülüs human rights complaint that the decision of the Naumburg Higher Regional Court of June 20, 2001 with regard to the denial of custody and access rights Art. 8 violate the European Convention on Human Rights . Each state party to the European Convention on Human Rights is obliged to work towards the reunification of a biological parent with their child. The OLG Naumburg did not check whether a reunification of Görgülü with his child could be designed in such a way that the negative consequences for the child resulting from the separation of the child from his foster family would be less than feared by the OLG. In addition, the OLG did not take into account the long-term consequences that could result from a permanent separation of the child from his biological father. With the exclusion of the right of access, the OLG made any form of family reunification and the establishment of another family life impossible. It serves the child to maintain family ties.

Because of the restriction of the right of access, the Court also awarded the applicant compensation for the non-pecuniary damage suffered in the amount of € 15,000.

First decisions of the BVerfG

With an interim order dated March 19, 2004, the Wittenberg District Court again granted Görgülü two hours of access to his child on Saturdays. The higher regional court in Naumburg overturned this temporary injunction with a decision of June 30, 2004. The OLG stated that, given that the proceedings had already been going on for years, there was no longer any reason for a measure of provisional legal protection, as this was an urgent measure by its legal nature. In addition, such an interim order should only have been issued upon application, but not ex officio. Nothing else emerged from the judgment of the ECHR of February 26, 2004. The decision of the ECHR only binds the Federal Republic of Germany as a subject under international law, but not the independent judicial bodies. The effect of the judgment of the ECHR is limited to the finding of a violation of the law and is not binding on national courts.

In response to Görgülüs' constitutional complaint, the Federal Constitutional Court overturned the decision of the Naumburg Higher Regional Court of June 30, 2004 with a decision of October 14, 2004 and referred the matter back to another civil senate of the Naumburg Higher Regional Court. The Federal Constitutional Court justified this with the fact that the OLG had violated Article 6 of the Basic Law in connection with the rule of law by disregarding the decision of the European Court of Human Rights. The Higher Regional Court should have taken into account the decision of the ECHR, both on the question of whether the interim order can also be issued ex officio, and on the question of whether Görgülü can be granted access rights.

With a further ruling of March 19, 2004, the Wittenberg District Court transferred parental responsibility to Görgülü. The 14th civil senate of the Naumburg Higher Regional Court also overturned this decision on July 9, 2004. In response to Görgülüs’s constitutional complaint, the Federal Constitutional Court also overturned this decision with a decision of April 5, 2005 and referred the matter back to another civil senate of the Naumburg Higher Regional Court.

Further decision of the BVerfG

With an interim order dated December 2, 2004, the Wittenberg District Court extended Görgülü's access rights to four hours a week. With a decision of December 8, 2004, the 14th civil senate of the Naumburg Higher Regional Court suspended the execution of the interim order of the Wittenberg Local Court. After Görgülü had lodged a new constitutional complaint against this, the 14th civil senate of the Naumburg Higher Regional Court lifted the suspension of the enforcement of the interim order by decision of December 20, 2004. With a further decision on the same day, he changed the provisional order of the Wittenberg District Court from December 2, 2004 and excluded the father's right of access to his child until the decision on the main issue. The OLG ruled that it was authorized to suspend the interim order of the Wittenberg District Court in the context of an inactivity complaint by the official guardian and the foster parents. The judgment of the European Court of Human Rights of February 26, 2004 is "not convincing" and "also questionable procedurally". There are “not inconsiderable reservations” against the assumption of the ECHR that the “relationship between the child and the father, which is nothing other than the biological origin”, is to be equated with a family life protected under Article 8, Paragraph 1 of the ECHR.

In response to Görgülüs' constitutional complaint, the Federal Constitutional Court initially restored the access regulations of the Wittenberg District Court from December 2, 2004 with an interim order dated December 28, 2004 and described the decision of the 14th civil senate of the Naumburg Higher Regional Court as arbitrary . With a ruling of June 10, 2005, the Federal Constitutional Court overturned the ruling of the 14th civil senate of the Naumburg Higher Regional Court of December 20, 2004, insofar as Görgülü's right of access was excluded until a decision on the main issue was reached. As a justification, the 1st Chamber of the First Senate stated that the decision of the Higher Regional Court Naumburg of December 20, 2004 violated Görgülü's fundamental rights from Article 101.1 sentence 2 GG in conjunction with Article 6.2 sentence 1 GG and is arbitrary. The OLG did not explain in a comprehensible manner why it considered it justified at all to change the decision of the Wittenberg District Court, although it is incontestable according to the then applicable Section 620c sentence 2 ZPO . In addition, the OLG fundamentally misjudged the legal binding to the decision of the European Court of Human Rights on February 26, 2004. The Higher Regional Court not only disregarded the judgment of the ECHR, but reversed its requirements into their opposite.

Another procedure

In the following period, Görgülü's rejection request against the judges of the 14th civil senate of the OLG Naumburg was successful. With a decision of December 15, 2006, the 8th civil senate of the Naumburg Higher Regional Court overturned the custody decision of the Wittenberg District Court of March 19, 2004 and rejected Görgülü's application for transfer of parental custody as currently unfounded, but at the same time expanded Görgülü's rights of access his son. The Federal Court of Justice dismissed Görgülüs' - admitted - legal complaint against the rejection of the transfer of parental custody by decision of September 26, 2007, but stated in the reasons that it was necessary "to establish a stable relationship [Görgülüs with his child] to promote now as quickly as possible and emphatically ”, and that the official guardian now“ has to endeavor to bring the father closer to his child ”. All those involved are "obliged to prepare the child to move to his father", although for reasons of the best interests of the child it seems desirable not to let the child's contact with his foster family be "completely cut off".

Görgülü's son has been living with his biological father Kazim Görgülü since February 11, 2008. With a ruling of September 28, 2008, legally binding since October 6, 2008, the Wittenberg District Court transferred sole parental custody to Görgülü.

Indictment of perversion of justice

Indictment

Of an anonymous complaint, the Attorney General's Office Naumburg initiated against two judges of the Naumburg Higher Regional Court and a judge of the District Court Halle an investigation for violation of the law , and finally got with the date of 23 November 2006 indictment in the regional court hall . The accused judges, as members of the 14th civil senate of the OLG Naumburg, had deliberately wrongly applied the law in appeal decisions in the Görgülü case in December 2004. The prosecution charged them with:

"Although the accused were aware, based on the previous decision of the European Court of Human Rights (judgment of February 26, 2004) and the Federal Constitutional Court of October 14, 2004, that because of the binding effect of a decision by the European Court of Human Rights for domestic courts, any decision which in the end leads to Kazim Görgülü not being able to exercise his rights of contact with his son, which can disadvantage him in his rights, they initially enforced the interim order of the district court decision of December 2, 2004 (...) 2004 pending a decision on the immediate complaints filed. This happened even though they knew that a complaint against the written decision of the Wittenberg Local Court of December 2, 2004 according to § 620c ZPO was inadmissible. They then decided (...) again by circumventing the regulation of § 620c ZPO on December 20, 2004 (...) that Kazim Görgülü would no longer have any contact with his son until the final decision in the access proceedings. The legal consequences resulting from this, which restricted the parental rights of Kazim Görgülü and strengthened the educational opportunities exercised by the foster parents, they accepted for the time being and in the form of a temporary exclusion from contact at least approvingly . "

No opening decision

By order of July 20, 2007, the Halle Regional Court did not admit the prosecutor's office to the main hearing and refused to open the main proceedings. The Attorney General's office immediately appealed against the non-opening decision.

On October 6, 2008, the Naumburg Higher Regional Court rejected the public prosecutor's office's immediate complaint as unfounded by a decision that was no longer contestable. In the case of a decision by a collegiate court, the act of perversion of the law is only realized if the judge in question has consented to the decision. How the vote went can no longer be clarified, since the accused judges - citing their right to remain silent as the accused ( Section 136 (1) sentence 2 StPO ) and the confidentiality of advice ( Section 43 DRiG ) - did not get involved and further investigations of evidence ordered by the OLG remained ineffective. A conviction of the accused is therefore not to be expected for factual reasons. A counter-presentation by Görgülü was rejected by the Higher Regional Court on December 19, 2008 as unfounded.

Legal meaning of the case

Constitutional law

The case has legal significance above all for the relationship between German law and the European Convention on Human Rights . It is traditionally assumed in Germany that international treaties such as the European Convention on Human Rights only contain an obligation between states, but do not bind the state or its organs in relation to its citizens or other persons. Therefore, in the Görgülü case, it was questionable to what extent judgments of the European Court of Human Rights are binding for German courts.

The Federal Constitutional Court ruled on October 14, 2004 that the binding of the courts to law in accordance with Article 20, Paragraph 3 of the Basic Law also includes the consideration of the European Convention on Human Rights, as this has become part of the German legal system through the consent act. As far as possible, German law should be interpreted in accordance with international law. It is true that decisions of the European Court of Human Rights cannot annul the legal force of judgments by German courts. However, if the violation of the European Convention on Human Rights persists, German courts would have to take into account the decision of the European Court of Human Rights if they have to decide again on the subject matter of the proceedings, for example because of a new application or a changed situation.

Family law

According to Section 1672 (1) of the German Civil Code ( BGB ), if the parents who were not married were separated, parental custody could only be transferred to the father if the transfer served the best interests of the child. With a decision of September 26, 2007, the Federal Court of Justice decided in principle in the Görgülü case that if the mother of the child has consented to the adoption and therefore her parental custody is suspended in accordance with Section 1751 (1) sentence 1 BGB, Section 1672 (1) BGB This should be interpreted as meaning that the application of the father who is not married to the mother for the transfer of sole custody should be granted if the transfer does not contradict the best interests of the child. In support of this, the BGH stated that in this case the parent's rights of the father were not opposed to any fundamental rights of the mother of the same rank and that both the parent's rights of the father from Article 6 (2) sentence 1 of the Basic Law and Article 8 of the ECHR must be observed . According to Art. 8 ECHR , each contracting state is obliged to take suitable measures to reunite a birth parent with their child.

Criminal law

In terms of criminal law, the case is important for the question of the conditions under which members of a collegial court can be convicted of perverse justice. The Criminal Senate of the Higher Regional Court in Naumburg has confirmed that a judge can only be convicted of perversion of the law if he has voted in favor of the perverse decision. At the same time, the court has now decided for the first time that in criminal proceedings due to perversion of the law, judges may express themselves to the court (but not to the investigative authorities) about the voting behavior in the panel despite the statutory confidentiality of advice. Whether they do that or not, they decide according to their best judgment. As a justification, the court stated that the obligation to maintain the confidentiality of the advice is not absolute. The secrecy of advice may be breached if legal interests of a different nature that are worthy of protection conflict with the secrecy of advice, in particular in criminal proceedings for perversion of the law. Otherwise the confidentiality of the deliberations would either serve as a protective shield for the individual judge to evade personal responsibility and give the collegiate court an unjustified preferential position over the single judge, or conversely it would make the defense and the colleague called as a witness impossible to discharge. However, the judge only has the right to testify, not an obligation to give evidence, since the confidentiality of advice cannot be available to a third party.

But since the Higher Regional Court sticks to the prevailing opinion that a conviction for perversion of the law requires evidence from every judge that the judge in question voted for the decision, critics speak of a "disaster for the rule of law ". If the decision of the Higher Regional Court remains the last word, then “in future the privilege to perverse justice” will apply to all panels in the German judiciary, because members of a collegial court could in fact never be convicted of perverting the law if they do not express their opinion on their voting behavior.

Public reactions

Rolf Lamprecht said: “Judicial crimes are only reluctantly noticed by their own guild. See nothing! Hear nothing! Say nothing! The last time it happened was in Naumburg. There the Higher Regional Court (OLG) committed - objectively - perversion of the law in the case of recurrence. Nobody got upset. (...) This apathy is a bad sign. It stirs up fear of repetition. Once before, in 1933, when right was turned into wrong, the “estate” accepted the decline with a shrug. (…) So boldly convicts have challenged the authority of the law only once: Baader and Meinhof. The difference: Back then, desperados rebelled, today there are three men in red robes. "

In the case of justice, two judges were of the opinion that the indictment of perversion of justice was unfounded from the start: the decisions of the Naumburg Higher Regional Court were not faulty, but at least legally justifiable and based on the best interests of the child . Such an unfounded, public indignation, indictment of perversion of the law is a danger to the rule of law.

Web links

Individual evidence

  1. ↑ Az. 74969/01, NJW 2004, 3397-3401
  2. ↑ Az. 14 WF 64/04, FamRZ 2004, pp. 1510–1512.
  3. ↑ a b Az. 2 BvR 1481/04 , BVerfGE 111,307-322
  4. ↑ Az. 1 BvR 1664/04 ( Memento of the original dated June 9, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  @1@ 2Template: Webachiv / IABot / www.bundesverfassungsgericht.de
  5. ↑ Az. 14 WF 234/04, NJ 2005, p. 278
  6. ↑ Az. 1 BvR 2790/04
  7. ↑ Az. 1 BvR 2790/04 ; NJW 2005, 2685f.
  8. ↑ a b Az. XII ZB 229/06 ; NJW 2008, pp. 223-227
  9. ↑ Press release 23/06 of the Higher Regional Court of Naumburg ( Memento of the original from September 30, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. .  @1@ 2Template: Webachiv / IABot / www.asp.sachsen-anhalt.de
  10. ↑ OLG Naumburg, decision of October 6, 2008, Az. 1 Ws 504/07, NJW 2008, pp. 3585–3587; Press release 7/08 of the Higher Regional Court of Naumburg ( Memento of the original from September 27, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.asp.sachsen-anhalt.de
  11. ↑ OLG Naumburg, decision of December 19, 2008  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF; 229 kB), Az. 1 Ws 504/07@1@ 2Template: Toter Link / www.vafk.de  
  12. ↑ Matthias Hartwig, Much Ado About Human Rights: The Federal Constitutional Court Confronts the European Court of Human Rights ( Memento of the original of December 12, 2007 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. in: German Law Journal No. 5 (1 May 2005) (English)  @1@ 2Template: Webachiv / IABot / www.germanlawjournal.com
  13. ↑ Gertrude Lübbe-Wolff , ECHR and national jurisdiction - The Görgülü Case , Humboldt Forum Recht 2006, 1
  14. ↑ Strecker, Regarding Justice No. 96 of December 2008, p. 377ff.  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Toter Link / www.betrifftjustiz.de  
  15. ^ Rolf Lamprecht: Troublemakers in judges' robes. In: Berliner Zeitung . March 31, 2007, accessed June 14, 2015 .
  16. ↑ Cebulla / Schulte-Kellinghaus: Judicial independence as a perversion of the law - The indictment against the Naumburg family judges in the “Görgülü” case was unfounded (PDF; 203 kB) , Subject Justice No. 101 (March 2010), p. 230 ff.