Kuppinger against Germany
In the case of Kuppinger v. Germany , two proceedings before the European Court of Human Rights (ECHR) enforced a strengthening of the father's rights of access and instruments against excessively long proceedings in Germany.
Case history
Bernd Kuppinger, born in 1953, was the father of a son who was born in 2003. Shortly after the birth, the mother, with whom Kuppinger was not married, prevented the contact between father and son. At the beginning of the proceedings before the Frankfurt am Main District Court , Höchst branch , the child was one and a half years old. The proceedings at the Frankfurt judiciary between 2005 and 2010 lasted a total of 4 years and 10 months. The ECHR saw a violation of Article 6 ECHR , i.e. the right to a fair trial (ECHR, judgment of April 21, 2011, complaint number 41599/09). The European Court of Human Rights found that excessively long proceedings lead to the children becoming increasingly alienated from their caregivers. He awarded the father compensation of EUR 5,200.
After that, the mother boycotted six contact dates. Kuppinger applied for a fine of € 3,000. In the German courts, however, the mother was only charged a fine of 300 euros, although the theoretical fine went up to 25,000 euros. The European Court of Human Rights ruled that the fine that was too low represented a violation of the right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR), as it was doubtful that this sum could have had an overriding effect on the mother who had made the contact beforehand continuously prevented (individual complaint No. 62198/11, judgment of January 15, 2015). The ECHR also criticized the duration of the enforcement of the access rights of ten months from the plaintiff's application to the payment of the fine. The ECHR criticized the Federal Republic of Germany for the fact that no complaint of inaction was available to take action against the excessive length of the proceedings. Thus the plaintiff had no effective legal remedy at his disposal, so that there was a violation of Article 13 ECHR, the right to an effective complaint. The father was awarded compensation of EUR 15,000 as well as the reimbursement of legal and court costs of almost EUR 6,436.
In the following, however, the Federal Constitutional Court again confirmed an exclusion from contact with the father until October 2015 (Federal Constitutional Court, ruling of April 25, 2015, Az. 1 BvR 3326/14): “Based on the findings of the experts, they comprehensibly stated that the child's will despite this External influence by the mother could not be ignored because the child perceived the father, whom he knew only from a few companionships, as a threat and, due to the ongoing conflict between his parents and the associated procedures, his relationship and bond with the mother as the main caregiver through dealing with the Father see endangered. (...) Due to the solidified situation and its meanwhile advanced age, it is decisive in the present case that the child perceives any pressure on the mother to a considerable extent, and coercive measures against her, in accordance with the statements of the experts referred to by the specialized courts for the purpose of socializing as a threat to his established family system. According to the findings of the experts, this would, on the one hand, increase the child's loyalty to the mother and, on the other hand, heighten his or her negative perception of the father as the person from whom the distressing situation originated, so that a coercion exerted on the mother would not achieve the goal desired by the complainant would lead. "
The Federal Republic of Germany led with Article 2 of the "Law on the Amendment of the Expert Law and the Further Amendment of the Law on the Procedure in Family Matters and in Matters of Voluntary Jurisdiction and the Amendment of the Social Court Act, the Administrative Court Code, the Financial Court Code and the Court Fees Act" of 11. October 2016 the acceleration complaint and the acceleration complaint .
Individual evidence
- ↑ Link collection of lawyer Rixe, Bielefeld
- ↑ ECHR, judgment of April 21, 2011, complaint number 41599/09
- ↑ ECHR, case K. v. Germany, individual complaint No. 62198/11, judgment of 15 January 2015 - violation of Article 8 ECHR (right to respect for private and family life) with regard to the enforcement of an order to have access to the child by not reaching out swift and effective action by a court; Violation of Article 13 (right to an effective complaint): lack of legal remedy to expedite contact proceedings.
- ↑ Federal Constitutional Court, decision of April 25, 2015, Az. 1 BvR 3326/14
- ↑ BGBl. 2016 I p. 2222
- ↑ Comment by Dirk Bahrenfuss
