STUKER v. GERMANY - 58718/15 (Judgment : Right to respect for private and family life : Third Section Committee) [2021] ECHR 343 (20 April 2021)

JUDGMENT STRASBOURG 20 April 2021 This judgment is final but it may be subject to editorial revision. In the case of Stüker v. Germany, The European Court of Human Rights (Third Section), sitting as a Committee composed of: Georges Ravarani, President, Darian Pavli, Anja Seibert-Fohr, judges, and Olga Chernishova, Deputy Section Registrar, Having regard to: the application (no. 58718/15 ) 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 a German national, Mr Frank Stüker (“the applicant”), on 24 November 2015; the parties’ observations; Having deliberated in private on 23 March 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1. The application concerns the adoption of the applicant’s adult son by the mother’s husband without the consent of the applicant. The Heilbronn Family Court (“the Family Court”) allowed the adoption, but did not provide any reasons for its decision. The applicant relied on Articles 6 § 1 and 8 of the Convention. THE FACTS 2. The applicant was born in 1961 and lives in Hamburg. The applicant was represented by Mr Rixe, a lawyer practising in Bielefeld. 3. The Government were represented by one of their Agents, Mr H.‑J. Behrens, of the Federal Ministry of Justice and Consumer Protection. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant is the father of a son (“the son”) born out of wedlock on 15 January 1996. 6. In 1998 the parents separated and the son stayed with his mother (“the mother”). 7. In 2000 the new partner of the mother started to live with the mother and the son. From that time, the applicant no longer had any contact with his son because the mother denied him any involvement in his life. 8. In 2002 the mother married her new partner (“the stepfather”) and a daughter was born of their marriage. 9. In 2006 the Heilbronn Regional Court ordered the mother to refund to the applicant the amount of 194,924.70 euros (EUR). It found that in 1996 the applicant had funded the mother’s purchase of a house, which she had later sold. Since the house had initially been their designated family home, the mother was obliged to refund the applicant the payments that he had made to her. The mother appealed against the Regional Court’s judgment, and during the appeal proceedings the applicant withdrew his claim for the return of the above‑mentioned payments, arguing that that was in the best interests of their son. 10. On 21 January 2014 the 18-year-old son - together with the stepfather - lodged an adoption application with the Heilbronn Family Court; he sought that the stepfather be allowed to adopt him in a manner “giving rise to the same effects as those arising from the adoption of a minor” ( Annahme mit den Wirkungen der Minderjährigenannahme ). 11. By a letter of 31 January 2014 the Family Court notified the applicant of the adoption application and invited him to submit comments. As regards the procedure in respect and the consequences of the adoption, the letter stated: “ In the event of this adoption [taking place], the child’s family ties with you [the applicant] and with your relatives will cease to exist, pursuant to Article 1755 (1) of the Civil Code, including the rights and obligations arising therefrom - in particular the reciprocal rights of inheritance and maintenance. You are invited to comment on the adoption application within three weeks and to inform [the court] whether you agree to the adoption or to state the reasons for any objection. You are, however, informed that your consent to the requested adoption is not required and that the court will allow the adoption, pursuant to Article 1767 of the Civil Code, provided that this is not in conflict with any overriding interests [ überwiegende Interessen ] that you may have (second sentence of Article 1772 § 1 of the Civil Code) and that the [child’s] relationship [with the new parent] is morally justified, which applies in particular if a parent-child relationship has already been established between the adoptive parent and the person to be adopted.” 12. By a letter dated 18 March 2014 the applicant’s lawyer informed the Family Court that the applicant objected to the adoption in the light of his overriding interests. He argued that the adoption would affect not only his emotional but also his economic interests - in particular the right to seek financial maintenance from his son in the future (should he not have sufficient financial means of his own to support himself). In the past, he had funded the purchase of the above-mentioned house in order to share a life with his son and to provide financial security for his son’s childhood and youth. Moreover, he had been a caring father and had financed the living costs of the family until his separation from his son’s mother. Afterwards the mother had cut off all contact and had not even provided him with her bank account details so that he could continue to send her maintenance payments. Furthermore, he had then not been able to find a job in the vicinity of his son’s place of residence because he had been living abroad for a long time and had subsequently been self-employed; consequently, he had not been entitled to any benefits under the State social insurance scheme, but had been living on minimum subsistence benefits. 13. The applicant furthermore argued (in the letter dated 18 March 2014) that an adoption in a manner “giving rise to the same effects as those arising from the adoption of a minor” would not only deprive his son of half of his identity, but would also reinforce the erroneous impression, which the mother had been trying to convey for years, that the applicant had never cared for his son and had never had a relationship with him. Furthermore, the son would lose his right to inherit from the applicant - for example, he would lose his right to inherit the applicant’s financial claims against the mother. His son was not aware of those consequences, and nor was the proposed adoption based on his son’s true wishes. His son was influenced by the mother. 14. In a letter dated 6 July 2014, at the request of the Family Court, the stepfather described his relationship with his stepson, which he described as good. Since 2000 they had been living together in the same household and he had cared for him and financially maintained him. 15. In a letter of 20 July 2014, at the request of the Family Court, the son elaborated on his reasons for lodging the adoption application. He stated, inter alia , that after his parents had separated there had been times when the applicant had displayed aggressive behavior towards his mother and his maternal grandparents. That had made him anxious about spending time with the applicant. Since 1999 he had no longer wished to have contact with the applicant and he also wished to have no bond with him in the future. He described his close relationship with his stepfather, whom he addressed as “Dad”, and how much he enjoyed spending time with him, his mother and his half-sister. It was thus important for him that he and his stepfather enjoyed the same rights as those that a biological son and his father enjoyed. 16. On 13 August 2014 the Family Court, after holding a hearing in the presence of the son and the stepfather, allowed the adoption of the son by his stepfather in a manner “giving rise to the same effects as those arising from the adoption of a minor”. As to the reasons for the adoption, it found as follows: “Since all statutory requirements for adopting a child have been met, [the adoption] has to be allowed. The application was received by the court on 23 January 2014. Overriding interests of the parents of the person to be adopted are not in conflict with the [proposed] adoption (second sentence of Article 1772 § 1 of the Civil Code). [The decision to adopt the son] as a child is based on Articles 1767 and 1772 of the Civil Code.” 17. By a letter dated 12 September 2014 the Family Court notified the applicant of the adoption decision. 18. On 6 October 2014, having requested and received a copy of the adoption decision, the applicant lodged a complaint alleging a violation of his right to be heard. He argued that the Family Court had not taken into account his written submissions or his overriding interest against the adoption. 19. On 20 October 2014 the Family Court dismissed the complaint. It found that the applicant’s right to be heard had not been violated. It had taken into account the applicant’s written submissions, the entire court case file and the conclusions of the hearing. 20. The applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging that the adoption had violated his right to family life and his right to be heard because the Family Court had failed to provide reasons for its adoption decision. 21. On 20 May 2015 the Federal Constitutional Court declined to examine the complaint, without providing reasons (file no. 1 BvR 3123/14 ). RELEVANT LEGAL FRAMEWORK AND PRACTICE I. Relevant provisions of the Civil Code 22. The legal effects of the adoption of a minor are governed by Article 1755 of the Civil Code, which reads as follows: Article 1755 Extinguishing of family ties “(1) Upon adoption, the family ties of the child and its descendants with previous relatives and the rights and duties arising from [those ties] are extinguished. Claims of the child that arose before the adoption - in particular in respect of pensions, orphan’s allowance [ Waisengeld ] and other similar recurring payments - are not affected by the adoption; this does not apply to claims for maintenance. (2) If a spouse adopts the child of his or her spouse, the extinguishing of the relationship occurs only in relation to the other parent and his [or her] relatives.” 23. The relevant provisions governing the adoption of an adult read, in so far as relevant, as follows: Article 1767 Admissibility of an adoption - applicable provisions “(1) A person of adult age may be adopted if the adoption is morally justified; it is to be assumed to be so in particular if a parent-child relationship has already developed between the adoptive parent and the person to be adopted. (2) The adoption of persons of adult age is governed by the provisions on the adoption of minors, with the necessary modifications - except as otherwise provided by the following provisions ...” Article 1770 Effects of adoption “(1) The effects of the adoption of a person of adult age do not extend to the relatives of the adoptive parent ... (2) The rights and duties arising from the relationship between an adopted person and his descendants and their relatives are not affected by the adoption, except as otherwise provided by law. (3) The adoptive parent is obliged to pay maintenance to the adopted person ...; [only if the adoptive parent cannot meet that obligation is the obligation transferred to the] blood relatives of the person adopted.” Article 1772 Adoption in a manner giving rise to the same effects as those arising from the adoption of a minor “(1) Upon the lodging of an application by the adoptive parent and the person to be adopted, the family court may, when allowing the adoption of a person of adult age, rule that the effects of the adoption shall be based on the provisions governing the adoption of a minor ... (Articles 1754-56), if a) a minor who is the brother or the sister of the person to be adopted has been adopted by the adoptive parent or is adopted at the same time, or b) the person to be adopted was taken into the family of the adoptive parent when he was a minor, or c) the adoptive parent adopts the child of his spouse, or d) the person to be adopted is not yet of adult age at the time at which the adoption application is lodged with the family court. Such a ruling may not be made if overriding interests of the parents of the person to be adopted are in conflict with it. ...” II. Act on Non-Contentious Proceedings 24. As the case of proceedings in respect of other family-related matters, adoption proceedings are governed by the Act on Non-Contentious Proceedings ( Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit ). 25. Under Article 12 of that Act, the relevant court shall, ex officio , undertake those measures of investigation that are necessary to establish the relevant facts and adduce the evidence that appears appropriate. 26. Under Article 44 of that Act, a complaint concerning a violation of a party’s right to be heard must be lodged within two weeks of that party learning of that violation; the question of when the violation became known must be credibly demonstrated to the court. No complaint may be lodged after a period of one year has lapsed from the time of the notification of the challenged decision. III. Relevant case-law on the adoption of adults in a manner giving rise to the same effects as those arising from the adoption of a minor 27. In a decision dated 8 May 2009 (file no. 31 Wx 147/08 ), the Munich Court of Appeal upheld a family court decision refusing the adoption of an adult in a manner “giving rise to the same effects as those arising from the adoption of a minor”. It found that the biological father, who had paid maintenance for years - even after his daughter had attained the age of majority - could in the future (in the event of need) lodge a claim for maintenance against her; the possibility of such a future claim constituted an interest overriding his daughter’s interest in being allowed an adoption that had the effect of severing family ties. 28. In a decision dated 18 March 2019 (file no. 13 UF 11/17 ), the Brandenburg Court of Appeal found, in respect of a case where the biological parent had a stable and regular income, that the adoption was not to be refused on the grounds that the biological parent might in the future lodge a claim for maintenance against the child; the appellate court justified its decision by reasoning that there was no real risk that the biological parent would in future be in need of maintenance payments owing to unemployment or a need to pay for nursing care. 29. In a decision dated 19 February 2007 (file no. 1 BvR 510/03 ), the Federal Constitutional Court confirmed that biological parents had to be given the opportunity to comment on the proposed adoption of their adult child prior to a decision thereon, in order to be able to influence the proceedings and their outcome. The biological parents of a person to be adopted were among those persons substantively affected by such an adoption - particularly in the case of the adoption of a person of adult age in a manner “giving rise to the same effects as those arising from the adoption of a minor”, given the fact that in such event, family ties between the biological parents and a person so adopted would be cut off. THE LAW I. THE GOVERNMENTS’S UNILATERAL DECLARATION A. The parties’ submissions 30. The Government submitted a unilateral declaration, in which they expressly acknowledged that the applicant’s right to a fair trial under Article 6 § 1 of the Convention had been violated. They accepted to pay EUR 900 to the applicant to settle all his claims in connection with the application and invited the Court to strike the application out of its list of cases on the basis of that declaration. 31. The applicant disagreed, arguing in particular that the sum offered by the Government was unacceptably low, given the fact that, in addition to a violation of Article 6, there had also been a violation of Article 8. B. The Court’s assessment 32. The Court reiterates that it may be appropriate in certain circumstances to strike out an application, or a part thereof, under Article 37 § 1 of the Convention on the basis of a unilateral declaration by the respondent Government, even where the applicant wishes the examination of the case to be continued. The relevant general principles on unilateral declarations have been summarised in the cases of Jeronovičs v. Latvia ([GC], no. 44898/10 , §§ 64‑70, 5 July 2016) and Aviakompaniya A. T. I., ZAT v. Ukraine (no. 1006/07 , §§ 27‑33, 5 October 2017). 33. The Court notes that the amount of compensation offered in the unilateral declaration is well below the amount that the Court would normally award by way of just satisfaction in such circumstances. 34. The Court therefore considers that the proposed declaration does not provide a sufficient basis for concluding that respect for human rights, as defined in the Convention and its Protocols, does not require it to continue its examination of this particular case. The Court rejects therefore the Government’s request for it to strike the application out of its list of cases under Article 37 of the Convention and will pursue its examination of the admissibility and merits of the case. II. ALLEGED VIOLATION OF ARTICLEs 6 and 8 OF THE CONVENTION 35. The applicant complained under Articles 6 and 8 of the Convention that the adoption had interfered disproportionally with his right to respect for his private and family life and that the Heilbronn Family Court had not given reasons for its decision. He also alleged shortcomings in the proceedings with regard to the letter sent by his son and the letter sent by the stepfather to the Family Court. 36. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case. While Article 6 affords a procedural safeguard, namely the obligation for courts to give sufficient reasons for their decisions, Article 8 serves the wider purpose of ensuring proper respect for, inter alia , private and family life. In this light, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8. In the instant case, the Court considers that the complaint, raised by the applicant also under Article 6, is closely linked to the complaint under Article 8, and may accordingly be examined as part of the latter complaint ( mutatis mutandis , Anghel v. Italy , no. 5968/09 , § 69, 25 June 2013, and Kutzner v. Germany , no. 46544/99 , § 57, ECHR 2002‑I). 37. Article 8 of the Convention, in so far as relevant, reads as follows: “1. Everyone has the right to respect for his private and family life, ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 38. The Government submitted that the applicant had not complained at the domestic level that the Heilbronn Family Court had not forwarded for comment its correspondence with the son and the stepfather. The applicant had neither raised that issue in his complaint concerning a violation of his right to be heard nor in his constitutional complaint, even though he had been represented by a lawyer and had also been able to consult the court’s case file. The applicant had therefore failed to exhaust domestic remedies in that regard. 39. The applicant argued that he had not been able to complain of the alleged disregard of his procedural guarantees because he had had no knowledge of the existence of those letters. The short time-limit of two weeks for lodging a complaint concerning a violation of his right to be heard had meant that it had been impossible for him to consult the case file beforehand. 40. The Court sees no reason why the applicant could not have been expected to consult the case file before lodging his complaints at the domestic level. The time-limit for lodging a complaint concerning a violation of his right to be heard only started to run from the moment at which the applicant learned that the violation in question had been committed. In any event, the applicant did not provide an explanation as to why he ultimately had not complained about those procedural shortcomings in his constitutional complaint. 41. The Court therefore agrees with the respondent Government that the applicant failed to exhaust the available domestic remedies with regard to the Family Court’s failure to forward the above-mentioned correspondence to him. 42. In conclusion, the Court declares this part of the complaint concerning the procedural aspect of Article 8 of the Convention inadmissible under Article 35 §§ 1 and 4 of the Convention. The Court notes that the remainder of the complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. B. Merits 1. The applicant 43. The applicant was of the view that the adoption was a very serious interference by the domestic courts with his rights as the biological father. It was not justified because his interests should have prevailed. While he had been sufficiently providing for a living for his son in the past - at least, to the extent that the mother had allowed it- , the adoption had deprived him of the right to lodge a claim for maintenance in the future against his son in the event of need. 44. Furthermore, the Heilbronn Family Court had not addressed his arguments against the adoption. The wording of the adoption decision had lacked detail and had been formulaic; in particular, in respect of any overriding interests that he may have had, it had simply reproduced the wording of the relevant law. Thus, the Family Court had not carried out a balancing exercise in respect of the rights at stake. Likewise, the wording of the decision dated 20 October 2014 concerning the applicant’s complaint regarding a violation of his right to be heard had been formulaic. 2. The Government 45. The Government were of the view that the adoption had interfered with the applicant’s rights, but that it had been justified under Article 8 § 2 of the Convention. A comprehensive assessment demonstrated that the interests of the son and the stepfather prevailed over the financial and emotional interests of the applicant. While the son had had no contact with the applicant for years, he had a father-child relationship with his stepfather. 46. With regard to the reasoning of the adoption decision, the Government referred to their unilateral declaration and accepted that there had been a violation of the applicant’s rights to a fair trial. The Heilbronn Family Court had failed to provide reasons in its decision of 13 August 2014 as to why no overriding interest of the applicant had precluded the adoption. However, the subsequent decision of 20 October 2014 had not constituted a further infringement. 3. The Court’s assessment . It is undisputed between the parties that the applicant’s complaints fall within the scope of Article 8 of the Convention and the Court sees no ground for reaching a different conclusion. 48. In determining whether the interference was justified under Article 8 § 2 of the Convention, the Court is, inter alia , called to examine whether the decision-making process was fair (see Sahin v. Germany [GC], no. 30943/96 , § 68, ECHR 2003 VIII). While Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8 (see T. P. and K. M. v. the United Kingdom [GC], no. 28945/95 , § 72, ECHR 2001 V (extracts), and Petrov and X v. Russia , no. 23608/16 , § 101, 23 October 2018). A fair judicial hearing does not only require a proper examination of the submissions, arguments and evidence adduced by the parties, but also includes the obligation for courts to give sufficient reasons for their decisions (see, for example, Carmel Saliba v. Malta , no. 24221/13 , §§ 66 and 73, 29 November 2016, finding a violation in respect of Article 6). 49. To that end, the Court notes that the Family Court failed to give reasons for its decision to allow the adoption. A reference to the relevant legal provisions or simply citing the wording of the relevant law (see paragraph 16 above) did not constitute a sufficient examination of the applicant’s main arguments concerning possible overriding interests (see Donadzé v. Georgia , no. 74644/01 , § 35, 7 March 2006). The applicant argued in domestic proceedings that he was not only emotionally affected by the extinguishing of all family ties with his son, but (pursuant to the domestic law) his economic interests (that is to say any future claim for maintenance against his son) should also have constituted an important consideration when determining the outcome of the proceedings. Thus, his arguments required a specific and express reply (see Ruiz Torija v. Spain , 9 December 1994, § 30, Series A no. 303 A). The lack of reasoning was not remedied by the Family Court’s subsequent decision on the applicant’s complaint concerning the alleged violation of his right to be heard. 50. The Court finds therefore that the decision-making process did not afford the requisite protection of the applicant’s interest as safeguarded by Article 8 of the Convention. 51. The Court notes that the applicant asserted that his economic and emotional interests should have prevailed over his son’s wish to be adopted by his stepfather. It further notes that the stepfather and the adult son explained in theirs letters to the Family Court the reasons for lodging the adoption application, including a description of the close relationship between the son and the stepfather, who had also financially maintained the son, and the son stating that since 1999 he had no longer wished to have contact with the applicant and that he wished to have no bound with him in the future (see paragraph 15 above). However, there is ultimately no need for the Court to examine the applicant’s claim that his own emotional and economic interests outweighed his adult son’s and the stepfather’s interests in the adoption because the failure to provide reasons for the adoption decision deprived the applicant of a fair decision-making process and the interference resulting from the adoption was thus not capable of being regarded as ‘necessary’ within the meaning of Article 8 of the Convention (see T. P. and K. M. , cited above, § 72). 52. There has accordingly been a violation of Article 8 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 53. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 54. The applicant claimed 7,000 euros (EUR) in respect of non-pecuniary damage. 55. The Government deemed those claims to be excessive. 56. Ruling on an equitable basis, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage for the violation of his rights under Article 8 of the Convention, plus any tax that may be chargeable. B. Costs and expenses 57. The applicant also claimed EUR 238 for the costs and expenses incurred before the Heilbronn Family Court, EUR 600.71 for the costs and expenses incurred before the Federal Constitutional Court, and EUR 1,879.01 for the costs and expenses incurred before the Court. The latter fees were calculated on the basis of a fee agreement. 58. The Government pointed out that the costs and expenses of EUR 238 incurred before the Heilbronn Family Court had not arisen from the violation found. The adoption proceedings, with the participation of the applicant as a third party, would have taken place in any event. Furthermore, the costs and expenses claimed as having been incurred before the Court had been excessive, in view of the fact that the minimum fees and costs set by statute would have amounted to only EUR 1,086.23, including VAT. 59. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses incurred during the domestic proceedings before the Heilbronn Family Court. With regard to the costs and expenses incurred before the Federal Constitutional Court, it considers it reasonable to award the claimed sum of EUR 600.71; with regard to the proceedings before the Court, it considers it reasonable to award the sum of EUR 1,086.23, given the fact that no fee agreement was submitted. C. Default interest 60. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Rejects the Government’s request for it to strike the application out of its list of cases; 2. Declares the complaints under Article 8 of the Convention concerning the lack of reasoning for the adoption decision and concerning a disproportionate infringement of the applicant’s rights admissible, and the remainder of the application inadmissible; 3. Holds that there has been a violation of Article 8 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts: (i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,686.94 (one thousand six hundred and eighty‑six euros and ninety‑four cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above‑mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Olga Chernishova Georges Ravarani Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII