Today the European Court of Justice made history. Today, the automatic custody of unmarried mothers from the Court of Justice has been sentenced as a violation of the ban on discrimination. The previous practice in Germany, Austria, but above all in Switzerland, is therefore almost waste. From now on, unmarried fathers are free to sue their right.
Unmarried fathers in Switzerland have so far have no chance of custody for a child together if the mother does not want this. A judgment of the European Court of Human Rights has now overturned this legal situation: the preference of unmarried mothers towards the fathers is a violation of the ban on discrimination.
In doing so, the Strasbourg judges gave a 45-year-old plaintiff from Cologne who has been fighting for custody for his 14-year-old daughter for eight years. The father has lived separately from the mother since 1998, at that time the girl was three years old. Although the couple agreed in many things and the mother also agreed with generous visits, she rejected a joint declaration of custody.
The man was already pulled in front of the Kadi in 2003. However, the Cologne Higher Regional Court rejected its demand for a common custody. Before the Strasbourg Court, he asserted the ban on discrimination (Art. 14) and a violation of respect for family life (Art. 8) of the European Convention on Human Rights (ECHR). Among other things, he wants to be able to say where the child lives and goes to school. The German federal government, on the other hand, had stated that the mother's consent was necessary to grant a common custody in order to ensure the protection of the child.
In Switzerland, Article 298.1 of the ZGB ("If the parents are not married, the parental concern of the mother is entitled to."). But Swiss politics is difficult to eliminate the obvious injuries to the ECHR into law and practice. As a rule, the legislator for common parental care, which was revised after the conclusion of the consultation by the Federal Office of Justice, has been in the drawers of Eveline Widmer-Schlumpf for months. We hope that judgments like this lead to the fact that finally being continued in Switzerland with compliance with human rights.
Judgment of the ECHR in the wording (English)
German summary of the judgment:
Chamber judgment
Zaunegger against Germany (complaint no. 22028/04)
Exclusion of a judicial case examination of the custody regulation discriminates against the father of an illegitimate child
Violation of Article 14 (ban on discrimination) in conjunction with Article 8 (right to respect for family life) of the European Convention on Human Rights
Summary of the facts
The complainant, Horst Zaunegger, is born in German, born in 1964 and lives in Pulheim. He has an illegitimate daughter who was born in 1995 and grew up with both parents until they separated in 1998. After that, the child lived with the father until January 2001. After moving the child to the mother's apartment, the parents met the regular contact of the father with the child with the child with the child.
According to § 1626 a paragraph 2 BGB, the mother had sole custody of the child. Since she was not ready to agree to a joint declaration of custody, the complainant applied for the judicial assignment of the common custody. The Cologne District Court rejected the application on the grounds that according to German law, parents of illegitimate children can only obtain a common explanation through a common explanation, by marriage or through judicial transfer with the consent of the mother in accordance with § 1672 paragraph 1. The Cologne Higher Regional Court confirmed the decision in October 2003.
Both courts refer to a leading judgment of the Federal Constitutional Court of January 29, 2003, which had essentially declared § 1626 a BGB as constitutional. For couples with illegitimate children who had separated on July 1, 1998 after the childhood law reform law came into force, the provision is used.
On December 15, 2003, the Federal Constitutional Court rejected the complainant's constitutional complaint.
The complainant complained in particular, referring to Article 14 in conjunction with Article 8 that the application of § 1626 a paragraph 2 BGB discriminates unmarried fathers for their gender and in relation to divorced fathers.
The complaint was filed on June 15, 2004 at the European Court of Human Rights.
The verdict was made by a chamber with seven judges, which was composed as follows:
Peer Lorenzen (Denmark), President,
Karel Jungwiert (Czech Republic),
Rait Maruste (Estonia),
Mark Villiger (Liechtenstein),
Isabelle Berro-Lefèvre (Monaco),
Mirjana Lazarova Trajkovska (“Former Yugoslav Republic of Macedonia”), Richter,
Bertram Schmitt (Germany), judge ad hoc
and Stephen Phillips, deputy sectional of the section.
Decision of the Court
The court found that the complainant with the rejection of the application for judicial transfer of the common custody without further examination, whether this would endanger the child's interests, had been treated differently than the mother and as a married fathers. In order to check whether it was discrimination within the meaning of Article 14, the Court initially considered that § 1626 a BGB, on the basis of which the German courts had decided, aimed at protecting the child's well -being. The regulation is intended to ensure that the child has a person who can clearly act as a legal representative from his birth and avoid conflicts between parents about the child's disadvantage. The court decisions had therefore pursued a legitimate purpose.
Furthermore, the Court of Justice noted that there could be valid reasons to deny the father of an illegitimate child to participate in the parental concern, for example if there is a lack of communication between the parents to harm the child's well -being. However, these considerations could not be applied to the present case, since the complainant continues to take care of his child regularly.
The Court did not shared the assessment of the Federal Constitutional Court that a common custody against the will of the mother basically counteracts the child's well -being. Court proceedings to regulate parental care could be disturbing to a child, but German law provides for a judicial review of the custody regulation in separation cases in which the parents are married or have been made or have given a joint declaration. The Court saw no sufficient reasons why the situation in the present case should allow fewer judicial examination opportunities.
As a result, the general exclusion of a judicial examination of the mother's sole custody was not proportionate with regard to the persecuted purpose, namely the protection of the interests of the illegitimate child. The Court of Justice therefore concluded one vote with six votes that there was a violation of Article 14 in conjunction with Article 8.
Judge Schmitt expressed a different opinion that is attached to the judgment.
The Court of Justice also unanimously represented that the determination of a violation of the convention is sufficient just compensation for the intangible damage suffered.