Parental authority, child custody and access rights
II. RELEVANT DOMESTIC LAW 81. Section 1684 of the German Civil Code provides: Contact of the child with its parents “(1) The child has the right to contact with each parent; each parent has a duty and a right of contact with the child. (2) The parents must refrain from everything that renders more difficult the relationship of the child to the other parent or the upbringing. Similar provisions apply if the child is in the charge of another person. (3) The family court may decide on the scope of the right of contact and make more detailed provisions on its exercise, including provisions affecting third parties. It may enjoin the parties by orders to fulfil the duty defined in subsection (2). If the obligation in accordance with subsection (2) is considerably violated permanently or repeatedly, the family court may also order custodianship for the implementation of contact ( contact custodianship). Access custodianship includes the right to demand surrender of the child to implement access and to determine where the child is to be for the duration of access. The order is to be time-limited... (4) The family court may restrict or exclude the right of contact or the enforcement of earlier decisions on the right of contact, to the extent that this is necessary for the best interests of the child. A decision that restricts the right of contact or its enforcement for a long period or permanently may only be made if otherwise the best interests of the child would be endangered. The family court may in particular order that contact may take place only if a third party who is prepared to cooperate is present. .. .” 82. Under section 1626a of the Civil Code as in force until 18 May 2013, the parents of a minor child born out of wedlock exercised joint custody if they made a declaration to that effect or if they married. Otherwise the mother obtained sole custody. 83. Section 155 of the Act on Procedure in Family Matters ( Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit ) as in force since 1 September 2009 reads as follows: “(1) Parent and child matters referring to the child ’ s place of abode, contact rights or the surrender of the child, as well as proceedings based on a threat to the child ’ s welfare must be conducted as a matter of priority and expediently. (2) In proceedings pursuant to subsection (1) the court shall discuss the case with the parties at a hearing. The hearing shall take place at the latest one month after the proceedings have been instituted. The court shall hear the Youth Office during this hearing. This hearing may only be postponed for compelling reasons. Proof of the reasons for the need for postponement must be furnished when the request for postponement is made. (3) ...” 84. Section 89 provides Administrative fines ( Ordnungsmittel ) “(1) In case of non-compliance with an enforcement order for the surrender of persons and for the regulation of contact, the court may impose an administrative fine ( Ordnungsgeld ) on the obligated party and in the event that the administrative fine cannot be collected it may order arrest for disobedience to court orders ( Ordnungshaft ). Where the imposition of an administrative fine lacks prospect of success, the court may order arrest. The order is taken by court decision. (2) The decision ordering the surrender of a person or the regulation of contacts shall indicate the consequences of any non-compliance with the enforcement order. (3) The amount of an individual administrative fine shall not exceed EUR 25,000 ... (4) No administrative measure shall be imposed if the obligated person submits reasons establishing that he cannot be held liable for the non-compliance ... ” 85. According to section 90 of that same law, decisions on contact rights shall not be executed by use of direct force against a child. 86. The Act on Protracted Court Proceedings and Criminal Investigations ( Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren, henceforth: the Remedy Act) entered into force on 3 December 2011. According to section 198, paragraph 1, of the Courts Constitution Act as amended by the Remedy Act, a party to proceedings who suffers a disadvantage from protracted proceedings is entitled to adequate monetary compensation. A prior objection to delay ( Verzögerungsrüge ), which has to be raised before the court whose proceedings are allegedly unduly delayed, is a prerequisite for a subsequent compensation claim. According to its Article 23 the Remedy Act applies to pending as well as to terminated proceedings whose duration may still become or has already become the subject of a complaint with this Court. In pending proceedings the objection to delay should be raised without delay, when the Remedy Act entered into force. In these cases the objection preserved a subsequent compensation claim even retroactively. For further details compare Taron v. Germany (dec.), no. 53126/07, §§ 29-26, 29 May 2012). THE LAW I. SCOPE OF THE COMPLAINT 87. In his submissions to the Court, the applicant complained about the domestic courts ’ failure to implement his contact rights in proceedings instituted on 19 May 2005. 88. The Government pointed out that the proceedings between 19 May 2005 and 22 March 2010 could not be re-examined by the Court as they had been the subject matter of the judgment given by the Court on 21 April 2011 ( Kuppinger, cited above). 89. The applicant submitted in reply that the previous proceedings before the Court exclusively concerned his complaint under Article 6 § 1 of the Convention about the excessive length of the proceedings, but not the complaint about the excessive length and lack of effectiveness under Article 8 of the Convention. The instant case thus clearly concerned distinct subject matter. 90. Article 35 § 2 ( b ) of the Convention provides: “The Court shall not deal with any application submitted under Article 34 that ... is substantially the same as a matter that has already been examined by the Court ... ” 91. The Court observes that in its judgment given on 21 April 2011 ( Kuppinger, cited above ), a Committee of the Court examined the applicant ’ s complaints under Articles 6 and 8 about the length of contact proceedings lasting from 19 May 2005 until 22 March 2010. The Court chose to examine this complaint solely under Article 6 of the Convention (see Kuppinger, cited above, § 37). The Court reiterates that a complaint is characterised by the facts alleged in it, not by the legal grounds or arguments relied on ( see, among other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I; and Previti v. Italy (dec.), no. 45291/06, 8 December 2009 ). It follows that the complaint about the conduct of contact proceedings prior to 22 March 2010 is substantially the same as a matter that has already been examined by the Court in the above - mentioned judgment. 92. It follows that the complaint concerning the proceedings between 19 May 2005 and 22 March 2010 must be rejected under Article 35 §§ 2 (b) and 4 of the Convention as being substantially the same as a matter that has already been examined by the Court and that the Court is only competent to examine the proceedings which took place after that date. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 93. Regarding the proceedings which took place after 22 March 2010, the applicant complained that the domestic authorities failed to implement his contact rights with his son, thus violating his right to respect for his family life as provided in Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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.” 94. The Government contested that argument. 95. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. A. Merits 1. Execution of the interim decision of 12 May 2010 ( a ) The applicant ’ s submissions 96. According to the applicant, the administrative fine imposed by the Frankfurt/Main District Court was ineffective and obviously inappropriate for implementing his contact rights. As was to be expected, the fine did not have any impact on the mother ’ s behaviour. There was, furthermore, no indication that the appointment of a contact custodian would change the mother ’ s refusal of contact. The applicant furthermore claimed that the length of the administrative fine proceedings had been excessive. (b) The Government ’ s submissions 97. The Government considered that the District Court had taken measures which could reasonably be expected to enable effectively the implementation of the contact decision of 12 May 2010. The sum of EUR 300, even though it may appear a small amount at first glance, represented an appropriate measure for promoting the child ’ s mother ’ s willingness to cooperate. Given the highly escalated conflict between the parents, it was already doubtful whether an administrative measure provided for by law could actually represent an appropriate means to enforce contact. The fact that his mother was exposed to administrative fine proceedings had rather intensified the child ’ s rejection of the applicant. Given the extremely complex and contentious situation, the District Court ’ s assessment of the degree of the mother ’ s accountability was comprehensible. Furthermore, it had to be taken into account that the measure was primarily aimed at sanctioning past behaviour, as the appointment of a contact custodian meant that further contraventions of the decision on contact rights were not to be expected. 98. The Government further submitted that the District Court took the decision on the administrative measures three and a half months after the applicant ’ s request. The fact that the District Court awaited the return of the case file before taking its decision on 12 November 2010 was not cause for objection given the complexity of the proceedings and the fact that the main proceedings had already been terminated on 1 September 2010. The joinder of the two requests lodged by the applicant on 21 July and 11 August 2010 served the purpose of enhancing the efficiency of the proceedings. The District Court judge had granted the case the highest priority and had even postponed her own holiday plans in order to be able to schedule the hearing at the earliest possible date. (c) The Court ’ s assessment 99. The Court reiterates that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005 and Tsikakis v. Germany, no. 1521/06, § 74, 10 February 2011 ). 100. Furthermore, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective “respect” for family life. In relation to the State ’ s obligation to implement positive measures, the Court has held that Article 8 includes for parents a right that steps be taken to reunite them with their children and an obligation on the national authorities to facilitate such reunion (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII; and Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 49, ECHR 2003-V). 101. In cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly found that what is decisive is whether the national authorities have taken all necessary steps to facilitate the execution that can reasonably be demanded in the special circumstances of each case (see, mutatis mutandis, Hokkanen v. Finland, 23 September 1994, § 58, Series A no. 299 ‑ A; Ignaccolo-Zenide, cited above, § 96; Nuutinen, cited above, § 128; and Sylvester v. Austria, nos. 36812/97 and 40104/98, § 59, 24 April 2003). 102. In this context, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit (see Ignaccolo-Zenide, cited above, § 102). 103. Finally, the Court has held that although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the child lives (see Ignaccolo-Zenide, cited above, § 106; and Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, § 130, 1 December 2009 ). 104. Turning to the circumstances of the instant case, the Court notes that the Frankfurt Court of Appeal decided on 12 May 2010 that the applicant had the right to see his son for three hours on each of six specific dates between May and August 2010. These contact meetings were to be followed by unsupervised visits. On 21 July 2010 the applicant asked the District Court to impose an administrative fine of at least EUR 3,000 on the mother, as none of the visits had taken place as scheduled. On 11 August 2010 the applicant lodged a further request for the remaining dates. On 12 November 2010 the District Court, jointly ruling on both requests, imposed an overall administrative fine of EUR 300 on the mother for having contravened six times the decision on contact rights. Even though the mother paid this sum in June 2011, none of the supervised visits took place as scheduled. 105. Under the general principles set out above, it is the Court ’ s task to determine whether the domestic authorities took all necessary steps to facilitate the execution of the contact order of 12 May 2010 as could reasonably be demanded in the special circumstances of this case. The Court notes, at the outset, that the District Court ’ s decision contains no information on the financial situation of the mother. Nevertheless, it cannot but observe that the overall administrative fine of EUR 300 appears to be rather low, given that the pertinent provisions allowed for the imposition of a fine of up to EUR 25,000 for each individual case of non-compliance. It is thus doubtful whether this sanction could reasonably have been expected to have a coercive effect on the child ’ s mother, who had persistently prevented contact between the applicant and his son. The Court takes note of the District Court ’ s reasoning that even though the child ’ s mother was accountable for the failed contact, her personal responsibility proved to be minor, as the demands on her educational capabilities had been high and as she had been obliged “not only to reconsider her own stance on the problems within a few weeks, but also to change the child ’ s established pattern of behaviour” (see paragraph 30, above). 106. The Court observes in this context that the parties had agreed to institute supervised contact as early as 2005 and that the Frankfurt/Main District Court had first ordered such contact on 22 May 2007 (see Kuppinger, cited above, §§ 7, 16). Having regard to the fact that the mother must have been made aware during the previous court proceedings of her general obligation to allow the applicant contact to his son, it is difficult to follow the District ’ s Court ’ s reasoning that the mother had to reconsider her stance on the problems “within a few weeks”. The Court further observes that the decision contains no information on whether the mother had at least attempted to meet her obligations under the contact order by encouraging the child to meet the applicant. The Court finally observes that the Frankfurt Court of Appeal, in its decision given on 17 September 2014 (see paragraph 80, above), conceded that the administrative fine imposed on the mother might have been insufficient. 107. Even if it is possible that more severe sanctions would not have changed the mother ’ s general stance towards the applicant ’ s contact rights, this did not dispense the domestic authorities from their obligation to undertake all appropriate steps to facilitate contact. Finally, the Court is not convinced by the Government ’ s argument that it was unlikely that the situation would repeat itself, given that the family court had, in the meantime, set up contact custodianship. Even if a contact custodian had more effective means at his disposal than a mere supervisor, it is hardly conceivable that he would be able to achieve his task of implementing contact rights without a certain degree of cooperation on the mother ’ s side. 108. With regard to the swiftness of the enforcement proceedings, the Court observes that the proceedings lasted more than ten months from 21 July 2010, when the applicant lodged his first request to impose an administrative fine, until 1 June 2011, when the overall fine was paid. The Court notes that the District Court did not give a separate decision on the applicant ’ s first request, but awaited the submissions in reply to the subsequent requests before giving a decision. Given the special urgency of the subject matter, the Court is not convinced that the joinder, which caused a delay of several weeks, best served the interest of the efficiency of the proceedings. Furthermore, a delay of approximately one month occurred when the District Court awaited the return of the main case file from the Court of Appeal, even though the main proceedings before that Court had already been terminated six weeks before. It follows that this delay could have been avoided by a swifter dispatch of the case file. 109. Having regard to the facts of the case, including the passage of time, the best interests of the child, the criteria laid down in its own case ‑ law and the parties ’ submissions, the Court, notwithstanding the State ’ s margin of appreciation, concludes that the German authorities have failed to make adequate and effective efforts to execute the contact order of 12 May 2010. 110. There has accordingly been a violation of Article 8 of the Convention. 2. Execution of the decision of 1 September 2010 ( a ) The applicant ’ s submissions 111. According to the applicant, the implementation of contact custodianship had failed because of the custodian ’ s inappropriate and unprofessional behaviour. The proceedings on the discharge of the contact custodian had been inefficient and excessively long. The District Court had failed to take the necessary steps of contacting potential custodians who had previously expressed their readiness to accept this task. Furthermore, the District Court had failed to comply with its obligation under section 155 of the Act on Procedure in Family Matters to schedule a hearing within a month of receipt of the applicant ’ s request. Accordingly, the District Court could have taken a decision in 2010. 112. The applicant further submitted that the refusal to impose further administrative fines was arbitrary and did not comply with the domestic law. (b) The Government ’ s submissions 113. The Government submitted that the domestic courts did not fail to comply with their obligations under Article 8 of the Convention in respect of the proceedings on the applicant ’ s request to discharge the contact custodian and on his request for further administrative fines to be imposed on the mother. 114. The implementation of contact custodianship had failed on account of an open dispute between the applicant and the custodian. The proceedings on the discharge of the custodian had not been excessively long. The District Court ’ s attempts to organise a replacement for the custodian had ultimately failed due to a dispute between the applicant and the potential contact custodians. As the contact custodianship ended on 31 March 2011, the decision of 29 June 2011 was of a purely declaratory nature. The Government pointed out in this context that non-compliance with section 155 of the Act on Procedure in Family Matters was not a decisive factor in the current proceedings, because this provision was merely a recommendation and did not stipulate swiftness at all costs. The decisive factor was always the best interest of the child. 115. The Government also submitted that the applicant ’ s further requests for administrative fines clearly lacked any prospect of success as the contact order given on 1 September 2010 only provided for unsupervised contact following a preparatory phase of supervised contacts. It must thus have been clear for the applicant that the decision did not grant him the right to unsupervised contact without an initial phase of supervised contact. The Government further submitted that the proceedings were processed without any undue delay. (c) The Court ’ s assessment 116. The Court observes, at the outset, that the applicant did not lodge an appeal and thus did not exhaust domestic remedies against the District Court ’ s decision of 26 August 2011 not to impose further administrative fines on the child ’ s mother. It follows that the Court is only called upon to examine the applicant ’ s Article 8 complaint with regard to the length issue. 117. The Court observes that the proceedings on the discharge of the contact custodian were instigated on 15 November 2010, when the applicant lodged his request, and were terminated on 29 June 2011, when the District Court established that contact custodianship had expired on 31 March 2011. The proceedings thus lasted seven months and two weeks before the District Court. The Court notes that, under the pertinent legislation, a contact custodian could only be dismissed if a new custodian was appointed at the same time. The Court further notes that the District Court made considerable efforts to find a contact custodian, which were ultimately to no avail. The proceedings on the applicant ’ s requests to impose further administrative fines lasted from 10 May 2011, when the applicant lodged his first request, and ended on 26 August 2011, when the District Court rejected the requests. Proceedings thus lasted three months and seventeen days. In the light of all circumstances of the case, the Court does not find this length of proceedings to be excessive. 118. In the light of these considerations, the Court cannot find that the conduct of the proceedings on the discharge of the contact custodian and on the applicant ’ s requests to impose further administrative fines violated the applicant ’ s rights under Article 8 of the Convention. 3. Proceedings on the review of contact regulations (a) The Government ’ s submissions 119. The Government submitted that the length of the proceedings on the review of contact regulation was primarily caused by the applicant ’ s own conduct. While the applicant was free to make use of all procedural means available to him, the ensuing delays were not imputable to the domestic courts. (b) The applicant ’ s submissions 120. The applicant contested that the length of the proceedings was imputable to him. The proceedings on the modification of contact rights were ineffective and lasted an excessively long time. In particular, the District Court had failed to summon other possible contact custodians after the agreement with Ms Z. had failed. The necessity to hear an expert opinion was caused by the excessive length of the prior proceedings and therefore also imputable to the domestic courts. (c) The Court ’ s assessment 121. The Court notes that the proceedings on the review of contact regulations were instituted ex officio by the District Court on 11 February 2011 and were terminated before that court on 12 November 2013. The appeal proceedings were terminated by the decision given by the Frankfurt Court of Appeal on 17 September 2014. Therefore, the proceedings lasted two years and nine months before the first instance court and some ten months before the Court of Appeal. The Court observes that the applicant lodged two motions, and the defending party one motion, for bias against the District Court Judge, each of which caused a delay of several weeks. A further delay of almost five months was caused by the fact that the applicant rejected the court ‑ appointed expert on grounds of bias. While this rejection was ultimately successful, it has not been established that the grounds for the suspicion of bias lay within the sphere of the District Court or could have been known to the District Court prior to his appointment. Hearings were postponed twice upon the request of the applicant, who finally stated that he was unfit to appear in court. The Court further observes that the applicant did not appear at any of the hearings scheduled by the Court of Appeal and rejected the Chamber of the Court of Appeal for failure to comply with his request to postpone a hearing. 122. In the light of these facts, the Court cannot find that the length of the proceedings before the family courts, even though considerable, was due to the courts ’ lack of special diligence. In particular, the applicant ’ s alleged inability to take part in the scheduled hearings cannot be held imputable to the family courts. The Court concludes that it has not been established that the family courts have failed to comply with the procedural aspect of Article 8 of the Convention with regard to the proceedings instituted on 11 February 2011. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 123. The applicant also complained that the length of the court proceedings concerning contact rights had exceeded a reasonable time in breach of Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a... hearing within a reasonable time by a ... tribunal...” 124. The Court notes that, under the Remedy Act, the applicant was entitled to lodge a claim for just satisfaction, but failed to do so. However, he disputes the effectiveness of the Remedy Act. Referring to a judgment in which a Court of Appeal awarded an applicant monetary compensation amounting to EUR 1, 500 for the excessive length of contact proceedings lasting two years and eight months, and which had been confirmed by the Federal Court of Justice on 13 March 2014 (III ZR 91/13), the applicant submitted that the domestic courts had failed to take into account relevant case-law of the Court when assessing just satisfaction claims under the Remedy Act. 125. The Court reiterates that in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996 ‑ IV; and Eberhard and M., cited above, § 147 ). 126. The Court notes that the applicant had access to the claim for just satisfaction, which became available to him under the transitory provision of the Remedy Act upon its entry into force on 3 December 2011. The Court has previously found that the Remedy Act was in principle capable of providing adequate redress for the violation of the right to a trial within a reasonable time and that an applicant could be expected to make use of this remedy, even though it became available to him only after he had lodged his complaint with the Court ( see Taron, cited above, § § 40 -43 ). The Court considers that the applicant has not submitted any reason which would allow the conclusion that the just satisfaction claim would not have had a reasonable prospect of success if pursued by the applicant in respect of the alleged unreasonable length of the court proceedings. The mere allegation that one Court of Appeal, in a court decision confirmed by the Federal Court of Justice, may have failed to take into account relevant case-law of the Court when assessing the amount of damages to be awarded under the Remedy Act, is not sufficient to call into question the general effectiveness of the legal remedy as a whole. 127. This part of the application must thus be rejected for non ‑ exhaustion of domestic remedies in accordance with Article 3 5 §§ 1 and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION 128. The applicant complained of a violation of his right to an effective remedy against the excessive length of the proceedings before the family courts. He relied on Article 13 in conjunction with Article 8 of the Convention. 129. The Government contested that argument. A. Admissibility 130. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The Government ’ s submissions 131. Referring to the Court ’ s decision in the case of Taron ( cited above, §§ 39-45 ), the Government submitted that the Court had already established that the Remedy Act was generally suited to provide effective redress against excessive length of proceedings. While the evaluation of the domestic remedy, which had been in force for two years, was still pending, the existing case-law showed that the new remedy was functioning well in practice. This had been confirmed by the final resolution issued by the Committee of Ministers in the Rumpf case ( see Rumpf v. Germany, no. 46344/06, 2 September 2010 and Resolution CM/ResDH(2013)244 ). 132. According to the Government, the new legal remedy was effective also in cases concerning contact with children, as it had a general preventive effect besides offering monetary redress. The two - stage legal remedy available under the amended Courts Constitution Act had a general, preventive effect by virtue of its very existence. In addition, the instrument of an objection to delay had a warning function, since it pointed out to the trial court which proceedings were already protracted from an applicant ’ s point of view and thus allowed that court to expedite the proceedings. Furthermore, the compensation claim under the Remedy Act also had a preventive function, as it could already be lodged while proceedings were pending. Finally, the plaintiff had the option of obtaining monetary compensation for any disadvantages resulting from a violation of the right to a decision within a reasonable time. 133. The Government observed that the proceedings which were the subject matter of the instant complaint had been pending since May 2010 and thus fell under the transitional provision of Article 23 of the Remedy Act. Accordingly, the objection to delay was not yet available at that stage of the proceedings. However, the draft legislation had already been published at that time; furthermore, especially in regard to family law, the appeal courts had already generally recognised the legal institution (which was not regulated by law) of a complaint on account of inactivity in order to avert the danger of creating irreversible effects. Finally, the applicant himself had lodged several objections to delay during the proceedings at hand. 2. The applicant ’ s submissions 134. According to the applicant, the Remedy Act did not comply with the prerequisites laid down in the Court ’ s case-law. The Court had held in several judgments that a purely compensatory remedy was not sufficient to address violations resulting from the length of proceedings in which the conduct of the proceedings may have an impact on the applicant ’ s family life (the applicant referred to the Court ’ s judgments in the cases of Macready v. the Czech Republic, nos. 4824/06 and 15512/08, 22 April 2010 and Bergmann v. the Czech Republic, no. 8857/08, 27 October 2011 ). 135. The Remedy Act was not yet in force when the proceedings at issue were instituted and the applicant would only have been in a position to lodge a compensation claim under its transitory provisions. However, after consideration, the applicant had abstained from making use of this possibility also in view of its lack of effectiveness. The solution of compensation provided by the Remedy Act did not satisfy the requirements of an effective preventive remedy, because it did not lead to an order of binding measures to expedite proceedings. Neither did the objection to delay fulfil these requirements, as it constituted neither a legal claim for a declaration of a violation of the Convention nor a right to effective redress, as the law did not provide for a possibility of an effective appeal. 3. The Court ’ s assessment (a) General principles 136. The Court reiterates that Article 13 of the Convention gives direct expression to the States ’ obligation, enshrined in Article 1 of the Convention, to protect human rights first and foremost within their own legal system. It therefore requires that the States provide a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000 ‑ XI). In the present case, having regard to its conclusion with regard to the conduct of the proceedings before the family courts (compare, in particular, paragraph 1 0 9, above), the Court considers that the applicant had an arguable claim of a violation of Article 8 relating to the conduct of the proceedings on contact rights. 137. The Court further reiterates its case-law according to which remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 of the Convention if they prevent the alleged violation or its continuation, or provide adequate redress for any violation that has already occurred. A remedy therefore fulfils these criteria if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Mifsud v. France (dec.) [GC], no. 57220/00, § 17, ECHR 2002 ‑ VIII; and Sürmeli v. Germany [GC], no. 75529/01, § 99, ECHR 2006 ‑ VII ). However, in proceedings in which the length of the proceedings has a clear impact on the applicant ’ s family life (and which thus fall to be examined under Article 8 of the Convention) the Court has considered that a more rigid approach is called for, which obliges the States to put into place a remedy which is at the same time preventive and compensatory (see Macready, cited above, § 48; and Bergmann, cited above, §§ 45-46 ). The Court has observed in this respect that the State ’ s positive obligation to take appropriate measures to ensure the applicant ’ s right to respect for family life risked becoming illusory if the interested parties only had at their disposal a compensatory remedy, which could only lead to an a posteriori award for monetary compensation (see Macready, ibid. ). (b) Application to the instant case 138. Turning to the circumstances of the instant case, the Court observes that the proceedings at issue concerned the applicant ’ s contact rights with his young child. It is thus clear that the case falls within the category of cases which risk being predetermined by their length. Under the principles set out above, it thus has to be determined whether German law provided, at the relevant time, a remedy against the length of proceedings which did not only offer monetary redress, but which was also effective to expedite proceedings before the family courts. (i) The Remedy Act 139. With regard to the effectiveness of the remedy introduced by the Remedy Act, the Court observes at the outset that this remedy only became available in December 2011 and thus at a time when the instant proceedings had already continued for one and a half year and were pending before the Court. The applicant chose not to avail himself of the possibility to request monetary compensation under its transitory provisions. The Court reiterates that it has previously found that there were no reasons to believe that the new remedy would not afford an applicant an opportunity to obtain adequate and sufficient compensation for his grievances (see Taron, cited above, § 40 ). It has not, however, examined the question of whether the Remedy Act could also be regarded as effectively expediting the proceedings if the right to respect for family life otherwise risked becoming illusory. 140. With regard to the warning function attributed by the respondent Government to the objection to delay, the Court accepts that such an objection may, in a specific case, encourage a trial court to expedite proceedings. It notes, however, that the Remedy Act does not attach any sanction to the failure to comply other than the possibility to lodge a compensation claim. The Court is, furthermore, not convinced that the possibility to lodge a compensation claim can be regarded as having a sufficient expediting effect on pending proceedings in cases concerning contact rights to young children, if this is necessary to prevent a violation of the right to respect for family life. 141. In the light of these considerations, the Court is not convinced that the provisions introduced by the Remedy Act meet the specific requirements for a legal remedy designed to meet the State ’ s positive obligations under Article 8 of the Convention in proceedings relating to a parent ’ s contact rights with his young child. (ii) The complaint alleging inaction 142. The Court has previously considered that the complaint alleging inaction, which did not have a statutory basis in domestic law, but had been accepted by a number of appeal courts prior to the entry into force of the Remedy Act, could not be regarded an effective remedy against the excessive length of civil proceedings, having regard to the uncertainty about the admissibility criteria for such a complaint and to its practical effect on the specific proceedings (see Sürmeli, cited above, §§ 110 ‑ 112). The Court observes that the Government have not put forward any arguments which would allow a different conclusion to be drawn in the instant case. It follows that the complaint alleging inaction cannot be regarded as an effective remedy in this specific case. (iii) Section 155 of the Act on Procedure in Family Matters 143. The Court finally observes that the Government submitted in a different context that section 155 of the Act on Procedure in Family Matters, which obliging family courts to treat contact proceedings as a priority and expediently, was merely a recommendation and did not stipulate swiftness “ at all costs” (see paragraph 114, above). They did not allege that this provision could serve as an effective remedy within the meaning of Article 13 of the Convention. The Court appreciates that this provision may encourage the courts to comply with their duty to exercise special diligence in contact proceedings. However, in the absence of any statutory sanction for non ‑ compliance, the Court agrees that this tool cannot be regarded as an effective preventive remedy against the excessive length of contact proceedings. 144. Accordingly, the applicant did not have an effective remedy within the meaning of Article 13 of the Convention which could have expedited the proceedings on his contact rights. 145. There has therefore been a violation of Article 13 in conjunction with Article 8 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 146. 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 147. The applicant claimed the sum of at least EUR 30,000 in respect of non-pecuniary damage. The applicant submitted that he had suffered non-pecuniary damage because of the excessively long and ineffective proceedings on contact rights which had been pending before the family courts since 2005 and which led to his permanent separation from his child. The applicant considered as an aggravating factor that the Court ’ s judgment of 21 April 2011 (see Kuppinger, cited above) did not have an enduring effect on the processing of the proceedings by the family court. 148. The Government pointed out that the excessive length of the original proceedings had already been considered by the Court in its previous judgment (see Kuppinger, cited above). In the present case, only the proceedings on review of contact regulations were of an exceptional length which was, however, still justified under the circumstances of this particular case. By way of an alternative, the Government drew attention to the fact that the Court had previously decided not to award any compensation for non-pecuniary damage in a comparable case (the Government referred to Berlin v. Luxembourg, no. 44978/98, § 72, 15 July 2003 ). 149. The Court notes that the applicant has been awarded EUR 5,200 in respect of non ‑ pecuniary damage for the length of the proceedings between the years 2005 and 2010 (see Kuppinger, cited above, § 61). Ruling on an equitable basis, it awards the applicant EUR 1 5, 000 in respect of non-pecuniary damage for the violation of his rights under Articles 8 and 13 of the Convention in the instant case. B. Costs and expenses 150. The applicant also claimed a total of EUR 4,524.61 for costs and expenses incurred before the domestic courts (including costs for the proceedings before the Federal Constitutional Court in the amount of EUR 2,032.40) and EUR 4,404.13 for those incurred before the Court. He submitted that the child ’ s mother had failed to reimburse him the costs of the first administrative fine proceedings. 151. The Government affirmed that the applicant had failed to submit fee agreements justifying the bills relating to the costs of the proceedings before the Court and before the Federal Constitutional Court. They further submitted that the costs before the family courts were not incurred in an attempt to redress the violation of Article 8. Furthermore, the applicant had an enforceable claim against the mother for reimbursement of the costs of the first administrative fine proceedings. 152. 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 have been actually and necessarily incurred in an attempt to redress the violation of the Convention rights and are reasonable as to quantum. The Court observes that it has found a violation of Article 8 of the Convention only with respect to the first administrative fine proceedings and that the applicant has obtained an enforceable title against the child ’ s mother for reimbursement of the costs incurred by these proceedings. In the light of this, the Court considers it reasonable to award the sum of EUR 2,032.40 for costs and expenses in the domestic proceedings and of EUR 4,404.13 for the proceedings before the Court. C. Default interest 153. 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.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention as regards the execution of an interim decision of May 2010 granting the applicant the right to see his son. It found that the German authorities had failed to take effective steps to execute the decision in question. The Court further held that there had been no violation of Article 8 as regards both the execution of an order on contact custodianship of September 2010 and the proceedings on the review of the contact regulations. Lastly, the Court held that there had been a violation of Article 13 (right to an effective remedy) in conjunction with Article 8 of the Convention, finding, in particular, that he did not have an effective remedy under German law against the length of proceedings which did not only offer monetary redress, but which could have expedited the proceedings on his contact rights before the family courts.