Committee of Ministers

SECRETARIAT GENERAL
SECRETARIAT OF THE COMMITTEE OF MINISTERS
SECRETARIAT DU COMITE DES MINISTRES
Contact: Abel Campos
Tel: 03 88 41 26 48
Date:
19/06/2013
DH-DD(2013)698
Documents distributed at the request of a Representative shall be under the sole responsibility of the said
Representative, without prejudice to the legal or political position of the Committee of Ministers.
Meeting:
1179 meeting (24-26 September 2013) (DH)
Item reference:
Action report (17/06/2013)
Communication from Germany concerning the case of Zaunegger against Germany (Application
No. 22028/04)
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Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de
ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
Réunion :
1179 réunion (24-26 septembre 2013) (DH)
Référence du point :
Bilan d'action
Communication de l’Allemagne concernant l’affaire Zaunegger contre Allemagne (requête n° 22028/04)
(anglais uniquement).
DH-DD(2013)698 : distributed at the request of Germany / distribué à la demande de l'Allemagne.
Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative,
without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e
Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou
politique du Comité des Ministres.
Berlin, 1 June 2013
Application of Z. v. Germany (No. 22028/04)
Report on the execution of the judgment of the
European Court of Human Rights delivered on 3 December 2009
1. The facts
The Applicant is the father of a child born out of wedlock, of whom the mother has sole custody
pursuant to section 1626a subsection (2) of the Civil Code. The parents have not availed
themselves of the option, existing since 1 July 1998, of establishing joint parental custody by
making concurring custody declarations because the mother has refused to make a custody
declaration. For this reason, the Applicant applied for a court order conferring joint parental
custody. However, the courts refused to do this on the grounds that under German law the
parents of children born out of wedlock can only acquire joint parental custody by means of a
joint declaration or by marriage.
2. Convention violation found
In its judgment delivered on 3 December 2009, the Court found that the application of section
1626a of the Civil Code - according to which the fathers of children born out of wedlock can
obtain joint parental custody only with the mother’s consent - discriminates against fathers of
children born out of wedlock vis-à-vis fathers who had originally held parental authority and later
separated from the mother or divorced. The Court found that this unequal treatment constituted
a violation of Article 14 of the Convention (prohibition of discrimination) in conjunction with
Article 8 of the Convention (right to respect for family life).
3. Individual measures
The sum awarded in compensation - totalling € 7,008.14 - was transferred to the Applicant’s
account on 23 March 2010.
During the course of the proceeding before this Court, the Applicant already had regular contact
with his daughter. Since the decision of the Federal Constitutional Court dated 21 July 2010
DH-DD(2013)698 : distributed at the request of Germany / distribué à la demande de l'Allemagne.
Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative,
without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e
Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou
politique du Comité des Ministres.
(see below at “general measures”), he has also had the possibility of making a motion to the
family court to transfer parental custody, either jointly with the mother or exclusively to him. The
Applicant’s child will turn 18 in 2013.
Against this background, additional individual measures to execute the judgment do not seem
necessary.
4. General measures
Publication and dissemination of the judgment
The courts involved in the court proceedings, including the Federal Constitutional Court, have
been notified of the judgment. Furthermore, a German translation of the judgment was sent to
all the ministries of justice of the Länder for notification within their remit.
In addition to this, a German translation of the judgment was published on the website of the
Federal Ministry of Justice in the Ministry’s case law database (www.bmj.de/egmr).
Furthermore, the translation was sent to several important publishing houses that bring out legal
periodicals. Subsequently the judgment was published in Newsletter Menschenrechte (Human
Rights Newsletter) NLMR 2009, p. 348; Zeitschrift für das gesamte Familienrecht (Journal of
Family Law in its Entirety) FamRZ 2010, p. 103; and in the Neue Juristische Wochenschrift
(New Legal Weekly) NJW 2010, page 501.
Moreover, the judgment was included in the federal ministry of justice report on the case-law of
the European Court of Human Rights and on the execution of its judgments in cases against
Germany. This report has been widely disseminated and is published in the Internet on the
Federal Ministry of Justice website at www.bmj.de.
Legislative measures
In order to implement the judgment, the German Bundestag has adopted the Act to Reform
Parental Custody of Parents Not Married to Each Other (Federal Law Gazette I 2013, 795). The
new law entered into force on 19 May 2013.
The Act provides that, upon motion by a parent, joint custody shall be granted as far as this is
not contrary to the child's best interests. If the mother does not – in response to the father's
motion for joint custody – submit any reasons that could be contrary to such joint custody, and if
no such reasons are otherwise apparent to the court, it is presumed that joint custody is not
contrary to the child's best interests. In this case, the court grants joint custody to both parents
DH-DD(2013)698 : distributed at the request of Germany / distribué à la demande de l'Allemagne.
Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative,
without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e
Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou
politique du Comité des Ministres.
in a special simplified proceeding. The decision is given in written form; there is no personal
hearing of the parents or the youth office. If, however, there are any reasons related to the
child's well-being speaking against joint custody, the court makes a decision in normal judicial
proceedings.
Until the Act entered into force, the requirements set down by the European Court of Human
Rights were already taken into account by means of a transitional regulation ordered by the
Federal Constitutional Court. The Federal Constitutional Court had decided on 21 July 2010 that
the provision on parental custody of parents not married to each other was incompatible with
Article 6 para. 2 of the Basic Law (Grundgesetz, GG). The Federal Constitutional Court found
that, under Article 6 para. 2 of the Basic Law, the parental rights of the father of a child born out
of wedlock were violated because he was in principle excluded from parental custody of his
child if the child’s mother did not consent and because he could not obtain judicial review as to
whether, for reasons of the child's best interests, it was appropriate to grant him parental
custody of his child jointly with the mother or to transfer sole parental custody to him in place of
the mother. Until entry into force of the statutory reform, the Federal Constitutional Court had
provisionally ordered, amending the existing provisions, inter alia, that upon motion by a parent,
the Family Court should order joint or partially joint parental custody, if it was to be expected
that this is in the child’s best interests. Upon motion by a parent, sole parental custody, or part
thereof, was to be transferred to the father if joint parental custody was not an option and it was
to be expected that this was in the child’s best interests.
5. Conclusion
From the point of view of the Federal Government, all necessary measures for full
implementation of the judgment were completed with the entry into force of the Act to Reform
Parental Custody of Parents Not Married to Each Other.