ECHR decision of 31 October 2019 in the case "Evers V. Germany" (aplication N 17895/14).
In 2014, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Germany.
The case successfully considered an aplication against the ban on communication with a mentally ill woman who was the mother of the applicant's child. The complaint of a violation of article 8 of the Convention for the protection of human rights and fundamental freedoms was declared inadmissible on the merits. There were no violations of article 6, paragraph 1, of the Convention for the protection of human rights and fundamental freedoms. The case violated the requirements of article 6 of the Convention for the protection of human rights and fundamental freedoms in its civil law aspect in relation to hearing the applicant's testimony in court.
The applicant, aged 71, lived with his partner P. B., who was the guardian of her daughter V., a 22-year-old mentally ill young woman. The applicant had a sexual relationship with V. and in March 2011 she had a child with the applicant.
In 2009 and 2010, criminal proceedings were initiated against the applicant on charges of sexual harassment against persons who could not resist. Both criminal cases were dismissed.
In September 2010, the district court received information from a local hospital that V. had probably been sexually assaulted, as she suffered from a moderate degree of mental disorder and was pregnant with the applicant's child. Using the temporary injunction procedure, the district court placed V. in a special shelter and assigned her a professional guardian. In March 2011, the district court extended the temporary injunction, citing three expert opinions. However, the applicant insisted on continuing sexual relations with V. In January 2013, the district court issued an order banning communication between the applicant and V. in order to protect the latter.
The applicant claimed that the ban on communication violated his rights under articles 6 and 8 of the Convention.
POINT OF LAW
Regarding compliance with article 8 of the Convention. The mere fact that the applicant lived together with P. B. and V. and was the biological father of child V. did not mean that there was a family connection that would require protection as "family life" under article 8 of the Convention.
The concept of "private life" cannot be understood as guaranteeing the right to establish a relationship with a particular person. "Private life "is generally absent in situations where the applicant did not have a" family life " with the person in question and where the person did not share the desire to maintain such contact. This rule applies even more broadly when the person with whom the applicant wished to maintain a relationship was the victim of conduct that the courts of the state concerned considered prejudicial to the person concerned.
Article 8 of the Convention can also not be invoked to appeal against loss of reputation that was a foreseeable consequence of someone's own actions, such as the Commission of a criminal offence. This rule is not limited to damage to reputation, but extends to the more widely applicable principle that personal, social, psychological and economic difficulties that were the foreseeable consequences of the Commission of a criminal offence could not be used as grounds for complaining that a criminal conviction interfered with the right to respect for "private life". This expanded principle applies not only to criminal offences, but also to illegal conduct that entails legal liability with foreseeable negative consequences for "private life".
In the present case, the ban on communication did not affect the applicant's relationship with other people in General, but only excluded any contact with V. The applicant insisted on contacting V., although the German courts found that V. did not Express any particular interest in contacting the applicant. Moreover, the contacts between the applicant and V. were found to be detrimental to V., who showed signs of a mental disorder and needed medical attention after the applicant's visits to the shelter where V. lived. The court therefore concluded that the applicant could not invoke article 8 of the Convention to appeal against the decision banning contact with V.
In addition, according to the civil courts, which based their position on the conclusions of three experts, V. gave birth to a child as a result of a serious violation of her personal rights, since she could not understand the consequences and risks of sexual relations and pregnancy. The applicant did not abandon his intention to continue abusing V.'s condition, which would probably have led to V.'s further pregnancies and risk to herself. In its motion to terminate the criminal proceedings, the district court explicitly stated to the applicant and P. B. that V. was considered incapable of resisting. Consequently, the decision to order a ban on communication and its consequences were the foreseeable results of the applicant's intention to continue visiting V.
In these circumstances, the applicant's appeal against the ban on communication did not fall within the scope of the concept of "private life" within the meaning of article 8 of the Convention.
The complaint of a violation of article 8 of the Convention is declared inadmissible on the merits (as incompatible with the requirements of the Convention ratione materiae).
Regarding compliance with article 6 of the Convention (civil law aspect). The proceedings generally had a sufficient evidentiary basis, as the German courts listened to V.'s testimony and examined three expert opinions. The courts also had other evidence and provided the applicant with an opportunity to present his arguments in writing.
The German authorities did not base their decision to prohibit the applicant from communicating with V. on the fact that V. was an incapacitated person, but rather under the circumstances that incapacitation V. it was of such a nature that it prevented her from adequately understanding (i) the meaning and consequences of contact with the applicant, and (ii) the specifics of the relationship with the applicants, including, inter alia, the fact that the applicant had previously been a sexual partner of mother V. The German authorities further took into account the fact that any other form of contact with the applicant would also not benefit V.
As a result, there was nothing to indicate that the German courts had insufficiently motivated their decisions or that they had arbitrarily refused to consider relevant evidence.
The case did not violate the requirements of article 6 of the Convention in its civil aspect (adopted unanimously).
Regarding compliance with article 6 of the Convention (civil law aspect). The issues at the heart of the proceedings led to an assessment of the applicant's identity and his relationship with V., the nature of which the applicant disputed. Even though the applicant maintained his position in order to continue sexual relations with V., and although the district court heard the applicant's own testimony during the custody proceedings, the issue at issue was not purely legal and technical and would have allowed the German courts to form an opinion on the applicant and the applicant to explain his personal situation. Consequently, there were no exceptional circumstances that would have exempted the German courts from the obligation to hear explanations directly from the applicant.
The case involved a violation of the requirements of article 6 of the Convention in its civil law aspect in relation to the hearing of the applicant's testimony in court (adopted by four votes in favour and three against).
The court also held unanimously that there was no violation of article 6, paragraph 1, of the Convention, since the refusal of the German courts to grant the applicant full access to the custody case file was not of such a nature as to violate the very essence of the applicant's ability to defend his position on the alleged prohibition of communication, as this fact was confirmed by relevant and sufficient evidence.
In the application of article 41 of the Convention. The European Court of justice held that the finding of a violation of the Convention would in itself constitute sufficient just compensation for non-pecuniary damage.