| |
1. The author of the
communication is Werner Petersen, a German national, who claims to be a
victim of a violation by Germany [FN1] of articles 2, paragraphs 1 and 3, 3,
14, 17 and 26 of the Covenant. He is represented by counsel.
-------------------------------------------------------------------------------------------------------------------------------
[FN1] The Covenant and the Optional Protocol to the Covenant entered into
force for Germany on 17 March 1974 and 25 November 1993, respectively. Upon
ratification of the Optional Protocol, the State Party entered the following
reservation: "The Federal Republic of Germany formulates a reservation
concerning article 5 paragraph 2 (a) to the effect that the competence of
the Committee shall not apply to communications (a) which have already been
considered under another procedure of international investigation or
settlement, or (b) by means of which a violation of rights is reprimanded
having its origin in events occurring prior to the entry into force of the
Optional Protocol for the Federal Republic of Germany, or (c) by means of
which a violation of article 26 of the [said Covenant] is reprimanded, if
and insofar as the reprimanded violation refers to rights other than those
guaranteed under the aforementioned Covenant."
-------------------------------------------------------------------------------------------------------------------------------
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 The author is the father of a child born out of wedlock on 3 May 1985.
He lived with the child's mother, Ms. B, from May 1980 to November 1985.
They agreed that the son would bear the mother's surname. After separation
from the mother, the author continued to pay maintenance and had regular
contact with his son until autumn 1993. In August 1993, the mother married
Mr K., and took her husband's name in conjunction with her own surname, i.e.
B.-K.
2.2 In November 1993, the author asked the Youth Office of Bremen whether
the mother had applied for a change of his son's surname. By letter of 20
December 1993, he was advised that she had inquired about the possibility,
but that no request had been filed yet. In his letter, the competent Youth
Office official informed the author that, should such a request be lodged,
he would agree to a change of surname, as the stepfather had been living
together with the mother and the son for more than one year and since the
child fully accepted him. On 30 December 1993, the mother and her husband
recorded statements at the Bremen Registry Office, to the effect that they
gave their family name (K.) to the author's son. They also filed a document
issued by the Bremen Youth Office, on 29 December 1993, on behalf of the son
(then 8 years old), according to which he agreed to the change of his
surname. The Bremen Registry Office informed the Helmstedt Registry Office
accordingly, following which the registrar of the Helmstedt Registry Office
added the change of the child's surname to his birth record.
2.3 On 6 April 1994, the author filed an action with the Administrative
Court of Bremen against the Bremen Municipality, complaining that the Bremen
Youth Office had failed to hear him about the envisaged change of his son's
surname. On 19 May 1994, the Administrative Court of Bremen declared itself
incompetent to deal with the action and transferred the case to the District
Court of Braunschweig.
2.4 On 21 October 1994, the Braunschweig District Court dismissed the
author's claim for rectification of his son's birth record, insofar as the
change of his surname was concerned. The Court found that the entry was
correct because the child's surname had been changed in accordance with s.
1618 [FN2] of the Civil Code. It considered that this section did not amount
to a violation of the non-discrimination provision of the German
Constitution or of article 8 of the European Convention on Human Rights. On
balance, s. 1618 of the Civil Code did not affect the equality between
children born out of wedlock and children born in wedlock. Rather, in
providing for the possibility of having the same surname, s.1618 ensured
that the child's status - born out of wedlock - was not disclosed to the
public. As far as procedural matters were concerned, the proceedings for a
change of surname in which the natural father did not participate could not
be objected to on constitutional grounds. In particular, there was no breach
of the author's rights as a natural parent, since his son had never borne
the father's surname. The change of surname served the best interests of the
child. A right of the natural father to be heard in the proceedings, as
argued by the author, without the possibility to block a change of surname
would not be effective, as mother and stepfather would have the final say in
any event.
-------------------------------------------------------------------------------------------------------------------------------
[FN2] Pursuant to section 1617 of the German Civil Code in force at the
material time, a child born out of wedlock received the surname that the
mother was bearing at the time of the child's birth. A subsequent change of
the mother's surname as a result of marriage did not affect the child's
surname. Section 1618 of the same Code provided that the mother of a child
born out of wedlock and her husband could declare, for the record of a
registrar, that the child, who was bearing a surname in accordance with
section 1617 and was not yet married, should in future bear their family
name. Similarly, the father of the child could declare, for the record of a
registrar, that the child should bear his surname. The child and the mother
had to agree to the change of the surname, in case that the father wanted to
give his surname to the child.
-------------------------------------------------------------------------------------------------------------------------------
2.5 On 4 January 1995, the Regional Court of Braunschweig dismissed the
author's appeal, confirming the reasoning of the District Court and holding
that there were no indications that the legal provisions applied in the
present case were unconstitutional. The change of surname served the
interests of the child's well-being, which prevailed over the interests of
the natural father.
2.6 On 10 March 1995, the Higher Regional Court of Braunschweig dismissed
the author's further appeal. Relying on the case-law of the Federal
Constitutional Court, it reiterated that s. 1618 of the Civil Code could not
be objected to on constitutional grounds. The author could not derive from
his rights as a natural father any right to be heard in proceedings about
the change of his child's surname, because his rights conflicted with those
of the mother and, in particular, of the child, whose protection was the
provision's paramount objective. The child's interests were safeguarded by
the Youth Office's participation in the proceedings. If the child's mother,
her husband and the guardian agreed on the change of the child's surname,
this change would generally have to be considered to be in the interest of
the child's well-being.
2.7 In January 1994, as a result of problems in having access to his son,
the author applied to the Bremen District Court for a decision granting him
a direct right of access to his son. In April 1994, by interlocutory
decision, the District Court granted him visiting rights. Subsequently, the
child's mother did not comply with the decision and prohibited visits from
October 1994.
2.8 On 3 January 1995, the author instituted proceedings against the mother
before the Bremen District Court, claiming compensation for lost travel
expenses caused by her refusal to allow him access to his son on 16 October
and 13 November 1994.
2.9 On 5 April 1995, after an oral hearing, the Bremen District Court
dismissed the author's action. It found that there was no legal basis to
claim compensation for the mother's alleged refusal to grant him access to
his son. The Court noted that, pursuant to s. 1711 of the Civil Code, the
person with custody and care of a child born out of wedlock determines
contact arrangements with the father, and that the father can only claim
personal contacts if they are in the child's interest. The Court also
observed that its interlocutory decision of April 1994 on visiting
arrangements had been formulated as granting the child a right to visit the
author, not in terms of awarding a right of access to the author.
2.10 On 17 August 1995, the Federal Constitutional Court dismissed the
author's constitutional complaints against the decisions in both sets of
proceedings (change of his son's surname; rejection of his compensation
claim). It found that, in both cases, the conditions of admissibility had
not been met. In particular, the Court considered that the author's
complaint about the change of his son's surname did not raise any question
of fundamental importance. Referring to its decision of 7 March 1995 in
another matter, [FN3] it recalled that the father of a child born out of
wedlock enjoyed the right to the care and upbringing of the child under the
Basic Law, even if he was not living with the child's mother and was not
raising the child together with her. However, in the present case, there was
no indication that the courts, in interpreting and applying s. 1618 of the
Civil Code, had disregarded the author's parental rights. As to the Bremen
District Court's decision of 5 April 1995, the Court considered that the
author had no constitutional claim for his parental right to access to his
child to be enforced by means of a tort action.
-------------------------------------------------------------------------------------------------------------------------------
[FN3] Decisions of the Constitutional Court (BVerfGE), Vol. 92, No, 12, at
pp. 158.
-------------------------------------------------------------------------------------------------------------------------------
2.11 On 8 February 1996, the author submitted an application to the European
Court of Human Rights, claiming violations of his and his son's rights under
articles 6, 8 and 14 of the European Convention on the Protection of Human
Rights and Fundamental Freedoms (European Convention). On 6 December 2001,
the European Court declared the application inadmissible [FN4] on the
following grounds: (1) author's lack of standing to act on his son's behalf;
(2) incompatibility ratione materiae with the provisions of the Convention
of his claim that the proceedings concerning the change of his son's surname
had discriminated against him as a natural father, thereby infringing
article 14 of the Convention; and (3) as manifestly ill-founded, insofar as
the author alleged (a) that the change of his son's surname violated his
right to respect for family life under article 8 of the Convention; (b) that
the absence of an oral hearing and a public pronouncement of the decisions
in the proceedings before the Bremen Administrative Court and the
Braunschweig District and Regional Courts violated article 6 of the
Convention; and (c) that the dismissal of his compensation claim not only
failed to enforce his visiting rights, but also discriminated against him,
if compared to fathers of children born in wedlock, in violation of article
8, juncto article 14, of the Convention.
-------------------------------------------------------------------------------------------------------------------------------
[FN4] See European Court of Human Rights (Third Section), Decision as to the
Admissibility of Application No. 31180/96 (Werner Petersen against Germany),
6 December 2001.
-------------------------------------------------------------------------------------------------------------------------------
THE COMPLAINT
3.1 The author alleges a violation of his rights under articles 2,
paragraphs 1 and 3, 3, 14, 17 and 26 of the Covenant, because his interests
as the natural father had not been duly taken into account, given that
neither his consent, nor his participation were required in the proceedings
to change his son's surname. He explicitly states that he is not submitting
the communication on his son's behalf.
3.2 The author claims that, by contrast to a father of a child born in
wedlock, he did not have the benefit of a public authority having to justify
the change of the child's name by an important reason related to the child's
well-being. He feels discriminated against in comparison to the child's
mother or the father of a child born in wedlock, who must be heard in the
proceedings under the Change of Surnames Act. Moreover, unlike the father of
a child born in wedlock, he had no effective access to the courts to contest
the decision of the guardian, the mother and her husband concerning the
change of surname for lack of important reasons, incompatibility with the
child's interest, or failure to be heard in the change of name proceedings.
3.3 The author submits that the change of his son's surname serves no
legitimate aim, since the child's well-being generally requires continuity
of name as a means of personal identification. Concealing an illegitimate
birth by change of name was not a legitimate purpose. Furthermore,
representation by the guardian does not sufficiently safeguard the child's
interests, as the Youth Office regularly hears only the mother and her
husband and not the child himself.
3.4 The author alleges that the Bremen District Court's decision of 5 April
1995 violates his rights under articles 2, 3, 17 and 26 of the Covenant, as
it fails to ensure his right of access to his son. He adds that the father
of a child born in wedlock is entitled to compensation if the mother refuses
to comply with his right of access.
3.5 The author claims that the European Court of Human Rights, in its
inadmissibility decision of 6 December 2001, did not "consider" his claims
within the meaning of the State party's reservation to article 5, paragraph
2 (a), of the Optional Protocol. If there is a material difference between
the applicable provisions of the Covenant and the European Convention, and
if a matter has been declared inadmissible ratione materiae by the European
Court, that matter has not been "considered" within the meaning of the
German reservation, in accordance with the Committee's jurisprudence in Rogl
v. Germany [FN5] and in Casanovas v. France. [FN6]
-------------------------------------------------------------------------------------------------------------------------------
[FN5] Communication No. 808/1998.
[FN6] Communication No. 441/1990.
-------------------------------------------------------------------------------------------------------------------------------
3.6 As to his claims under article 26 of the Covenant, the author submits
that the European Court has held that the change of his son's surname and
the denial of compensation for his lost travel expenditures did not directly
affect his right to family life (article 8 of the Convention), so that there
was no room for the application of article 14, which could be applied solely
in relation to the substantive rights and freedoms of the Convention. Unlike
article 14 of the European Convention, article 26 is a free-standing
provision, which could be invoked independently of the other Covenant
rights. In the light of the material difference between both provisions, the
Committee was not precluded by the German reservation from considering his
claims based on article 26 of the Covenant.
3.7 Regarding his claims under article 17 of the Covenant, the author argues
that the European Court's finding that his right to respect for family life
was not affected by the change of his son's surname or the denial of his
compensation claim, shows that the Court has found these claims to fall
outside the ambit of article 8 of the Convention, thereby not considering
them within the meaning of the German reservation. Moreover, the Court had
failed to consider his claim under article 14 of the Convention that, in
comparison to fathers of children born in wedlock, he had no access to the
courts to challenge the change of name as not being in the child's interest
or for not having been heard in the relevant proceedings.
3.8 With regard to the State party's reservation ratione temporis, the
author submits that the change of his son's surname had its origin on 30
December 1993, when the mother and her husband recorded their statements at
the Bremen Registry Office, which then informed the Helmstedt Registry
Office, whose registrar added the change of name to the child's birth
certificate. The compensation proceedings before the Bremen District Court
related to his lost travel expenditures on 16 October and 13 November 1994,
given the mother's refusal to let him visit his son. These events occurred
after the entry into force of the Optional Protocol for the State party on
25 November 1993.
3.9 The author argues that the German reservation concerning article 26 of
the Covenant is incompatible with the object and purpose of the Optional
Protocol, if not the Covenant itself, as it seeks to limit the State party's
obligations under article 26 in a manner inconsistent with the Committee's
interpretation of that provision as a free-standing principle of equality.
[FN7] By reference to the Committee's General Comment 24, [FN8] its
jurisprudence in Kennedy v. Trinidad and Tobago, [FN9] as well as articles
2, paragraph 1 (d), and 19 of the Vienna Convention on the Law of Treaties,
he argues that no reservation can be made to a substantive obligation under
the Covenant through the vehicle of the Optional Protocol. He recalls that
the Committee had expressed regrets about the State party's reservation in
its concluding observations on the fourth periodic report of Germany.
-------------------------------------------------------------------------------------------------------------------------------
[FN7] The author refers to Communication No. 182/1984, Zwaan-de Vries v. The
Netherlands.
[FN8] CCPR, 52nd session (1994), General Comment 24: Issues relating to
reservations made upon ratification or accession to the Covenant or the
Optional Protocols thereto, or in relation to declarations under article 41
of the Covenant, at para. 13.
[FN9] Communication No. 845/1998, at para. 6.
-------------------------------------------------------------------------------------------------------------------------------
3.10 The author submits that the Committee is competent to determine whether
a reservation is compatible with the object and purpose of the Covenant and
that the effect of any finding that the German reservation is incompatible
with the object and purpose of the Optional Protocol is that it will be
generally severable, in the sense that the Covenant will be operative for
the State party without the benefit of the reservation. [FN10] For him, the
State party has no legitimate interest in upholding its reservation, after
having signed [FN11] Protocol No. 12 to the European Convention, which
contains a general prohibition of discrimination. The author concludes that
the reservation is invalid and does not preclude the Committee from
examining his claims under article 26.
-------------------------------------------------------------------------------------------------------------------------------
[FN10] The author refers to General Comment 24, at para. 18, and the
decision on admissibility of the Committee on communication No. 845/1998,
Kennedy v. Trinidad and Tobago.
[FN11] Germany has signed Protocol No. 12 to the European Convention on 4
November 2000 but has not ratified it to date. See the Council of Europe's
Treaty Office at: https://conventions.coe.int (consulted on 22 December
2003).
-------------------------------------------------------------------------------------------------------------------------------
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
4.1 On 1 November 2002, the State party submitted its observations on the
admissibility of the communication, arguing that, on the basis of the German
reservation, it is inadmissible ratione materiae and because of the prior
consideration of the same matter by the European Court of Human Rights.
4.2 The State party argues that an isolated invocation of articles 3 and 26
of the Covenant is incompatible with the wording of article 3 and with the
German reservation to article 26, given the accessory character of both
provisions. Insofar as the author alleges a violation of these provisions
alone, his communication must be considered ratione materiae incompatible
with the provisions of the Covenant. By invoking these provisions separately
from articles 14 and 17 of the Covenant, the author seeks to circumvent
litera a) of the German reservation, as both claims are identical and based
on the same arguments which already were considered by the European Court of
Human Rights. The mere formulation of a complaint as an isolated claim of
discrimination, concerning the same matter and based on identical arguments
as a previous application to the European Court, should not undermine the
application of the German reservation, whose purpose was to prevent
duplication of international control procedures, conflicting decisions under
such procedures and "forum shopping" by complainants.
4.3 The State party adds that the European Court has "considered" the same
matter, since its decision that the author's claims were inadmissible
ratione materiae or manifestly ill-founded in both cases implied a summary
examination of the merits of his application. The Committee's decision in
Casanovas v. France must be distinguished from the present case, since the
scope of protection of article 6 of the European Convention differs in
substance from that of article 14 of the Covenant, as regards the issue
decided in that case. That the European Court declared the application
inadmissible ratione materiae was therefore not decisive for the Committee's
finding that the same matter had not been "considered" by the Court. Rather,
the additional requirement of a comparable degree of protection of the
rights in question had not been met in Casanovas. However, in the present
case, the author has failed to demonstrate an essential material difference
between the Covenant rights invoked by him and their counterparts in the
European Convention.
4.4 With regard to the author's specific claims, the State party submits
that the European Court examined whether the change of his son's surname
affected his right to respect for family life under article 8 of the
European Convention; it also examined the substantive prerequisites of
article 14 of the Convention, and came to a negative conclusion in both
cases. As a result of this consideration, the Committee was precluded from
examining the author's identical claims under article 17, read in
conjunction with article 26 of the Covenant, in the absence of a material
difference with articles 8 and 14 of the European Convention.
4.5 Regarding the author's claims under article 14, read in conjunction with
article 26, that the proceedings relating to the change of his son's surname
were unfair and that, as the father of a child born out of wedlock, he had
no opportunity to contest the name change, the State party submits that the
European Court declared these complaints inadmissible as manifestly
ill-founded, after comprehensively examining the merits of the claims under
articles 6 and 8 of the European Convention. The Committee's competence to
examine the same matter was therefore precluded by virtue of the German
reservation.
4.6 Lastly, with regard to the author's claim under article 17, read in
conjunction with article 26, of the Covenant, that the denial of
compensation for his loss of travel expenditures discriminated against him
in comparison to fathers of children born in wedlock and did not ensure his
right of access to his son, the State party submits that the European Court
considered this complaint to be primarily a financial matter, which fell
outside the scope of protection of article 8 of the European Convention.
COMMENTS BY THE AUTHOR
5.1 On 20 February 2003, the author reaffirmed that the communication is
admissible for the reasons set out in his initial submission. He emphasizes
that his free-standing claims of discrimination have not, and could not have
been, considered by the European Court, in accordance with the established
case law of the Court. [FN12] Therefore, the Committee was not precluded
from examining these claims on the basis of the State party's reservation to
article 5, paragraph 2 (a), of the Optional Protocol.
-------------------------------------------------------------------------------------------------------------------------------
[FN12] The author refers to Communication No. 965/2000, Karakurt v. Austria,
at para. 7.4.
-------------------------------------------------------------------------------------------------------------------------------
5.2 For the author, the State party failed to address his argument that the
German reservation to article 26 of the Covenant is incompatible with the
object and purpose of the Covenant and thus severable. He submits that, in
its fifth periodic report [FN13] to the Human Rights Committee, the State
party indicates that it would review this part of the reservation once
ratification of Protocol No. 12 to the European Convention, containing a
general prohibition of discrimination, was completed. In the author's view,
this supports his assumption that the State party has no legitimate interest
to uphold the reservation.
-------------------------------------------------------------------------------------------------------------------------------
[FN13] See Fifth periodic report of Germany, UN Doc. CCPR/C/DEU/2002/5, 4
December 2002, at para. 372.
-------------------------------------------------------------------------------------------------------------------------------
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
6.2 The Committee notes that the State party has invoked its reservation to
article 5, paragraph 2 (a), of the Optional Protocol, precluding the
Committee from examining communications "which have already been considered
under another procedure of international investigation or settlement." The
Committee is satisfied that consideration by the European Court of Human
Rights constitutes an examination by another procedure of international
investigation or settlement within the meaning of article 5, paragraph 2
(a), of the Optional Protocol.
6.3 The Committee observes that litera a) of the State party's reservation
to article 5, paragraph 2 (a), must be read in the light of the wording of
that provision. A communication has, therefore, already been considered by
the European Court of Human Rights, if the examination by that Court related
to the "same matter". The Committee recalls its jurisprudence that the "same
matter" within the meaning of article 5, paragraph 2 (a), must be understood
as relating to the same author, the same facts and the same substantive
rights. [FN14] It observes that Application no. 31180/96 was submitted to
the European Court by the same author, was based on the same facts and
related, at least in part, to the same substantive rights as those raised in
the present communication, as articles 6 and 8 of the European Convention
are similar in scope and content to articles 14 and 17 of the Covenant.
-------------------------------------------------------------------------------------------------------------------------------
[FN14] See e.g. Communication 998/2001, Althammer v. Austria, at para. 8.4.
-------------------------------------------------------------------------------------------------------------------------------
6.4 Having concluded that the State party's reservation concerning article
5, paragraph 2 (a), of the Optional Protocol applies the Committee must
consider the author's argument that the European Court of Human Rights did
not "consider" the same matter within the meaning of the State party's
reservation. The Committee recalls its jurisprudence that where the
Strasbourg organs have based a declaration of inadmissibility not solely on
procedural grounds, [FN15] but on reasons that comprise a certain
consideration of the merits of the case, then the same matter has been
"examined" within the meaning of the respective reservations to article 5,
paragraph 2 (a), of the Optional Protocol. [FN16]
-------------------------------------------------------------------------------------------------------------------------------
[FN15] See e.g. Communication No. 716/1996, Pauger v. Austria, at para. 6.4.
[FN16] See e.g. Communication No. 121/1982, A.M. v. Denmark, at para. 6;
Communication No. 744/1997, Linderholm v. Croatia, at para. 4.2.
-------------------------------------------------------------------------------------------------------------------------------
6.5 Insofar as the author alleges that the change of his son's surname and
the dismissal of his compensation claim violate his right to respect to
family life under article 17, in conjunction with his procedural rights
under Article 14, of the Covenant, the Committee notes that the European
Court declared the analogous complaint inadmissible as manifestly
ill-founded, pursuant to article 35, paras. 3 and 4, of the European
Convention. The Court based its finding on the fact that the child had never
borne the author's surname, which therefore had never constituted an outer
sign of a bond between the author and his son. With regard to the
compensation claim, the Court found that the issue concerned primarily a
financial matter, which did not serve to obtain a decision on access or
enforcement of access to his child. Consequently, the dismissal of the
compensation claim did not affect the author's right to respect for family
life. The Committee concludes that, in examining the author's complaints
under article 8 of the European Convention, the European Court went beyond
an examination of purely procedural admissibility criteria. The same is true
regarding his complaints under article 6 of the European Convention, which
related to the necessity of a public hearing and the public announcement of
the judgments of the Braunschweig District and Regional Courts, and thus
concerned aspects of article 6 of the European Convention which are similar
in content and scope to article 14 of the Covenant. This part of the
communication has therefore already been "considered", within the meaning of
the State party's reservation.
6.6 To the extent that the author claims, under article 26 of the Covenant,
that he was discriminated against, in comparison with the child's mother or
to fathers of children born in wedlock, the Committee notes that the
European Court declared similar claims by the author inadmissible ratione
materiae, since there was no room for the application of article 14 of the
European Convention, as his right to respect to family life was not affected
by the decisions in the change of name as well as the compensation
proceedings. The Committee recalls its jurisprudence [FN17] that, if the
rights invoked before the European Court of Human Rights differ in substance
from the corresponding Covenant rights, a matter that has been declared
inadmissible ratione materiae has not, in the meaning of the respective
reservations to article 5, paragraph 2 (a), been considered in such a way
that the Committee is precluded from examining it.
-------------------------------------------------------------------------------------------------------------------------------
[FN17] See e.g. Communication No. 441/1990, Casanovas v. France, at para.
5.1.
-------------------------------------------------------------------------------------------------------------------------------
6.7 The Committee recalls that the independent right to equality and
non-discrimination in article 26 of the Covenant provides greater protection
than the accessory right to non-discrimination contained in article 14 of
the European Convention. [FN18] It notes that, in the absence of any
independent claim made under the Convention or its relevant Protocols, the
European Court could not have examined whether the author's accessory rights
under article 14 of the Convention had been breached. Consequently, the
author's claims in relation to article 26 of the Covenant have not been
considered by the European Court. It follows that the Committee is not
precluded by the State party's reservation to article 5, paragraph 2 (a), of
the Optional Protocol from examining this part of the communication.
-------------------------------------------------------------------------------------------------------------------------------
[FN18] See Communication 998/2001, Althammer v. Austria, at para. 8.4.
-------------------------------------------------------------------------------------------------------------------------------
6.8 The Committee recalls that not every distinction made by the laws of a
State party amounts to a discrimination in the sense of article 26 but only
those that are not based on objective and reasonable criteria. The author
has not substantiated, for purpose of admissibility, that reasons for
introducing S. 1618 into the German Civil Code (para. 2.4 above) were not
objective and reasonable. Likewise, the author has not substantiated that
the denial of compensation for lost travel expenses amounted to a
discrimination within the meaning of article 26. Accordingly, this part of
the communication is inadmissible under article 2 of the Optional Protocol
to the International Covenant on Civil and Political Rights.
6.9 Under these circumstances the Committee does not need to address the
permissibility and applicability of the State party's reservation to the
Optional Protocol regarding article 26.
6.10 Insofar as the author alleges that he has been denied access to the
German courts, in violation of Article 14 of the Covenant, because, unlike
fathers of children born in wedlock, he could not contest the decision to
change his son's surname, nor claim compensation for the mother's failure to
comply with his right of access to his son, the Committee notes that the
author had access to the German Courts, in relation to both matters, but
that these courts dismissed his claims. It considers that he has not
sufficiently substantiated, for purposes of admissibility, that his claims
raise issues under article 14, paragraph 1, of the Covenant, which could be
raised independently from article 26 and do not relate to matters that have
already been "considered", within the meaning of the State party's
reservation, by the European Court. [FN19]
-------------------------------------------------------------------------------------------------------------------------------
[FN19] See para. 6.5 above.
-------------------------------------------------------------------------------------------------------------------------------
7. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under articles 2 and 5, paragraph
2 (a), of the Optional Protocol;
(b) That this decision shall be communicated to the State party and to the
author.
__________________________
Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly. |
|
