13325/87

 AS TO THE ADMISSIBILITY OF Application No. 13325/87 by S. against Switzerland The European Commission of Human Rights sitting in private on 15 December 1988, the following members being present: MM. C.A. NØRGAARD, President J.A. FROWEIN G. SPERDUTI E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS H. DANELIUS H. VANDENBERGHE Mrs. G.H. THUNE Sir Basil HALL MM. F. MARTINEZ C.L. ROZAKIS Mrs. J. LIDDY Mr. J. RAYMOND, Deputy Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 9 July 1987 by S. against Switzerland and registered on 23 October 1987 under file No. 13325/87; Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The applicant, an Egyptian citizen born in 1951, is a student residing in Stuttgart in the Federal Republic of Germany. Before the Commission he is represented by Ursula and Rainer Röder, lawyers practising in Stuttgart. In 1976 the applicant married in Cairo an Egyptian national, who was the daughter of an Egyptian father and a Swiss mother. The son Sh. of the applicant and his wife was born in 1982. In December 1984 the applicant declared his marriage divorced whereupon the Misr El Gedia Court in Egypt enforced the divorce. His former wife has remarried and lives in Stuttgart together with Sh. On 20 December 1985 the Stuttgart District Court (Amtsgericht) conferred the parental custody over the applicant's son to his former wife. The applicant appealed against this decision, alleging that according to the Hanefitic doctrine of Egyptian-Islamic law the father had the parental custody, whereas the mother had the factual custody. This appeal was granted by the Stuttgart Court of Appeal (Oberlandes- gericht) on 10 March 1986. The decision has acquired legal force. On 18 March 1986 the applicant's former wife obtained a declaration under Article 57 para. 8 (a) of the Swiss Nationality Code (Bürgerrechtsgesetz) according to which she was recognised (Anerkennung) as a Swiss citizen. The son was included in the act of recognition. The recognition was confirmed upon appeal by the Council of State (Regierungsrat) of Basel-Landschaft on 30 September 1986. The Council of State took note in particular of the decision of the Stuttgart Court of Appeal but found that disregard of the interests of the child would run counter to the Swiss ordre public. The applicant's administrative court appeal (Verwaltungs- gerichtsbeschwerde) against this decision was dismissed by the Federal Court (Bundesgericht) on 3 April 1987. The Court found in particular: "The approval of the father can in any event be disregarded if, as here, the marriage of the parents has been dissolved before the application for recognition as a Swiss national has been submitted and, in addition, if the child will in all probability continue to live together with its mother and if the father cannot mention any convincing facts which, from the point of view of the interests of the child, would run counter to the inclusion into Swiss citizenship of the child. In such circumstances it is actually irrelevant which parent has custody over the child. The applicant has not demonstrated, and it is not made clear, how the well-being of Sh. would require not to grant Swiss citizenship. As the Council of State found, the dual nationality will not result in any disadvantages. This conclusion is not affected by the consideration that the (today five-year old) boy may in future possibly be confronted with the decision where he wants to comply with his duty to military service. The Swiss citizenship gives him the advantage that he can at any time enter Switzerland, i.e. the home country of his mother with whom he is living together (in a neighbouring country). It is irrelevant if the applicant submits that he has close ties with his child since Sh. will not lose the Egyptian nationality - a fact which the applicant accepts." COMPLAINTS The applicant complains under Article 6 para. 1 of the Convention that in the proceedings at issue he was not personally heard by the Swiss authorities. Under Articles 8 and 9 of the Convention the applicant complains that the recognition of his son as a Swiss citizen, upon application of his former wife, runs counter to the decision of the Stuttgart Court of Appeal of 10 March 1986 in that it violates his fatherly honour and his rights under Islamic law which grant the father parental custody over the child. Moreover, his son had no ties with Switzerland. Finally, difficulties will arise in respect of the son's military service. THE LAW 1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that in the proceedings at issue he was never personally heard by the Swiss authorities. Article 6 para. 1 (Art. 6-1), first sentence, provides: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." The Commission has previously held that Article 6 para. 1 (Art 6-1) does not apply to proceedings regulating a person's citizenship (cf. No. 5258/71, Dec. 8.2.1973, Collection 43 p. 71). The proceedings in which the present applicant was involved concerned his contestation of the recognition of his son as a Swiss citizen. It follows from the above case-law that such proceedings do not involve either "the determination of his civil rights and obligations or of any criminal charge against him" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. Consequently, this provision does not apply to these proceedings. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicant further complains under Articles 8 and 9 (Art. 8, 9) of the Convention that the recognition of the son's Swiss nationality, upon application of his former wife, violates his fatherly honour and his right under Islamic law to exercise parental custody. Difficulties will arise in respect of the son's military service. The Commission has first examined these complaints under Article 8 (Art. 8) of the Convention which states: "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." Insofar as the applicant complains that he has been hurt in his fatherly honour or that difficulties will arise in respect of his son's military service, the Commission considers that the measure at issue does not constitute an interference with the applicant's right to respect for private and family life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention. The applicant also complains that under Islamic law it is up to him as the holder of parental custody to decide such matters. However, the Commission finds that there is nothing in the authorities' conduct which would indicate a lack of respect for the applicant's private and family life. As a result, also in this respect there is no interference with the applicant's rights under Article 8 para. 1 (Art. 8-1) of the Convention. Insofar as the applicant invokes Article 9 (Art. 9) of the Convention, which protects the right to freedom of religion, the Commission finds that the facts of the case do not disclose any appearance of a violation of this provision. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission DECLARES THE APPLICATION INADMISSIBLE. Deputy Secretary to the Commission President of the Commission (J. RAYMOND) (C.A. NØRGAARD)