Evers v. Germany (no. 17895/14)

ECHR 146 (2020)
28.05.2020

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The applicant, Jörg Evers, is a German national who was born in 1939 and lives in Baden-Baden (Germa  ny).
The case concerned his complaint about a ban on him having any contact with V., the mentally disabled daughter of his former partner.
The ban was made in 2013 in order to protect V. from sexual abuse by the applicant.
When living with his former partner, P.B., in 2009 the applicant had had a sexual relationship with V., who was 22 years old at the time. V. had become pregnant and gave birth to his son in 2011.
Two sets of criminal proceedings were brought against the applicant, which included P.B. in the second set of proceedings, for sexual abuse. They were ultimately discontinued, with the applicant and P.B. having to pay fines. In the second set of proceedings the domestic court pointed out in particular that V. was incapable of resisting the applicant’s sexual advances and that he had taken advantage of the special relationship of confidence he had with V. and her mother.
Meanwhile, both V. as well the applicant’s and V.’s child were placed in care and V. was appointed a professional guardian. In the guardianship proceedings, basing their decisions on the conclusions of three experts, the courts found that V. had a moderate mental disability, with the intellectual development of a four-year old, and was unfit to manage any of her affairs by herself.
When V. showed signs of mental distress and needed medication after the applicant and P.B. had visited her residential home in September 2012, V.’s guardian sought approval from the courts of a contact ban.
The courts upheld the ban and dismissed the applicant’s appeal in March 2013. Basing their decisions on the conclusions of the three experts appointed in the guardianship proceedings and V.’s guardian, they found that the ban was not only lawful but imperative in order to protect V. from the applicant who maintained his wish to continue a sexual relationship with her, entailing the further risk of pregnancies and danger to her. Furthermore, they had heard V. on several occasions and she had expressed no particular interest in having contact with him.
In the appeal proceedings, the applicant’s request for a personal hearing was rejected on the ground that he had been able to present his case sufficiently in writing.
Subsequently, his complaint of a violation of his right to be heard was dismissed, and the Federal Constitutional Court declined to consider his constitutional complaint.
Relying on Article 8 (right to respect for his private and family life), the applicant complained about the ban on his having contact with V. Also relying on Article 6 (right to a fair trial), he alleged that the contact ban had not been based on enough evidence, that he had been refused full access to the case file on the guardianship proceedings and that he had not been heard in person, in particular before the appeal court.
No violation of Article 6 - as regards the evidential basis for the domestic courts’ decisions No violation of Article 6 - as regards the applicant’s access to the guardianship case-file Violation of Article 6 - as regards the absence of an oral hearing of the applicant
Just satisfaction: the Court held that the finding of a violation of Article 6 of the Convention constituted sufficient just satisfaction for the non-pecuniary damage sustained by Mr Evers; it further awarded Mr Evers EUR 3,000 for costs and expenses.

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