Application No. 12501/86
by L. and Others
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 12 October 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
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. H.C. KRÜGER 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 29 September
1986 by A. and A. L. and Others against the Federal Republic of
Germany and registered on 10 October 1986 under file No. 12501/86;
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 facts of the case, which do not appear to be in dispute
between the parties, may be summarised as follows:
The first and second applicants, a boy born in 1973 and a girl
born in 1976, are apparently nationals of Zaire and live at present at
Bochum. Before the Commission they were first represented by the
"Sozialdienst Katholischer Frauen", a registered association at
Bochum, which, for the purposes of lodging an application with the
Commission, had been appointed a supplementary guardian (Pfleger)
under German law. In November 1986 the Bochum Youth Office
(Jugendamt) was appointed supplementary guardian for the said
purposes.
The "Sozialdienst Katholischer Frauen" has also lodged the
application in its own name, but has in the meanwhile stated that it
wishes to withdraw from the proceedings before the Commission as it is
no longer the first and second applicants' supplementary guardian.
The third applicant is now the children's home St. Vinzenz, a
registered association at Bochum.
The applicants are represented by Mr. Peus, a lawyer
practising at Bochum.
In 1981 the first and second applicants entered the Federal
Republic of Germany together with their mother, who unsuccessfully
requested to be granted asylum. In 1982 the mother gave these
applicants twice into the care of a children's home and since October
1982 they lived at the children's home of the third applicant.
On 24 May 1984 the Bochum District Court (Amtsgericht) issued
a provisional order (einstweilige Anordnung) for the transfer of the
custody of the first and second applicants to the "Sozialdienst
Katholischer Frauen".
On 19 March 1985, following appeal proceedings, the Bochum
Regional Court (Landgericht) quashed the decision of 24 May 1984. The
Court found that the conditions under the German Civil Code
(Bürgerliches Gesetzbuch) for withdrawing the mother's custody of the
first and second applicants and for placing them under statutory
guardianship were not fulfilled. The applicants' further appeal
remained unsuccessful. Their constitutional complaint
(Verfassungsbeschwerde) was to no avail.
On 14 June 1987 the Bochum District Court withdrew the
mother's custody of the first and second applicants. The mother's
appeal was dismissed by the Bochum Regional Court on 21 January 1988.
The mother has apparently been expelled in the meantime.
COMPLAINTS
The first and second applicants complained that the custody
decisions of 24 May 1984 and 19 March 1985 forced them to go back to
Zaire where they must fear to die and where their mother will be
unable to take due care of them. They invoked Articles 2 para. 1, 5
para. 1, 8 para. 1 and 14 of the Convention and Article 2 para. 1 of
Protocol No. 1. They furthermore complained under Article 6 para. 1
of the Convention that the court proceedings were not fair.
12501/86
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 September 1986 and
registered on 10 October 1986.
On 12 December 1986 the Commission decided in accordance with
Rule 42 para. 2 (b) of its Rules of Procedure to bring the application
to the notice of the respondent Government and to invite them to
submit written observations on its admissibility and merits.
The observations of the respondent Government were submitted
on 6 March 1987. The observations in reply were submitted by the
applicants on 27 April 1987.
On 7 October 1987 the Commission decided to adjourn the
further examination of the application until a decision was taken in
the domestic appeal proceedings.
On 29 February 1988 the respondent Government informed the
Commission about the progress in the domestic appeal proceedings.
By letter of 9 September 1988 the applicants expressed their
wish to withdraw their application in view of the positive outcome of
the domestic court proceedings (decisions of 14 June 1987 and
21 January 1988).
REASONS FOR THE DECISION
The Commission notes that the applicants wish to withdraw their
application on the grounds that in the domestic court proceedings the
custody of the first and second applicants was finally withdrawn from
their mother.
The Commission considers that there are no reasons of a
general character affecting the observance of the Convention which
necessitate the further examination of this case. The Commission,
therefore, accepts the applicants' request to withdraw their
application.
For these reasons, the Commission
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)