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You are here: BAILII >> Databases >> European Court of Human Rights >> Haase against Germany - 11057/02 [2011] ECHR 2171 (2 December 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/2171.html Cite as: [2011] ECHR 2171

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Resolution CM/ResDH(2011)213¹

Execution of the judgment of the European Court of Human Rights

Haase against Germany

(Application No. 11057/02, judgment of 8 April 2004, final on 8 July 2004)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns disproportionate interference with the applicants’ right to respect for their family life due to the Münster District Court’s decision of 17 December 2001 according to which the applicants’ parental rights were temporarily withdrawn in respect of seven of their children (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)213

Information about the measures to comply with the judgment in the case of

Haase against Germany

Introductory case summary

The case concerns disproportionate interference with the applicants’ right to respect for their family life due to the Münster District Court’s decision of 17 December 2001 according to which the applicants’ parental rights were temporarily withdrawn in respect of seven of their children (violation of Article 8).

In 2001 the applicants applied for family aid and, in order to receive it, agreed to a psychological assessment of their family situation. On 17 December 2001 an expert reported that the children’s normal development was in jeopardy, that their parents were often unreasonably harsh with them and had beaten them and that all contact between parents and children should be severed. The same day, without hearing either the parents or the children, the Münster District Court issued an interim injunction by which the applicants were ordered to hand over their seven children living with them. On 18 December 2001 the District Court prohibited all contact between the applicants and the children. The same day, the children were taken from their schools, a nursery and from home and were placed in three different, unidentified foster homes. The seven-day-old baby was taken directly from hospital and has, since that time, been living with a foster family.

On 1 March 2002 the Hamm Court of Appeal dismissed the applicants’ appeal. On 21 June 2002 the Federal Constitutional Court set aside the decisions of 17 December 2001 and 1 March 2002 finding that there were serious doubts as to whether the courts had respected the importance of parental rights and whether they had sufficiently taken into account the principle of proportionality (§ 30 of the judgment). On 6 March 2003, in a decision on the merits, the district court withdrew the applicants’ parental rights over the seven children and prohibited access to them until June 2004. This decision was largely upheld by the Court of Appeal in 2004. The court also prohibited Ms Haase from contacting three of her four elder children (in the custody of her first husband) before the end of 2004 and her eldest son before he reached the age of majority. Another child was born in 2003 and lives with the applicants.

The European Court underlined the procedural shortcomings of the interim order of 17 December 2001 as well as the methods used to implement it. It noted in particular that the unjustified failure to allow the applicants to participate in the decision-making process, the immediate placement of the children in undisclosed foster-homes, the prohibition of all contact between parents and children and the seizure of an infant shortly after its birth were disproportionate (§§ 100-101 of the judgment).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

b) Individual measures

Following the European Court’s judgment, the applicants turned anew to the Constitutional Court complaining of the violation of their right to a fair trial. On 29 September 2005, the Constitutional Court dismissed their complaint as ill-founded. It stated that the national courts had duly respected the principle of proportionality and had correctly given priority to the children’s best interests when deciding to separate them from their parents.

Subsequently, the applicants lodged a fresh application with the European Court (34499/04). They complained about withdrawal of their parental rights, the separation of the children from each other and from the applicants and about restriction of the access to their children, as well as about absence of any measure to reunite the family.

On 12 February 2008 the European Court declared the complaint inadmissible. It observed that the actions taken by the authorities had been in accordance with the law and had been designed to protect the best interests of the children. Furthermore, the national courts had duly justified the reasons for restriction of access of parents to their children, the applicants had been properly involved in the decision-making process in the main proceedings and their interests had been protected. The European Court was satisfied that the procedural requirements of Article 8 had been met.

As regards the right of access to the children, since 2004 the applicants have been exercising their right to access to their children. It appears from the information available, that the obstacles to the establishment of contacts between the applicants and their children seem to be diminishing gradually, thanks to the full cooperation of the German authorities.

As to the applicants’ parental rights: In 2004 the Court of Appeal largely upheld the first-instance decision of 2003 withdrawing the applicants´ parental rights. The applicants unsuccessfully challenged these decisions before the Federal Constitutional Court as well as before the European Court through a new application (see above). Moreover, two children have been living with the applicants since 2005 and the parental rights of the applicants in respect of these children were restored by the Munster District Court in 2006. Furthermore, the applicants receive psychological and material assistance provided by the authorities with a view to preparing them to welcome other children if their parental rights were to be restored.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The European Court’s judgment was sent out to the authorities concerned, namely the judicial authorities in North-Rhine-Westphalia and the Federal Constitutional Court. It was published in Neue Juristische Wochenschrift (NJW 2004, pp. 3401-3407) and in Europäische Grundrechte Zeitschrift (EuGRZ 2004, pp. 715-723).

All judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice (www.bmj.de, Menschenrechte, EGMR) which provides a direct link to the European Court’s website for judgments in German (www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/).

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Germany has thus complied with its obligations under Article 46, paragraph 1, of the Convention.