Lexploria

Application No. 10812/84

D.

against

the Federal Republic of Germany

REPORT OF THE COMMISSION

(adopted on 14 May 1987)

- i -

11295/84

TABLE OF CONTENTS

Page

INTRODUCTION ................................. 1

PART I : STATEMENT OF THE FACTS ............ 3

PART II : SOLUTION REACHED .................. 4

&SINTRODUCTION&_

1. This Report relates to Application No. 10812/84 introduced by

the applicant against the Federal Republic of Germany on

23 January 1984 under Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms. The application was

registered on 9 February 1984.

The applicant was represented first by Dr. H.J. Rust and,

since 18 April 1986, by Mrs. E. Scharsich, a lawyer practising in

Berlin.

The Government were represented by their Agent, Mrs. I. Maier,

Ministerialdirigentin in the Federal Ministry of Justice.

2. On 11 July 1985 the European Commission of Human Rights

declared admissible the applicant's complaints insofar as they

concerned the manner in which her son was taken away from his school

in Berlin, the placement of her son in a West German home and the fact

that his address was not disclosed to the applicant. The remainder of

the application was declared inadmissible.* The Commission then

proceeded to carry out its task under Article 28 of the Convention

which provides as follows :

"In the event of the Commission accepting a petition

referred to it :

(a) it shall, with a view to ascertaining the facts,

undertake together with the representatives of the parties an

examination of the petition and, if need be, an

investigation, for the effective conduct of which the States

concerned shall furnish all necessary facilities, after an

exchange of views with the Commission;

(b) it shall place itself at the disposal of the parties

concerned with a view to securing a friendly settlement of

the matter on the basis of respect for Human Rights as

defined in this Convention."

__________________

* This decision is public and can be obtained from the

Commission's Secretary.

3. The Commission found that the parties had reached a friendly

settlement of the case and on 14 May 1987 it adopted this Report

which, in accordance with Article 30 of the Convention, is confined to

a brief statement of the facts and of the solution reached.

The following members of the Commission were present when the

Report was adopted :

MM. C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

M.A. TRIANTAFYLLIDES

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

&SPART I&_

STATEMENT OF THE FACTS

4. The applicant is a German citizen, born in 1944. She resides

in Berlin (West). She has a son born in 1976.

5. The application originated in the transfer of custody over the

applicant's son to the Berlin Youth Office.

6. Before the Commission the applicant complained under Article 8

of the Convention that her son has been placed under statutory

guardianship and that he was taken away from his school and brought to

a West German children's home the address of which was not

communicated to her. She also complained under Article 6 para. 1 of

the various court decisions.

7. On 2 October 1984 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the admissibility and merits of

the application. The Government's observations were submitted on

4 and 17 December 1984 and the applicant's observations in reply were

submitted on 4 February 1985.

8. Legal aid was granted to the applicant under the Addendum to

the Commission's Rules of Procedure on 14 December 1984.

9. On 11 July 1985 the Commission, having regard to Article 8 of

the Convention, declared admissible the application insofar as it

concerned the manner in which the applicant's son was taken away from

his school in Berlin, his placement in a West German home and the

fact that his address was not disclosed to the applicant. The

remainder of the application was declared inadmissible.

&SPART II&_

SOLUTION REACHED

10. Following its decision on the admissibility of the

application, the Commission placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 (b) of the Convention and invited the parties to

submit any proposals they wished to make.

11. In accordance with the usual practice the Commission's

Secretary contacted the parties in this context and both sides

submitted proposals for such a settlement in July 1986. Subsequently,

further letters were exchanged between the parties and the

Commission's Secretary. Finally the Commission called a meeting of

the parties which took place in Berlin on 3 April 1987. The meeting

was presided by the Commission's delegate, Mr. J.A. Frowein, who was

assisted by the Secretary and Mr. M. Villiger, a member of the

Secretariat. The Government was represented by its Agent,

Mrs. I. Maier, assisted by a member of the competent Berlin Youth

Office. The applicant was represented by her lawyer, Mrs. E.

Scharsich. She was herself present during part of the discussions.

12. In a letter dated 5 May 1987 the Agent of the Government of

the Federal Republic of Germany informed the Commission that her

Government accepts a friendly settlement in the case in the following

terms:

&U**)

"In Weiterführung und zur Konsolidierung der bereits

zwischen der Personensorgerechtspflegerin des Kindes

M.D., Stadtvormund Frau Y., Bezirksamt ... von Berlin,

und Frau D. getroffenen Regelung über die bisherigen

Besuche bei ihrem Sohn M.D. in E. und im N.-Heim,

Aussenstelle K. sollen diese Besuche künftig in dem

Umfang stattfinden, der der Entwicklung und Erziehung

von M.D. förderlich ist unter der Voraussetzung, dass

er diese Besuche gut verträgt. Die Kosten der Besuche

werden vom Bezirksamt ... nach Massgabe seiner

Sozialhilfepraxis übernommen.

M. darf seine Mutter an jedem 2. Wochenende auf

Kosten des Heimes bzw. des Bezirksamts ... anrufen.

Der Anruf erfolgt zum Wochenendtarif und soll 15 bis 20

Minuten nicht überschreiten. Frau Y. wird die Erzieher

bitten, M. zu diesen Telefongesprächen anzuhalten. Frau

D. kann sich weiterhin einmal monatlich telefonisch bei

der Heimleitung nach dem Befinden M.s erkundigen. Falls

besonderer Anlass besteht, wird Frau D. sofort von der

Heimleitung verständigt.

_______________

**) The names stated have been abbreviated.

Durch die vorbezeichneten Regelungen der Kontaktmöglichkeiten

zwischen Mutter und Kind werden die gesetzlichen Befugnisse

des Vormundschaftsgerichts nicht berührt."

"Further to and in continuation of the arrangements

already made between the Municipal Guardian, Mrs. Y., of

the Berlin ... District Office, and Mrs. D. concerning the

visits so far to her son M.D. in E. and in the K. branch

of the N.-Heim, these visits shall be continued in future

to such an extent as may be conducive to the development

and upbringing of M.D. and provided that he reacts well

to these visits. The Berlin ... District Office will

meet the expenses for the visits in accordance with its

usual practice in social assistance matters.

M. shall be allowed to telephone his mother every

fortnight at the expenses of the home or of the ...

District Office. The telephone call shall be made at the

weekend rate and shall not exceed 15 to 20 minutes.

Mrs. Y. will ask the educators to see that M. makes

these telephone calls. Mrs. D. may continue to telephone

the office of the home once a month to inquire about M.'s

health. Should there be any special cause for concern,

Mrs. D. shall immediately be informed by the head office

of the home.

The statutory competences of the Guardianship Court will

not be affected by the above-mentioned regulations of

the possibilities of contact between the mother and the

child."

13. On 12 May 1987 the applicant's representative made the

following declaration:

&U**)

"Die Beschwerdeführerin verpflichtet sich, im Interesse des

Kindes und seiner gesunden Entwicklung und ungestörten

Erziehung mit der Personensorgerechtspflegerin Frau Y.,

der Heimleitung und den M. betreuenden Erziehern

zusammenzuarbeiten, deren Ratschläge zu beachten und die

Durchführung der Besuche jeweils rechtzeitig mit der

Personensorgerechtspflegerin Frau Y., zu besprechen. Sie

wird im persönlichen Kontakt mit M. darauf achten, dass er

nicht beunruhigt wird.

Im Hinblick auf die Erklärung unter Ziffer 11 erklärt die

Beschwerdeführerin ihre Beschwerde Nr.Bundesrepublik Deutschland für erledigt.

"The applicant undertakes to cooperate, in the interests of

the child and his healthy development and untroubled

upbringing, with the Municipal Guardian, Mrs. Y., the

management of the home and the educators looking after M.,

to follow their advice and to discuss at an early stage with

the Municipal Guardian, Mrs. Y., any visits the

applicant wishes to make. In her personal contact with M.

the applicant will be careful not to disturb him

emotionally.

Having regard to the declaration made under para. 11, the

applicant hereby declares that she considers as settled the

case which is the subject of her application No. 10812/84

against the Federal Republic of Germany."

14. At its session on 14 May 1987 the Commission found from the

above statements that the parties had reached agreement regarding the

terms of settlement. The Commission therefore concluded, having

regard to Article 28 (b) of the Convention, that a friendly settlement

of the present application had been secured on the basis of respect

for Human Rights as defined in the Convention.

For these reasons, the Commission adopted this Report.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C.A. NØRGAARD)

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D. v. GERMANY

D. v. GERMANY

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