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L. and Others v. the GERMANY

Doc ref: 12501/86 • ECHR ID: 001-264

Document date: October 12, 1988

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L. and Others v. the GERMANY

Doc ref: 12501/86 • ECHR ID: 001-264

Document date: October 12, 1988

Cited paragraphs only

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)

LEXI

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