Resolution CM/ ResDH (2009)4 [1]

Execution of the judgment of the European Court of Human Rights

Görgülü against Germany

(Application No. 74969/01, judgment of 26 February 2004, final on 26 May 2004,

rectified 24 May 2005)

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 Court found in this case a violation of the applicant ’ s right to respect for family life by a domestic court in proceedings relating to the custody and access to his child born out of wedlock in 1999 and living with a foster-family (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Germany ’ s obligation under Article 46, paragraph 1, of the Conve n tion 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 a p plicants 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 exe r cised 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 (2009)4

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

Görgülü against Germany

Introductory case summary

The case concerns the violation of the applicant ’ s right to respect for his family life in 2001 by the Naumburg Court of Appeal ( OLG Naumburg ), in proceedings relating to the custody and access to his child born out of wedlock in 1999 and living with a foster-family (violation of Article 8).

The European Court considered that the Naumburg Court of Appeal ’ s decision not to give custody to the applicant failed to take into consideration the long-term effects on the child of a permanent separation from his biological father. With regard to the suspension of the applicant ’ s visitation rights, for which States have a narrower margin of appreciation, the European Court found that the Court of Appeal ’ s decision was insufficiently reasoned and rendered any form of family reunion impossible, thus not fulfilling the positive obligation imposed by Article 8 to unite the biological father with his son.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

15 000 euros

1 500 euros

16 500 euros

Paid on 28/06/2004

b) Individual measures

Under Article 46 of the Convention, the European Court specified that the execution of the judgment in this case required granting the applicant at least visiting rights (§ 64 of the judgment).

Following the European Court ’ s judgment and at the outcome of national proceedings, the Constitutional Court granted temporary visiting rights to the applicant i n December 2004 [2] .

From August 2005 onwards considerable progress had been made as regards the exercise of these rights, as a result of which the competent court granted to the applicant an extension of his visiting rights in December 2006. As from September 2007 onwards, the scheduled visits no longer took place due to certain difficulties between the parties concerned. However, the German authorities rapidly implemented an action plan, including a whole range of measures amongst which psychological assistance to all parties concerned. Thanks to this action plan, regular visits started to take place again from the end of November 2007 and since February 2008, the son has been living with the applicant and his family.

Moreover, i n February 2008, following a new request from the applicant, by way of an interim injunction, the Amtsgericht Wittenberg granted him sole custody on the grounds that visits took place regularly and there were no objections against integrating the child in the applicant ’ s family. The decision was taken in view of the child ’ s own wish expressed at a court hearing and with the approval of the foster family. In August 2008, after a final hearing to assess the development of the father-son relationship, the Amtsgericht Wittenberg granted the applicant permanent and sole custody to the applicant. According to the court decision, the child was well integrated in his new family and clearly stated his wish to continue to live with the applicant.

II. General measures

The judgment of the European Court has been sent out to the courts and authorities directly concerned. It was published in Neue Juristische Wochenschrift (NJW) 2004, p. 3397 - 3401 and in Europäische Grundrechte Zeitschrift ( EuGRZ ) 2004, p. 700 - 706. Furthermore, all judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice ( http://www.bmj.de , Themen : Menschenrechte , EGMR) which provides a direct link to the European Court ’ s website for judgments in German http://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 applicant party of the violation of the Convention found by the European Court in this case, that these measures will prevent new, similar violations and that Germany has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 9 January 2009 at the 1043rd meeting of the Ministers’ Deputies

[2] for details see the annotated agenda notes for the 1028 th meeting (DH) (3-5 June 2008) of the Committee of Ministers (Section 4.3), available on the Committee of Ministers’ internet site (http://www.coe.int/t/cm/humanRights_en.asp ) .