Resolution ResDH (2004)40

concerning the judgment of the European Court of Human Rights of 26 February 2002 (final on 10 July 2002) in the case of Kutzner against Germany

(Adopted by the Committee of Ministers on 20 July 2004 at the 891st meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Kutzner case delivered on 26 February 2002 and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;

Recalling that the case originated in an application (No. 46544/99) against Germany, lodged with the European Commission of Human Rights on 5 July 1998 under former Article 25 of the Co n vention by Mr Ingo Kutzner and Mrs Annette Kutzner , German nationals, and that the Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the complaint that the withdrawal of the applicants’ parental responsibility for their two daughters had infringed their right to respect for their family life;

Whereas in its judgment of 26 February 2002 the Court unanimously:

- held that there had been a violation of Article 8 of the Convention;

- held that the government of the respondent state was to pay the applicants, within three months from the date at which the judgment became final, 15 000 euros in respect of non-pecuniary damage; 8 000 euros less 350,63 euros in respect of costs and expenses and that simple interest at an annual rate of 7,57% would be payable on those sums from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicants’ claim for just satisfa c tion;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 26 February 2002, having regard to Germany’s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 16 August 2002, within the time-limit set, the government of the respondent state had paid the a p plicants the sums provided for in the judgment of 26 February 2002,

Declares, after having examined the information supplied by the Government of Germany, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH (2004)40

Information provided by the Government of Germany during the examination of the Kutzner case

by the Committee of Ministers

The Government notes that, following the judgment of the European Court of Human Rights, the competent court, the Bersenbrück Family Court, appointed expert psychologists to examine whether and under what circumstances the applicants’ children could be returned to them without risk to their well-being. On 28 November 2003 this Court, basing itself on reports by the experts, revoked its order depriving the applicants of custody and guardianship of their children. Accordingly the children returned to their natural family before Christmas 2003.

Furthermore, the Government recalls that in the German legal order, direct effect is given to judgments of the European Court by German courts (see the case of Vogt against Germany, Resolution DH(97)12). To this effect and in order to avoid repetition of a violation similar to that found in this case the judgment has been published in the 2002 volume of Europäische Grundrechte Zeitschrift (pp. 244-251) and sent out to the judicial authorities directly concerned.

The Government considers that, in view of the above developments, there no longer exists any risk of the repetition of the violation found in the present case and that Germany has thus fulfilled its obligations under Article 46 in this case both as regards general and individual measures.