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14 HAASE v. GERMANY JUDGMENT
60. The applicants admitted that they had not appealed against the
decision of the Münster District Court of 18 December 2001. In their view,
this omission was irrelevant since they had appealed against the decision by
which their parental rights had been revoked. Parental rights included the
right of access to the children. Furthermore, they could not be expected to
await the outcome of lengthy court proceedings, including a complaint to
the Federal Constitutional Court, having regard to the danger that any
procedural dela y would result in the de facto determination of the issue
submitted to the court. An irreversible alienation and separation from the
children, in particular, the younger ones, would be the consequence.
They applicants also pleaded their financial difficulties.
61. The Court recalls that in its decision on the admissibility of the
application it has joined the question of non-exhaustion of
domestic remedies to the merits. This does not mean, however, that the
Court may not examine again issues relating to the admissibility (see Article
35 § 4 of the Convention which empowers the Court to “reject any
application which it considers inadmissible ... at any stage of the
proceedings”).
The Court notes that the Government raised the objection as to the nonexhaustion
of domestic remedies at the stage of the initial examination of
admissibility. They are therefore not estopped from pleading it again.
62. The Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges applicants to use first
the remedies that are normally available and sufficient in the domestic legal
system to enable them to obtain redress for the breaches alleged. Article 35
§ 1 also requires that the complaints intended to be brought subsequently
before the Court should have been made to the appropriate domestic body,
at least in substance and in compliance with the formal requirements laid
down in domestic law (see Cardot v. France, judgment of 19 March 1991,
Series A no. 200, p. 18, § 34, Akdivar and Others v. Turkey, judgment of
16 September 1996, Reports 1996-IV, p. 1210, §§ 65-67, Aksoy v. Turkey,
judgment of 18 December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52,
Sarli v. Turkey, judgment of 22 May 2001, no. 24490/94, § 59).
63. The Court notes that in the instant case the Federal Constitutional
Court declared the applicants' constitutional complaint inadmissible as far as
it was directed against the decision of the Münster District Court of
18 December 2001 on the ground that the applicants had failed to appeal
previously to the Hamm Court of Appeal. Thus, the applicants did not
comply with the formal requirements laid down in German law and did not
provide the Federal Constitutional Court with the opportunity which is in
principle intended to be afforded to Contracting States by Article 35, of
preventing or putting right the violations alleged against them (see, among
other authorities, Remli v. France, judgment of 23 April 1996, Reports
1996-II, p. 571, § 33). Furthermore, an examination of the case does not
HAASE v. GERMANY JUDGMENT 15
disclose any special circumstances which might have absolved the
applicants, according to the generally recognised rules of international law,
from exhausting the domestic remedies at their disposal.
64. It follows that the applicants have not complied with the condition as
to the exhaustion of domestic remedies in respect of the decision of the
Münster District Court of 18 December 2001 on the prohibition of access
between the applicants and their children and the three children of the first
marriage, Timo, Nico and Lisa-Marie (see paragraph 15 above).
65. In so far as the decision of the Münster District Court of
6 March 2003 is concerned, the Court recalls that this decision does not
form part of the present application (see paragraph 57 above).
66. On the other hand, the applicants have exhausted domestic remedies
in relation to the decision of the Münster District Court of 17 December
2001 and the decision of the Federal Constitutional Court of 21 June 2002.
2. Loss of “victim” status
67. The Government argued that the Federal Constitutional Court set
aside the decisions of the Münster District Court of 17 December 2001 and
the Hamm Court of Appeal of 1 March 2002 and that for that reason the
interference with the applicants' rights ceased to exist. They furthermore
maintained that the applicants were not any longer affected by the interim
injunction of the Münster District Court of 17 December 2001, since it had
been replaced by the District Court's decision on the merits of
6 March 2003. According to the Government, the same reasoning had to
apply to the decision of the Münster District Court of 1 July 2002 by which
provisional measures had been ordered.
68. The applicants submitted that although the decision of the Münster
District Court of 17 December 2001, by which their parental rights were
revoked, had been set aside by the Federal Constitutional Court, they were
still being separated from their children.
69. The Court reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status as a
“victim” unless the national authorities have acknowledged, either expressly
or in substance, and then afforded redress for, the breach of the Convention
(see Dalban v. Romania, [GC], no. 28114/95, § 44, ECHR 1999-VI).
70. Even assuming that the decision of the Federal Constitutional Court
of 21 June 2002 could be seen as an acknowledgment, whether explicit or in
substance, of an alleged breach of Article 8 of the Convention, the Court
considers that that decision did not have any de facto suspensive or remedial
effect in respect of the measures taken by virtue of the District Court's
decision of 17 December 2001.
71. As to the decision on the merits rendered on 6 March 2003, the
Court notes that the reasons relied on are basically the same as those given
in the interim injunction. However, the additional reason invoked for the
16 HAASE v. GERMANY JUDGMENT
interim injunction was the urgency of the situation resulting in the sudden
removal of the children from the applicants and its drastic consequences for
the applicants' family life.
72. In conclusion, the Court considers that the applicants can claim to be
“victims” within the meaning of Article 34 of the Conve ntion.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
73. The applicants complained that their parental rights had been
withdrawn, and the children taken into public care. They also complained of
the way the contested decis ion was implemented. They alleged a violation
of Article 8 of the Convention, the relevant part of which provides:
“1. Everyone has the right to respect for his ... family life ...
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
... for the protection of health ... or for the protection of the rights and freedoms of
others.”
A. Arguments before the Court
1. The applicants
74. The applicants pointed out that, as soon as the expert G. had
submitted his report to the Youth Office on 17 December 2001, the latter
applied for an interim measure to the Münster District Court, which on the
same day withdrew the applicants' parental authority and ordered the
removal of the children as requested by the of the Youth Office. They
questioned whether such a close cooperation of the Youth Office and the
District Court was in conformity with the rule of law and the principle of an
effective judicial control.
75. The applicants argued that the taking of the children into public care
and their removal from their home were extremely drastic measures. It was
not appropriate to refer to investigations done in 1992 and 1993 and to order
the contested measures without hearing them or any witnesses as to the
arguments put forward by the Youth Office. According to them, in
particular the taking into care and the removal of the child Laura-Michelle
shortly after her birth, constituted a serious breach of Article 8 of the
Convention and had to be considered as inhuman treatment in respect of
both, mother and child. Further, the removal of the new-born baby deprived
Mrs Haase of the possibility of breastfeeding which had recognised health
benefits. This child was neither mentioned in the expert report and nor
included in the Youth Office's request to the District Court. The removal of
HAASE v. GERMANY JUDGMENT 17
Laura-Michelle from the hospital was therefore unlawful. In spite of the
decision of the Federal Constitutional Court of 22 June 2002, they were still
affected by the decision of the Münster District Court of 17 December 2001,
since they were still being separated from the children and some of the
children from each other.
76. The applicants further submitted that the declarations of the
children's paediatrician, Dr J., who knew the children, except Laura-
Michelle, since their birth, were not sufficiently taken into account by the
District Court. Contesting the findings of the experts G. and Professor K.,
the applicants submitted that there was no convincing evidence showing
that they were incapable of educating their children. Professor K. had based
her findings on the written statements of a social assistant of 17 May 1993,
made at a critical time when Mrs Haase was 25 years old and going to be
divorced from her first husband. There was no indication in what context
these statements had been made approximately ten years ago. However, the
Münster District Court based its decision of March 2003 to a large extent on
this statement. Furthermore Professor K. referred in her report to the files
put at her disposal by the Youth Office and to the report of G. rather than
relying on her own observations. The abuse of drugs by one child, as
mentioned in Professor K.'s report, concerned one single event, when the
four years old daughter came accidentally in the possession of a
medicament. For years they consulted the same doctors, the paediatrician
Dr J. and the gynaecologist Dr W. No deficiencies had been identified in the
care and upbringing of the children. It had never been reported that their
children were victims of violence or neglect necessitating educational or
social consultation. The difficulties with one son were brought to the
attention of a psychiatric institution in Münster by Mrs Haase herself. The
Youth Office considered this as a failure of the applicants' educational
capacity. In support of their submissions, the applicants relied on two
reports established by private experts whom they had consulted as from
June and July 2002.
2. The Government
77. The Government maintained that there had been no violation of
Article 8 as a result of the withdrawal of the applicants' parental rights and
the taking into care of the children. The interference with their right to
respect for their family life was provided for by law and the related
decisions were intended to protect the best interests of the children and thus
“necessary in a democratic society”.
78. The decision to withdraw the applicants' parental rights over their
children and the children of Mrs Haase's first marriage living with them was
based on Articles 1666 and 1666a of the Civil Code. The children's physical
and psychological well-being would be seriously endangered if they were to
be returned to the applicants as a result of the abusive exercise of parental
18 HAASE v. GERMANY JUDGMENT
authority and the neglect of the children and the failure of both parents
irrespective whether of any fault of their own or not. Any other less radical
measure would have been inadequate. The District Court had relied on all
available information at its disposal at the time: it considered the reports of
the expert G. of 17 and 18 December 2001, took note of the submissions of
Professor K. at the hearing of 1 July 2002, heard the applicants and the
children Anna-Karina, Lisa-Marie, Nico and Timo, appointed a curator ad
litem and asked for his assessment of the situation.
79. The findings of the first expert G. that separating the children from
the applicants was the only way of eliminating all dangers for the children
had been confirmed by the second expert, Professor K., on the main lines.
80. As to the decision denying the applicants' access to the children, the
Government pointed out that the children were placed in unidentified foster
homes. Had the applicants been granted a right of access, the children could
no longer have stayed in these institutions, having regard to the conduct of
certain media which had to be qualified as excessive. According to
Professor K., the children's well-being would be jeopardised if access were
allowed for the very reason that the mother absolutely failed to understand
the need for separation. In the expert's view, the mother was not prepared
and, being deeply affected by the measures taken, apparently not in a
position to observe any rules in connection with such contact, and also
uncontrollable. The same would have to be assumed of Mr Haase. The
children should at least get some peace, and they would clearly be incapable
of coping with seeing their parents who were unable to understand the
situation, did not accept it, and would not be able to conceal this from the
children.
81. As to the decisions of the Münster District Court of 6 March 2003,
the Government submitted that the contested measures were intended to
protect the interests of the children, were proportionate to that aim and thus
necessary in a democratic society as required by Article 8 § 2.
B. The Court's assessment
1. Whether there was an interference with the applicants' right to
respect for their family life
82. As is well established in the Court's case-law, the mutual enjoyment
by parent and child of each other's company constitutes a fundamental
element of family life, and domestic measures hindering such enjoyment
amount to an interference with the right protected by Article 8 of the
Convention (see, amongst others, Johansen v. Norway, judgment of
7 August 1996, Reports 1996-III, § 52). The impugned measures, as was not
disputed, evidently amounted to an interference with the applicants' right to
respect for their family life as guaranteed by paragraph 1 of Article 8.
HAASE v. GERMANY JUDGMENT 19
2. Whether the interference was justified
83. An interference with the right to respect for family life entails a
violation of Article 8 unless it is “in accordance with the law”, has an aim or
aims that is or are legitimate under Article 8 § 2 and is “necessary in a
democratic society” for the aforesaid aim or aims.
84. Although the essential object of Article 8 is to protect the individual
against arbitrary action by the public authorities, there may in addition be
positive obligations inherent in an effective “respect” for family life. Thus,
where the existence of a family tie has been established, the State must in
principle act in a manner calculated to enable that tie to be developed and
take measures that will enable parent and child to be reunited (see, among
other authorities, Eriksson v. Sweden, judgment of 22 June 1989, Series A
no. 156, pp. 26-27, § 71, and Gnahoré v. France, no. 40031/98, § 51, ECHR
2000-IX ).
85. The boundaries between the State's positive and negative obligations
under this provision do not lend themselves to precise definition. The
applicable principles are, nonetheless, similar. In both contexts regard must
be had to the fair balance that has to be struck between the competing
interests of the individual and of the community as a whole; and in both
contexts the State enjoys a certain margin of appreciation (see, among other
authorities, W., B. and R. v. the United Kingdom, judgments of 8 July 1987,
Series A no. 121, respectively, p. 27, § 60, p. 72, § 61, and p. 117, § 65; and
Gnahoré, cited above, § 52).
a. “In accordance with the law”
86. It was common ground that the impugned interference was in
accordance with the law for the purposes of Article 8, the relevant
provisions being Articles 1666 and 1666a of the Civil Code.
b. Legitimate aim
87. In the Court's view, the court decisions of which the applicant
complained were aimed at protecting the “health or morals” and the “rights
and freedoms” of the children. Accordingly they pursued legitimate aims
within the meaning of paragraph 2 of Article 8.
c. “Necessary in a democratic society”
(i) General principles
88. In determining whether the impugned measure was “necessary in a
democratic society”, the Court has to consider whether, in the light of the
case as a whole, the reasons adduced to justify this measure were relevant
20 HAASE v. GERMANY JUDGMENT
and sufficient for the purposes of paragraph 2 of Article 8 of the
Convention. The notion of necessity implies that the interference
corresponds to a pressing social need and, in particular, that it is
proportionate to the legitimate aim pursued (see, among other authorities,
Gnahoré, cited above, § 50 in fine).
89. Undoubtedly, consideration of what lies in the best interests of the
child is of crucial importance in every case of this kind. Moreover, it must
be borne in mind that the national authorities have the benefit of direct
contact with all the persons concerned, often at the very stage when care
measures are being envisaged or immediately after their implementation
(see Johansen, cited above, pp. 1003, § 64, K. and T. v. Finland, cited
above, §§ 151, 154 and 173). It follows from these considerations that the
Court's task is not to substitute itself for the domestic authorities in the
exercise of their responsibilities for the regulation of the public care of
children and the rights of parents whose children have been taken into care,
but rather to review under the Convention the decisions taken by those
authorities in the exercise of their power of appreciation (see Hokkanen v.
Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55,
Kutzner v. Germany, no. 46544/99, § 66, ECHR 2002-I; and Sahin, cited
above, § 64, and Sommerfeld v. Germany [GC], no. 25735/94, § 62, ECHR
2003-VIII).
90. The margin of appreciation so to be accorded to the competent
national authorities will vary in the light of the nature of the issues and the
seriousness of the interests at stake. While the authorities enjoy a wide
margin of appreciation in assessing the necessity of taking a child into care,
in particular where an emergency situation arises, the Court must still be
satisfied in the particular case that there existed circumstances justifying the
removal of the child, and it is for the respondent State to establish that a
careful assessment of the impact of the proposed care measure on the
parents and the child, as well as of the possible alternatives to taking the
child into public care, was carried out prior to implementation of such a
measure (see K. and T. v. Finland, cited above, § 166, Kutzner, cited above,
§ 67, and P., C. and S. v. the United Kingdom, no. 5647/00, § 116, ECHR
2002-VI).
91. Furthermore, the taking of a new-born baby into public care at the
moment of its birth is an extremely harsh measure. There must be
extraordinarily compelling reasons before a baby can be physically removed
from its mother, against her will, immediately after birth as a consequence
of a procedure in which neither she nor her partner has been involved (see
K. and T. v. Finland, cited above, § 168).
92. Following any removal into care, a stricter scrutiny is called for in
respect of any further limitations by the authorities, for example on
restrictions on parental rights and access, and on any legal safeguards
designed to secure the effective protection of the right of parents and
HAASE v. GERMANY JUDGMENT 21
children to respect for their family life. Such further limitations entail the
danger that the family relations between the parents and a young child are
effectively curtailed (see Elsholz v. Germany [GC], no. 25735/94, § 49,
ECHR 2000-VIII; Kutzner, cited above, § 67; and Sahin, cited above, § 65).
93. The taking into care of a child should normally be regarded as a
temporary measure to be discontinued as soon as circumstances permit, and
any measures of implementation of temporary care should be consistent
with the ultimate aim of reuniting the natural parent and child (see
Johansen, cited above, pp. 1008-09, § 78, and E.P. v. Italy, no. 31127/96,
§ 69, 16 November 1999). In this regard a fair balance has to be struck
between the interests of the child remaining in care and those of the parent
in being reunited with the child (see and Hokkanen, cited above, p. 20,
§ 55). In carrying out this balancing exercise, the Court will attach particular
importance to the best interests of the child which, depending on their
nature and seriousness, may override those of the parent (see Johansen,
cited above, pp. 1008-09, § 78). In particular, a parent cannot be entitled
under Article 8 to have such measures taken as would harm the child's
health and development (see Elsholz, cited above, § 50; and Sahin, cited
above § 66).
94. Whilst Article 8 contains no explicit procedural requirements, the
decision-making process involved in measures of interference must be fair
and such as to ensure due respect of the interests safeguarded by Article 8.
The Court must therefore determine whether, having regard to the
circumstances of the case and notably the importance of the decisions to be
taken, the applicants have been involved in the decision-making process,
seen as a whole, to a degree sufficient to provide them with the requisite
protection of their interests (see W. v. the United Kingdom judgment of
8 July 1987, Series A no. 121, p. 29, § 64, Elsholz cited above, § 52, and
T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 72, ECHR
2001-V).
95. The Court accepts that when action has to be taken to protect a child
in an emergency, it may not always be possible, because of the urgency of
the situation, to associate in the decision-making process those having
custody of the child. Nor may it even be desirable, even if possible, to do so
if those having custody of the child are seen as the source of an immediate
threat to the child, since giving them prior warning would be liable to
deprive the measure of its effectiveness. The Court must however be
satisfied that the national authorities were entitled to consider that there
existed circumstances justifying the abrupt removal of the child from the
care of its parents without any prior contact or consultation. In particular, it
is for the respondent State to establish that a careful assessment of the
impact of the proposed care measure on the parents and the child, as well as
of the possible alternatives to the removal of the child from its family, was
carried out prior to the implementation of a care measure (see K. and T. v.
22 HAASE v. GERMANY JUDGMENT
Finland, cited above, § 166). The fact that a child could be placed in a more
beneficial environment for his or her upbringing will not on its own justify a
compulsory measure of removal from the care of the biological parents;
there must exist other circumstances pointing to the “necessity” for such an
interference with the parents' right under Article 8 to enjoy a family life
with their child (see K.A. v. Finland, no.27751/95, § 92 ECHR 2003-I).
(ii) Application of these principles in the present case
96. Turning to the facts of the instant case, the Court notes that the
expert G. has met Mrs Haase and three of the children in September and
October 2001 at the applicants' home. On 17 December 2001, he submitted
his report to the Youth Office. On 17 December 2001 the Youth Office
applied for an interim injunction and this very day the Münster District
Court, without hearing the parents, issued the requested interim injunction.
The following day the children were separated from their family and partly
from each other and placed in unidentified foster homes. The new born baby
was taken from the hospital. On 1 March 2001, without holding a hearing,
the Hamm Court of Appeal dismissed the applicants' appeal.
97. On 21 June 2002 the Federal Constitutional Court set these decisions
aside, finding that the applicants' parental rights had been violated.
According to the Federal Constitutional Court, the question of whether the
evidence established that there was a risk of harm to the children had not
adequately been considered. It noted in particular that an assessment of the
applicants' submissions and considerations as to the possibility to order
alternative measures, that would not have required the total revocation of
parental rights, were missing. Both the Court of Appeal and the District
Court failed to hear the children or to provide the persons taking part in the
proceedings the opportunity to be heard. No reasons were given justifying
the urgency of the matter. The Family Court had no information on the
possible effects of its decision, since the Youth Office and the expert had
not commented on this issue. When examining the advantages and
disadvantages of a family measure, it was, however, relevant to consider
that a separation of the children from their parents could jeopardise the
development of the children, in particular in their first years of life (see
paragraph 30 above).
98. In the Court's opinion, the findings of the Federal Constitutional
Court show that the provisional withdrawal of their parental rights and the
removal of the children were not supported by relevant and sufficient
reasons and that the applicants were not involved in the decision-making
process to a degree sufficient to provide them with the requisite protection
of their interests.
99. The Court observes moreover that, before public authorities have
recourse to emergency measures in such delicate issues as care orders, the
imminent danger should be actually established. It is true that in obvious
HAASE v. GERMANY JUDGMENT 23
cases of danger no involvement of the parents is called for. However, if it is
still possible to hear the parents of the children and to discuss with them the
necessity of the measure, there should be no room for an emergency action,
in particular when, like in the present case, the danger had already existed
for a long period. There was therefore no urgency as to justify the District
Court's interim injunction.
100. The Court has also given consideration to the method used in
implementing the District Court's decision of 17 December 2001. Taking
suddenly six children from their respective schools, kindergarten and from
home and placing them in unidentified foster homes, and forbidding all
contact with the applicants, went beyond the exigencies of the situation and
cannot be accepted as a proportionate.
101. In particular, the removal of the new-born baby from the hospital
was an extremely harsh measure. It was a step which was traumatic for the
mother and placed her own physical and mental health under a strain, and it
deprived the new-born baby of close contact with its natural mother and, as
pointed out by the applicants, of the advantages of breast-feeding. The
removal also deprived the father of being close to his daughter after the
birth. It is not for the Court to take the place of the German authorities and
to speculate as to the best child care measures in the particular case. The
Court is aware of the problems facing the authorities in situations where
emergency steps must be taken. If no action is taken, there exists a real risk
that harm will occur to the child and that the authorities will be held to
account for their failure to intervene. At the same time, if protective steps
are taken, the authorities tend to be blamed for unacceptable interference
with the right to respect for family life. However, when such a drastic
measure for the mother, depriving her totally of her new-born child
immediately after birth, was contemplated, it was incumbent on the
competent national authorities to examine whether some less intrusive
interference into family life, at such a critical point in the lives of the
parents and child, was not possible.
102. As stated above (see paragraph 89), there must be extraordinarily
compelling reasons before a baby can be physically removed from the care
of its mother, against her will, immediately after birth as a consequence of a
procedure in which neither she nor her husband has been involved.
103. The Court is not satisfied that such reasons have been shown to
exist in relation to the daughter born in hospital. Although the contested
decision of the Münster District Court of 17 December 2001 has been set
aside by the Federal Constitutional Court, it remains that it formed the basis
of the continuing separation of the applicants and the children since
18 December 2001. Experience shows that when children remain in the care
of youth authorities for a protracted period, a process is set in motion of
driving them towards an irreversible separation from their family. When a
considerable period of time has passed since the children were first placed
24 HAASE v. GERMANY JUDGMENT
in care, the children's interest in not undergoing further de facto changes to
their family situation may prevail over the parents' interest in seeing the
family reunited. The possibilities of reunification will be progressively
diminished and eventually destroyed if the biological parents and the
children are not allowed to meet each other at all. Time takes on therefore a
particular significance as there is always a danger that any procedural delay
will result in the de facto determination of the issue before the court (H. v.
the United Kindom, judgment of 8 July 1987, Series A no. 120, pp. 63-64,
§§ 89-90). Moreover, the Draconian step of removing the applicants'
daughter shortly after her birth from her mother could in the Court's opinion
only lead to the child's alienation from her parents and siblings and entail
the danger that the family relations between the parents and the young child
are effectively curtailed. The measures taken, because of their immediate
impact and their consequences, are therefore difficult to redress.
104. In the light of the foregoing, the Court concludes that the decision
of the Münster District Court of 17 December 2001, the unjustified failure
to allow the applicants to participate in the decision-making process leading
to that decision, the methods used in implementing that decision, in
particular the Draconian step of removing the new born daughter from her
mother shortly after birth, and the particular quality of irreversibility of
these measures were not supported by relevant and sufficient reasons and
cannot be regarded as having been “necessary” in a democratic society.
105. Consequently, there has been a violation of Article 8 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
106. The applicants also complained that they had not had a fair hearing
within the meaning of Article 6 § 1 of the Convention, the relevant part of
which reads:
“In the determination of his civil rights and obligations ..., everyone is entitled to a
fair and public hearing within a reasonable time by an independent and impartial
tribunal established by law. ...”
107. The applicants submitted in particular that they were not heard by
Münster District Court before giving the order separating the children from
them.
108. The Court observes that the applicants' complaints under Article 6
largely coincide with their complaints under Article 8. The Court does not
find it necessary to examine the facts also under Article 6 § 1 of the
Convention.
HAASE v. GERMANY JUDGMENT 25
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
109. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
A. Damage
1. Submissions of the parties
110. The applicants maintained that the withdrawal of their parental
authority had caused them pecuniary damage, which they calculated as
follows:
As from December 2001, they did no longer receive child benefits. The
child benefits for six children amounted to 1,050 euros (EUR). For seven
children the amount would have been EUR 1,250 as from December 2001.
Because of the non-payment of child benefits they had been obliged to
move out of their flat (monthly rent EUR 765) and to rent a smaller one
(monthly rent 430 EUR). The removal costs amounted to EUR 400.
In June 2002 the Catholic Church put a house with a big garden at their
disposal. They moved to that house in order to have enough space for the
children in the event of their return and renovated it. The removal costs
amounted to EUR 400. For the renovation they paid EUR 2,700. The
monthly lease to be paid since June 2002 was EUR 872.
The applicants did not claim the retroactive payment of child benefits
since December 2001. They requested, however, to be paid the difference of
EUR 500 monthly between the rent for their first flat and the house as from
June 2002.
The mail and telephone costs paid exclusively in connection with the
removal of the children amounted in the period from December 2001 to
April 2003 to at least EUR 1,200.
The interference with their family life had considerable negative effects
on the applicants' and in particular Mrs Haase's health. On 11 April 2002 the
applicants went to see a doctor in Würzburg. The costs of travel amounted
to EUR 200.
Since June 2002 the applicants underwent psychological treatment. The
costs of travelling to the doctor on 29 occasions amounted to EUR 725 by
April 2003.
111. The Government expressed no view on that question.
26 HAASE v. GERMANY JUDGMENT
2. Decision of the Court
112. The applicants also sought compensation for non-pecuniary
damage, pointing to the distress and frustration they had felt as a result of
the withdrawal of their parental rights and the sudden removal of the
children. Referring to previous award made by the Court in other cases, they
claimed EUR 25,000 for non-pecuniary damage suffered by Mrs Haase and
EUR 10,000 by Mr Haase although their immense suffering, which had
generated serious health problems necessitating psychological help, could
not in any way be measured in terms of money.
113. In the event of a finding by the Court that the applicants were also
acting on behalf of the children, as submitted in their letter of 19 December
2002, they claimed EUR 2,000 on behalf of each of the children for damage
the children had sustained as a result of their separation from the applicants
and to some extent from each other.
114. The Government did not comment on this claim.
115. The Court points out that by Article 46 of the Convention the High
Contracting Parties undertook to abide by the final judgments of the Court
in any case to which they were parties, execution being supervised by the
Committee of Ministers. It follows, inter alia, that a judgment in which the
Court finds a breach imposes on the respondent State a legal obligation not
just to pay those concerned the sums awarded by way of just satisfaction,
but also to choose, subject to supervision by the Committee of Ministers,
the general and/or, if appropriate, individual measures to be adopted in their
domestic legal order to put an end to the violation found by the Court and to
redress so far as possible the effects. Furthermore, subject to monitoring by
the Committee of Ministers, the respondent State remains free to choose the
means by which it will discharge its legal obligation under Article 46 of the
Convention, provided that such means are compatible with the conclusions
set out in the Court's judgment (Scozzari and Giunta v. Italy [GC],
no. 39221/98 and 41963/98, § 249, ECHR 2000-VIII).
Accordingly, under Article 41 of the Convention the purpose of awarding
sums by way of just satisfaction is to provide reparation solely for damage
suffered by those concerned to the extent that such events constitute a
consequence of the violation that cannot otherwise be remedied (Scozzari
and Giunta, cited above, § 250).
116. As regards the applicants' claims for pecuniary loss, the Court's
case-law establishes that there must be a clear causal connection between
the damage claimed by the applicants and the violation of the Convention
(see, among other authorities, Barberà, Messegué and Jabardo v. Spain
(Article 50), judgment of 13 June 1994, Series A no. 285-C, pp. 57-58,
§§ 16-20, and Çakici v. Turkey [GC], no. 23657/94, § 127, ECHR 1999-IV).
In this case, the Court has found a violation of Article 8 in respect of the
provisional withdrawal of the applicants' parental rights and the removal of
the children.
HAASE v. GERMANY JUDGMENT 27
117. In the absence of documentary substantiation of this part of the
applicants' claim, and having regard to equitable considerations, the Court
awards the applicants an amount of EUR 10,000 under this heading.
118. As to the non-pecuniary damage, the Court considers that the
applicants undoubtedly sustained such damage on account of the violation
of Article 8. The Court observes in particular that since being separated
from the children in December 2001 the applicants have never seen them
again. It is reasonable to presume that this must have caused the applicants
very great and acute suffering which will have worsened as the proceedings
continued and the hope of seeing the children again diminished.
119. The Court thus conc ludes that the applicants sustained some nonpecuniary
damage which is not sufficiently compensated by the finding of a
violation of the Convention (see, for example, Elsholz v. Germany [GC],
no. 25735/94, §§ 70-71, ECHR 2000-VIII). Having regard to the
circumstances of the case and ruling on an equitable basis, the Court awards
the applicants jointly EUR 35,000.
120. As to the non-pecuniary damage claimed on behalf of the children,
the Court points out that in principle a person who is not entitled under
domestic law to represent another may nevertheless, in certain
circumstances, act before the Court in the name of the other person (see,
mutatis mutandis, Nielsen v. Denmark, judgment of 28 November 1988,
Series A no. 144, pp. 21-22, §§ 56-57). In the event of a conflict over a
minor's interests between a natural parent and the person appointed by the
authorities to act as the child's guardian, there is a danger that some of those
interests will never be brought to the Court's attention and that the minor
will be deprived of effective protection of his rights under the Convention.
Consequently, even though the parents have been deprived of parental rights
– indeed that is one of the causes of the dispute which they have referred to
the Court – their standing suffices to afford them the necessary power to
apply to the Court on the children's behalf, too, in order to protect their
interests (see, mutatis mutandis, Scozzari and Giunta, cited above, § 138).
121. However, in accordance with Rule 38 § 1 of the Rules of Court, no
written observations filed outside the time- limit set by the President of the
Chamber shall be included in the case file unless the President of the
Chamber decides otherwise. In the present case, the applicants' request to
present the application also on behalf of their children was submitted on
19 December 2002, that is after the close of the written procedure (Rule 38
§ 1 of the Rules of Court) on the admissibility of the application. The Court
therefore considers that it cannot take the damage claimed on behalf of the
children into account.
28 HAASE v. GERMANY JUDGMENT
B. Costs and expenses
122. The applicants claimed EUR 3,091.64 before the German courts
and 5,000 EUR before the Court. They submitted a detailed list of the
claims.
123. The Government did not comment.
124. According to the Court's consistent case-law, to be awarded costs
and expenses the injured party must have incurred them in order to seek
prevention or rectification of a violation of the Convention, to have the
same established by the Court and to obtain redress therefor. It must also be
shown that the costs were actually and necessarily incurred and that they are
reasonable as to quantum (see, as a recent authority, Meulendijks v. the
Netherlands, 34549/97, 14 May 2002, § 63).
125. The Court is satisfied that the claim for compensation of counsel's
fees and expenses has been properly substantiated and notes that the
applicants' complaints were declared admissible in their entirety. On the
other hand, the Court has restricted its finding of a violation to the
provisional taking into care of the children and the implementation of the
care measures. Making its assessment on an equitable basis, the Court
awards the applicants EUR 8,000, together with any relevant value-added
tax. From this award must be deducted the EUR 700 and EUR 655 already
received in legal fees from the Council of Europe by way of legal aid,
totalling EUR 1,355.
C. Default interest
126. The Court considers it appropriate that the default interest should
be based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that, by reason of the failure to exhaust domestic remedies, it is
unable to take cognisance of the merits of the case in respect of the
decisions of the Münster District Court of 18 December 2001;
2. Holds that the applicants may claim to be “victims” for the purposes of
Article 34 of the Convention;
3. Holds that there has been a violation of Article 8 of the Convention;
HAASE v. GERMANY JUDGMENT 29
4. Holds that there is no separate issue under Article 6 § 1 of the
Convention;
5. Holds
(a) that the respondent State is to pay the applicants, within three
months from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following amounts:
(i) EUR 10,000 (ten thousand euros) in respect of pecuniary
damage;
(ii) EUR 35,000 (thirty-five thousand euros) in respect of nonpecuniary
damage;
(iii) EUR 8,000 (eight thousand euros), less EUR 1,355 (one
thousand three hundred and fifty- five euros), in respect of costs and
expenses;
(iv) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
6. Dismisses the remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing on 8 April 2004, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Cour t.
Vincent BERGER Ireneu CABRAL BARRETO
Registrar President
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