CEDH · CASELAW;REPORTS;ENG — 13 novembre 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  Application No. 11118/84 B. against   the FEDERAL REPUBLIC OF GERMANY     REPORT OF THE COMMISSION   (Adopted on 13 November 1987)   TABLE OF CONTENTS I.       INTRODUCTION         (paras. 1-14) .........................................     1           A.       The application                 (paras. 2-3) ..................................     1           B.       The proceedings                 (paras. 4-9 ) .................................     1           C.       The present Report                 (paras. 10-14) ................................     2   II.      ESTABLISHMENT OF THE FACTS         (paras. 15-45) ........................................     4           A.       The particular circumstances of the case                 (paras. 15-38) ................................     4           B.       Relevant domestic law                 (paras. 39-45) ................................     9   III.     SUBMISSIONS OF THE PARTIES         (paras. 46-70) ........................................    15           A.       The applicant                 (paras. 47-49) ................................    15           B.       The Government                 (paras. 50-70)   ...............................    16                   1.   On the admissibility                     (paras. 50-56) ............................    16                   2.   On the merits                     (paras. 57-70)   ...........................    17   IV.      OPINION OF THE COMMISSION         (paras. 71-116) .......................................    20           A.       Point at issue                 (paras. 71-72) ................................    20           B.       Applicability of Article 6 para. 1                 (para. 73) ....................................    20           C.       Compliance with Article 6 para. 1                 (paras. 74-116) ...............................    20                   1.   Period to be considered                     (paras. 75-77) ............................    20                   2.   Relevant criteria                     (para. 78) ................................    21                   3.   Complexity of the case                     (paras. 79-83) ............................    21                   4.   Conduct of the parties                     (paras. 84-88) ............................    22                   5.   Conduct of the authorities                     (paras. 89-112) ...........................    23                       a.   Düsseldorf Regional Court .............    23                     b.   Düsseldorf Family Court                         (first set of proceedings) ............    25                     c.   Düsseldorf Court of Appeal                         (first set of appeal proceedings) .....    26                     d.   Düsseldorf Family Court                         (second set of proceedings) ...........    26                     e.   Düsseldorf Court of Appeal                         (second set of proceedings) ...........    27                     f.   Düsseldorf Family Court                         (third set of proceedings) ............    28                     g.   Düsseldorf Court of Appeal                         (third set of proceedings) ............    28                   6.   Overall assessment                     (paras. 113-115) ..........................    28           D.       Conclusion                 (para. 116) ...................................    29   Dissenting opinion of Mr.   F. Martinez .........................    30   APPENDIX I:    HISTORY OF THE PROCEEDINGS ......................    33   APPENDIX II:   DECISION ON THE ADMISSIBILITY ...................    34   APPENDIX III: HISTORY OF THE DOMESTIC PROCEEDINGS .............    49   I.     INTRODUCTION     1.       The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application&S   2.       The applicant, born in 1928, is a German citizen living in Düsseldorf where he is working as a lawyer in a leading position (Ministerialrat) in the civil service.           The application is directed against the Federal Republic of Germany whose Government were represented by their Agent, Mrs.   I. Maier, Ministerialdirigentin in the Federal Ministry of Justice.   3.       The application relates to the divorce proceedings instituted by the applicant in March 1974, which lasted over nine years.   A great part of this period was spent in examining the applicant's capacity to take part in proceedings.   The applicant complained under Article 6 para. 1 of the Convention of the length of the divorce proceedings. He also complained under this provision that the proceedings were unfair and moreover alleged violations of Article 8 of the Convention and Article 1 of Protocol No. 1.   B.       The proceedings&S   4.       The application was introduced on 2 July 1982 and registered on 18 July 1984.   On 1 July 1985 the Commission decided in accordance with Rule 42 para. 2(b) of its Rules of Procedure to give notice of the application to the respondent Government and to invite them to present before 18 October 1985 their observations in writing on the admissibility and merits of the application.   5.       Following two extensions of the above time-limit, the Government's observations of 14 February 1986 were received on 24 February 1986.   The applicant's reply of 4 April 1986 was received on 8 April 1986.   6.       On 13 May 1986 the Commission decided to invite the parties to a hearing on the admissibility and merits of the applicant's complaint under Article 6 para. 1 concerning the length of the divorce proceedings.           The hearing took place on 13 November 1986.   The applicant attended the hearing in person.   The respondent Government were represented by Mr.   H.A. Stöcker, Ministerialrat in the Federal Ministry of Justice, as Acting Agent, and by Mrs.   K. Schubert, judge at the Düsseldorf District Court, as Adviser.   7.       Following the hearing the Commission declared admissible the complaint concerning the length of the divorce proceedings and declared inadmissible the remainder of the application.   8.       The text of this decision was on 27 January 1987 communicated to the parties who were invited to submit any additional observations or further evidence they wished to put before the Commission.   The Government submitted further observations on 4 March 1987, the applicant's further observations were dated 15 March 1987.           Furthermore, by letter of 4 March 1987 the Government requested the Commission to apply Article 29 of the Convention and to declare the application inadmissible on the ground of non-exhaustion of domestic remedies within the meaning of Article 26 of the Convention.   The Commission noted that the conditions required for the application of Article 29 of the Convention were not met.   9.       After declaring the application in part admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between 20 November 1986 and 25 March 1987.   In the light of the parties' reaction, the Commission now finds that there is no basis upon which a settlement can be effected.     C.       The present Report&S   10.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberation and votes, the following members being present:                  MM. C.A. NØRGAARD, President                         J.A. FROWEIN                         G. SPERDUTI                         E. BUSUTTIL                         G. JÖRUNDSSON                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H. DANELIUS                         G. BATLINER                         J. CAMPINOS                    Mrs.   G.H. THUNE                    Sir   Basil HALL                    MM.   F. MARTINEZ   11.      The text of this Report was adopted on 13 November 1987 and is now transmitted to the Committee of Ministers of the Council of Europe in accordance with Article 31 para. 2 of the Convention.   12.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the respondent Government of         its obligations under the Convention.   13.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   14.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS     A.       The particular circumstances of the case&S   15.      On 18 March 1974 the applicant lodged a divorce action with the Düsseldorf Regional Court (Landgericht).   He submitted that in view of certain remarks made by his wife and in view of her general attitude he doubted that she was faithful.   She also was aggressive and even violent and had threatened to have him placed under guardianship as being mentally insane.   At the instigation of his wife and a surgeon, for whom she had previously worked as a nurse, he had been requested on 7 September 1973 by Dr.   L, the competent public health officer, to undergo an examination.   Citing Dr.   L as witness, the applicant submitted that he had agreed to be examined, but no indications of a mental disturbance had been discovered.   16.      On 31 May 1974 the applicant's wife submitted that the divorce action was inadmissible, her husband being incapacitated on account of mental illness.   She referred in particular to the evidence of one witness F who had been appointed the applicant's guardian in April 1974 in proceedings before the Ratingen District Court (Amtsgericht). She requested to hear F as a witness.   In the course of the guardianship proceedings, the applicant was, at his guardian's request, taken without prior notice from his office to a mental hospital where he had to stay for about a week.   The order appointing him as guardian was quashed on 3 May 1974.   17.      On 6 June 1974 the Regional Court heard the parties and the applicant declared himself ready to undergo a medical examination.   On 10 July 1974 the Court instructed one Dr.   W to submit an expert opinion on the applicant's state of health.   The files were submitted to the expert on 22 July 1974.   In November 1974 Dr.   W informed the Court that he had examined the applicant.   On 13 November 1974 the applicant challenged the expert.   Moreover, he informed the Court that he had changed counsel.   On 21 November 1974 the expert informed the Court that he had completed the examination and that he considered the applicant to be very ill.   According to the expert's written opinion the applicant suffered from a paranoid psychosis.   The applicant's motion to challenge Dr.   W was granted on 9 December 1974.   18.      On 23 December 1974 the Court appointed another medical expert, Dr.   Ba, and requested the parties to comment upon this appointment.   On 1 April 1975, after an extension of the time-limit for his observations, the applicant refused to be examined by Dr.   Ba stating that in his official functions as public health officer this expert was the successor of Dr.   W.   He might therefore be influenced by the result of Dr.   W's expert opinion.   On 17 April 1975 the Regional Court rejected the challenge stating that Dr.   Ba had not taken over an office formerly held by Dr.   W, and even if he had there was no reason to fear that he would be influenced by the opinion of another expert.   The applicant's appeal (sofortige Beschwerde) of 9 May 1975 was rejected by the Düsseldorf Court of Appeal (Oberlandesgericht) on 26 August 1975.   During the latter appeal proceedings, the applicant changed counsel a second time on 13 August 1975 and on 3 December 1975 he again chose a new counsel.           On 26 January 1976 Dr.   Ba returned the files stating that the applicant had refused to be examined by him.   The Court's order of 29 January 1976 to inform the parties thereof was inadvertently not carried out by the Court's registry.   The applicant's counsel requested to continue the proceedings on 12 May 1976.   19.      On 1 July 1976 the Regional Court, at an oral hearing fixed on 25 May 1976, decided to hear Mr.   F and a medical doctor, Professor Bo, as witnesses.   Both witnesses had been suggested by the defendant.   At the hearing of 9 September 1976 only Mr.   F appeared while the doctor was prevented from attending.   The applicant's request to hear Mr.   F only in the presence of Professor Bo and therefore to adjourn the hearing was rejected.   In consequence the applicant challenged the judges.   This motion was rejected on 3 November 1976.   The applicant lodged an appeal (Beschwerde) on 19 November 1976.   On 14 February 1977, the applicant challenged one of the judges at the Düsseldorf Court of Appeal and his appeal proceedings were subsequently transferred to another chamber at that Court.   On 8 March 1977 the Court of Appeal dismissed the applicant's appeal.   It found in particular that it was in the Regional Court's discretion whether or not to hear Mr.   F as witness and the decision taken in this respect did not reveal any bias.   In so far as the applicant had complained of the length of the proceedings the Court stated that delays were mainly due to the examination of the applicant's capacity to take part in the proceedings (Prozessfähigkeit).   In view of his own behaviour and his personal submissions it had been justified that the Regional Court examined the question.   While on 6 June 1974 the applicant had declared his readiness to undergo a medical examination the proceedings were later delayed because he partly successfully and partly unsuccessfully challenged the appointed medical experts and eventually stated in January 1976 that he was no longer willing to undergo a medical examination.   20.      On 30 March 1977 the Regional Court decided to hold a hearing on 2 June 1977 and to take evidence from the witnesses Professor Bo and Mr.   F.   The hearing was, however, cancelled upon request of the applicant's new counsel whom the applicant had appointed on 1 June 1977. On 16 June 1977 the counsel informed the Court that he no longer represented the applicant.   21.      Due to a reform of the law on marriage and family of 1976, which concerned the principles governing divorce as well as procedural changes such as the competence of the courts and the necessity to take joint decisions on divorce and related family matters (Entscheidungs- verbund), the divorce case was transferred to the Family Court (Familiengericht) at the Düsseldorf District Court which was competent to deal with the case as from 1 July 1977.   22.      On 26 July 1977 the Family Court requested the parties to amend their submisions with regard to the new law on marriage and family.   On 30 November 1977 the applicant's sixth counsel who had represented him in the proceedings before the Family Court resigned. The applicant's further observations as regards the merits of the proceedings were submitted by his seventh counsel on 21 December 1977.   23.      The Court heard the parties on 22 May 1978.   Following further submissions of the applicant concerning the right to custody over the three children the Court decided to hold a second hearing.   Due to time problems of both parties' counsels and the Family Court Judge this hearing did not take place until 13 November 1978.   On 30 November 1978 the Court heard the children.   24.      After a further hearing of 4 December 1978, the divorce was pronounced on 21 December 1978.   Moreover, the Family Court granted the right to custody over the three children to the defendant, i.e. the mother.   The Court found in particular that the applicant was capable of taking part in the proceedings.   His alleged behaviour did not necessarily have to be interpreted as the expression of a mental illness.   His divorce petition was therefore admissible under S. 52 of the Code of Civil Procedure (Zivilprozessordnung).   The judgment was served on the parties on 5 January 1979.   25.      On 5 February 1979 the applicant's wife lodged an appeal (Berufung) with the Düsseldorf Court of Appeal against the divorce judgment.   On the same day the applicant appealed against the judgment insofar as it concerned the right to custody and the costs of the proceedings.   26.      On 18 April 1979 the applicant challenged the judges of the Court of Appeal on the ground that they had ruled against him as to his right to have access to his children.   On 27 April 1979 his motion was rejected.   His constitutional complaint (Verfassungsbeschwerde) was declared inadmissible by the Federal Constitutional Court (Bundesverfassungsgericht) on 11 September 1979.   27.      In the appeal proceedings, the applicant's wife filed her submissions after an extension of the time-limit on 7 June 1979.   The applicant's observations were received by the Düsseldorf Court of Appeal on 3 October 1979, also after an extension of the time-limit.   On 5 November 1979 the Court, upon the request of the applicant's wife, decided to grant her legal aid.   The Court heard the parties on 12 November 1979, the applicant being represented by a new counsel. On 11 December 1979 the applicant submitted further observations as to his capacity to take part in the proceedings and a private expert opinion of Dr.   L dated 7 December 1979.   28.      On 9 January 1980 the Düsseldorf Court of Appeal quashed the judgment of 21 December 1978 and sent the case back for a new trial. The Court found that the Family Court had violated S. 56 of the Code of Civil Procedure by failing to examine the existing doubts about the applicant's capacity to take part in the proceedings.           The Court referred to S. 52 and S. 607 of the Code of Civil Procedure and S. 104(2) of the Civil Code (Bürgerliches Gesetzbuch) and stated that the capacity to take take part in proceedings may be lacking in certain respects on account of a mental disturbance relating to specific matters, such as matters concerned with the marriage, and that even people of great intellectual capacity may be incapable of conducting legal transactions and thus incapable of taking part in legal proceedings in limited areas.           The Court considered that, mainly in the light of statements made by Mr.   F in April 1974 and by an aunt of the applicant's wife, there were still reasons to doubt the applicant's capacity to take part in the proceedings.   Neither an expert opinion dated 7 December 1979 and prepared by Dr.   L nor an expert opinion by Dr.   R, given in the course of criminal proceedings against the applicant in March 1979, were considered sufficient to disperse such doubts although both doctors attested that the applicant, according to the result of their examinations, was in no way mentally deranged.   The Court pointed out, inter alia, that in his expert opinion Dr.   L did not sufficiently take issue with the expert opinion submitted by Dr.   W.   Also, Dr.   L did not deal with certain details, in particular, with the applicant's apprehension that during a stay in Holland he had been sterilised at his wife's instigation.   As regards the expert opinion submitted by Dr. R in criminal proceedings the Court considered that it could not be excluded that this expert did not have all relevant information at his disposal.   A further expert opinion was therefore regarded necessary. The case files were returned to the Family Court on 18 March 1980.   29.       On 16 June 1980 the Family Court, having held hearings on 5 and 22 May 1980, again pronounced the divorce and accorded the right to custody over the children to the mother.   The Family Court disagreed with the Court of Appeal's statement that it had not examined the applicant's capacity to take part in the proceedings.   It observed that, if the Court of Appeal were correct to doubt that capacity, it should itself have examined and decided this issue.   For these reasons the Family Court considered not to be bound by the decision of the Court of Appeal and refused to take further evidence on the question of the applicant's alleged mental illness.   It stated that in view of an expert opinion submitted by Dr.   L on 7 December 1979, the fact that the applicant never gave rise to any objections in his career as a high ranking civil servant, and the personal impression he gave at several oral hearings, there were no reasons to doubt his mental capacities.   The judgment was served on 3 July 1980.   30.      On 29 September 1980, on the appeal of the applicant's wife dated 14 July 1980, the second divorce judgment was also quashed and the case again sent back for a new trial.   The Düsseldorf Court of Appeal, relying on established jurisprudence, referred to the procedural principle that in the same proceedings a lower court is bound by the legal opinion of the higher court.   The Family Court was, in the Appeal Court's view, bound by the earlier decision of 9 January 1980 and had wrongly refused to take expert evidence on the question of the applicant's state of mental health, as had been suggested in that decision.   On 15 October 1980 the case files were returned to the Family Court.   31.      In the subsequent proceedings the applicant's wife challenged the Family Court Judge on 15 October 1980.   While the Regional Court rejected the motion on 27 November 1980, it was considered well-founded by the Court of Appeal.   The latter Court stated in its decision of 22 January 1981 that in view of the Family Court Judge's attitude as expressed in the judgment of 16 June 1980 the applicant's wife had reason to doubt his impartiality.   The applicant's constitutional complaint against the decision of 22 January 1981 was rejected on 1 April 1981 by the Federal Constitutional Court as offering no prospects of success.   32.      On 22 May 1981 the Family Court appointed Dr.   Di as medical expert.   On 6 July 1981 an assistant of Dr.   Di, a certain Dr.   De, was heard by the Family Court.   He considered the applicant fully capable of taking part in the proceedings.   At the hearing the applicant's wife challenged the Family Court Judge.   This motion was rejected by the Regional Court on 8 July 1981.   Her second motion of 15 July 1981 was rejected by the Regional Court on 25 September 1981 and by the Court of Appeal on 19 November 1981.   33.      On 24 February 1982 the divorce was pronounced for the third time.   The right to custody over the daughter A (the two older children had reached the age of majority in 1979 and 1980, respectively) was given to the applicant's wife who was also granted a right to pension splitting (Versorgungsausgleich).   34.      On 25 February 1982 another appeal was lodged by the applicant's wife with regard to the divorce.   The divorce judgment was served on 10 March 1982.   On 13 April 1982 applicant who had in the meantime changed counsel lodged an appeal with regard to the right to custody over the daughter and the pension splitting.   The reasons for the defendant's appeal were, after an extension of the time-limit, received on 16 April 1982.     Having again changed counsel the applicant submitted the reasons for his appeal on 9 June 1982.   35.      On 4 August 1982 the Düsseldorf Court of Appeal, following a hearing of the parties on 14 June 1982, decided to take further evidence and instructed the expert Dr.   Di to examine the applicant again.   The supplementary expert opinion was received on 15 October 1982. On 21 December 1982 the applicant's wife challenged the expert, and on 22 December 1982 the applicant challenged some of the judges at the Court of Appeal.   The applicant's motion was rejected on 21 January 1983, his wife's motion on 1 February 1983.   36.      On 28 February 1983 the Düsseldorf Court of Appeal, following a hearing of the parties on 21 February 1983, decided to hear the expert Dr.   Di.   On 30 May 1983 the Court of Appeal, having heard the expert on 6 April 1983, dismissed both appeals.   The Court stated that in view of Dr.   Di's opinion doubts as to the applicant's legal capacity no longer existed.   It further considered it justified to give the mother the right to custody as the daughter A had expressed the wish to live with her.   As regards the claim to pension splitting the Court found the applicant's wife had not forfeited it on the ground that in 1973 she caused her husband's examination by a psychiatrist.   She could not be blamed for having misinterpreted the applicant's distrusting attitude towards her as indicating a necessity for medical care.   There had been reasons to doubt the applicant's capacity to take part in the proceedings and these doubts had not alone been caused by his wife's allegations.   The judgment was served on 7 June 1983.   37.      On 11 October 1983 a panel of three judges of the Federal Constitutional Court rejected the applicant's constitutional complaint of 11 March 1983 concerning mainly the length of the divorce proceedings as offering no prospects of success.   The Court stated that there was nothing to show that possible delays were due to reasons other than those resulting from respect for the exigencies inherent in the proceedings ("Es ist weder dargetan noch ersichtlich, dass die Ursachen für etwaige Verzögerungen im Prozess nicht in sachlichen Erfordernissen des Verfahrens begründet gewesen wären"). It is admitted in the decision that an avoidable delay was caused by the fact that the Family Court did not obtain an expert opinion and therefore the Court of Appeal had to quash the divorce judgment a second time on 29 September 1980.   However, the Constitutional Court pointed out that the Family Court agreed with the applicant's argument that there was no reason to doubt his capacity to take part in the proceedings.   From this point of view it would have meant delaying the proceedings unreasonably had an expert been instructed to prepare an expert opinion which the Family Court considered to be unnecessary.   38.      The applicant's constitutional complaint of 4 July 1983 against the judgment of 30 May 1983 was rejected by the Federal Constitutional Court on 11 January 1984 partly as being inadmissible and partly as offering no prospects of success.     B.       Relevant domestic law&S   39.      The applicant's divorce proceedings were governed by the German Code of Civil Procedure.   Sections 51 to 56 of the Code regulate a party's capacity to take part in proceedings.   40.      According to S. 51 para. 1 a party's capacity to take part in proceedings shall be governed by the provisions of civil law, in so far as not otherwise provided for in the following sections.           S. 52 concerns the general rule of a party's capacity to take part in proceedings and reads:   <German>           "Eine Person ist insoweit prozessfähig, als sie sich durch         Verträge verpflichten kann."     <Translation>           "A person shall have the capacity to take part in         proceedings to the same extent as he can bind himself         by contracts."           S. 607 governs the capacity to participate in matrimonial proceedings and reads:   <German>           "(1) In Ehesachen ist ein in der Geschäftsfähigkeit         beschränkter Ehegatte prozessfähig; dies gilt jedoch insoweit         nicht, als nach § 30 des Ehegesetzes nur sein gesetzlicher         Vertreter die Aufhebung der Ehe begehren kann.           (2) Für einen geschäftsunfähigen Ehegatten wird das Verfahren         durch den gesetzlichen Vertreter geführt.   Der gesetzliche         Vertreter ist jedoch zur Erhebung der Klage auf Herstellung         des ehelichen Lebens nicht befugt; für den Scheidungsantrag         oder die Aufhebungsklage bedarf er der Genehmigung des Vormund-         schaftsgerichts."   <Translation>           "(1) A spouse who is limited in his capacity to enter into         legal transactions shall be capable of participating in mat-         rimonial proceedings; this, however, shall not apply insofar         as under S. 30 of the Marriage Act only his statutory represent-         ative can apply for the termination of the marriage.           (2) Proceedings shall be conducted on behalf of a spouse         incapable of entering into legal transactions by his statutory         representative.   The statutory representative is, however, not         authorised to bring proceedings for the restoration of conjugal         rights; to bring a petition for divorce or termination of         marriage, he shall require the consent of the guardianship court."     41.      The examination by the courts of a party's capacity to take part in proceedings is regulated in S. 56 which states:   <German>           "(1) Das Gericht hat den Mangel der Parteifähigkeit, der         Prozessfähigkeit, der Legitimation eines gesetzlichen Ver-         treters und der erforderlichen Ermächtigung zur Prozessführung         von Amts wegen zu berücksichtigen.           (2) Die Partei oder deren gesetzlicher Vertreter kann zur         Prozessführung mit Vorbehalt der Beseitigung des Mangels         zugelassen werden, wenn mit dem Verzuge Gefahr für die Partei         verbunden ist.   Das Endurteil darf erst erlassen werden,         nachdem die für die Beseitigung des Mangels zu bestimmende         Frist abgelaufen ist."     <Translation>           "(1) The court shall, ex officio, consider a lack of the         capacity to be a party or of the capacity to participate in         proceedings, of the right to act of a statutory representative         or of the necessary authority to conduct proceedings.           (2) A party or its statutory representative may be permitted         to conduct the proceedings subject to arranging to cure the         defect if delay might be prejudicial to the party.   Final         judgment may only be given after the time-limit to be fixed         for curing the defect has expired."     42.      Sections 402 to 412 of the Code govern the evidence given by experts (Beweis durch Sachverständige).   S. 402 concerns the selection of experts by the court and reads:   <German>           "(1) Die Auswahl der zuzuziehenden Sachverständigen und die         Bestimmung ihrer Anzahl erfolgt durch das Prozessgericht.         Es kann sich auf die Ernennung eines einzigen Sachverständigen         beschränken.   An Stelle der zuerst ernannten Sachverständigen         kann es andere ernennen.           ...           (3) Das Gericht kann die Parteien auffordern, Personen zu         bezeichnen, die geeignet sind, als Sachverständige vernommen         zu werden.           (4) Einigen sich die Parteien über bestimmte Personen als         Sachverständige, so hat das Gericht dieser Einigung Folge         zu geben; das Gericht kann jedoch die Wahl der Parteien auf         eine bestimmte Anzahl beschränken."   <Translation>           "(1) The court selects the experts to be heard and determines         their number.   It may confine itself to appointing one expert.         Instead of the expert appointed first it may appoint other         experts.           ...           (3) The court may request the parties to designate persons         qualified to be heard as experts.           (4) If the parties agree on certain persons as experts, the         court shall grant this request; however, it may limit the choice         of the parties to a certain number."           S. 406 of the Code provides that an expert may be challenged for the same reasons as a judge and it regulates the procedure in such cases.   43.      Sections 538 to 540 of the Code of Civil Procedure concern the question whether the court of appeal, having quashed a judgment of a court of first instance, shall decide the case or send it back to the court of first instance.           S. 538 provides that the case shall be sent back to the court of first instance in certain cases.   It states:   <German>           "(1) Das Berufungsgericht hat die Sache, insofern ihre         weitere Verhandlung erforderlich ist, an das Gericht des         ersten Rechtszuges zurückzuverweisen:           1. wenn durch das angefochtene Urteil ein Einspruch als         unzulässig verworfen ist;           2. wenn durch das angefochtene Urteil nur über die Zulässigkeit der         Klage entschieden ist;           3. wenn im Falle eines nach Grund und Betrag streitigen         Anspruchs durch das angefochtene Urteil über den Grund des         Anspruchs vorab entschieden oder die Klage abgewiesen ist,         es sei denn, dass der Streit über den Betrag des Anspruchs         zur Entscheidung reif ist;           4. wenn das angefochtene Urteil im Urkunden- oder Wechsel-         prozess unter Vorbehalt der Rechte erlassen ist;           5. wenn das angefochtene Urteil ein Versäumnisurteil ist.           (2) Im Falle der Nummer 2 hat das Berufungsgericht die sämtlichen         Rügen zu erledigen."   <Translation>           "(1) So far as further proceedings are necessary, the court         of appeal must send the case back to the court of first instance:           1. if the judgment appealed against has declared an objection         inadmissible;           2. if the judgment appealed against only determined the         admissibility of the action;           3. if in the case of a claim relating to liability and quantum         the judgment appealed against first decided the question of         liability or dismissed the action, unless the dispute as to         quantum is ripe for decision;           4. if the judgment appealed against was given in short form         documentary evidence proceedings with reservation of the         parties' rights;           5. if the judgment appealed against was given by default.           (2) In the case of No. 2 the court of appeal must deal with all         complaints raised."           S. 539 concerns the possibility to send a case back to the court of first instance, if there was a procedural defect.   It reads as follows:   <German>           "Leidet das Verfahren des ersten Rechtszuges an einem         wesentlichen Mangel, so kann das Berufungsgericht unter         Aufhebung des Urteils und des Verfahrens, soweit das         letztere durch den Mangel betroffen wird, die Sache an das         Gericht des ersten Rechtszuges zurückverweisen."   <Translation>             "If the proceedings at first instance are marred by an         essential defect the court of appeal may set the judgment         and proceedings aside, insofar as the latter are affected         by the defect, and send the case back to the court of first         instance."             According to S. 540 the court of appeal may in the cases mentioned in Sections 538 and 539 refrain from sending the case back and decide itself, if it considers it appropriate to do so.   44.      Insofar as S. 51 of the Code of Civil Procedure refers - as regards the capacity to take part in proceedings - to the provisions of civil law, S. 104 to S. 115 of the Civil Code (Bürgerliches Gesetzbuch) concerning a person's capacity to enter into legal transactions are relevant.   S. 104 governs a person's incapability of entering into legal transactions and reads:   <German>           "Geschäftsunfähig ist:           1. wer nicht das siebente Lebensjahr vollendet hat;           2. wer sich in einem die freie Willensbestimmung ausschliessen-         den Zustande krankhafter Störung der Geistestätigkeit befindet,         sofer