CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mai 1990

.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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 14365/88                       by Berta MAAS                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 7 May 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                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 23 September 1988 by Berta MAAS against the Federal Republic of Germany and registered on 8 November 1988 under file No. 14365/88;           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, as they have been submitted by the parties, may be summarised as follows:           The applicant, born in 1916, is a German national and resident in Wiesbaden.           In September 1977 the applicant instituted divorce proceedings before the Wiesbaden District Court (Amtsgericht).   In these and the following proceedings the applicant was represented by counsel.           According to S. 1565 and S. 1566 of the German Civil Code (Bürgerliches Gesetzbuch) divorce may be granted if a marriage has broken down.   A marriage has broken down when the matrimonial community of the spouses no longer exists and it cannot be expected that it will be restored by the spouses.   There is an irrefutable presumption that the marriage has broken down if the spouses have been living apart for a year and both spouses petition for divorce or the respondent agrees to the divorce.   Moreover, there is an irrefutable presumption that the marriage has broken down if the spouses have been living apart for three years.           SS. 622 et seq. of the German Code of Civil Procedure (Zivil- prozeßordnung) govern the proceedings concerning divorce and related family matters.   S. 623 stipulates in particular that the court has to conduct the proceedings concerning a divorce action and related family matters (Folgesachen) as defined in S. 621 para. 1 (e.g. the right to custody over the spouses' children, the right of access to their children, maintenance claims, pension splitting, claims based on the matrimonial regime such as apportionment of the increase in the spouses' assets during the marriage (Zugewinnausgleich)) at the same time, and, if divorce is to be granted, to take a combined decision upon these matters (Verhandlungs- und Entscheidungsverbund).   The questions of custody rights and pension splitting are, ex officio, taken into account, a decision concerning other family matters has to be requested.   S. 628 provides for limited exceptions from this rule of combined proceedings, in particular in cases of unreasonable hardships.           On 3 January 1978, in the context of the divorce proceedings, the applicant instituted an action in two stages (Stufenklage), requesting her husband to supply information about his assets at the end of the marriage (Endvermögen) in order to prepare her claims for apportionment of the increase in the spouses' assets during the marriage (Zugewinnausgleich), and to pay the resulting amount.   She also requested adjustment of the spouses' pension rights (Versorgungs- ausgleich).           On 22 August 1978 the Wiesbaden District Court dismissed the applicant's divorce action.   The Court, having heard the parties, found that the applicant had failed to prove the conditions for divorce under S. 1565 and S. 1566 of the German Civil Code.   The judgment was served upon the parties on 29 August 1978.           On 27 September 1978 the applicant lodged an appeal (Berufung) with the Frankfurt Court of Appeal (Oberlandesgericht) against the District Court's judgment and, after an extension of the time-limit, she filed the reasons for the appeal on 27 November 1978.           On 6 February 1979 the Frankfurt Court of Appeal, having heard the parties on 23 January 1979, quashed the judgment of 22 August 1978 and sent the case back to the District Court.   The Court found that the marriage had broken down within the meaning of S. 1565 para. 1 of the Civil Code.   The Court had in particular regard to the defendant's submissions at the hearing according to which the matrimonial community did no longer exist and could not possibly be restored. Furthermore, the Court of Appeal considered that, though the defendant had various health problems and, in particular, as a Roman Catholic wished to continue the marriage, the divorce would not entail any undue hardships requiring the maintenance of the marriage under S. 1568 of the Civil Code.   In this respect, the Court also noted that the period of five years under S. 1568 para. 2 of the Civil Code for maintaining a marriage had almost expired.   The Court of Appeal did itself not grant divorce on the ground that other matters related to divorce (Scheidungsfolgesachen) were still pending before the District Court.           On 29 November 1979 the Wiesbaden District Court granted divorce of the applicant's marriage.   It also decided upon the adjustment of the spouses' pension rights in that, under the German Old Age Pension Scheme, certain pension rights were created for the applicant to the debit of her divorced husband.   These main divorce proceedings were finally terminated on 31 October 1980.           In March, April, May and June 1980, in the proceedings concerning the apportionment of the increase in the spouses' assets, the applicant repeatedly requested the Wiesbaden District Court to fix a date for an oral hearing.           In July 1980 the applicant complained that no hearing had been fixed in the meantime and that the Court was apparently biased.   In a note of 22 August 1980 the competent judge at the Wiesbaden District Court declared that he stepped down as being biased.   This decision was rejected by the Wiesbaden Regional Court (Landgericht) on 26 August 1980.   However, on 22 September the applicant confirmed that she had intended to challenge the judge concerned.   In October 1980 the case was assigned to another judge at the District Court.           On 7 November 1980 the Wiesbaden District Court resumed the proceedings, which at that stage concerned in particular the question of the parties' matrimonial regime, and then held a hearing on 24 February 1981.           On 31 March 1981, in a further hearing before the District Court, the defendant, upon the Court's order of 17 March 1981, made a statutory declaration (eidesstattliche Versicherung) as to the correctness of his list of assets at the end of the marriage (1 September 1977) filed with the Court on 2 March 1981 and he amended this certified list.   The Court fixed 24 April as a date for the next hearing, when the defendant was supposed to give an affidavait as regards the above amendments.           At the hearing of 24 April 1981, the defendant's counsel informed the Court that his client could not be present due to illness.   The hearing was adjourned.   In June 1981, upon its inquiry, the Court was informed that the defendant was still ill.   On 5 August 1981 the applicant's counsel informed the Court that he had seen the applicant in other court proceedings.           On 5 September the Court fixed 13 October as the date for the next hearing.   At that hearing the defendant gave the affidavit in question.           At the next hearing on 17 November 1981 the applicant, having calculated on the basis of the defendant's information an overall claim for apportionment of DM 584,883 requested the District Court to order the defendant to pay a partial amount of DM 200,000. In his memorandum in reply of 17 December 1981, the defendant requested the Court to dismiss the action and lodged counter-claims, namely for a declaratory judgment that the applicant had no further claims for apportionment and for a decision to order her to supply information about her assets at the end of the marriage.           On 29 December 1981, the Wiesbaden District Court, noting these submissions, instructed the parties to give certain information and ordered that evidence be taken as regards the increase in value of the defendant's real estate at Heddesheim, and on the question whether the defendant had transferred some property in Heidelberg without any or any appropriate payment.           On 17 March 1982 the District Court appointed the experts to estimate the value of the defendant's real estate at Heddesheim.           On 27 September 1982 the expert S submitted his opinion.   The defendant accepted the opinion in general, whereas the applicant lodged objections in November 1982.   The expert S commented upon the applicant's submissions on 23 February 1983.           On 24 August 1983 the District Court informed the parties that further proceedings would require the applicant's statements as to her assets at the beginning and end of the marriage.   In any event the case could be set aside, as the parties had not pursued it for over six months.           On 27 October 1983 the District Court fixed 29 November as the date for the next hearing.   At that date the Court heard witnesses, in particular on the issue of the transfer of property. The applicant commented upon the taking of evidence on 27 January 1984.   On 14 February 1984 the District Court heard the expert S about the applicant's objection to his expert opinion.   Furthermore the applicant filed a declaration of her assets at the end of the marriage.           On 14 March 1984 the defendant requested the District Court to order the applicant to make a statutory declaration that her declaration concerning her assets was correct and complete.           On 30 March 1984 the Wiesbaden District Court, in a partial judgment, ordered the applicant to provide the defendant with a list of her assets at the end of the marriage and supporting documents.   The Court considered that the applicant had failed properly to specify her assets.   The judgment was served upon the parties on 11 April 1984.           On 10 May 1984 the applicant lodged an appeal;   she filed the reasons after an extension of the time-limit on 10 July 1984.           On 8 November 1984 the Frankfurt Court of Appeal, having heard the parties on 26 October 1984, quashed the judgment of 30 March 1984 and sent the case back to the District Court.   The Court of Appeal found that the defendant's claim for information had already been fulfilled and, therefore, the defendant, in his memorandum of 14 March 1984, had requested a statutory declaration as to the correctness of the applicant's declaration.           On 30 November 1094 the files were returned to the District Court.           On 10 July 1985 the Wiesbaden District Court, following a further hearing on 16 April, ordered the defendant to pay the applicant DM 39,840 with interest.   It dismissed the remainder of claims.   The Court found that the parties' contract of 1971, where they had agreed upon the matrimonial regime with an apportionment of the increase of the spouses' assets at the end of marriage (Zugewinnge- meinschaft), was valid, in particular that the defendant had not been incapable of entering into legal transactions (geschäftsunfähig) at the time in question.   The Court estimated the value of the spouses' assets on the basis of the parties' submissions and the evidence taken, in particular the opinion of the expert S and the testimony of the witnesses.   Furthermore, the Court had regard to a further expert opinion, which had been prepared by the expert Sch under the terms of a friendly settlement concluded by the parties on 22 March and 2 June 1982 in the course of maintenance proceedings.   The opinion concerned the value of two houses, in respect of which the parties had exchanged their ownership in the friendly settlement.           The judgment was served upon the defendant on 16 July and upon the applicant on 17 July 1985.   The applicant lodged an appeal with the Frankfurt Court of Appeal on 8 August and filed the reasons on 11 October 1985.   The defendant appealed on 16 August and submitted the reasons for his appeal on 14 October 1985.           On 7 January 1986 the Frankfurt Court of Appeal, having heard the parties, quashed the judgment of 10 July 1985 and sent the case back to the Wiesbaden District Court.   The Court of Appeal found that the proceedings before the District Court were marred by an essential defect within the meaning of S. 539 of the German Code of Civil Procedure (Zivilprozeßordnung), in that the District Court had failed to decide upon the defendant's counter-claim for a declaration that the applicant had no further claims for apportionment of assets.   The Court of Appeal could not itself decide upon this issue as the proceedings were to this extent still pending before the District Court.   It considered that the efficiency of the proceedings could not justify an exception as the District Court ought to investigate further and possibly take evidence the value of particular plots of land.   The Court of Appeal also instructed the District Court to examine whether the opinion of the expert Sch had properly estimated the value of the two houses which had been the subject of the friendly settlement of 1982.           On 3 July 1986 the files were sent back to the Wiesbaden District Court.           On 19 August 1986 the applicant requested the Presidency (Präsidium) of the Wiesbaden District Court to determine the competent judge.   On 1 September 1986 the case was assigned to Judge H.           In the next oral hearing of 4 November 1986 the Wiesbaden District Court made proposals as to a friendly settlement between the parties.   On 25 November 1986 the Court postponed a further hearing in order to allow the applicant to submit observations on the friendly settlement proposals, which had been accepted by the defendant on 21 November 1986.   The applicant refused the proposed friendly settlement and submitted in particular that she had already refused a similar proposal in the appeal proceedings on 7 January 1986.           At the hearing on 9 December 1986 the Wiesbaden District Court decided that expert evidence should be taken on the value of several plots of land inherited by the defendant and of a plot of land in Heidelberg.   The parties were invited to propose an expert.   The Court also requested the parties to submit supplementary information concerning their assets.           On 30 March 1987 the Wiesbaden District Court granted a request of the Wiesbaden Public Prosecutor's Office (Staatsanwalt- schaft) for transmission of the files of the civil proceedings.   The request had initially been refused for lack of motivation.   The files were sent back after two months.           On 29 June 1987 the District Court fixed 30 September as the time-limit for both parties to submit the information as ordered on 9 December 1986.   The parties were also informed that their non- compliance with the court decision for a period of over six months could be considered as loss of interest in continuing the proceedings.           On 22 December 1987 the applicant stated that her observations previous to the decision of 9 December 1986 had already contained the relevant information.           On 5 April 1988 Judge N at the Wiesbaden District Court, the successor in office of Judge H, upon further submissions of the parties, amended the decision of 9 December 1986, requested the applicant to comment upon the defendant's submissions and ordered the parties to pay advance fees for the preparation of an expert opinion before 31 May 1988.    Furthermore, the Court asked the Heidelberg Chamber of Industry and Commerce about experts in the valuation of real estate.   The Chamber replied on 16 April.           In June 1988 the applicant submitted her comments and paid the advance fees.           On 11 July 1988 the District Court amended the decision of 9 December 1986 in specifying the plots of land to be valued by the expert, and nominated the expert H.   On 29 July the expert, having regard to his workload, requested the District Court to appoint another expert.           On 29 August 1988 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) dated 12 February 1988 about the length of the proceedings on the ground that it offered no prospect of success.   The Constitutional Court, having examined the separate sets of proceedings on the basis of the case-file, considered that, although the overall length of the proceedings was considerable, the applicant's right to a determination of her case within a reasonable time had not been violated.           The Constitutional Court found in particular that the District Court had not sufficiently expedited the proceedings in the period from 3 January 1978 until November 1980.   This might have been due to the reform of the law on marriage and family of 1976 which entered into force on 1 January 1977 and entailed problems in the transition period, and to the fact that the main divorce proceedings had only been terminated on 31 October 1980.   Moreover, until July 1980 the applicant had only once, namely on 24 May 1978, requested the District Court to speed up the proceedings.   However, since November 1980 the length of the proceedings had no longer been caused by the conduct of the Courts.   In this respect, the Constitutional Court noted that extensive expert opinions had been necessary, that the parties had not complied with court orders in time and that they had lodged appeals against two judgments of the District Court.   The Constitutional Court considered that the applicant had sometimes, when she considered the court orders to be incorrect, failed to react and submit observations immediately.   Furthermore, the Constitutional Court observed that the risk that decisions of first instance courts are quashed in appeal proceedings and that the case is sent back is inherent in the system of the Civil Code and not objectionable under constitutional law.           On 26 September 1988 the District Court appointed another expert, who also informed the Court that he was overburdened, and sent the files back on 19 October 1988.   On 31 October the District Court, having first consulted the expert Sch, appointed him to prepare the opinion in question.           On 4 January 1989 the applicant increased her claim for apportionment to DM 430 000.           On 16 March 1989, upon the District Court's inquiry, the expert Sch stated that he would deliver his opinion by mid-April.   On 11 May, upon the Court's further inquiry, he stated that the estate concerned could not be inspected on two dates in March and May due to the owner's absence.   He requested instructions upon how to continue. On 18 May 1989 the Court requested the parties to comment upon the expert's statements.   The proceedings are still pending.   COMPLAINTS           The applicant complains under Article 6 para. 1 of the Convention about the length of the proceedings before the Wiesbaden District Court.           She considers in particular that the proceedings were unreasonably delayed by the conduct of the Wiesbaden District Court which failed efficiently to examine the parties' submissions and to take evidence as necessary.   Moreover, the proceedings had essential defects, such as the judgment of 30 March 1984.   She also submits that she requested the District Court to expedite the proceedings in May 1978;   however, following the Court's judgment of 22 August 1978 dismissing her divorce action, she was involved in appeal proceedings in this respect and could not separately pursue the claim concerning the apportionment of the spouses' assets.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 23 September 1988 and registered on 8 November 1988.           On 14 April 1989 the Commission decided to invite the respondent Government, pursuant to Rule 42 para. 2 ((b) of its Rules of Procedure, to submit written observations on the admissibility and merits of the application.           The Government's observations were submitted after an extension of the time-limit on 11 August 1989.   The applicant's observations in reply of 29 September 1989 were received on 3 October 1989.           By letter of 3 November 1989 the Government requested a time-limit of six weeks for the submission of further observations. The President of the Commission acceded to this request.           The Government's further observations were dated 15 December 1989.   The applicant replied on 2 January 1990.   THE LAW           The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that, in her divorce case, she has not received a fair hearing within a reasonable time.           Article 6 para. 1 (Art. 6-1), first sentence, states:   "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."           The Government do not raise objections against the admissibility of the applicant's complaint about the length of the proceedings though they make various submissions on the merits of the case.           The Commission finds that the applicant's complaint about the length of her divorce proceedings raises questions of fact and law which are of such complexity that their determination requires an examination of the merits.   The application is therefore not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and no other ground for declaring it inadmissible has been established.           For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE         without prejudging the merits of the case   Secretary to the Commission          President of the Commission         (H. C. KRÜGER)                        (C. A. NØRGAARD)