CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 2 juin 2009

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sDB6B63EE { width:176.94pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIFTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 29056/06 by Nicole and Sebastian DITZ against Germany The European Court of Human Rights (Fifth Section), sitting on 2   June   2009 as a Chamber composed of:   Peer Lorenzen, President,   Rait Maruste,   Karel Jungwiert,   Renate Jaeger,   Mark Villiger,   Mirjana Lazarova Trajkovska,   Zdravka Kalaydjieva, judges, and Claudia Westerdiek, Section Registrar , Having regard to the above application lodged on 18 July 2006, Having deliberated, decides as follows: THE FACTS The applicants, Ms Nicole Ditz and Mr Sebastian Ditz, are German nationals who were born in 1978 and 1977 respectively and live in Hamelin. They were represented before the Court by Ms Eva Beate Bäumler, a lawyer practising in Hanover. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. On 19 August 2000 the applicants’ first child was born with severe physical disabilities, having, inter alia , no arms and hands, a shortened thigh and serious hip dysplasia. The applicants brought a civil action in the Hanover Regional Court, seeking alimony and compensation for non-pecuniary damage from the attending gynaecologist. They argued that, had the mother been informed about the disability, she would have opted for an abortion. During a hearing, the Regional Court conveyed to the parties its intention to first take evidence on the question of whether the gynaecologist had committed a grave diagnostic error. On 6 November 2003 the Regional Court informed the applicants that, contrary to its earlier intention, the taking of evidence would commence with the issue of whether an abortion would have been legally possible. On 17 March 2005 the Regional Court dismissed the action in its entirety. It considered that it could leave open the question of whether the gynaecologist had committed a grave diagnostic error as the alimony claim required proof of whether, had the parents been informed of the disability, an abortion would have been legally possible. The court found that, for the abortion to be legal, the applicants had to demonstrate that it would have been the only reasonable means to avert a risk for the mother’s life or severe interference with her physical or mental integrity. Referring to an expert report, the court found that the mother had not demonstrated that an abortion could have been legally possible. The expert had noted in his report that the applicants had failed to submit sufficient documents and provide sufficient facts from the time of the pregnancy to allow him to come to the conclusion that the requirements for a legal abortion were met. The applicants appealed against the judgment. On 28 July 2005 the Celle Court of Appeal notified the applicants of its intention to decide the appeal without conducting a hearing, giving the applicants two weeks to make further submissions. It informed the applicants that it was of the opinion that the Regional Court had correctly desisted from taking evidence on the alleged grave diagnostic error. As to their claim in respect of non-pecuniary damage, the Court of Appeal considered that the applicants had failed to sufficiently substantiate it; in particular, they had not explained how the shock had manifested itself and had not described the psychological condition of the mother after the birth of the child. With respect to the alimony claim, the Court of Appeal also confirmed that the Regional Court had been under no obligation to hear evidence on the alleged grave diagnostic error, as the lack of proof of the abortion’s legality already meant that the claim was unfounded and that an expert opinion on the existence of the grave diagnostic error was redundant. It also rejected the applicants’ complaint that they had not been granted a hearing as to the Regional Court’s decision to first take evidence on the question of whether the child could have been legally aborted. It observed that the applicants had had plenty of time to object to the Regional Court’s decision of 6 November 2003, but had chosen not to. In so far as the applicants challenged the expert report, the Court of Appeal held that the expert’s conclusions, though not clearly distinguishing between issues of law and fact, had been sufficiently clear. The expert had found that no documents or indications existed that demonstrated an elevated risk of grave interference with the mother’s mental integrity, either during the pregnancy or after the delivery. The Court of Appeal noted in that context that the parents had failed to submit further documentation, despite having been asked by the Regional Court to do so. Furthermore, the expert had sufficiently explained that an examination of the mother, four years after the delivery of the baby, would have been inconclusive without further documentary proof. On 22 August 2005 the applicants made further submissions to the Court of Appeal. On 6 September 2005 the Court of Appeal, referring to the reasoning set out in its decision of 28 July 2005, dismissed the appeal without holding a hearing, also dismissing the applicants’ further submissions contesting the expert report. On 31 October 2005 the Court of Appeal dismissed an objection alleging a violation of the right to be heard ( Anhörungsrüge ) as being manifestly   ill ‑ founded. The applicants had been informed of the reasons why it intended to dismiss the appeal. It had addressed all the arguments put forward by the applicants, in particular the submissions concerning the claim for damages, the requirements of the legality of the abortion, the challenges against the expert report, and the alleged denial of the right to be heard. On 10 January 2006 the Federal Constitutional Court held that the constitutional complaint by the applicants had no prospect of success as there was no appearance of a violation of the right to be heard or the principle of equality of arms. COMPLAINTS The applicants raised several complaints under Article 6 of the Convention. They complained that the Regional Court had not decided on their claim in respect of non-pecuniary damage. They also alleged that they had not, or had not sufficiently, been heard before the domestic courts as to the necessity of conducting a gynaecological expert report on the issue of whether there had been a grave diagnostic error, the decision of the Regional Court to change the order in which evidence was to be taken, their objection that the expert had been wrongly or insufficiently instructed on the subject matter of the report commissioned by the Regional Court, and their request to carry out a medical examination of the mother. The applicants also complained that the Court of Appeal had applied a specific provision of the German Code of Civil Procedure allowing it to decide on the basis of the case file and to dispense with a hearing. THE LAW It is noted at the outset that the applicants have never raised a complaint, even implicitly, under Article 8 of the Convention, either before the domestic courts, in particular the Federal Constitutional Court, or before the Court. They confined themselves to complaining that the proceedings before the domestic courts had not been consistent with the requirements of Article   6 §   1 of the Convention, the relevant parts of which read as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” The applicants complained that the Regional Court had not decided upon their claim in respect of non-pecuniary damage. They argued that the reasoning of the Regional Court’s judgment did not contain any reference to this claim. The Court notes that the Regional Court referred to the applicants’ arguments regarding the claim in respect of non-pecuniary damage and dismissed the action in its entirety. The Regional Court did therefore decide on the claim. In any event, the Court of Appeal addressed the issue in its decision announcing the reasons for the dismissal of the appeal and in the appeal decision itself. It dismissed the claim expressly, finding that it had not been sufficiently substantiated. In their submissions to the Court, the applicants specifically challenged the finding of the Court of Appeal that the claim in respect of non-pecuniary damage had not been sufficiently substantiated. They also complained that they had not, or had not sufficiently, been heard as to the necessity of conducting a gynaecological expert report, the decision of the Regional Court to change the order in which evidence was to be taken, their complaint that the expert had been wrongly or insufficiently instructed, and the medical examination of the mother. The Court reiterates that it is not its task to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). The assessment of evidence is primarily a matter for the national courts, which enjoy a wide margin of appreciation in this respect. The Court’s role under Article 6 § 1 is not to assess the facts which led the domestic courts to adopt one decision rather than another and Article 6 § 1 does not guarantee that the “right   result” will be reached by the domestic courts (see   Klasen v. Germany , no.   75204/01, § 43, 5 October 2006). The Court notes that the domestic courts addressed all the relevant submissions made by the applicants, as can be seen, in particular, in the exhaustive reasoning provided by the Court of Appeal. The reasons upon which the national courts based their decisions are sufficient to rule out the assumption that their evaluation of the case was arbitrary. The applicants also complained that the Court of Appeal had applied a specific provision of the German Code of Civil Procedure allowing it to decide on the basis of the case file and to dispense with a hearing. They argued that the Court of Appeal should not have applied that provision as the requirements were not met. The Court reiterates that the obligation to hold a hearing is not absolute and there may be proceedings in which an oral hearing may not be required (see   Jussila v. Finland [GC], no.   73053/01, §   41, ECHR 2006 ‑ XIV). Where a court of appeal, as in the present case, has jurisdiction to review the case as to both the facts and the law, the absence of a hearing at second instance may be justified by the special features of the proceedings at issue, in particular when the case raises no questions of fact or law which cannot adequately be resolved on the basis of the case file and the parties’ written observations (ibid., and see also, in particular, Rippe v. Germany (dec.), no.   5398/03, 2   February 2006, which concerned the same provision of the German Code of Civil Procedure as in the present case). The Court notes that, while the Regional Court held a hearing, the Court of Appeal did not. Yet the Court of Appeal informed the applicants of its intention to dismiss the appeal and offered them the opportunity to counter the reasons given by the Court of Appeal. The applicants thereupon made further submissions. The Court finds that the applicants have failed to demonstrate that they could not advance every argument they saw fit and that the case could not have been adequately dealt with on the basis of the case file and the written submissions of the parties. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.   For these reasons, the Court by a majority Declares the application inadmissible. Claudia Westerdiek   Peer Lorenzen   Registrar   President