BOCK v. GERMANY



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:

 

 

        "Eine Person ist insoweit prozessfähig, als sie sich durch

        Verträge verpflichten kann."

 

 

 

        "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:

 

 

        "(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."

 

 

        "(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:

 

 

        "(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."

 

 

 

        "(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:

 

 

        "(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."

 

 

        "(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:

 

 

        "(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."

 

 

        "(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:

 

 

        "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."

 

 

          "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:

 

 

        "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,

        sofern nicht der Zustand seiner Natur nach ein vorübergehender

        ist;

 

        3. wer wegen Geisteskrankheit entmündigt ist."

 

 

        "The following shall be incapable of entering into legal

        transactions:

 

        1. persons under seven years of age;

 

        2. persons who owing to a pathological disturbance of their

        mental processes are unable freely to determine their intentions

        insofar as this state of affairs is not by its nature purely

        temporary;

        3. a person who has been placed under guardianship on account

        of mental illness."

 

 

        S. 114 of the Civil Code concerns the limited capacity to enter

into legal transactions which is referred to in S. 607 of the Code of

Civil Procedure and reads:

 

 

        "Wer wegen Geistesschwäche, Verschwendung, Trunksucht oder

        Rauschgiftsucht entmündigt oder nach § 1906 unter vorläufige

        Vormundschaft gestellt ist, steht in Ansehung der Geschäfts-

        fähigkeit einem Minderjährigen gleich, der das siebente

        Lebensjahr vollendet hat."

 

 

        "Persons who have been placed under guardianship on account

        of imbecility, prodigality, dipsomania or drug addiction, or

        who are under a provisional guardianship according to S. 1906,

        are as regards their capacity to enter into legal transactions

        equal to minors who are older than seven."

 

45.     S. 1565 and S. 1566 of the Civil Code contain the principles

concerning divorce which were introduced as part of the reform of the

law on marriage and family of 1977 and suspended the principle of

divorce in cases of adultery or similarly serious matrimonial

misdemeanour (Eheverfehlung) previously in force.  They provide:

 

 

§ 1565  "(1) Eine Ehe kann geschieden werden, wenn sie gescheitert

        ist.  Die Ehe ist gescheitert, wenn die Lebensgemeinschaft der

        Ehegatten nicht mehr besteht und nicht erwartet werden kann,

        dass die Ehegatten sie wiederherstellen.

 

        (2) Leben die Ehegatten noch nicht ein Jahr getrennt, so kann

        die Ehe nur geschieden werden, wenn die Fortsetzung der Ehe für

        den Antragsteller aus Gründen, die in der Person des anderen

        Ehegatten liegen, eine unzumutbare Härte darstellen würde.

 

§ 1566  (1) Es wird unwiderlegbar vermutet, dass die Ehe gescheitert ist,

        wenn die Ehegatten seit einem Jahr getrennt leben und beide

        Ehegatten die Scheidung beantragen oder der Antragsgegner der

        Scheidung zustimmt.

 

        (2) Es wird unwiderlegbar vermutet, das die Ehe gescheitert

        ist, wenn die Ehegatten seit drei Jahren getrennt leben."

 

 

S. 1565 "(1) 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.

        (2) If the spouses have not yet been living apart for a year, a

        divorce may only be granted if, for reasons relating to the person

        of the other spouse, continuation of the marriage would constitute

        an unacceptable hardship for the spouse applying for the divorce.

 

S. 1566 (1) There is an irrebuttable 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.

 

        (2) There is an irrebuttable presumption that the marriage has

        broken down if the spouses have been living apart for three

        years."

 

 

III.  SUBMISSIONS OF THE PARTIES

 

 

46.     The following is an outline of the parties' main arguments,

submitted at the admissibility stage and during the examination of the

merits, on the applicant's admitted complaint under Article 6 para. 1

of the Convention.

 

 

 

A.      The applicant&S

 

47.     In the applicant's view the length of the proceedings is

mainly due to the fact that the courts, in particular the Court of

Appeal, again and again considered that there were doubts as to his

mental health.  This opinion was mainly based on statements which were

contradicted by several thorough expert opinions as well as the fact

that he carried out his work as a superior civil servant without ever

having given rise to any objections.  In particular the Court of

Appeal incorrectly referred to statements by F and an aunt of the

applicant's ex-wife which were not made during the divorce proceedings

and to the opinion of Dr.  W although the applicant already

successfully challenged him.  From the beginning of the divorce

proceedings the Courts were in possession of an expert opinion

established in September 1973 by a public health officer, Dr.  L,

attesting his perfect mental health.  The Courts should have granted

his request to hear Dr.  L as a medical expert witness, as well as

Dr.  R, who likewise attested that he was not mentally ill.  In these

circumstances there was no reason for him to submit himself to further

examination by another expert.  If he nevertheless did not refuse to

be examined by Dr.  W this was done under pressure because he was given

to understand that otherwise his divorce action might be rejected as

being inadmissible.

 

        However, under S. 607 para. 1 of the Code of Civil Procedure,

as an exception from the general rules on the capacity to take part in

proceedings, even persons with a limited capacity to bind themselves

by contracts, i.e. persons with the capacity of minors older than

seven years and of persons placed under guardianship for reasons of

imbecility, prodigality, dipsomania or drug addiction, have the

capacity to take part in divorce proceedings.

 

48.     The applicant's repeated changes of counsel did not cause any

important delays which were of any relevance compared to the global

length of the proceedings.  The changes were always necessary in the

interest of his case.  Moreover, his last real change of counsel took

place in 1978.

 

49.     His motions of challenge were justified on the ground that the

judges at the Court of Appeal had previously decided against him in

the related custody proceedings and thereby caused the separation from

his children.

 

B.      The Government&S

 

 

1.      On the admissibility

 

50.     In their further observations on the merits of the application

the Government have included the following supplementary submissions

on the admissibility of the application.

 

51.     The applicant did not exhaust domestic remedies as required

under Article 26 of the Convention.

 

52.     Under S. 90 para. 2 of the Federal Constitutional Court Act

(Bundesverfassungsgerichtsgesetz) a constitutional complaint may only

be lodged after other remedies available under German law have been

exhausted.  An applicant cannot, however, be considered to have

exhausted these ordinary remedies if he did not raise or did not raise

in due form the procedural complaints before the ordinary courts

which could then not examine them.

 

53.     S. 295 of the Code of Civil Procedure provides that procedural

complaints can no longer be raised if the party concerned failed to

require compliance with the procedural provision or if the party did

not raise the complaint at the hearing, although the party was present

and the non-compliance was known or ought to have been known to the

party.  The right to raise such a procedural complaint is then

precluded at all instances of the civil proceedings.

 

54.     S. 295 of the Code of Civil Procedure also applies to

complaints under Article 6 para. 1 of the Convention.

 

55.     The files of the applicant's divorce proceedings do not

contain an explicit or implicit complaint of the length of the

proceedings.  Furthermore, at the hearing before the Düsseldorf

Regional Court of 6 June 1974 and the hearing before the Düsseldorf

Court of Appeal of 14 June 1982 the applicant agreed to be examined by

medical experts as regards his capacity to take part in the proceedings.

He thereby implicitly admitted that this taking of evidence was in

the interest of justice.  The applicant could, therefore, no longer

complain of the length of the divorce proceedings.

 

56.     Consequently the applicant could, in this respect, not lodge

an admissible constitutional complaint.  It is true that the Federal

Constitutional Court, in its decision of 11 October 1983, mentioned,

inter alia, 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.  However, this decision was

taken by a panel of three judges of the Federal Constitutional Court

in summary proceedings and does not permit the conclusion that the

Court considered the applicant's complaints as regards the length of

the proceedings as admissible under S. 90 para. 2 of the Federal

Constitutional Court Act.

 

2.      On the merits

 

57.     The overall length of the divorce proceedings of more than

nine years appears to be unreasonable at first sight.  However, the

Government submit that the history of the divorce proceedings (a

survey is annexed herewith as the Appendix III) shows that there have

been no unreasonable delays in the case.  They maintain that only one

of the seven separate sets of proceedings before the Regional Court,

the Family Court and the Court of Appeal lasted 3 1/2 years.  The other

stages lasted 1 1/2 years or less and thus cannot as such be

considered as excessively long.

 

58.     The European Court of Human Rights has found in a number of

judgments that, where a complaint is made of an unreasonable length of

proceedings, the course of the various separate sets of proceedings is

to be looked at in detail.  In the event of any delays, the causes to

which they are attributable are to be examined.  The Court has also

found that only delays attributed to the State authorities and the

courts may justify a finding of a failure to comply with the

"reasonable time" requirement (Eur.  Court H.R., Buchholz judgment of

6 May 1981, Series A no. 42, paras. 49 et seq.; Zimmermann and Steiner

judgment of 13 July 1983, Series A no. 66, para. 24).

 

59.     The length of the proceedings is almost exclusively due to

the parties', especially the applicant's, conduct during the hearing

of the case.

 

60.     Both parties, but in particular the applicant, constantly

challenged experts and judges and appealed against the decisions

rejecting their motions.

 

        In the proceedings before the Düsseldorf Regional Court from

March 1974 until July 1977 the applicant, having successfully

challenged the first expert Dr.  W, whom he had initially accepted,

delayed the proceedings in that he challenged the second expert

Dr.  Ba only three months after he had been informed about this

appointment.  Moreover, after the challenge of Dr.  Ba had appeared

unsuccessful, the applicant did not immediately inform the Court that

he would not submit himself to a further examination at all.

 

        In the first appeal proceedings considerable delays were

caused by the applicant's unsuccessful challenge of the judges

and his inadmissible constitutional complaint to the Federal

Constitutional Court.

 

61.     By an immediate request to continue the proceedings the

applicant could have avoided a further delay which was due to the fact

that the Court's order of 29 January 1976 to inform the parties of the

applicant's refusal to be examined was inadvertently not carried out

and the proceedings were only continued in May 1976.

 

62.     In the first proceedings before the Family Court from July 1977

until December 1978 it took the applicant five months to bring his

submissions in line with the new matrimonial law.

 

63.     Furthermore the applicant frequently changed counsel and the

new counsels very often requested time for further submissions,

extensions of time-limits or access to the case-files and constantly

submitted new pleadings partly of extraordinary length.

 

        In the appeal proceedings, both parties repeatedly requested

extensions of time-limits.

 

64.     As regards the responsibility of the German authorities it

cannot be held against the judicial authorities that they repeatedly,

and according to the applicant without sufficient reason, doubted his

capacity to take part in the proceedings.  This issue had to be examined

ex officio (S. 56 of the Code of Civil Procedure, cf. para. 41 above)

and it was of decisive importance for the validity of the proceedings.

 

65.     The applicant's wife had in her memorial in reply to the

applicant's divorce action, dated 31 May 1974, submitted sufficient

evidence justifying doubts as to the applicant's state of mental

health, in particular observations of the witness F after he was

appointed the applicant's guardian.  The medical report established a

year before by Dr.  L and attesting his mental well-being did not

suffice to dispel these doubts.

 

66.     The German courts were, under these circumstances, obliged to

take evidence as to the applicant's capacity to take part in the

proceedings, the burden of proof lying with the applicant.  In the

instant case, the courts proceeded in accordance with the general

rules on expert evidence and in particular S. 404 of the German Code

of Civil Procedure according to which the selection of an expert lies

with the court if the parties do not agree.  The parties may challenge

an expert thus appointed by the courts (S. 406 of the Code of Civil

Procedure), but the law does not provide for a right of consultation

or information prior to an expert's appointment.

 

 

67.     The Convention organs cannot under Article 6 para. 1 of the

Convention, insofar as it requires a "hearing within a reasonable

time", review decisions taken by a national court within its

discretionary powers under the relevant domestic law.  This would

amount to a control of expediency of German court decisions lawfully

taken within a court's discretion which is not even provided for in

the domestic appeal proceedings.

 

68.     The fact that the Family Court incorrectly did not take

expert evidence on the issue of the applicant's capacity to take part

in the proceedings and assessed in the applicant's favour the available

evidence as well as the fact that he wrongly disregarded the Court of

Appeal's judgment of 9 January 1980 did not entail procedural delays

within the meaning of Article 6 para. 1 of the Convention.  The risk

that a judge commits an error of law or of fact and that such

decisions may have to be quashed is inherent in a system of

independent judges and control of first instance decisions by higher

courts.

 

69.     Finally the German reform of the law on marriage and family,

in particular the change of competence from regional courts to the

then instituted family courts at the district courts did not as such

entail unreasonable delays of the divorce proceedings which were

pending at that time.  Other interim solutions such as to continue

pending proceedings under the previously applicable law would have been

unclear, discriminatory and impracticable.

 

70.     The Government conclude that there was no violation of the

applicant's right to a hearing within a reasonable time, as

guaranteed by Article 6 para. 1 of the Convention.

 

IV.     OPINION OF THE COMMISSION

 

 

 

A.      Point at issue&S

 

71.     The issue to be determined in the present application is

whether the divorce proceedings, in which the applicant was involved,

were concluded within a reasonable time, as required by Article 6

para. 1 (Art. 6-1) of the Convention.

 

B.      Applicability of Article 6 para. 1&S (Art. 6-1)

 

 

72.     Article 6 para. 1 (Art. 6-1), insofar as it is relevant, provides:

 

 

        "In the determination of his civil rights and obligations

        ..., everyone is entitled to a ... hearing within a

        reasonable time ..."

 

73.     The applicability of this provision to the applicant's divorce

proceedings is not in dispute between the parties.  The Commission

notes that in these proceedings issues relating to the applicant's

civil rights and obligations were determined.

 

 

C.      Compliance with Article 6 para. 1&S (Art. 6-1)

 

74.     The Commission must, therefore, examine the length of the

proceedings in this case according to the criteria established in the

case-law of the European Court of Human Rights and the Commission.

 

1.      Period to be considered

 

75.     The starting point of the period the reasonableness of which

is at issue is the 18 March 1974, the date on which the applicant

lodged his divorce action with the Düsseldorf Regional Court.

 

76.     As regards the end of the period, the time to be considered

under Article 6 para. 1 (Art. 6-1) covers the entirety of the litigation,

including the appeal proceedings.  The last set of proceedings before

the Düsseldorf Court of Appeal ended on 7 June 1983, when the judgment

of 30 May 1983 was served upon the parties.

 

        It is true that the applicant made a constitutional complaint

to the Federal Constitutional Court and the question therefore arises

whether the proceedings before that Court are to be taken into account

when assessing the length of proceedings under Article 6 para. 1 (Art. 6-1) of

the Convention (cf.  Buchholz judgment of 6 May 1981, Series A No. 42,

para. 48; Deumeland judgment of 29 May 1986, Series A No. 100. p. 26

para. 77).  However, having regard to the overall length of the

applicant's divorce proceedings the Commission finds that it is not

necessary to resolve that question in the present case.

 

77.     The Commission therefore considers that the period ended on

7 June 1983, i.e. nine years, four months and two weeks after the

introduction of the divorce action on 18 March 1974.

 

2.      Relevant criteria

 

78.     The reasonableness of the length of proceedings has to be

assessed in each case according to the particular circumstances and

having regard, in particular, to the complexity of the case, the

conduct of the parties and the competent authorities and to what is at

stake for the former.  In the present case which concerns civil

proceedings account must also be taken of whether the applicant has

shown due diligence by taking the necessary steps to expedite the

proceedings and whether delays occurred for which the applicant cannot

be held responsible.  Only delays attributable to the State may

justify a finding of a failure to comply with the "reasonable time"

requirement (see Eur.  Court H.R., Deumeland judgment of 29 May 1986,

Series A No. 100 p. 26 para. 78; Poiss/Erkner and Hofauer judgments of

23 April 1987, Series A No. 117 paras. 55 and 66, respectively; Poiss

v.  Austria, Erkner and Hofauer v.  Austria, Comm.  Reports 24.1.86,

paras. 94 and 95, respectively).

 

3.      Complexity of the case

 

79.     Neither the applicant nor the Government made particular

submissions before the Commission on the complexity of the divorce

case as such.

 

80.     However, as regards the preliminary question of the

applicant's capacity to take part in the proceedings, the examination

of which required a considerable part of the period at issue, the

Government observed that it had to be examined ex officio under German

law and that it was of decisive importance for the validity of the

proceedings.

 

81.     The Commission here notes that considerable periods of time

were spent by the domestic courts in determining the applicant's

capacity to take part in the proceedings.  A party's capacity to take

part in proceedings is an important requirement as regards the

admissibility of a court action.  The examination of this issue under

S. 52 of the Code of Civil procedure in conjunction with S. 104 of the

Civil Code (paras. 40 and 44 above) may raise difficult questions of

fact and require expert evidence.

 

        In the present case conflicting opinions of medical experts on

the disputed question of the applicant's capacity to take part in the

proceedings were before the courts.  Having regard to the various

decisions given by the courts during their lengthy examination of this

procedural issue the Commission is satisfied that the question was a

complex one.  It notes that in the end the issue was clearly resolved

in the applicant's favour.

 

82.     The Commission further notes that the domestic courts had to

determine whether or not the conditions for a divorce of the

applicant's marriage were fulfilled.  They also had to decide on

related matters, in particular, the right to custody over the children

and the right to alimony.  To a certain extent the merits of the

divorce case could have involved factual questions under the law on

marriage and family in force prior to the reform which entered into

force on 1 July 1977, on the ground that a serious matrimonial

misdemeanour of the defendant spouse had to be established.  In fact,

however, the proceedings between 1974 and 1977 were mainly concerned

with the applicant's capacity to take part in the proceedings.  Thus

the merits of the case were only dealt with under the law on marriage

and family which entered into force in 1977, and this does not appear

to have involved any complex question of fact or of law.

 

83.     The Commission finds that the case was of some complexity as

regards the applicant's capacity to take part in the proceedings, but

not in respect of the merits.

 

4.      Conduct of the parties

 

84.     The applicant has submitted that he cannot be held responsible

for the delays which occurred in connection with the examination of

his capacity to take part in the proceedings.  The doubts as to his

mental health were contradicted by the expert opinion of the public

health officer Dr.  L dated September 1973 and by the applicant's

successful work as a senior civil servant; consequently, there was no

reason for him to agree to further examinations by other experts.

Furthermore, his changes of counsel as well as his motions to

challenge judges were always justified in the interests of justice.

 

          The Government have submitted that the length of the

proceedings was almost exclusively due to the parties', especially the

applicant's, conduct.  They consider that the applicant did not take

every opportunity to accelerate the proceedings, but rather contributed

to prolonging them by, inter alia, his repeated motions to

challenge the medical experts or judges, his various changes of

counsel and requests for extension of time-limits.

 

85.     As regards the applicant's frequent changes of counsel the

Commission finds that during the first set of proceedings before

the Düsseldorf Regional Court two of the counsel newly appointed by

the applicant requested to examine the court files or to cancel a

hearing in order to have time to prepare the case.  The proceedings

were thereby delayed for about two months.  Furthermore, the

applicant's submissions to the Family Court as regards the new law on

marriage and family seem to have been delayed on account of a change

of counsel.  The other changes of counsel do not, however, appear to

have prolonged the proceedings substantially.

 

86.     The Commission furthermore recalls that applicants cannot be

blamed for making full use of the remedies available to them under

domestic law (Eur.  Court H.R., Erkner and Hofauer, judgment of

23 April 1987, Series A No. 117 para. 68).  It notes that in the instant

case some of the remedies resorted to by the applicant as well as his

former wife, in particular the appeals on the merits, the applicant's

motion to challenge the first expert Dr.  W and his wife's motion to

challenge the Family Court Judge in October 1980 were successful.  It

is true that some of the parties' motions to challenge further

experts or judges at the Family Court or the Court of Appeal and their

respective appeals were to no avail.  The proceedings were also

prolonged by several requests of the parties for extensions of

time-limits, inter alia, in the proceedings before the Düsseldorf

Regional Court in 1975, in the first appeal proceedings and in the

third appeal proceedings in 1982.  Furthermore the applicant, having

unsuccessfully challenged the expert Dr.  Ba in the proceedings before

the Regional Court, nevertheless refused to be examined by him and

this caused some delay in the proceedings.  However, the spouses'

private and family interests and, as regards the applicant, also his

capacity to take part in the proceedings, were at stake.  In such

circumstances, repeated recourse to remedies which do not turn out to

be successful may not necessarily disclose a lack of due diligence

during the proceedings.  Nevertheless the applicant must be held

responsible for the delay caused by his refusal to be examined by

Dr.  Ba after the challenge had been dismissed.

 

87.     The Government have also submitted that the applicant failed

to accelerate the proceedings, in particular that he did not

immediately request their continuation when the Regional Court's order

of 29 January 1976 to inform the parties about Dr.  Ba's resignation

was inadvertently not carried out.  The Commission notes that the

proceedings were in fact continued upon the applicant's request of 12

May 1976.  The applicant thus speeded up the proceedings at that stage

and it cannot be held against him that he did not file his request at

an earlier date (cf. para. 98 below).

 

88.     The Commission finds that the parties and in particular the

applicant prolonged the proceedings to a certain extent.

 

5.      Conduct of the authorities

 

a.      Düsseldorf Regional Court

 

89.     The divorce proceedings before the Düsseldorf Regional Court

were instituted by the applicant on 18 March 1974 and ended due to the

reform of the law on marriage and family on 30 June 1977.  They thus

lasted three years, three months and two weeks without any decision

having been taken on the merits.

 

90.     During this period the Regional Court concentrated its efforts

on establishing whether or not the applicant was capable of taking part

in the proceedings, a condition for the admissibility of his divorce

action.

 

91.     The applicant has submitted that the repeated statements of

doubts as to his capacity to take part in the proceedings were

unreasonable in view of his uncontested professional conduct and the

result of an earlier examination of his mental health by the public

health officer Dr.  L.  Furthermore he referred to S. 607 of the Code of

Civil Procedure according to which even persons with a limited

capacity to enter into legal transactions were capable of taking part

in divorce proceedings.

 

        The Government have maintained that under S. 56 of the Code of

Civil Procedure the German courts had ex officio to consider a lack of

a party's capacity to take part in proceedings.  The issue was raised

by the applicant's wife in her observations of May 1974 and she also

submitted reasons and proposed to hear Mr.  F as a witness.  The

applicant had not dispelled the doubts about his mental status.

 

92.     The Commission notes that the courts had to determine whether

the applicant was capable of taking part in the proceedings under

S. 52 of the Code of Civil Procedure in conjunction with S. 104 of the

Civil Code or whether this capacity was excluded on the ground that,

owing to a pathological disturbance of his mental processes, he was

unable freely to determine his intentions.

 

        The Regional Court, in the early stage of the divorce

proceedings, deemed it necessary to have the applicant's mental health

examined under S. 104(2) of the Civil Code in view of the submissions

of the applicant's wife.  However, the applicant, who worked

successfully in a leading position in the civil service, had drawn the

Court's attention to the special problems of the spouses' marriage

(cf. para. 15 above).  He had submitted that at the instigation of his

wife he had already been examined by the public health officer Dr.  L,

who had not found any signs of a mental disturbance.  Furthermore,

under S. 607 of the Code of Civil Procedure, even persons with a

limited capacity to enter into legal transactions can participate in

matrimonial proceedings.

 

93.     The Commission considers that in these circumstances the

question arises whether or not in the light of the applicant's

submissions the allegations of his wife, whose private interests were

strongly affected, and the evidence proposed by her were in fact

sufficient to raise doubts as regards the applicant's capacity to take

part in the proceedings, which the applicant had to dispel.  However, the

Commission cannot, with hindsight, replace the Regional Court's

assessment of facts in this respect.

 

94.     The Commission has next examined whether the Regional Court

appointing the expert complied with its obligation under Article 6

para. 1 (Art. 6-1) to deal with the case efficiently and speedily.

 

        It notes that on 23 December 1974 the first expert having been

successfully challenged by the applicant, the Regional Court

instructed Dr.  Ba to prepare an expert opinion and requested the

parties to submit written comments.  On 1 April 1975 the applicant

refused to be examined by Dr.  Ba because he considered him to be

biased.  The Regional Court dealt with this submission as a challenge

of the expert and rejected the motion on 17 April 1975.  The

applicant's appeal against this decision was dismissed on 26 August 1975.

The files were then sent to Dr.  Ba who only returned them on

26 January 1976 stating that the applicant had refused to be examined.

Thus one year and one month elapsed without any progress in the

determination of the procedural issue and, consequently, in the case as

a whole.

 

95.     As a rule it is not for the Commission to review the practice

of domestic authorities where they have the choice between different

courses of action.  However, if the exercise of the authorities'

discretion results in an avoidable prolongation of the proceedings

they must take the responsibility for this effect.

 

96.     It is true that under S. 402 paras. 1 and 4 of the Code of

Civil Procedure concerning the taking of evidence from experts it was

for the Regional Court to select the expert and the Court would only

have been obliged to grant a joint request of the parties to have a

certain person appointed as expert.

 

        However, in the present case, the Regional Court had, in its

selection of the second expert, to take into account that only if the

applicant co-operated with the expert an effective examination of his

mental health could be achieved.

 

        The Regional Court did not request the parties to designate

persons qualified to be heard as experts under S. 402 para. 3 of the

Code of Civil Procedure (cf. para. 42 above),  nor did it hear the

parties' views on the person next to be appointed as expert.  Having

appointed Dr.  Ba and requested the parties to comment upon this

appointment, it did not then consider the applicant's refusal of Dr.

Ba as a reason to select another expert as it could have done under

S. 402 para. 1 of the Code of Civil Procedure.  It rather formally dealt

with the applicant's submissions of 1 April 1975 as a motion to

challenge the expert, which was only four months and three weeks later

finally rejected by the Court of Appeal on 26 August 1975.  The expert

was then instructed to prepare his opinion without the applicant

having been contacted in order to ensure his co-operation.

 

        Part of the delay may be attributed to the applicant's general

attitude towards the taking of evidence on the question of his mental

heath in general and towards the expert Dr.  Ba in particular.  However,

the Commission finds that, in the special circumstances of the present

case, the Regional Court failed to take appropiate steps in order to

ensure an efficient and speedy taking of evidence as regards the

applicant's capacity to take part in proceedings.

 

97.     Furthermore it took the Regional Court about five months to

continue the divorce proceedings after Dr.  Ba had returned the files.

This was first due to the fact that the Regional Court ordered that

Dr.  Ba's letter of 26 January 1976 be sent to the parties for

information without asking for comments or setting a time-limit for the

proceedings to be resumed.  Moreover the Court's order was inadvertently

not carried out by the Court's registry and thus a further delay was

caused.  The applicant might have been in a position to request the

continuation of the proceedings at an earlier date.  However, the

Commission finds that the delay is in principle to be attributed to

the Court.

 

b.      Düsseldorf Family Court (first set of proceedings)

 

98.     The proceedings before the Düsseldorf Family Court began on

1 July 1977 and ended on 5 January 1979, that is one year and six months

later.  The length of these proceedings which under the new law on

marriage and family related to the divorce issue and the related

family matters does not as such appear to be unreasonable.

 

99.    In this context the Commission has also examined whether or

not German authorities are to be held responsible for delays caused by

the reform of the law on marriage and family which also covered the

divorce proceedings already pending and did not provide for any

interim solutions.  The Commission does not deem it necessary to settle

the general issue on the ground that in the present case the

proceedings were conducted by the Family Court with sufficient

diligence to compensate for possible delays.  Thus no considerable

prolongation of the proceedings was caused by the reform of the law on

marriage and family.

 

c.      Düsseldorf Court of Appeal (first set of appeal proceedings)

 

100.    The parties' appeals were lodged with the Düsseldorf Court of

Appeal on 5 February 1979 and decided on 9 January 1980.  The appeal

proceedings as such were thus completed within a reasonable time.

 

101.    However, the question arises whether or not the Düsseldorf

Court of Appeal substantially delayed the further proceedings in that

it quashed the judgment of 21 December 1978 on the ground that an

expert opinion had to be obtained on the applicant's capacity to take

part in the proceedings.  In its judgment of 9 January 1980 the Court did

not find that a private opinion prepared by Dr.  L and dated 7 December

1979 was sufficient to dispel the doubts as to the applicant's

capacity to take part in the proceedings.  In this respect the Court

referred to statements made by Mr.  F in April 1974 in connection with

proceedings to have the applicant placed under guardianship.  But it

did not take the negative outcome of these proceedings into account.

Furthermore the Court of Appeal criticised the private expert opinion in

particular for not having discussed thoroughly the expert opinion of

Dr.  W.  The applicant had, however, successfully challenged this

expert in the preceding proceedings before the Düsseldorf Regional

Court (cf. para. 17 above).  The Commission notes that the expert

opinion of Dr.  W should, therefore, no longer have been taken into

consideration at all.

 

        The Düsseldorf Court of Appeal sent the case back to the court

of first instance.  However, it has not sufficiently clarified why it

could not have dealt with the issue on the basis of the private expert

opinion of Dr.  L who enjoyed the applicant's confidence and could have

been asked to supplement his opinion.

 

102.    The Commission is therefore not satisfied that the

prolongation of the proceedings caused by the decision to refer the

case back to the Family Court was justified in the interests of

a proper administration of justice.

 

d.      Düsseldorf Family Court (second set of proceedings)

 

103.    The second set of proceedings before the Düsseldorf Family

Court lasted from 18 March 1980 until 3 July 1980, i.e. three months

and about two weeks.  These proceedings were not, as such, delayed.

 

104.    However, the Family Court refused to accept the grounds of the

decision of the Court of Appeal.  It granted the divorce and decided

related family matters without having settled the question of the

applicant's capacity to take part in proceedings on the basis of

further evidence.  The District Court, thereby, disregarded the

principle of German procedural law that the court of first instance is

bound by the decision of the appellate court.

 

105.    In the Government's view the risk that a judge commits an

error of law or of fact, and that his decision may consequently have

to be quashed, is inherent in a system of independent judges and

control of first instance decisions by higher courts.  It cannot,

therefore, entail procedural delays within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention.

 

106.    However, under Article 19 (Art. 19) of the Convention, the Commission

must examine whether an error of law committed by a domestic court

involved a violation of any of the rights and freedoms set out in the

Convention.

 

107.    As rightly pointed out by the Court of Appeal in its second

decision of 29 September 1980 the Family Court disregarded the

procedural principle that the lower court is bound by the decision of

the appellate court in the same case which is also meant to avoid

unnecessary delays caused by repeated appeal proceedings.  The Court

thereby provoked a second set of appeal proceedings.

 

        It follows that the delays caused by the second appeal of the

applicant's wife against the Family Court's second judgment must be

attributed to that Court.

 

e.      Düsseldorf Court of Appeal (second set of appeal proceedings)

 

108.    The second set of proceedings before the Düsseldorf Court of

Appeal lasted from 14 July 1980 until 29 September 1980.  The Court of

Appeal thus dealt with the appeal proceedings within two months and to

weeks which must, as such, be considered as a short period.

 

109.    As regards the first set of appeal proceedings the Commission

has already considered that the Court of Appeal caused a considerable

delay in the divorce proceedings in that it did not itself decide

the case (cf. para. 102 above).

 

        Having regard to the further prolongation of the proceedings

in the meantime and the overall period of six years and six months

already passed, the Commission does not consider that the Court of

Appeal chose, in the interest of speedy termination of the divorce

proceedings, the efficient course of action when it sent the case

back to the Family Court for the second time.  The Commission notes

in particular that on 22 January 1981 the Court of Appeal considered

the challenging of the Family Court Judge by the applicant's wife to be

well-founded.

 

110.    The Court of Appeal must, therefore, be considered as having

caused a further considerable prolongation of the divorce proceedings.

 

f.      Düsseldorf Family Court (third set of proceedings)

 

111.    The third set of proceedings before the Düsseldorf Family

Court lasted from 15 October 1980 until 24 February 1982, i.e. one

year, four months and about one week.  Having regard to the matters

which were dealt with, in particular a successful motion to challenge

the Family Court Judge and the taking of evidence from a medical

expert who prepared his opinion on the applicant's capacity to take

part in proceedings within one month and two weeks, the Commission

finds that the divorce proceedings were at that stage conducted

without unreasonable delays.

 

g.      Düsseldorf Court of Appeal (third set of appeal proceedings)

 

112.    The third set of appeal proceedings started on 25 February

1982 and terminated on 7 June 1983 after one year, three months and

two weeks.  The Commission notes that nearly ten months elapsed

between the hearing on 14 June 1982 when the Court of Appeal

considered that further evidence was necessary as regards the

applicant's capacity to take part in proceedings, and 6 April

1983, when it finally heard the expert Dr.  Di, who had already

submitted a written opinion on 15 October 1982.

 

        In view of the overall time already spent by the German courts

on the applicant's divorce case and in particular the question of his

capacity to take part in the proceedings, the Commission has doubts

whether the length of the appeal proceedings at that stage can still

be regarded as reasonable.

 

6.      Overall assessment

 

113.    In all, the applicant's divorce proceedings lasted more

than nine years.  The Commission finds this length excessive in the

circumstances, especially having regard to the necessity to deal with

divorce and related family matters speedily.  The complexity of the

case, in particular the question of the applicant's capacity to take part

in the proceedings, while contributing to the delay, cannot justify

the extraordinary length of the proceedings.  It is also true that

responsibility for some prolongations rest with the parties and in

particular the applicant.  Nevertheless, the major delays of the

proceedings were caused by the competent courts, notably in

determining the issue of the applicant's capacity to take part in

proceedings.

 

114.    The Commission points out that the examination of the capacity

to take part in proceedings involves particular problems with regard

to an individual's dignity, and to his right to respect for his

private life under Article 8 para. 1 (Art. 8-1) of the Convention.

 

        The Commission observes that under the German Code of Civil

Procedure the courts shall, ex officio, consider a lack of the

capacity to take part in proceedings.  In general, the courts will

proceed on the assumption of a party's capacity to take part in

proceedings.  Furthermore, S. 607 of the Civil Code provides that even

persons with a limited capacity to enter into legal transactions may

take part in matrimonial proceedings.  In case of doubt, the courts

have to take expert evidence.  However, German law does not provide for

coercive measures to secure a party's examination by a medical expert

in this kind of proceedings.  The question of a party's capacity to

take part in proceedings forms part of the plaintiff's burden of

proof, in default of proof the action being inadmissible.

 

        In the present divorce case altogether four experts were

involved before the issue of the applicant's capacity to take part in

the proceedings was settled in his favour.  The Düsseldorf Regional

Court appointed the second expert, Dr.  Ba, although it was doubtful

from the very beginning that the applicant would accept to be examined

by him.  However, the Court does not seem to have considered appointing as

expert the public health officer Dr.  L.  In this respect the

Commission notes that, after the applicant lodged his divorce action,

his wife brought - ultimately unsuccessful - guardianship proceedings

against him, in the course of which he was committed to a mental

hospital.

 

        The Commission understands that the German courts took the

issue of the applicant's capacity to take part in proceedings

seriously.  However, especially where a person is finally found not to

be mentally ill, proceedings of the kind in question raise serious

problems.  The High Contracting Parties are, therefore, obliged to

provide, under their domestic procedural laws, for appropriate means

to have this issue determined speedily so as to permit the main

proceedings on the divorce to be terminated within a reasonable time.

In the present case, however, the matter of the applicant's capacity

to take part in the proceedings was finally settled only after more

than nine years.

 

115.    The Commission finds that, as a result of the delays for

which the courts must be held responsible, viewed together and

cumulatively, the applicant's case was not heard within a reasonable

time, as required by Article 6 para. 1 (Art. 6-1) of the Convention.

 

 

D.      Conclusion

 

 

116.    The Commission concludes by thirteen votes to one that there

has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that

the applicant's case was not heard within a reasonable time.

 

 

Secretary to the Commission            President of the Commission

 

 

 

 

      (H.C. KRÜGER)                           (C.A. NØRGAARD)

                                                (Original French)

 

Dissenting opinion of Mr.  F. Martinez

 

 

1.      With all due respect to the opinion of my learned colleagues,

I regret that I am unable to share the view of the majority.  The

following are the reasons for my dissent.

 

2.      I am able to accept the Commission's opinion except for

paragraphs 102, 107, 109 and 110 of the Report and what follows from

those paragraphs.  I also wish to express certain reservations

regarding paragraph 97.

 

3.      Paragraphs 102, 107 and 109 of the Report contain the ratio

decidendi of the Commission in whose view the civil dispute in which

the applicant was a party was not determined within the reasonable

time required by Article 6 para. 1 of the Convention.

 

4.      The Commission takes the view that the Düsseldorf Court of

Appeal was faced with two alternatives:  it could either send the case

back to the first instance court for a new decision following a

further investigation or complete the investigation itself and decide

the case without sending it back to the lower court.  The Commission

expresses the opinion that the choice of sending the case back to the

first instance court was not justified in this instance.

 

        Here I must note my formal disagreement.  I consider that the

Commission is not entitled to express its view on the choice made by

the Court of Appeal.  This choice falls to that Court alone by virtue

of its judicial independence.  The Commission could criticise such a

choice only if the decision to send the case back to a lower court

represented in itself an infringement of the Convention.  However,

this is not the case.

 

5.      In paragraph 107 of the Report the Commission criticises the

Family Court.  The Commission considers that this Court disregarded a

procedural principle inherent in German law by delivering a second

judgment without ordering the additional expert opinion sought by the

Court of Appeal.

 

        Here again I take the view that the Commission should not

interfere in the manner in which the Family Court acts in a matter of

domestic law.  The Family Court is free to interpret German law even

if the Düsseldorf Court of Appeal interprets it differently.

 

6.      The history of the proceedings may be described as follows:

 

      - On 21 December 1978 the Family Court ruled at first instance

        (para. 24 of the Commission's Report);

 

      - The Court of Appeal, considering that there was some doubt

        as to the applicant's capacity to take part in the

        proceedings, ordered a further expert opinion and sent

        the case back to the first instance court for an expert

        opinion and a new trial: Judgment of 9 January 1980

        (para. 28 of the Commission's Report).

 

      - The Family Court, considering that it had sufficient

        information at its disposal to determine whether the

        applicant had the requisite capacity and that it was not

        bound by the Court of Appeal's assessment on this matter,

        pronounced the divorce for the second time:  Judgment of

        16 June 1980 (para. 29 of the Report).

 

      - The Court of Appeal made a second ruling which followed

        the first and again sent the case to the first instance

        court: Judgment of 29 September 1980 (para. 30 of the

        Report).

 

      - On this occasion the Family Court ordered an expert opinion

        and pronounced the divorce for the third time:  Judgment of

        24 February 1982 (paras. 32 and 33 of the Report).

 

7.      On the face of it this toing and froing from one court to

another appears superfluous.  The Court of Appeal could itself have

ordered the medical examination and could have questioned the expert

and ruled on the merits without sending the case back to the lower

court.  It may appear strange that after the Family Court had obtained

the expert opinion the Court of Appeal should decide to order another

one in the proceedings before it, prior to ruling on the merits.

 

        Clearly the value of the first and second referrals may be

questioned.  I concede that this toing and froing took up a certain

amount of time and extended the proceedings.  Nevertheless it is

necessary to treat the decisions of domestic courts with a certain

respect since they have acted according to their understanding of

domestic law and the needs of the case before them.  The Commission

cannot perform the function of a third or fourth instance court, as it

frequently states in its decisions on the admissibilty of

applications.

 

        As regards the decision of the Family Court that it was

unnecessary to order the expert opinion sought by the Court of Appeal,

it is not the Commission's role to state whether or not such a

decision was justified under German law.  An independent court may

perfectly well consider that there is sufficient evidence in the file

for it to form its opinion and that it does not therefore need an

expert opinion in order to reach a decision.  It may also deem that

the Court of Appeal's view that such an expert opinion is necessary

concerns only that Court's own decision.  In any event, if this

approach is contrary to German law, it does not fall to the

Commission to make a finding to that effect.

 

9.      Other than the criticisms as to the choices made by the German

courts appearing in paragraphs 102, 107 and 109 of the Report, the

Commission's Report does not identify any reasons for finding that the

proceedings exceeded the reasonable time provided for in Article 6

para. 1 of the Convention.

 

        The mere lapse of time cannot constitute an infringement of

the Convention.  Proceedings are conducted in an unreasonable manner

where they are so conducted that there are unreasonable pauses.

 

        Although the proceedings lasted nine years and two months, I

would stress that the Commission's criticisms concern the period after

the first judgment of the Düsseldorf Court of Appeal sending the case

back to the lower court, namely a period of three years, four months

and nineteen days, during which there was continuous judicial

activity.

 

        The following steps in the proceedings were completed in this

period: the second first instance proceedings before the Family Court,

the second appeal proceedings for the Court of Appeal, a motion to

challenge one of the judges of the Family Court, an appeal on this

challenge, a constitutional complaint to the Constitutional Court, the

appointment of an expert, a challenge of this expert, an appeal on

this challenge, the third first instance proceedings, two appeals

against the judgment delivered at the conclusion of these first

instance proceedings, the appointment and examination of an expert in

the appeal proceedings, a challenge of this expert, and a challenge of

the appeal judges (paras. 28 to 36 of the Report).

 

10.     In conclusion I should like to refer to my reservations

concerning paragraph 97 of the Report.  In that paragraph the

Commission criticises the Regional Court for a delay of five months.

In my view, in proceedings in which the parties adopted numerous

different tactics and which required more than nine years of

continuous judicial activity, this delay cannot in itself constitute

an infringement of Article 6 para. 1 of the Convention.

 

&-APPENDIX I&S

 

 

 

HISTORY OF PROCEEDINGS

 

 

Date                    Item

 

----------------------------------------------------------------------

 

2 July 1982            Introduction of the application

 

18 July 1984            Registration of the application

 

Examination of admissibility

 

1 July 1985            Commission's deliberations and decision to

                        invite the Government to submit observations

                        on the admissibility and merits of the

                        application

 

14 February 1986        Government's observations

 

4 April 1986           Applicant's observations in reply

 

13 May 1986             Commission's decision to invite the parties to

                        a hearing on the admissibility and merits of

                        the application

 

13 November 1986        Hearing and Commission's decision on

                        admissibility.  At the hearing the parties were

                        represented as follows:

 

                        Government

 

                        Mr.  H.A. Stöcker

                        Mrs K. Schubert

 

                        The applicant attended the hearing in person.

 

Examination of the merits

 

4 March 1987           Government's observations on the merits

 

15 March and            Applicant's observations on the merits

12 April 1987

 

9 May and              Commission's consideration of the state

10 October 1987         of proceedings

 

10 November 1987        Commission's deliberations on the merits and

                        final vote

 

13 November 1987        Adoption of the Report

 

Full & Egal Universal Law Academy