In the Bock case*,
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* Note by the Registrar: This case is numbered 1/1988/145/199. The
first two figures indicate its place on the list for the year in which
the case was referred to the Court; the last two figures indicate,
respectively, the case's order on the list of cases and of originating
applications (to the Commission) referred to the Court since its
creation.
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The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mrs D. Bindschedler-Robert,
Mr L.-E. Pettiti,
Sir Vincent Evans,
Mr R. Bernhardt,
Mr J. De Meyer,
Mr N. Valticos,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 21 November 1988 and
21 February 1989,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 25 January 1988, within the
three-month period laid down in Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention for the Protection of Human
Rights and Fundamental Freedoms. It originated in an application
(no. 11118/84) against the Federal Republic of Germany lodged with the
Commission under Article 25 (art. 25) by Mr Hermann Bock, a German
citizen, on 2 July 1982.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) of the Convention and to the declaration whereby
the German Government ("the Government") recognised the compulsory
jurisdiction of the Court (Article 46) (art. 46). It sought a
decision from the Court as to whether the facts of the case disclosed
a breach by the respondent State of its obligations under
Article 6 para. 1 (art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings pending before the Court and
was granted leave to present his own case pursuant to the second
sentence of Rule 30 para. 1. The applicant, who was referred to as "B" in
the proceedings before the Commission, subsequently consented to the
disclosure of his identity.
3. The Chamber to be constituted included ex officio Mr R. Bernhardt,
the elected judge of German nationality (Article 43 of the Convention)
(art. 43), and Mr R. Ryssdal, the President of the Court
(Rule 21 para. 3 (b)). On 30 January 1988, in the presence of the
Registrar, the President drew by lot the names of the other five
members, namely Mrs D. Bindschedler-Robert, Mr G. Lagergren,
Sir Vincent Evans, Mr J. De Meyer and Mr N. Valticos (Article 43 in
fine of the Convention and Rule 21 para. 4) (art. 43). Subsequently,
Mr L.-E. Pettiti, substitute judge, replaced Mr Lagergren who had
resigned from the Court and whose successor at the Court had taken up
his duties before the hearing (Rules 2 para. 3 and 22 para. 1).
4. Mr Ryssdal, who had assumed the office of President of the
Chamber (Rule 21 para. 5), consulted - through the Deputy Registrar - the
Agent of the Government, the Delegate of the Commission and the
applicant on the need for a written procedure (Rule 37 para. 1). In
accordance with his order, the Government's memorial and the
applicant's memorial were both received by the registry on
30 May 1988; the applicant's in German, by leave of the President
(Rule 27 para. 3). On 25 July the Secretary to the Commission notified
the Registrar that the Delegate would submit his observations at the
hearing.
5. Having consulted - through the Deputy Registrar - those
appearing before the Court, the President directed that the oral
proceedings should commence on 21 November 1988 (Rule 38). On
8 October 1988, he granted the members of the Government's delegation
leave to address the Court in German (Rule 27 para. 2).
On 17 November, the Registrar received from the Commission several
documents which he had requested on the President's instructions.
6. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting immediately beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Meyer-Ladewig, Ministerialdirigent,
Federal Ministry of Justice, Agent,
Mr H.A. Stöcker, Ministerialrat,
Federal Ministry of Justice, Adviser;
(b) for the Commission
Mr J.A. Frowein, Delegate;
(c) the applicant in person, Mr Hermann Bock.
The Court heard their adresses and their replies to its questions.
On 21 November and 21 December 1988 and on 13 and 20 January 1989, the
Registrar received observations from, respectively, the applicant, the
Government and the Commission on the question of the application of
Article 50 (art. 50) of the Convention to this case.
AS TO THE FACTS
7. The applicant was born in 1928 and is a German citizen living
in Düsseldorf where he works as a senior legal officer in the Ministry
of Science and Research of North Rhine-Westphalia.
He married in 1961 and there were three children of the marriage.
Divorced in 1983, he complains of the length of divorce proceedings
which he started against his then wife in 1974.
1. THE PROCEEDINGS BEFORE THE DÜSSELDORF REGIONAL COURT (LANDGERICHT)
(18 MARCH 1974 - 30 JUNE 1977)
8. On 18 March 1974 the applicant started divorce proceedings in
the Düsseldorf Regional Court. He stated that he doubted whether his
wife was faithful to him and that she had threatened to have him
placed under guardianship on the ground of mental illness. However, a
psychiatric examination by Dr Lemmer, a public medical officer, which
he underwent, at his wife's instigation, in September 1973, revealed
no indication of any mental illness. The applicant put the medical
report in evidence and cited Dr Lemmer as a witness.
9. After the applicant had filed his divorce petition, the
applicant's wife brought guardianship proceedings
(Gebrechlichkeitspflegschaft) before the Ratingen District Court
(Amtsgericht) against Mr Bock. On 24 April 1974, the Court heard
evidence given by the applicant's wife, by a friend, Dr Firnhaber, a
judge, and by her aunt. It then made the guardianship order and
appointed Dr Firnhaber to be the applicant's guardian. Two days
later, on 26 April 1974, at the guardian's request, the District Court
ordered that the applicant should be committed to a mental hospital.
On the same day Dr Firnhaber entered Mr Bock's place of employment
and, without prior notice, had him taken from his office to a mental
hospital where he remained until 3 May when the orders of 24 and
26 April were set aside on appeal on the ground that they had been given
without the applicant's being heard. The case was referred back to
the District Court before which, on 30 May 1974, Mr Bock objected to
the doctors who had examined him at the mental hospital. The
Düsseldorf Regional Court upheld the objection on 21 June 1974.
Subsequently, the District Court, on 4 July 1975, rejected the
application to have a guardian appointed for Mr Bock on the ground
that, even if he did have mental-health problems, he was still capable
of dealing with his personal affairs; moreover, no complaint had ever
been made as regards the exercise of his professional duties.
A subsequent attempt by Mrs Bock to have her husband declared
incapacitated (Entmündigung) also failed; on 1 July 1976, the
Düsseldorf District Court refused her application and this decision
was upheld on 17 September 1976 by the Düsseldorf Regional Court.
10. On 31 May 1974, Mrs Bock had submitted her reply to the
divorce petition. According to her, her husband was afflicted by a
mental illness and therefore was not competent to start legal
proceedings. As evidence of such incapacity, she asked Dr Firnhaber
to be called as a witness.
Under section 52 of the German Code of Civil Procedure, a person shall
have the capacity to conduct legal proceedings to the same extent as
he can bind himself by contracts, in accordance with the relevant
provisions of the Civil Code. Under the terms of section 104 of the
latter:
"The following shall be incapable of performing legal transactions:
1. minors under seven years of age;
2. persons who, owing to a pathological disturbance of their
mental faculties, are unable freely to determine their intentions,
in so far as this state of affairs is not by its nature purely
temporary;
3. a person who has been declared incapacitated on account of
mental illness."
However, persons who have been declared incapacitated or placed under
temporary guardianship on account of imbecility, prodigality,
dipsomania or drug addiction, have, as regards the performance of
legal transactions, the same capacity as children of more than seven
years of age. Nevertheless, such a person may conduct matrimonial
proceedings (Ehesachen; Article 607 of the Code of Civil Procedure).
It is recognised under German law that a person may be regarded as
being partially incapacitated in respect of certain matters, such as
matrimonial causes. To that extent, a person cannot introduce an
action under section 52 aforesaid.
In accordance with section 56 para. 1 of the Code of Civil Procedure, the
courts are required ex officio to take into consideration a lack of
capacity to take legal proceedings.
11. On 6 June 1974, the Düsseldorf Regional Court heard the
parties and Mr Bock declared that he was prepared to undergo a medical
examination. On 10 July 1974, the court instructed Dr Wegener to give
an opinion on the applicant's state of mental health. He received the
applicant's file on 22 July 1974 and reported to the court in
November 1974 that he had examined the applicant.
On 13 November 1974, Mr Bock challenged the doctor and informed the
court that he had instructed a new lawyer. On 21 November 1974,
Dr Wegener presented his report: he considered the applicant to be
seriously ill and suffering from a paranoid psychosis. However,
on 9 December 1974, the court upheld the challenge of 13 November. On
23 December 1974, it appointed Dr Baucke as the expert and asked the
parties for their views on this choice.
12. On 1 April 1975, after an extension of the time-limit for
submitting his observations, Mr Bock challenged Dr Baucke and refused
to be examined by him: according to the applicant, having succeeded
to Dr Wegener's official functions, Dr Bauke might be influenced by
the expert opinion given by his predecessor.
The Regional Court found against the applicant on 17 April 1975; the
applicant's appeal (sofortige Beschwerde) dated 9 May 1975 was
dismissed by the Düsseldorf Court of Appeal (Oberlandesgericht) on
26 August 1975. Prior thereto, that is to say on 13 August 1975, the
applicant had changed his lawyer; he did so again on 3 December 1975.
On 26 January 1976, Dr Baucke returned the file, stating that the
applicant still refused to be examined. Three days later, the court
instructed its registry to inform the parties thereof but the registry
inadvertently omitted to do so.
On 12 May 1976, Mr Bock's lawyer asked for the proceedings to be
continued. On 25 May 1976, the Court decided to hold a hearing on
1 July 1976.
13. At the hearing on 1 July 1976, the Regional Court decided to
hear two witnesses proposed by the applicant's wife, namely
Dr Firnhaber and a medical doctor, Dr De Boor. However, at the
hearing on 9 September 1976, only Dr Firnhaber appeared. The
applicant requested the court to adjourn the hearing but it refused to
do so. The applicant then challenged the judges who overruled his
objection on 3 November 1976. He appealed against this decision
on 19 November 1976 and, on 14 February 1977, challenged one of the
judges at the Court of Appeal. The file was then transferred to
another chamber of the Court of Appeal which found against the
applicant on 8 March 1977.
14. On 30 March 1977, the Regional Court decided to hold a hearing
on 2 June 1977 to take the evidence of Dr Firnhaber and Dr De Boor.
However, the hearing was cancelled at the request of the applicant's
new lawyer, whom Mr Bock had chosen on 1 June 1977. On 16 June 1977
the lawyer informed the court that he no longer represented the
applicant.
15. Prior thereto, a fresh incident had occurred between the
spouses.
On 20 August 1976, Mrs Bock had alerted the police, claiming that her
husband was threatening her. The applicant was forcibly conducted to
a psychiatric hospital where he was examined by two doctors, including
Dr Roth who, as a result of their examination refused to admit him.
The police then released Mr Bock who, on 31 August 1976, was barred
from the matrimonial home pursuant to a court order obtained by his
wife.
A complaint laid by the police officers against the applicant for
resisting them in the course of their duty was dismissed. On
25 March 1977, Mr Bock was acquitted by the Magistrates Court
(Schöffengericht) after testimony was given by Dr Roth who declared
that the applicant was not mentally deranged. On 23 December 1981,
the Düsseldorf Court of Appeal awarded him compensation for the police
action which was held to have been unjustified.
16. In 1976, new legislation reforming the law on marriage and the
family was enacted in the Federal Republic of Germany. It provided,
inter alia, for the abolition of the notion of matrimonial fault in
divorce proceedings and established at the District Courts special
divisions for family cases (Familiengerichte), consisting of a single
judge.
As a result of the new laws, the pending divorce proceedings were
transferred, with effect from 1 July 1977, from the Regional Court to
the Family Court in Düsseldorf.
2. THE FIRST PROCEEDINGS BEFORE THE FAMILY COURT AND THE DÜSSELDORF
COURT OF APPEAL (1 JULY 1977 - 9 JANUARY 1980)
(a) Family Court proceedings (1 July 1977 - 5 January 1979)
17. On 26 July 1977, the Family Court invited the parties to amend
their arguments in the light of the new legislation. Mr Bock's new
lawyer - the sixth withdrew from the case on 30 November 1977 -
submitted his observations on 21 December 1977.
The Court heard the parties on 22 May 1978 and, having regard to the
applicant's supplementary memorial relating to custody of the
children, decided to hold a fresh hearing which, for organisational
reasons affecting the parties and the court, did not take place until
13 November 1978.
Having seen the children on 30 November and held a fresh hearing
on 4 December, the Family Court pronounced the divorce on
21 December 1978. In its view, the divorce petition was admissible.
Mr Bock was capable of taking legal proceedings. The applicant's
alleged behaviour was not necessarily the manifestation of a mental
illness.
The divorce judgment, which granted custody of the children to their
mother, was served on the parties on 5 January 1979.
(b) Appeal proceedings (5 February 1979 - 9 January 1980)
18. One month later, the applicant's wife appealed to the
Düsseldorf Court of Appeal. On the same date, Mr Bock cross-appealed
as to custody rights and the costs of the proceedings.
On 18 April 1979, the applicant challenged the Appeal Court judges on
the ground that they had previously refused him access to the
children. The Court of Appeal rejected his challenge on 27 April 1979.
His appeal to the Federal Constitutional Court
(Bundesverfassungsgericht) was declared inadmissible on
11 September 1979.
19. Having both been granted extensions of time, the parties
submitted their observations on 7 June and 3 October 1979
respectively.
The Court of Appeal granted legal aid to Mrs Bock on 5 November and
heard the parties on 12 November 1979. Having in the meantime
instructed a new lawyer, the applicant submitted supplementary
observations on 11 December relating to his capacity to take legal
proceedings and a private expert opinion by Dr Lemmer dated
7 December 1979.
20. On 9 January 1980, the Düsseldorf Court of Appeal quashed the
divorce judgment pronounced on 21 December 1978 by the Family Court
and ordered that court to hear the case again. By failing to consider
the applicant's alleged lack of capacity to take proceedings in this
case, it had failed to observe section 56 of the Code of Civil
Procedure (see paragraph 10 above).
The Düsseldorf Court of Appeal set out its reasoning as follows
(translation):
"Generally speaking, a court may act on the assumption that a party is
capable of conducting legal proceedings. However, should serious
doubts arise about capacity, the court may not permit litigation to
continue where a decision on the merits is being sought, but, under
section 56 of the Code of Civil Procedure, must examine the question
of capacity ex officio as a precondition for the lawfulness of a
decision on the merits. In such a case, the court, without being
bound by any procedural rules on the taking of evidence, must exhaust
all the evidentiary possibilities necessary to the forming of a
definite view ... This the court failed to do in disregard of the
applicable substantive and procedural provisions.
In the present case, as may be seen from the following considerations,
there are serious doubts about the petitioner's capacity to conduct
proceedings, which are not dispelled by the report of the retired
chief medical officer, Dr Lemmer, of 7.12.1979, now submitted, this in
turn meaning that there is no need to re-open the oral hearing in
pursuance of section 156 of the Code of Civil Procedure.
In a letter of 17.4.1974 ..., Dr Firnhaber, who was for many years a
friend of the petitioner, approached the Ratingen District Court with
the aim of securing - by way of a guardianship - medical treatment for
him. In this letter, Dr Firnhaber, referring to numerous occurrences
in the past, known to him as a result of conversations with the
petitioner himself or with members of his family, voiced the suspicion
that the petitioner was suffering from a persecution complex directed
more and more at the respondent. Mrs Linn, an aunt of the respondent,
also expressed similar views to the Ratingen District Court ... . One
cannot without more ado accuse these persons of merely being hostile
to the petitioner; rather, in the view of this court, it must be
presumed that they acted out of genuine concern for the petitioner.
Their statements cannot therefore be ignored and are such as to raise
doubts as to the petitioner's legal capacity and therefore his
capacity to conduct legal proceedings. In this respect it is not of
decisive importance whether accounts of the occurrences are accurate
in every detail and the conclusions drawn the right ones. In any
event, such statements raise doubts which need to be looked into.
These doubts are not, for example, unfounded because the occurrences
referred to concern solely the personal and family sphere and the
petitioner is successfully carrying on a professional activity in a
post of responsibility. This is evident from the fact that capacity
to conduct legal proceedings may be present only as regards a specific
number of matters, that this possibility cannot be excluded in the
light of what has already been said, and that the present case
concerns precisely a matter falling within the area of the
petitioner's relationship with the respondent.
These doubts have not thus far been dispelled. Least apt in this
respect are the observations made by the petitioner on 1.5.1974.
Nor does the assessment provided by the senior doctor Dr Roth, when
the petitioner was brought by the police to the Grafenberg Hospital on
20/21.8.1976, as also when the hearing took place before the court
hearing the criminal charge on 25.3.1977, permit any such conclusion.
The latter is, admittedly, an expert opinion given by a doctor. It
cannot however be ruled out that the basis for this assessment was not
broad enough and that the personal and family area, including the
relationship between the petitioner and the respondent, was not
considered in the assessment.
Nor can the opinion of Dr Lemmer ... remove the doubts which have
arisen. This specialist, commissioned by the petitioner, drew up his
report following repeated and lengthy examinations of the petitioner,
and after familiarising himself with those sections of the file which
are important in this respect. He found no morbid paranoid tendencies
and comes to the conclusion that there were no limiting factors or
signs of a partial lack of capacity to conduct legal proceedings.
What is missing from his expert opinion, however, is any detailed
discussion of Dr Wegener's report of 7.1.1975, which he had at his
disposal and to which he makes reference; the latter report came to
the conclusion that the petitioner was suffering from a paranoid
psychosis negating his power of judgment in certain areas. Again, the
value of the testing procedures used by Dr Lemmer in producing his
specialist report is not apparent to the panel, in the absence of
detailed explanations. It is furthermore not made sufficiently clear
in this report whether the expert takes as correct the occurrences and
remarks of the petitioner described by the other side - for instance,
Dr Firnhaber, the respondent or Dr Wegener - or whether he merely
proceeds on the basis of what the petitioner has told him during the
examinations. Similarly, the rather summary assessment of the
observations made by the petitioner on 1.5.1974 in reply to the
respondent's statements to the Ratingen District Court and on
20.3.1975 in reply to the expert opinion of Dr Wegener, do not appear
to suffice as they stand. The expert does not go into detail; in
particular, he does not consider more closely the concern expressed by
the petitioner himself that, during a stay in Holland, he may have
been sterilised at the instigation of the respondent.
The question of the petitioner's capacity to conduct proceedings,
which accordingly is still open, can only be resolved by means of
expert opinion. This was the task of the District court. The failure
to conduct such an examination constitutes a serious procedural defect
which, pursuant to section 539 of the Code of Civil Procedure requires
the setting aside of the contested judgment."
3. THE SECOND PROCEEDINGS BEFORE THE FAMILY COURT AND THE DÜSSELDORF
COURT OF APPEAL (18 MARCH 1980 - 29 SEPTEMBER 1980)
(a) Family Court proceedings (18 March 1980 - 3 July 1980)
21. On 16 June 1980 the Family Court, which had been in possession
of the file since 18 March and held hearings on 5 and 22 May 1980,
again pronounced the divorce granting custody of 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. If the Court of Appeal had reason to doubt
the applicant's capacity, it should have examined and determined this
question itself. For these reasons, the Family Court considered
itself not bound by the Court of Appeal's decision of 9 January 1980
and refused to take further evidence on the question of the
applicant's alleged mental illness. In view of the expert opinion
submitted by Dr Lemmer on 7 December 1979 and the fact that the
applicant never gave rise to any objections in his career as a
high-ranking civil servant, not to mention the personal impression he
gave at several oral hearings, there was no reason to doubt his mental
capacities.
The judgment was served on the parties on 3 July 1980.
(b) Appeal proceedings (14 July 1980 - 29 September 1980)
22. 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 relied on the principle laid down in settled case-law that in
the same proceedings a lower court is bound by the decision of the
higher court. In the Appeal Court's view, the Family Court, which was
bound by the judgment of 9 January 1980, had wrongly refused to take
expert evidence on the question of the applicant's state of mental
health.
4. THE THIRD PROCEEDINGS BEFORE THE FAMILY COURT AND THE DÜSSELDORF
COURT OF APPEAL (15 OCTOBER 1980 - 7 JUNE 1983)
(a) Family Court proceedings (15 October 1980 - 24 February 1982)
23. On 15 October 1980, the case files were returned to the Family
Court judge whom Mrs Bock challenged on the same date. The Regional
Court rejected the challenge on 27 November 1980 but it was upheld on
appeal on 22 January 1981. The Court of Appeal stated 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.
24. On 22 May 1981 the Family Court appointed another medical
expert. On 6 July 1981 an assistant of that expert 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.
25. On 24 February 1982 the divorce was pronounced for the third
time. Custody of the daughter (the two older children having reached
the age of majority in 1979 and 1980, respectively) was granted to the
applicant's wife who was also granted a right to pension splitting
(Versorgungsausgleich).
(b) Appeal proceedings (25 February 1982 - 7 June 1983)
26. On 25 February 1982 the applicant's wife again appealed
against the divorce judgment, which was served on the parties on
10 March 1982. On 13 April 1982 the applicant, who had in the
meantime changed his lawyer, cross-appealed with regard to the right
to custody of the daughter and the pension splitting. A statement of
the grounds of Mrs Bock's appeal was, after an extension of the
time-limit, filed on 16 April 1982. Having appointed a new lawyer the
applicant filed a statement of the grounds of his appeal on
9 June 1982.
27. 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, who had been appointed on
22 May 1981 (see paragraph 24 above) 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. These challenges were both rejected: the applicant's
on 21 January 1983 and his wife's on 1 February 1983.
On 28 February 1983 the Düsseldorf Court of Appeal, following a
hearing of the parties on 21 February 1983, decided to hear the same
expert, which it did on 6 April 1983.
28. On 30 May 1983 the Court of Appeal dismissed both the appeal
and the cross-appeal. The Court stated that the expert medical
opinion showed that no doubts as to the applicant's legal capacity now
existed. It further considered it justified to give custody of the
daughter to the mother as the latter 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 need for medical treatment.
There had been reasons to doubt the applicant's capacity to take part
in the proceedings and these doubts could not solely be attributed to
his wife's allegations.
The judgment was served on the parties on 7 June 1983. The divorce
thereby became effective.
5. PROCEEDINGS BEFORE THE FEDERAL CONSTITUTIONAL COURT
(a) First complaint (11 March 1983 - 11 October 1983)
29. On 11 October 1983 the Federal Constitutional Court, sitting
as a panel of three judges, rejected a constitutional complaint
submitted by the applicant on 11 March 1983 against mainly the length
of the divorce proceedings partly as being inadmissible and partly as
offering no sufficient prospects of success. The Court stated that
there was nothing to show that any delays in the proceedings were not
justified by objective procedural requirements. Admittedly, an
avoidable delay was caused by the fact that the Family Court only
obtained an expert opinion after the Court of Appeal's decision of
29 September 1980 as the two courts had differing opinions as to the
need for an expert opinion and the binding nature of the decision for
the Family Court. However, as the Constitutional Court pointed out,
the Family Court had accepted the applicant's argument on the capacity
question. From this point of view, it would have meant delaying the
proceedings, had an expert opinion, which the Family Court considered
unnecessary, been obtained.
(b) Second complaint (4 July 1983 - 11 January 1984)
30. A further constitutional complaint submitted by the applicant
on 4 July 1983 against the final divorce judgment was rejected by the
Federal Constitutional Court on 11 January 1984, partly as being
inadmissible and partly as offering no prospects of success. As
regards the right to care for his daughter, this could no longer be
invoked as she had reached the age of majority. The pension splitting
ordered by the Court of Appeal gave rise to no misgivings under the
Constitution, either as regards its legal basis, the 1977 legislation,
or as regards the fact that, owing to doubts as to the applicant's
capacity to conduct legal proceedings, the divorce was pronounced only
after the entry into force of this legislation. The duration of the
proceedings had not infringed the applicant's fundamental rights. Nor
did the judgment impugned disclose an erroneous conception of the
fundamental rights alleged to be infringed. Nor had the applicant's
right to be heard in the proceedings (rechtliches Gehör) been
infringed.
PROCEEDINGS BEFORE THE COMMISSION
31. Mr Bock applied to the Commission on 2 July 1982. He
complained under Article 6 para. 1 (art. 6-1) of the Convention of the
length of the divorce proceedings. He also complained under this
provision that the proceedings were unfair. Moreover, he alleged,
under Article 8 of the Convention and Article 1 of Protocol No. 1
(art. 8, P1-1), a violation of his right to respect for his private life
and his possessions as a consequence of the court orders denying him
access to the matrimonial home, and under Article 8 para. 1 (art. 8-1)
that he was deprived of contact with his daughter.
32. By decision of 13 November 1986, the Commission declared the
application admissible in respect of the complaint made under
Article 6 para. 1 (art. 6-1) concerning the length of the divorce
proceedings. The other claims made by the applicant were all declared
inadmissible.
In its report adopted on 13 November 1987 (Article 31 of the
Convention) (art. 31), the Commission expressed the opinion, by
thirteen votes to one, that there had been a violation of
Article 6 para. 1 (art. 6-1). The full text of the Commission's opinion
and the dissenting opinion is reproduced in an annex to this judgment.
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
33. At the hearing of 21 November 1988 the Government maintained
the final submissions contained in its memorial, whereby it requested
the Court "to hold that the Federal Republic of Germany has not
breached the first sentence of Article 6 para. 1 (art. 6-1)".
AS TO THE LAW
I. ALLEGED BREACH OF ARTICLE 6 PARA. 1 (art. 6-1)
34. According to the applicant, the time taken by the German
courts to hear his divorce action was not "reasonable" within the
meaning of Article 6 para. 1 (art. 6-1) of the Convention, according to
which:
"In the determination of his civil rights and obligations ... everyone
is entitled to a ... hearing within a reasonable time by a ...
tribunal ..."
The Commission agreed with this view which was contested by the
Government.
A. Relevant period to be taken into consideration
35. The starting point of the relevant period to be taken into
consideration is 18 March 1974, the date on which the divorce petition
was lodged with the Düsseldorf Regional Court (see paragraph 8 above).
36. As far as the close of the relevant period is concerned, the
divorce proceedings proper came to an end on 7 June 1983, which was
the date of service of the final decree (see paragraph 28 above). The
applicant did, however, also bring two complaints before the Federal
Constitutional Court (see paragraphs 29 and 30 above). The first
complaint was brought against mainly the length of the divorce
proceedings; the second related to various matters ancillary to the
divorce judgment. They were instituted and decided on 11 March and
11 October 1983 and 4 July 1983 and 11 January 1984, respectively. The
question arises whether either of these proceedings is to be taken
into account in addition to the divorce proceedings themselves in
order to calculate the length of the time whose reasonableness falls
to be reviewed, thus bringing the overall period to an end
on 11 October 1983 or 11 January 1984, rather than 7 June 1983.
The Government maintained that Article 6 para. 1 (art. 6-1) of the
Convention does not apply to constitutional complaint proceedings
before the Federal Constitutional Court. They invited the Court to
reaffirm, on this point, its Buchholz judgment of 6 May 1981
(Series A no. 42, p. 15, para. 48), and not to follow its Deumeland
judgment of 29 May 1986 (Series A no. 100, p. 26, para. 77).
37. The Court has also had occasion to address itself to this
question in the Eckle judgment of 15 July 1982 (Series A no. 51,
pp. 17-18, para. 34, and pp. 34-35, paras. 76-79), the Erkner and Hofauer
judgment of 23 April 1987 (Series A no. 117, p. 46, para. 16, p. 50, para. 33
and pp. 61-62, para. 65), the Poiss judgment of 23 April 1987 (Series A
no. 117, p. 103, paras. 50-52) and, mutatis mutandis, the Ringeisen
judgment of 16 July 1971 (Series A no. 13, pp. 11-12, para. 23, p. 34,
paras. 79-80, and pp. 39-41, paras. 94-99), the Sramek judgment of
22 October 1984 (Series A no. 84, pp. 11-12, paras. 16-17, and p. 17,
para. 35) and the Ettl and Others judgment of 23 April 1987 (Series A
no. 117, p. 17, paras. 33-35). As a review of its case-law demonstrates,
there are circumstances in which proceedings before the Constitutional
Court of a State must be taken into the reckoning in determining the
relevant period. It has to be considered whether the Constitutional
Court's decision was capable of affecting the outcome of the case
which has been litigated before the ordinary courts. The question
whether Article 6 para. 1 (art. 6-1) is applicable to constitutional
complaint proceedings must accordingly be treated on the merits of
each case, in the light of all the circumstances.
It should be noted that the applicant himself asked that the duration
of the proceedings before the Federal Constitutional Court should be
left out of consideration because, according to him, his
constitutional complaints cannot be said to have involved lengthy
proceedings. Indeed, the Federal Constitutional Court dealt with the
two complaints lodged by Mr Bock in an expeditious manner; the first
complaint took seven months and the second six months and one week
(paragraphs 29 and 30 above).
The Court considers that the question whether those proceedings come
within the purview of Article 6 para. 1 (art. 6-1) does not need to be
resolved in order to decide the main issue, regard being had to all
the circumstances of the present case and the overall length of the
applicant's divorce proceedings. The Court will therefore confine its
examination to the period from 18 March 1974 to 7 June 1983.
B. Reasonableness of the length of the proceedings
38. The reasonableness of the length of proceedings must be
assessed in the light of the particular circumstances of the case and
having regard, inter alia, to the complexity of the case, the conduct
of the parties and of the authorities concerned and what is at stake
in the litigation (see the H v. the United Kingdom judgment of
8 July 1987, Series A no. 120-B, p. 59, para. 71).
The most striking feature of this case was the amount of time devoted
to a consideration of the applicant's mental capacity to take legal
proceedings. The German courts, as the Government pointed out, have
an ex officio duty under section 56 of the Code of Civil Procedure to
investigate a plaintiff's capacity to take proceedings; this being so
they have all the more reason to comply with the requirement of
Article 6 (art. 6) as to reasonable time (see the Martins Moreira
judgment of 26 October 1988, Series A no. 143, p. 17, para. 46). Also the
Code of Civil Procedure itself (section 272) provides generally for
proceedings to be expedited.
It is in the light of these factors that the Court will review the
conduct of the several stages of the proceedings.
1. Proceedings before the Düsseldorf Regional Court (18 March 1974 -
30 June 1977)
39. The divorce action before the Düsseldorf Regional Court,
brought by the applicant on 18 March 1974, lasted three years, three
months and approximately two weeks (see paragraphs 8-16 above). When
that court's jurisdiction in divorce matters ceased at the end of
June 1977, Mr Bock's divorce petition had not been examined as to its
merits; the Court had limited itself to an investigation of a question
going to admissibility, namely the applicant's capacity to sue.
Although Mr Bock's mental state had been investigated in
September 1973 by Dr Lemmer (see paragraph 8 above) whom the applicant
cited as a witness, the Regional Court ordered on 6 June 1974 that the
applicant be examined by another specialist, Dr Wegener. On
13 November 1974, Mr Bock made an application challenging Dr Wegener
for bias. On 21 November 1974, Dr Wegener reported to the court that
he considered the applicant to be suffering from a paranoid psychosis.
But less than three weeks later, on 9 December 1974, Mr Bock's
application challenging Dr Wegener was granted and another expert,
Dr Baucke, was asked to prepare an expert opinion (see paragraph 11
above). Mr Bock refused to be examined by Dr Baucke but his
objections against this expert were finally dismissed on appeal
on 26 August 1975. Five months later, Dr Baucke informed the Court
that he had been unable to examine the applicant. Owing to
inadvertence on the part of the court's registry, it was not until
May 1976 that the proceedings were continued (see paragraph 12 above).
40. On the assumption that doubts as to the state of Mr Bock's
mental health could be legitimately entertained, the Düsseldorf
Regional Court failed to ensure a speedy taking of evidence on this
issue.
Certainly, as the Government contended, it cannot be regarded as
arbitrary that the Regional Court considered it necessary to take
evidence as to the applicant's capacity to sue. The appointment of
Dr Baucke, after Dr Wegener had been successfully challenged, was
consonant with the provisions of the Code of Civil Procedure.
In the Court's view, the Düsseldorf Regional Court did, however,
persist too long in its attempts to have Dr Baucke accepted and ought
to have chosen another expert. This is particularly so in the light
of the Government's own argument to the effect that German law does
not provide any possibilities for coercive measures to oblige the
divorce petitioner to submit to a psychiatric examination. Moreover,
as early as 4 July 1975 the Düsseldorf District Court had dismissed
the guardianship application against Mr Bock (see paragraph 9 above).
41. As to the latter half of 1976, the Court notes that into this
period fell the second forced admission of Mr Bock into a mental
hospital (see paragraph 15 above). This measure was found by the
domestic courts to be unjustified. However much of a distraction it
may have been for the conduct of the divorce proceedings proper, it
did result in Mr Bock's incidentally receiving two further favourable
opinions on his mental health, both by Dr Roth, of which, so it
appears, no account was taken in the context of those proceedings.
Instead, the Düsseldorf Regional Court was seeking, at this time, to
hear Dr De Boor, who - it later transpired - had never examined the
applicant and Dr Firnhaber, at a time when the application for him to
be made Mr Bock's guardian had been dismissed.
In fact, by the time the Regional Court's jurisdiction ceased, no
examination of the merits of Mr Bock's divorce petition had taken
place, although attestations by two doctors of his soundness of mind
were in existence against one contrary diagnosis whose author had been
disqualified for bias. The Court therefore considers that the conduct
of the Düsseldorf Regional Court had the effect of delaying unduly
this stage of the proceedings. Certainly, some measure of
responsibility also rests with the parties. The applicant's frequent
changes of lawyer and his objections to certain judges cannot be
overlooked. Moreover, it appears, as the Government pointed out, that
the respondent to the divorce petition sought to prolong the
proceedings. However, these factors cannot exclude the Regional
Court's responsibility.
2. The subsequent proceedings following the reform in the law
(1 July 1977 - 7 June 1983)
(a) First set of proceedings (1 July 1977 - 9 January 1980)
42. The first proceedings before the newly established Family
Court lasted from 1 July 1977 to 5 January 1979 (see paragraph 17
above). There were hearings on 22 May 1978 and 13 November 1978. In
view of the delays which had already accumulated, it may be thought
that it would have been better at least to have advanced the second
hearing somewhat.
43. As regards the first appeal proceedings, which were pending
before the Düsseldorf Court of Appeal from 5 February 1979 to
9 January 1980 (see paragraphs 18-20 above), the Commission stated that
it was 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
(paragraph 102 of the report). The Government argued that the Court
of Appeal was entitled to do this under section 539 of the Code of
Civil Procedure as the first instance proceedings disclosed a serious
defect due to a failure to take the necessary evidence.
However, the Court of Appeal's judgment of 9 January 1980 is, to some
extent, based on evidence adduced in the context of the earlier
guardianship application which had been dismissed and on the opinion
of Dr Wegener against whom a challenge had previously been upheld by
the Regional Court. The question may legitimately be asked why the
capacity question could not have been determined by the Court of
Appeal.
Be that as it may, the Düsseldorf Court of Appeal was in the best
position to judge whether the case ought to be referred back to the
lower court under the relevant provision of German law.
(b) Second set of proceedings (18 March 1980 - 29 September 1980)
44. The second proceedings before the Family Court lasted from
18 March 1980 to 3 July 1980 (see paragraph 21 above). This in itself
was not a long period. However, the Family Court granted the divorce
without taking the evidence which had been required by the Court of
Appeal's earlier judgment. This led to further appeal proceedings
before the Düsseldorf Court of Appeal (see paragraph 22 above) and
thus occasioned further delay.
The Government argued that no State can guarantee that its judges will
not make mistakes. An error of law made by a judge can lead to an
appeal and thus extend the length of proceedings. If this in itself
were to give rise to a violation of the right to a hearing "within a
reasonable time", that would be tantamount to acknowledging that there
is a right to court decisions free of error.
In the Court's view, an error by a court leading to a delay in the
proceedings brought about by the need for appeal proceedings to
correct the error may, in combination with other factors, be taken
into account in the determination of the reasonableness of the
relevant period pursuant to Article 6 para. 1 (art. 6-1). In the
present case, the Family Court's failure to give effect to the Court
of Appeal's earlier decision was a factor which contributed to the
delay. However, the resulting proceedings before the Court of Appeal,
which took from 14 July 1980 to 29 September 1980, were not of
unreasonable duration.
(c) Third set of proceedings (15 October 1980 - 7 June 1983)
45. For a third time, therefore, the divorce action came before
the Family Court. The proceedings were pending before that court for
a period of one year, four months and about one week (15 October 1980 -
24 February 1982, see paragraphs 23-25 above). Much of this period
was taken up by the wife's challenges of the Family Court judge, one
of which succeeded on appeal and gave rise, in its turn, to an
unsuccessful constitutional complaint by the applicant. During these
proceedings also, the Family Court obtained the expert psychiatric
evidence which it had been required to do in pursuance of the appeal
court's judgment. In all the circumstances, therefore, the Court,
like the Commission, does not find this period to be excessive.
46. As to the third set of appeal proceedings before the
Düsseldorf Court of Appeal (25 February 1982 - 7 June 1983), the
Commission expressed doubts as to the reasonableness of this period,
particularly in view of the overall time already spent by the German
courts on the applicant's divorce petition.
The Court agrees with the Commission that there was by this stage an
even greater obligation on the Court of Appeal to act as speedily as
possible. A period of more than fifteen months - including ten which
were lost before the appeal court heard the expert psychiatrist -
therefore appears excessive.
C. Overall assessment
47. This case, viewed as a whole, differs from certain others
involving the "reasonable time" requirement of Article 6 para. 1
(art. 6-1). Here there was not so much a lack of judicial activity as
an excessive amount of activity which focused on the petitioner's
mental state. A decisive cause of the protracted length of the
proceedings was the doubt cast by Mr Bock's then wife on his capacity
to conduct legal proceedings.
In principle, national courts have to proceed on the basis that a
prospective or actual plaintiff is not suffering from mental
incapacity. Should any reasonable doubt arise in this regard, they
have to clarify as soon as possible the extent to which he is
competent to conduct legal proceedings. The relevance of this
principle in the present case is heightened by the availability in
German procedural law of special provisions enabling parties to
matrimonial causes to take part in proceedings even where their legal
capacity is found to be attenuated (see paragraph 10 above).
It may be, as the Government argued, that the rift between Mr and
Mrs Bock was so serious that it presented the German courts with very
difficult problems, but such a situation cannot absolve the courts
from their obligation to determine the capacity question as quickly as
possible. The Court emphasises that, whilst it does not question the
right of national courts to investigate a plaintiff's capacity to take
proceedings, arrangements must be made to ensure a swift determination
thereof.
48. In the present case, the Court notes first that, one after the
other, proceedings based on Mr Bock's alleged mental ill-health
failed. A guardianship application was dismissed in 1975; a further
action for a declaration of his incapacity was turned down in the
following year (see paragraph 10 above). Yet doubts still persisted
in the national courts as to his soundness of mind, although, by the
time of the final divorce judgment, there was a total of five reports
attesting Mr Bock's soundness of mind against one whose author had
been disqualified. Moreover, this case concerned matters central to
the enjoyment of private and family life, namely relations between
spouses, as well as between the parents and their children.
Finally, the Court cannot disregard the personal situation of the
applicant who, for some nine years, suffered by reason of the doubts
cast on the state of his mental health which subsequently proved
unfounded. This represented a serious encroachment on human dignity.
Conclusion
49. In all, the litigation extended over more than nine years. A
period of this length is abnormal for the circumstances. Although
some responsibility for the duration of the proceedings rests with the
parties, the applicant's divorce petition was not heard within a
reasonable time owing to the cumulative delays which are attributable
to the competent courts. Regard being had to the particular diligence
required in cases concerning civil status and capacity, there has
accordingly been a breach of Article 6 para. 1 (art. 6-1) of the Convention.
II. APPLICATION OF ARTICLE 50 (art. 50)
50. The applicant seeks just satisfaction under Article 50
(art. 50) which is in the following terms:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
A. Non-pecuniary damage
51. First of all, Mr Bock asks the Court to award to him such sum
as it may think fit ex aequo et bono in respect of non-material damage
flowing from the excessive length of his divorce proceedings. In the
Commission's view, too, Mr Bock should be compensated for the
prolonged uncertainty engendered by the problems raised in connection
with his mental capacity.
The Government contended that, as the applicant was largely to blame
for any delays, it was not appropriate to make an award under this
head; in any event, he had received compensation of DM 5,000 from the
North Rhine-Westphalian authorities in respect of unjustified police
action (see paragraph 15 above), and this already constituted adequate
satisfaction.
52. The compensation referred to by the Government was not
intended to indemnify the applicant for the hardship caused to him by
the excessive length of the proceedings but merely for certain
incidents not directly connected with the present case. The Court
considers that the excessive length of the proceedings, brought about
by the persistent doubts as to Mr Bock's mental health, was highly
detrimental to a person in the applicant's position. It is therefore
appropriate, on an equitable basis, to award him under this head the
amount of DM 10,000.
B. Pecuniary damage
53. In addition, Mr Bock seeks damages related to pension
splitting (Versorgungsausgleich), available following the 1977 reform,
maintenance payments and expenditure incurred in renting separate
accommodation for himself. The Government contended that no causal
connection existed between the pecuniary damage claimed and the length
of the divorce proceedings.
54. Even if the proceedings before the Düsseldorf Regional Court
had been conducted without delay, it is not established that the
divorce action would have been disposed of before the reform of the
divorce laws (see paragraph 16 above). Furthermore, had the
proceedings been concluded before the entry into force of the new
legislation it is by no means certain that Mr Bock would not have been
obliged to make financial provision for his former wife, or, in any
case, for the maintenance of the children of the marriage.
As to the amount representing expenditure by Mr Bock on rent here
again, it is not established that, even if it had been possible to
conclude the divorce proceedings somewhat earlier, similar costs would
not have been incurred in respect of the accommodation arrangements of
Mr Bock and his family.
It is therefore not appropriate to make an award under these heads.
C. Costs and expenses
55. Finally, Mr Bock claims an amount of DM 74,590.72 for legal
costs and expenses - a year-by-year list of which he also furnished
together with invoices in support - in respect of the proceedings
conducted by him between 1974 and 1987. Of this amount DM 26,544.57
related to the divorce proceedings proper. The Court will deal with
this claim in accordance with the criteria it has established (see,
among other authorities, the Belilos judgment of 29 April 1988,
Series A no. 132, p. 33, para. 79).
1. Costs incurred in the domestic proceedings
56. The Government pointed out that the greater part of these
costs did not result from the excessive length of the proceedings in
this case.
Certainly, the application brought on 4 March 1983 before the
Constitutional Court did essentially relate thereto (see paragraph 29
above). The costs incurred in that connection may be taken into
account but do not appear specifically from the itemised details
provided by the applicant. Nevertheless, the excessive length of the
proceedings must have involved the applicant in some additional
expenses, which the applicant is entitled to recover. The Court
awards him the sum of DM 10,000 in this respect.
2. Costs incurred in the European proceedings
57. Mr Bock represented himself in the proceedings before both the
Commission and the Court and was not afforded legal aid. He appeared
in person before the Commission and the Court on 13 November 1986 and
21 November 1988 respectively and incurred travelling and other
expenses, in respect of which he did not give precise figures. In
particular, he claimed expenses for photocopying and undertaking five
journeys to Strasbourg. On an equitable basis, it is appropriate to
award him the sum of DM 2,000 under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a breach of Article 6 para. 1 (art. 6-1)
of the Convention;
2. Holds that the defendant State shall pay to Mr Bock, for
non-pecuniary damage, DM 10,000 (ten thousand Deutschmarks) and, in
respect of costs and expenses, DM 12,000 (twelve thousand
Deutschmarks);
3. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 29 March 1989.
Signed: Rolv Ryssdal
President
Signed: Marc-André Eissen
Registrar
Full & Egal Universal Law Academy