AS TO THE ADMISSIBILITY OF
Application No. 14365/88
by Berta MAAS
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 7 May 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 September 1988
by Berta MAAS against the Federal Republic of Germany and registered
on 8 November 1988 under file No. 14365/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
The applicant, born in 1916, is a German national and
resident in Wiesbaden.
In September 1977 the applicant instituted divorce proceedings
before the Wiesbaden District Court (Amtsgericht). In these and the
following proceedings the applicant was represented by counsel.
According to S. 1565 and S. 1566 of the German Civil Code
(Bürgerliches Gesetzbuch) divorce may be granted if a marriage has
broken down. A marriage has broken down when the matrimonial
community of the spouses no longer exists and it cannot be expected
that it will be restored by the spouses. There is an irrefutable
presumption that the marriage has broken down if the spouses have
been living apart for a year and both spouses petition for divorce or
the respondent agrees to the divorce. Moreover, there is an
irrefutable presumption that the marriage has broken down if the
spouses have been living apart for three years.
SS. 622 et seq. of the German Code of Civil Procedure (Zivil-
prozeßordnung) govern the proceedings concerning divorce and related
family matters. S. 623 stipulates in particular that the court has to
conduct the proceedings concerning a divorce action and related family
matters (Folgesachen) as defined in S. 621 para. 1 (e.g. the right to
custody over the spouses' children, the right of access to their
children, maintenance claims, pension splitting, claims based on the
matrimonial regime such as apportionment of the increase in the
spouses' assets during the marriage (Zugewinnausgleich)) at the same
time, and, if divorce is to be granted, to take a combined decision
upon these matters (Verhandlungs- und Entscheidungsverbund). The
questions of custody rights and pension splitting are, ex officio,
taken into account, a decision concerning other family matters has to
be requested. S. 628 provides for limited exceptions from this rule
of combined proceedings, in particular in cases of unreasonable
hardships.
On 3 January 1978, in the context of the divorce proceedings,
the applicant instituted an action in two stages (Stufenklage),
requesting her husband to supply information about his assets at the
end of the marriage (Endvermögen) in order to prepare her claims for
apportionment of the increase in the spouses' assets during the
marriage (Zugewinnausgleich), and to pay the resulting amount. She
also requested adjustment of the spouses' pension rights (Versorgungs-
ausgleich).
On 22 August 1978 the Wiesbaden District Court dismissed the
applicant's divorce action. The Court, having heard the parties,
found that the applicant had failed to prove the conditions for
divorce under S. 1565 and S. 1566 of the German Civil Code. The
judgment was served upon the parties on 29 August 1978.
On 27 September 1978 the applicant lodged an appeal (Berufung)
with the Frankfurt Court of Appeal (Oberlandesgericht) against the
District Court's judgment and, after an extension of the time-limit,
she filed the reasons for the appeal on 27 November 1978.
On 6 February 1979 the Frankfurt Court of Appeal, having heard
the parties on 23 January 1979, quashed the judgment of 22 August 1978
and sent the case back to the District Court. The Court found that
the marriage had broken down within the meaning of S. 1565 para. 1 of the
Civil Code. The Court had in particular regard to the defendant's
submissions at the hearing according to which the matrimonial
community did no longer exist and could not possibly be restored.
Furthermore, the Court of Appeal considered that, though the defendant
had various health problems and, in particular, as a Roman Catholic
wished to continue the marriage, the divorce would not entail any
undue hardships requiring the maintenance of the marriage under
S. 1568 of the Civil Code. In this respect, the Court also noted that
the period of five years under S. 1568 para. 2 of the Civil Code for
maintaining a marriage had almost expired. The Court of Appeal did
itself not grant divorce on the ground that other matters related to
divorce (Scheidungsfolgesachen) were still pending before the District
Court.
On 29 November 1979 the Wiesbaden District Court granted
divorce of the applicant's marriage. It also decided upon the
adjustment of the spouses' pension rights in that, under the German Old
Age Pension Scheme, certain pension rights were created for the
applicant to the debit of her divorced husband. These main divorce
proceedings were finally terminated on 31 October 1980.
In March, April, May and June 1980, in the proceedings
concerning the apportionment of the increase in the spouses' assets,
the applicant repeatedly requested the Wiesbaden District Court to fix
a date for an oral hearing.
In July 1980 the applicant complained that no hearing had been
fixed in the meantime and that the Court was apparently biased. In a
note of 22 August 1980 the competent judge at the Wiesbaden District
Court declared that he stepped down as being biased. This decision
was rejected by the Wiesbaden Regional Court (Landgericht) on 26 August
1980. However, on 22 September the applicant confirmed that she had
intended to challenge the judge concerned. In October 1980 the case
was assigned to another judge at the District Court.
On 7 November 1980 the Wiesbaden District Court resumed the
proceedings, which at that stage concerned in particular the question
of the parties' matrimonial regime, and then held a hearing on
24 February 1981.
On 31 March 1981, in a further hearing before the District
Court, the defendant, upon the Court's order of 17 March 1981, made a
statutory declaration (eidesstattliche Versicherung) as to the
correctness of his list of assets at the end of the marriage (1
September 1977) filed with the Court on 2 March 1981 and he amended
this certified list. The Court fixed 24 April as a date for the next
hearing, when the defendant was supposed to give an affidavait as
regards the above amendments.
At the hearing of 24 April 1981, the defendant's counsel
informed the Court that his client could not be present due to
illness. The hearing was adjourned. In June 1981, upon its inquiry,
the Court was informed that the defendant was still ill. On 5 August
1981 the applicant's counsel informed the Court that he had seen the
applicant in other court proceedings.
On 5 September the Court fixed 13 October as the date for the
next hearing. At that hearing the defendant gave the affidavit in
question.
At the next hearing on 17 November 1981 the applicant,
having calculated on the basis of the defendant's information an
overall claim for apportionment of DM 584,883 requested the District
Court to order the defendant to pay a partial amount of DM 200,000.
In his memorandum in reply of 17 December 1981, the defendant
requested the Court to dismiss the action and lodged counter-claims,
namely for a declaratory judgment that the applicant had no further
claims for apportionment and for a decision to order her to supply
information about her assets at the end of the marriage.
On 29 December 1981, the Wiesbaden District Court, noting
these submissions, instructed the parties to give certain information
and ordered that evidence be taken as regards the increase in value of
the defendant's real estate at Heddesheim, and on the question whether
the defendant had transferred some property in Heidelberg without any
or any appropriate payment.
On 17 March 1982 the District Court appointed the experts
to estimate the value of the defendant's real estate at Heddesheim.
On 27 September 1982 the expert S submitted his opinion. The
defendant accepted the opinion in general, whereas the applicant
lodged objections in November 1982. The expert S commented upon the
applicant's submissions on 23 February 1983.
On 24 August 1983 the District Court informed the parties
that further proceedings would require the applicant's statements as
to her assets at the beginning and end of the marriage. In any event
the case could be set aside, as the parties had not pursued it for
over six months.
On 27 October 1983 the District Court fixed 29 November as
the date for the next hearing. At that date the Court heard
witnesses, in particular on the issue of the transfer of property.
The applicant commented upon the taking of evidence on 27 January
1984. On 14 February 1984 the District Court heard the expert S about
the applicant's objection to his expert opinion. Furthermore the
applicant filed a declaration of her assets at the end of the
marriage.
On 14 March 1984 the defendant requested the District Court to
order the applicant to make a statutory declaration that her
declaration concerning her assets was correct and complete.
On 30 March 1984 the Wiesbaden District Court, in a partial
judgment, ordered the applicant to provide the defendant with a list of
her assets at the end of the marriage and supporting documents. The
Court considered that the applicant had failed properly to specify her
assets. The judgment was served upon the parties on 11 April 1984.
On 10 May 1984 the applicant lodged an appeal; she filed the
reasons after an extension of the time-limit on 10 July 1984.
On 8 November 1984 the Frankfurt Court of Appeal, having heard
the parties on 26 October 1984, quashed the judgment of 30 March 1984
and sent the case back to the District Court. The Court of Appeal
found that the defendant's claim for information had already been
fulfilled and, therefore, the defendant, in his memorandum of 14 March
1984, had requested a statutory declaration as to the correctness of the
applicant's declaration.
On 30 November 1094 the files were returned to the District Court.
On 10 July 1985 the Wiesbaden District Court, following a
further hearing on 16 April, ordered the defendant to pay the
applicant DM 39,840 with interest. It dismissed the remainder of
claims. The Court found that the parties' contract of 1971, where they
had agreed upon the matrimonial regime with an apportionment of the
increase of the spouses' assets at the end of marriage (Zugewinnge-
meinschaft), was valid, in particular that the defendant had not been
incapable of entering into legal transactions (geschäftsunfähig) at
the time in question. The Court estimated the value of the spouses'
assets on the basis of the parties' submissions and the evidence
taken, in particular the opinion of the expert S and the testimony of
the witnesses. Furthermore, the Court had regard to a further expert
opinion, which had been prepared by the expert Sch under the terms of
a friendly settlement concluded by the parties on 22 March and 2 June
1982 in the course of maintenance proceedings. The opinion concerned
the value of two houses, in respect of which the parties had exchanged
their ownership in the friendly settlement.
The judgment was served upon the defendant on 16 July and upon
the applicant on 17 July 1985. The applicant lodged an appeal with
the Frankfurt Court of Appeal on 8 August and filed the reasons on
11 October 1985. The defendant appealed on 16 August and submitted the
reasons for his appeal on 14 October 1985.
On 7 January 1986 the Frankfurt Court of Appeal, having heard
the parties, quashed the judgment of 10 July 1985 and sent the case
back to the Wiesbaden District Court. The Court of Appeal found that
the proceedings before the District Court were marred by an essential
defect within the meaning of S. 539 of the German Code of Civil
Procedure (Zivilprozeßordnung), in that the District Court had failed
to decide upon the defendant's counter-claim for a declaration that
the applicant had no further claims for apportionment of assets. The
Court of Appeal could not itself decide upon this issue as the
proceedings were to this extent still pending before the District
Court. It considered that the efficiency of the proceedings could not
justify an exception as the District Court ought to investigate
further and possibly take evidence the value of particular plots of
land. The Court of Appeal also instructed the District Court to
examine whether the opinion of the expert Sch had properly estimated
the value of the two houses which had been the subject of the friendly
settlement of 1982.
On 3 July 1986 the files were sent back to the Wiesbaden
District Court.
On 19 August 1986 the applicant requested the Presidency
(Präsidium) of the Wiesbaden District Court to determine the competent
judge. On 1 September 1986 the case was assigned to Judge H.
In the next oral hearing of 4 November 1986 the Wiesbaden
District Court made proposals as to a friendly settlement between the
parties. On 25 November 1986 the Court postponed a further hearing in
order to allow the applicant to submit observations on the friendly
settlement proposals, which had been accepted by the defendant on
21 November 1986. The applicant refused the proposed friendly
settlement and submitted in particular that she had already refused a
similar proposal in the appeal proceedings on 7 January 1986.
At the hearing on 9 December 1986 the Wiesbaden District Court
decided that expert evidence should be taken on the value of several
plots of land inherited by the defendant and of a plot of land in
Heidelberg. The parties were invited to propose an expert. The Court
also requested the parties to submit supplementary information
concerning their assets.
On 30 March 1987 the Wiesbaden District Court granted a
request of the Wiesbaden Public Prosecutor's Office (Staatsanwalt-
schaft) for transmission of the files of the civil proceedings. The
request had initially been refused for lack of motivation. The
files were sent back after two months.
On 29 June 1987 the District Court fixed 30 September as the
time-limit for both parties to submit the information as ordered on
9 December 1986. The parties were also informed that their non-
compliance with the court decision for a period of over six months
could be considered as loss of interest in continuing the proceedings.
On 22 December 1987 the applicant stated that her observations
previous to the decision of 9 December 1986 had already contained the
relevant information.
On 5 April 1988 Judge N at the Wiesbaden District Court, the
successor in office of Judge H, upon further submissions of the
parties, amended the decision of 9 December 1986, requested the
applicant to comment upon the defendant's submissions and ordered the
parties to pay advance fees for the preparation of an expert opinion
before 31 May 1988. Furthermore, the Court asked the Heidelberg
Chamber of Industry and Commerce about experts in the valuation of
real estate. The Chamber replied on 16 April.
In June 1988 the applicant submitted her comments and paid the
advance fees.
On 11 July 1988 the District Court amended the decision of
9 December 1986 in specifying the plots of land to be valued by the
expert, and nominated the expert H. On 29 July the expert, having
regard to his workload, requested the District Court to appoint
another expert.
On 29 August 1988 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) dated 12 February 1988 about the
length of the proceedings on the ground that it offered no prospect of
success. The Constitutional Court, having examined the separate sets
of proceedings on the basis of the case-file, considered that,
although the overall length of the proceedings was considerable, the
applicant's right to a determination of her case within a reasonable
time had not been violated.
The Constitutional Court found in particular that the District
Court had not sufficiently expedited the proceedings in the period
from 3 January 1978 until November 1980. This might have been due to
the reform of the law on marriage and family of 1976 which entered
into force on 1 January 1977 and entailed problems in the transition
period, and to the fact that the main divorce proceedings had only
been terminated on 31 October 1980. Moreover, until July 1980 the
applicant had only once, namely on 24 May 1978, requested the District
Court to speed up the proceedings. However, since November 1980 the
length of the proceedings had no longer been caused by the conduct of
the Courts. In this respect, the Constitutional Court noted that
extensive expert opinions had been necessary, that the parties had not
complied with court orders in time and that they had lodged appeals
against two judgments of the District Court. The Constitutional Court
considered that the applicant had sometimes, when she considered the
court orders to be incorrect, failed to react and submit observations
immediately. Furthermore, the Constitutional Court observed that the
risk that decisions of first instance courts are quashed in appeal
proceedings and that the case is sent back is inherent in the system
of the Civil Code and not objectionable under constitutional law.
On 26 September 1988 the District Court appointed another
expert, who also informed the Court that he was overburdened, and sent
the files back on 19 October 1988. On 31 October the District Court,
having first consulted the expert Sch, appointed him to prepare the
opinion in question.
On 4 January 1989 the applicant increased her claim for
apportionment to DM 430 000.
On 16 March 1989, upon the District Court's inquiry, the
expert Sch stated that he would deliver his opinion by mid-April. On
11 May, upon the Court's further inquiry, he stated that the estate
concerned could not be inspected on two dates in March and May due to
the owner's absence. He requested instructions upon how to continue.
On 18 May 1989 the Court requested the parties to comment upon the
expert's statements. The proceedings are still pending.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the
Convention about the length of the proceedings before the Wiesbaden
District Court.
She considers in particular that the proceedings were
unreasonably delayed by the conduct of the Wiesbaden District Court
which failed efficiently to examine the parties' submissions and to
take evidence as necessary. Moreover, the proceedings had essential
defects, such as the judgment of 30 March 1984. She also submits that
she requested the District Court to expedite the proceedings in May
1978; however, following the Court's judgment of 22 August 1978
dismissing her divorce action, she was involved in appeal proceedings
in this respect and could not separately pursue the claim concerning
the apportionment of the spouses' assets.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 September 1988 and
registered on 8 November 1988.
On 14 April 1989 the Commission decided to invite the
respondent Government, pursuant to Rule 42 para. 2 ((b) of its Rules
of Procedure, to submit written observations on the admissibility and
merits of the application.
The Government's observations were submitted after an extension
of the time-limit on 11 August 1989. The applicant's observations in
reply of 29 September 1989 were received on 3 October 1989.
By letter of 3 November 1989 the Government requested a
time-limit of six weeks for the submission of further observations.
The President of the Commission acceded to this request.
The Government's further observations were dated 15 December
1989. The applicant replied on 2 January 1990.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1)
of the Convention that, in her divorce case, she has not received a fair
hearing within a reasonable time.
Article 6 para. 1 (Art. 6-1), first sentence, states:
"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
The Government do not raise objections against the
admissibility of the applicant's complaint about the length of the
proceedings though they make various submissions on the merits of the
case.
The Commission finds that the applicant's complaint about the
length of her divorce proceedings raises questions of fact and law
which are of such complexity that their determination requires an
examination of the merits. The application is therefore not
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention and no other ground for declaring it
inadmissible has been established.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy