EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 14365/88
Berta MAAS
against
the FEDERAL REPUBLIC OF GERMANY
REPORT OF THE COMMISSION
(adopted on 31 May 1991)
TABLE OF CONTENTS
PAGE
I. INTRODUCTION
(paras. 1 - 17) ....................................... 1 - 2
A. The application
(paras. 2 - 3) ............................... 1
B. The proceedings
(paras. 4 - 12) .............................. 1 - 2
C. The present Report
(paras. 13 - 17) ............................. 2
II. ESTABLISHMENT OF THE FACTS
(paras. 18 - 75) ..................................... 3 - 10
A. The particular circumstances of the case
(paras. 18 - 68) ............................. 3 - 9
B. Relevant domestic law
(para. 69 - 75) .............................. 9 - 10
III. OPINION OF THE COMMISSION
(paras. 76 - 93) .................................... 11 - 13
A. Complaint declared admissible
(para. 76) ................................... 11
B. Point at issue
(para. 77) ................................... 11
C. Article 6 para. 1 of the Convention
(paras. 78 - 93) ............................. 11 - 13
APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 14
APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 15
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
2. The applicant, born in 1951, is a German national and resident
in Wiesbaden.
The application is directed against the Federal Republic
of Germany whose Government were represented by their Agent,
Mr. J. Meyer-Ladewig, Ministerialdirigent, of the Federal Ministry
of Justice.
3. The application concerns complaints under Article 6 para. 1
of the Convention about the length of civil proceedings concerning a
matter related to the applicant's divorce action, i.e. the
apportionment of the increase in the spouses' assets during their
marriage. The proceedings started in January 1978 and have not yet
been completed.
B. The proceedings
4. The application was introduced on 23 September 1988 and
registered on 8 November 1988.
5. On 14 April 1989 the Commission decided to invite the
respondent Government to submit their observations in writing on the
admissibility and merits of the application.
6. 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.
7. 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.
8. On 7 May 1990 the Commission declared the application
admissible.
9. The text of this decision was communicated to the parties on
1 August 1990. Additional observations were submitted by the
Government on 21 September 1990. The applicant replied on
31 October 1990.
10. On 7 November 1990 the Commission decided to refer the case to
the First Chamber.
11. Further submissions were made by the Government on
2 November 1990. The applicant commented on 26 November 1990 and
submitted additional observations on 3 January 1991.
12. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed
itself at the disposal of the parties with a view to securing a
friendly settlement of the case. Consultation with the parties took
place between 3 May 1990 and 3 January 1991. The Commission now finds
that there is no basis on which a friendly settlement can be effected.
C. The present Report
13. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
MM. F. ERMACORA, Acting President of the First Chamber
J. A. FROWEIN
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
J. C. SOYER
H. DANELIUS
Sir Basil HALL
MM. C. L. ROZAKIS
L. LOUCAIDES
A. V. ALMEIDA RIBEIRO
B. MARXER
14. The text of this Report was adopted on 31 May 1991 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
15. The purpose of the Report, pursuant to Article 31 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 State concerned of its
obligations under the Convention.
16. 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.
17. 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
18. In 1977 the applicant instituted divorce proceedings before
the Wiesbaden District Court (Amtsgericht). She also requested
payment of a monthly alimony and adjustment of the spouses' pension
rights (Versorgungsausgleich). In these and the following proceedings
the applicant was represented by counsel.
19. On 4 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.
20. On 22 August 1978 the Wiesbaden District Court dismissed the
applicant's divorce action. The Court, having heard the parties in
October and December 1977 and July 1978, found that the applicant had
failed to prove the conditions for divorce under S. 1565 and S. 1566
of the German Civil Code (Bürgerliches Gesetzbuch). The judgment was
served upon the parties on 29 August 1978.
21. 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.
22. 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 of Appeal
found that the marriage had broken down within the meaning of S. 1565
para. 1 of the Civil Code. It 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. It did not itself grant
divorce on the ground that other matters related to divorce
(Scheidungsfolgesachen), i.e. claims for alimony, apportionment of the
increase in the spouses' assets and adjustment of their pension
rights, were still pending before the District Court.
23. 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.
24. 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.
25. On 23 July 1980 the applicant complained that no hearing had
been fixed in the meantime and that the Court was apparently biased.
26. In a note of 22 August 1980 the competent Judge 0 at the
Wiesbaden District Court declared his withdrawal from the case on the
ground of bias. This withdrawal was declared inadmissible by the
Wiesbaden Regional Court (Landgericht) on 26 August 1980.
27. On 22 September 1980 the applicant confirmed that she had
intended to challenge the Judge O. In October 1980 the case
was assigned to Judge R at the District Court.
28. 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.
29. On 2 March 1981 the defendant filed a list of his assets at
the end of the marriage (1 September 1977). On 31 March 1981 the
District Court questioned the defendant upon his assets. The Court
fixed 24 April as a date for the next hearing, when the defendant was
supposed to give an affidavit (eidesstattliche Versicherung) as to the
correctness of his list of assets.
30. 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
defendant in other court proceedings.
31. On 5 September 1981 the Court fixed 13 October as the date for
the next hearing. At that hearing the defendant gave the affidavit in
question.
32. 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 that she had to supply
information about her assets at the end of the marriage.
33. On 29 December 1981 the Wiesbaden District Court, noting
these submissions, 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.
34. On 22 March 1982 the District Court sent the files to the
expert S who had been appointed to estimate the value of the
defendant's real estate at Heddesheim.
35. On 27 September 1982 the expert S submitted his opinion. On
20 October 1982 the defendant accepted the opinion in general, whereas
the applicant lodged objections on 22 November 1982. The expert S
filed his comments upon the applicant's submissions on 23 February
1983. On 3 March 1983 the Court sent these comments to the parties and
informed them that it intended to summon them and the expert for a hearing.
36. 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 discontinued, as the parties had not pursued it for
over six months.
37. On 27 October 1983 the District Court fixed 29 November 1983
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.
38. On 14 February 1984 the District Court heard the expert S
about the applicant's objections to his expert opinion. Furthermore
the applicant filed a declaration of her assets at the end of the
marriage.
39. On 14 March 1984 the defendant requested the District Court to
order the applicant to give an affidavit that her declaration
concerning her assets was correct and complete.
40. 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.
41. On 10 May 1984 the applicant lodged an appeal. She filed the
reasons after an extension of the time-limit on 10 July 1984.
42. 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 District Court had failed to consider the defendant's
request of 14 March 1984 for an affidavit as to the correctness of the
applicant's declaration of her assets.
43. On 30 November 1984 the files were returned to the District
Court. The parties made further submissions in October 1984 and
February 1985. Moreover, the applicant, having consulted the case
files, filed additional observations concerning the matrimonial regime
and her claim for apportionment on 11 April 1985.
44. The District Court held a further hearing on 16 April 1985.
The defendant was given the opportunity to reply to the applicant's
submissions of 11 April, and 10 July 1985 was fixed as date for
passing the judgment. The applicant made further submissions on 26
April and 28 June 1985, which had not been authorised by the Court.
45. On 10 July 1985 the Wiesbaden District Court ordered the
defendant to pay the applicant DM 39,840 with interest. It dismissed
the remainder of the applicant's claims.
46. The Court found in particular that a contract between the
parties of 1971, where they had agreed upon the matrimonial regime
with an apportionment of the increase of the spouses' assets at the
end of the marriage (Zugewinngemeinschaft), was valid. The defendant
had not been incapable of entering into legal transactions (geschäfts-
unfähig) at the time in question.
47. Moreover, 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 an 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.
48. 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.
49. 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 on the value of particular plots of
land. The Court of Appeal also instructed the District Court to
examine whether the expert Sch had properly estimated the value of the
two houses under the friendly settlement of 1982.
50. On 3 July 1986 the files were sent back to the Wiesbaden
District Court.
51. 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.
52. In the next oral hearing of 4 November 1986 the Wiesbaden
District Court made proposals as to a friendly settlement of the case
on the basis of an overall payment of DM 165,000 to the applicant.
The defendant accepted on 21 November 1986. On 25 November 1986 the
Court postponed a further hearing in order to allow the applicant to
comment upon the friendly settlement proposals. The applicant
refused the proposals and submitted in particular that she had already
refused a similar proposal in the appeal proceedings on 7 January
1986.
53. 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 within
three weeks. The Court also requested the parties to submit
supplementary information concerning their assets.
54. On 22 January 1987 the Wiesbaden Public Prosecutor's Office
(Staatsanwaltschaft), in the context of criminal proceedings
instituted against the applicant upon the defendant's request,
requested the Wiesbaden District Court to transmit the files relating
to the apportionment proceedings. On 6 February 1987 the District
Court informed the Public Prosecutor's Office that such a request
should be reasoned. The Court also reminded the parties of its
decision of 9 December 1986.
55. On 19 February 1987 the Wiesbaden Public Prosecutor's Office
renewed its request for transmission of the files and gave brief
reasons therefore. On 30 March 1987 the District Court granted the
request. The files were sent back after two months.
56. On 29 June 1987 the District Court fixed 30 September 1987 as
the time-limit for both parties to submit the information as ordered
on 9 December 1986. The parties were also informed that in case of
non-compliance the case would have to be decided on the basis of their
previous submissions. Furthermore, 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.
57. The defendant filed submissions on 6 October 1987. On 22
December 1987 the applicant stated that her observations submitted
before the decision of 9 December 1986 had already contained the
relevant information.
58. On 5 April 1988 Judge N at the Wiesbaden District Court, the
successor in office of Judge H, 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 1988. In
June 1988 the applicant submitted her comments and paid the advance fees.
59. 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 appointed the expert H. On 29 July 1988 the expert,
having regard to his workload, requested the District Court to appoint
another expert.
60. 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.
61. 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 had 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.
62. 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.
63. 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 1988 the District
Court, having first consulted the expert Sch, appointed him to prepare
the opinion in question.
64. On 4 January 1989 the applicant increased her claim for
apportionment to DM 430,000.
65. 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 1989, upon the Court's further inquiry, he stated that it had
not been possible to inspect the estate concerned 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.
66. On 5 December 1989 the expert Sch delivered his opinion, which
he explained at a hearing before the District Court on 19 April 1990.
67. On 13 July 1990 the Wiesbaden District Court ordered the
defendant to pay the applicant DM 131,930.83 with interest. It
dismissed the remainder of the applicant's claims amounting to a
total of DM 430.000 as being ill-founded. The question whether the
applicant's claims as increased in January 1989 were time-barred
could, therefore, be left open. The Court rejected the applicant's
request to pass a judgment by default as regards the defendant's
counter-claims.
68. On 14 August 1990 the applicant lodged an appeal with the
Frankfurt Court of Appeal. She filed the reasons for her appeal on 14
November 1990. The proceedings are still pending.
B. Relevant domestic law
69. 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.
70. In the case of divorce of a marriage with the matrimonial
regime of community of the increase of assets (ehelicher Güterstand der
Zugewinngemeinschaft), the apportionment of the increase in the
spouses' assets during the marriage (Zugewinnausgleich) is regulated
by SS. 1373 to 1390 of the Civil Code.
71. S. 1373 of the Civil Code defines the increase as the amount
by which the assets owned by a spouse at the end of a marriage exceed
the amount owned at the beginning. S. 1374 and S. 1375 further define
the assets at the beginning and the end of a marriage, respectively,
in particular as regards liabilities, inheritance or donations. For
calculation purposes, the value at the beginning of the marriage is
relevant in respect of the assets owned at the beginning of the
marriage, the value at the end of the marriage in respect of the
assets owned at the end of the marriage (S. 1376).
72. Pursuant to S. 1379 of the Civil Code, a spouse is obliged to
furnish information to the other spouse about the amount of his/her
assets at the end of the marriage, including possibly an inventory.
73. S. 254 of the German Code of Civil Procedure (Zivilprozeß-
ordnung) concerns actions in two stages (Stufenklage). It stipulates
that where a plaintiff files an action for rendering of accounts
(Rechnungslegung) or submission of an inventory of assets (Vorlage
eines Vermögensverzeichnisses) or submission of an affidavit (Abgabe
einer eidesstattlichen Versicherung), combined with an action for
payment or surrender of whatever the defendant owes him under the
legal relationship concerned, the specification of the plaintiff's
claims may be reserved until the accounts have been rendered, or the
inventory or affidavit has been submitted.
74. SS. 622 et seq. of the Code of Civil Procedure govern the
proceedings concerning divorce and related family matters
(Folgesachen).
75. S. 623 of the Code of Civil Procedure stipulates in particular
that the court has to conduct the proceedings concerning a divorce
action and related family matters 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.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
76. The Commisson has declared admissible the applicant's
complaint under Article 6 para. 1 (Art. 6-1) of the Convention about
the length of civil proceedings concerning a matter related to her
divorce action, namely the apportionment of the increase in the
spouses' assets during their marriage.
B. Point at issue
77. Accordingly, the issue to be determined is whether there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
C. Article 6 para. 1 (Art. 6-1) of the Convention
1. General considerations
78. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that, in her divorce case, she has not received a
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."
79. The applicability of Article 6 para. 1 (Art. 6-1) to the present
proceedings is not in dispute between the parties. The Commission
must examine the length of the proceedings in the light of the
case-law of the European Court of Human Rights and the Commission.
2. Period to be considered
80. The starting point of the period the reasonableness of which
is at issue is 4 January 1978 when the applicant, in the context
of her divorce proceedings, instituted her action in two stages
concerning her claim for apportionment of the increase in the spouses'
assets during the marriage. These proceedings have not yet been
terminated. They have so far lasted for more than thirteen years.
3. Reasonableness of the length of the proceedings
81. The parties discussed the application of the different criteria
in the case-law of the Convention organs, such as the complexity of
the case, the conduct of the parties and of the authorities concerned.
82. The Commission recalls that the reasonableness of the length
of the proceedings must be assessed in the light of the particular
circumstances of the case. In the present case which has not yet been
terminated after over thirteen years those circumstances call for a
global assessment (cf., mutatis mutandis, Eur. Court H.R., Obermeier
judgment of 28 June 1990, Series A No. 179, p. 23, para. 72).
83. The Commission finds that the proceedings at issue were of
some complexity. They concerned the applicant's claim for
apportionment of the increase in the spouses' assets during their
marriage, and, as from December 1981, similar counter-claims lodged by
the defendant. They involved clarification of the spouses'
matrimonial regime, and the taking of evidence as regards various
factual matters related to the calculation of the spouses's assets at
the beginning and at the end of their marriage.
84. Considerable delays of the proceedings cannot be attributed to
the parties. In particular, the Government did not show that the
applicant's conduct disclosed a lack of due diligence.
85. As regards the conduct of the judicial authorities, the
Commission notes that the first decision on the merits of the
applicant's action for apportionment of the increase in the spouses'
assets during their marriage was taken by the Wiesbaden District Court
on 10 July 1985, i.e. seven years and six months after she had filed
this action (paras. 19 - 47). Following appeal proceedings from
8 August 1985 until 3 July 1986 (paras. 48 - 49), the second set of
proceedings before the Wiesbaden District Court lasted until 13 July
1990 (paras. 50 - 67), thus another four years. Ensuing appeal
proceedings have not yet been terminated (para. 68).
86. At the outset, the proceedings stagnated remarkably long from
29 November 1979, when the Wiesbaden District Court passed the
judgment in the main divorce proceedings, until 7 November 1980, when
the Court fixed 24 February 1981 as date for the next hearing. In
this connection the Commission notes the findings of the Federal
Constitutional Court (para. 61).
87. In the ensuing proceedings, the Wiesbaden District Court
failed to take a systematic and concentrated approach to the items in
dispute between the parties.
88. Thus, on 29 December 1981 the Wiesbaden District Court, following
five hearings in 1981, decided on the taking of evidence in respect of
some matters in dispute between the parties. This first decision had to
be amended on 9 December 1986 and again on 5 April and 11 July 1988.
89. The District Court started in 1982 with the taking of expert
evidence. On 3 March 1983 it informed the parties that it intended to
hold a hearing with the expert. However, the Court did not pursue the
case until 24 August 1983, when it informed the parties that further
proceedings would require the applicant's statements as to her assets,
a matter which had been raised by the defendant already in November
1981, and that the case could be discontinued. On 27 October 1983 the
District Court nevertheless continued the proceedings in order to hear,
one month later, witnesses on further issues mentioned in its decision
of 29 December 1981. The expert was only heard on 14 February 1984.
90. Moreover, the District Court twice committed procedural errors
which had to be corrected in appeal proceedings. In its partial
judgment of 30 March 1984 the District Court ordered the applicant to
provide the defendant with a list of her assets at the end of the
marriage. The Court thereby failed to consider the parties' recent
submissions and request, which entailed appeal proceedings before the
Frankfurt Court of Appeal and delayed the proceedings for eight
months. In its judgment of 10 July 1985 the District Court failed to
decide upon the defendant's counter-claims. The result was further
appeal proceedings which caused a delay of about one year.
91. As regards the second set of proceedings before the Wiesbaden
District Court, the Commission notes in particular that following the
Federal Constitutional Court's decision of 29 August 1988 which
addressed the considerable length of the proceedings at that stage it
does not appear that any particular efforts were made by the District
Court to terminate the proceedings. Rather, considerable delays
occurred in the appointment of an expert, and, eventually, in the
submission of his opinion more than one year after his appointment.
92. The Commission finds that, in these circumstances, a length of
the proceedings of over thirteen years without having reached a final
decision exceeds a reasonable time.
4. Conclusion
93. The Commission unanimously concludes that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the First Chamber Acting President of the First Chamber
(M. DE SALVIA) (F. ERMACORA)
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
23 September 1988 Introduction of the application
8 November 1988 Registration of the application
Examination of Admissibility
4 April 1989 Commission invites the respondent
Government to submit observations
on the admissibility and merits
11 August 1989 Submission of Government's observations
29 September 1989 Submission of applicant's observations
in reply
15 December 1989 Further observations submitted by
the Government
2 January 1990 Applicant's further observations in
reply
7 May 1990 Commission's decision to declare the
application admissible
Examination of the merits
21 September 1990 Additional observations submitted
by the Government
6 October 1990 Commission's consideration of the
state of proceedings
31 October 1990 Applicant's observations in reply
7 November 1990 Commission's decision to refer the
case to its First Chamber
8 November 1990 Government's further observations
26 November 1990 Applicant's reply
5 December 1990 Commission's consideration of the
state of proceedings
3 January 1991 Further submissions by the applicant
17 April 1991 Commission's consideration of the
state of proceedings
31 May 1991 Final vote and adoption of the Report
Full & Egal Universal Law Academy