AS TO THE ADMISSIBILITY OF
Application No. 19322/92
by M.L.
against Germany
The European Commission of Human Rights sitting in private on
31 March 1993, the following members being present:
MM. F. ERMACORA, Acting President of the First Chamber
J.A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber,
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 October 1991
by M.L. against the Federal Republic of Germany and registered on 10
January 1992 under file No. 19322/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen born in 1945. He is managing
director of an association and as a second occupation is practising as
a lawyer in Heidelberg.
The applicant complains of maintenance proceedings in a family
matter and alleges that, contrary to the documentary evidence and his
undisputed submissions, the domestic courts based their decision on the
incorrect assumption that apart from a fixed income as the manager of
a professional association, his earnings as a practising lawyer amount
to at least DM 1,000 per month after deduction of taxes.
According to the documents submitted, the Cologne Court of Appeal
(Oberlandesgericht) confirmed on 13 November 1990 the judgment given
against the applicant by the Bonn District Court (Amtsgericht)
according to which the applicant has to pay maintenance to his ex-wife
and his daughter.
When fixing the amount of maintenance both courts took into
account that the applicant's income as a practising lawyer amounted to
at least DM 1,000 per month. It is inter alia stated in the judgment
of the appellate court that despite the court's written and oral
insistence the applicant had failed to give a complete and reliable
account of his income. He had only admitted at a hearing on
23 October 1990 that the income from his law practice might amount to
from DM 10,000 to DM 15,000 per year before taxes. He had alleged in
this context that costs and expenses had to be deducted from this
income. These statements were however considered to be insufficient
and the court concluded that the applicant's net income amounted to at
least DM 1,000 per month.
The applicant's constitutional appeal was rejected by the Federal
Constitutional Court (Bundesverfassungsgericht) on 24 April 1991 as
being clearly ill-founded.
It is stated in the decision that although the appellate court's
estimation of the applicant's net income might appear questionable from
the point of view of substantive law, it was in the particular
circumstances of the case not arbitrary to base this estimation on an
assumption, as the applicant had failed to offer sufficient evidence
for his own allegations on his income. Furthermore, the applicant's
right to a fair hearing had not been violated as he had the possibility
to show that in fact his income was lower than assumed by the courts.
COMPLAINTS
The applicant complains of these decisions and alleges a
violation of his right to a fair hearing (Article 6 of the Convention)
as his income as a lawyer was, contrary to his own allegations,
considered to amount to at least DM 1,000 per month.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention that he was denied a fair hearing because the German courts
held that his monthly income from his private law practice amounted to
DM 1,000 per month while there was, according to his submissions, no
evidence in support of this finding.
The Commission observes, however, that at the oral hearing of
23 October 1990 before the Cologne Court of Appeal the applicant had
admitted that the income from his law practice might amount to
DM 15,000 per year before taxes, while he failed to submit evidence
showing his actual average income. As a lawyer, the applicant must
have been aware that these submissions were insufficient and that he
left it to the court's traditional discretionary power in matters of
appreciation of evidence to make a finding on his average income on the
basis of the parties' submissions.
Like the Federal Constitutional Court, the Commission cannot find
in these circumstances that, contrary to the evidence available to
them, the domestic courts arbitrarily considered the applicant's income
as a lawyer to amount to DM 1,000 per month.
It follows that there is no appearance of a violation of
Convention rights and in particular of the Article invoked by the
applicant. The application must therefore be rejected as being
manifestly ill-founded, in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber Acting President of the First Chamber
(M.F. BUQUICCHIO) (F. ERMACORA)
Full & Egal Universal Law Academy