FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 24378/02
by Laraine PARRY
against Germany
The European Court of Human Rights (Fifth Section), sitting on 16 October 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 29 November 2001,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the unsuccessful friendly-settlement negotiations conducted pursuant to Article 38 § 1 (b) of the Convention,
Having regard to the Government’s request to strike the case partly out of its list of cases and the text of a unilateral declaration made with a view to resolving the complaint about the length of the proceedings,
Having regard to the applicant’s comments on the Government’s proposal for a unilateral declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Laraine Parry, is a Singapourean national who was born in 1946 and lives in Singapore.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant married in 1968 in Singapore a German citizen with whom she has two children. The couple separated in 1984, but lived together until 1988 in their flat in Manila. In June 1988, the applicant moved to Germany. Her husband moved to Germany in 1990, later transferred to Hongkong and now lives in Manila.
1. The applicant’s first claim
In May 1990, the couple filed a petition for divorce (Scheidungsantrag). The applicant also filed a claim for post-marriage maintenance (nachehelicher Unterhalt) and equalization of accrued gains (Zugewinn-ausgleich). The claim was given the file number “281 F 30/90”.
On 7 December 1999, the Hamburg District Court granted the divorce, dismissed the applicant’s motion for maintenance and ordered the husband to pay DEM 130,520 for the equalization of accrued gains. The Hamburg District Court heard a witness in June 1993, three further witnesses in June and November 1994 and two other witnesses in 1999, partly through the legal assistance by a foreign court. The Hamburg District Court also ordered two expert opinions in 1996 and 1998 and, upon request, obtained information from the Deutsche Bank in 1999.
On 17 July 2001, the Hanseatic Court of Appeal dismissed the applicant’s appeal against the judgment of the Hamburg District Court of 7 December 1999 as inadmissible as far as the applicant complained against the divorce and as ill-founded as far as the applicant complained about the dismissal of her claim for maintenance. The Hanseatic Court of Appeal also ordered the separation (Abtrennung) of the proceedings regarding the equalization of accrued gains. The applicant did not file a motion to be granted leave to appeal on points of law against that judgment.
On 5 February 2002, the applicant entered into a friendly settlement with her former husband before the Hanseatic Court of Appeal in which they agreed that the applicant was entitled to an amount of DEM 160,000 for the equalization of accrued gains.
2. The applicant’s second claim
In 1992, the applicant lodged a claim for maintenance (Trennungs-unterhalt) as an action by stages (Stufenklage) to the first set of proceedings. The new claim was given the file number “281 F 208/92” and was delivered to her husband on 28 June 1992.
The Hamburg District Court requested the transmittal of the file (Heranziehung der Akte) from the above proceedings with the file-number “281 F 30/90”. In 1999, it requested information from the Foreign Office of the Federal Republic of Germany regarding the question whether Philippine courts recognise divorce judgments of German courts.
On 11 April 2000, the Hamburg District Court dismissed the applicant’s claim.
On 17 July 2001, the Hanseatic Court of Appeal dismissed the applicant’s appeal.
The applicant did not file a motion to be granted leave to appeal on points of law against that judgment.
3. The applicant’s disciplinary complaint (Dienstaufsichtsbeschwerde)
On 25 August 1999, the applicant filed a disciplinary complaint against the judge at the Hamburg District Court who was competent for both of her claims, inter alia complaining about the length of proceedings.
On 19 October 1999, the President of the Hamburg District Court, after having consulted the judge, replied to the applicant:
“... [the District Court judge] responded to your allegations as follows:
‘The length of the proceedings of around nine and a half years has primarily its basis in the complicated and very difficult factual and legal circumstances regarding the questions of maintenance and equalization of accrued gains.
It should also be noted that the maintenance claim, introduced as a more time-consuming action by stages, was pending only by the middle of June 1992, i.e. at a time when the claim would have been ready for decision, which became however impossible because of the connection between these two claims according to section 623 of the Code of Civil Procedure.
In both subsequent proceedings [Folgesachen], it was necessary to obtain expert opinions and to hear numerous witnesses. In order to hear several witnesses by means of judicial assistance, the case files were referred for a period of ten months to the court which granted judicial assistance. Lastly, the proceedings were not pursued during the period between July 1998 and February 1999 because of intensive and promising negotiations for a friendly settlement between the lawyers who represented the parties. The negotiations unfortunately failed. (...)’
You further complain about the fact that the proceedings were adjourned numerous times. I have indeed counted adjournments on ten occasions. However, the reasons for the adjournments did not lie within the sphere of the court. Proceedings had to be adjourned because at one occasion a witness and at another occasion a party did not appear and because of the judge’s sickness on two occasions. Delays were furthermore caused because of several changes of your legal counsel during the proceedings.
It is surely uncommon for proceedings to last as long as the present one. However,
I cannot detect that this is due to disciplinary faults on the side of [the competent judge at the District Court]. Therefore, I do not see reason for any query within the competence of my administrative supervision.
A date for a delivery of the judgment has meanwhile been scheduled for 7 December 1999, which will hopefully bring the proceedings to an end.”
4. The applicant’s letters to the Federal Constitutional Court
On 24 February 2002 and 1 March 2002, the applicant wrote letters to the Federal Constitutional Court, complaining about the judgments and decisions of the Hamburg District Court and the Hanseatic Court of Appeal.
On 7 March 2002, the Federal Constitutional Court’s Registry (Präsidialrat des Bundesverfassungsgerichts) informed the applicant that her letters would not be regarded as a constitutional complaint (Bearbeitung als Justizverwaltungsangelegenheit) because the friendly settlement of 5 February 2002 did not fall within the competence of the Federal Constitutional Court. Moreover, it informed the applicant that, as far as she complained about the two judgments of the Hanseatic Court of Appeal of 17 July 2001, the time-limit of one month had clearly expired by the time she had introduced her complaint.
COMPLAINTS
The applicant complained under Article 6 § 1 and § 2 and under Article 8 of the Convention about the allegedly erroneous court decisions and about the length of the proceedings. She alleges that the proceedings before the Hamburg District Court took almost ten years, with an average of one hearing per year and between five and eight adjournments.
THE LAW
1. Referring to both Articles 6 and 8 of the Convention, the applicant complained about the allegedly erroneous court decisions. The Court recalls that, pursuant to Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. In the present case, the applicant has failed to demonstrate that she exhausted domestic remedies. The Court notes that the applicant wrote two letters dated 24 February 2002 and 1 March 2002 to the Federal Constitutional Court against the judgments and decision of the Hamburg District Court and the Hanseatic Court of Appeal, but was informed by the Federal Constitutional Court’s Registry that her letters would not be regarded as a constitutional complaint because the friendly settlement of 5 February 2002 did not fall within the competence of the Federal Constitutional Court. Moreover, as far as she complained about the two judgments of the Hanseatic Court of Appeal of 17 July 2001, the time-limit of one month had clearly expired. Consequently, this part of the application is inadmissible for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
2. The applicant also submitted that the length of the two sets of proceedings had been excessive and was thus in violation of the “reasonable time” requirement of Article 6 § 1, the relevant parts of which read as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
On 3 July 2007 the Court received the following declaration from the Government signed on 28 June 2007:
“In this case the court proposed a friendly settlement which was rejected on behalf of the Applicant by letter dated 18 May 2007.
The Federal Government would therefore like to acknowledge – by way of a unilateral declaration – that the length of the two proceedings at issue was incompatible with the “reasonable time” requirement within the meaning of Article 6 para. 1 of the Convention.
If the Court strikes this case from its list, the Federal Government is willing to accept the Applicant’s claim for compensation in the amount of EUR 9,000.00. This sum of EUR 9,000.00 would be deemed to settle all claims of the Applicant in connection with the above-mentioned Application against the Federal Republic of Germany or the Free and Hanseatic City of Hamburg, including, in particular, compensation for the Applicant’s damage (including non-pecuniary damage) as well as costs and expenses. In light of the Court’s rulings in similar cases, the Federal Government considers the amount of EUR 9,000.00 to be reasonable.
The Federal Government therefore requests that this application be struck out of the Court’s list of cases pursuant to Article 37 para. 1 (c) of the Convention. The Federal Government’s acknowledgment of a violation of Article 6 para. 1 of the Convention as regards the length of the proceedings and its acceptance of the claim for compensation in the amount of EUR 9,000.00 constitutes “[an]other reason” within the meaning of this provision.”
The applicant in her written reply dated 17 September 2007 requested the Court to reject the proposal. In order to receive justice and just satisfaction, her case had to be decided on the merits by the Court. The sum offered was insufficient to compensate her for the violations sustained in the present case, in particular because, as to date, she still has to pay court fees to the amount of EUR 4990.
The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the above declaration was made by the Government on 28 June 2007 outside the framework of the friendly-settlement negotiations and the Court will therefore proceed on the basis of that declaration.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the proviso that:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
In deciding whether or not it should strike the present case out its list of cases, the Court will have regard to the criteria emerging from its case-law (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; and also Haran v. Turkey, no. 25754/94, § 23, judgment of 26 March 2002, Akman v. Turkey (striking out), no. 37453/97, §§ 30-31, ECHR 2001‑VI, and Meriakri v. Moldova (striking out), no. 53487/99, §§ 30-32, 1 March 2005; MacDonald v. the United Kingdom (dec.), no. 31/04, 6 February 2007).
The Court notes that the present case raises an issue as to the undue length of the proceedings within the meaning of Article 6 of the Convention.
It recalls that it has already specified in various judgments and decisions the nature and extent of the obligations which arise for the respondent State as regards the determination of “civil rights and obligations” within a “reasonable time”, also in respect of the Federal Republic of Germany
(see, among many others, Sürmeli v. Germany [GC], no. 75529/01,
ECHR 2006-...; Nold v. Germany, no. 27250/02, 29 June 2006; Stork v. Germany, no. 38033/02, 13 July 2006; Klasen v. Germany, no. 75204/01, 5 October 2006; Grässer v. Germany, no. 66491/01, 5 October 2006;
Herbst v. Germany, no. 20027/02, 1 January 2007).
The Government’s declaration contains an acknowledgment that the length of the two sets of proceedings in the instant case was not in accordance with the “reasonable time”- requirement. Furthermore, the Court considers the sum of EUR 9,000 for the applicant’s damage, including non-pecuniary damage and costs and expenses, to be acceptable.
Having regard to the above considerations and the particular circumstances of the case the Court considers that it is no longer justified to continue the examination of the application insofar as the applicant complained about the length of the proceedings (Article 37 § 1 (c) of the Convention). The Court is satisfied that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue examination of the application in this respect (Article 37 § 1 in fine; see, mutatis mutandis, Oleksiw v. Germany (dec.), no. 31384/02).
3. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.
For these reasons, the Court unanimously
Declares the applicant’s complaints about the unfairness and outcome of the impugned proceedings inadmissible;
Takes note of the terms of the respondent Government’s declaration;
Decides to strike the remainder of the application out of its list of cases.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy