AS TO THE ADMISSIBILITY OF
Application No. 20308/92
by W.M.
against the Federal Republic of Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 2 December 1992, the following members being present:
MM. E. BUSUTTIL, Acting President of the First Chamber
J.A. FROWEIN
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to the First Chamber a.i.
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 May 1992 by
W.M. against the Federal Republic of Germany and registered on 16 July
1992 under file No. 20308/92;
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 1946 and living in
Augsburg. He is represented by Mr. Peter Kragler, a lawyer in Munich.
It follows from the applicant's statements and the documents
submitted that on 28 July 1989 the applicant's wife instituted divorce
proceedings against him.
It appears that the competent court first dealt with the problems
relating to the right of care concerning the two children of the
parties to the divorce proceedings and maintenance claims.
On 29 April 1991 the applicant's counsel requested the court to
deal with the divorce action alleging that as far as the parallel
partition proceedings (Zugewinnausgleichsverfahren) were concerned, the
defendant had submitted all relevant information as requested by the
plaintiff.
On 12 August 1991 the applicant's counsel requested the court to
sever the partition proceedings from the divorce proceedings stating
that, as no agreement had been reached between the parties in the
partition proceedings, it was likely that they would last a long time.
The applicant's wife and plaintiff replied on 4 November 1991
that she first wished to have the partition proceedings decided before
the divorce issue in order to settle as many of the issues between the
parties as possible together.
On 25 November 1991 the competent District Court (Amtsgericht)
in Augsburg rejected the applicant's request of 12 August 1991. In the
court's opinion it did not constitute an unreasonable hardship for the
parties not to sever the partition proceedings; rather it was in the
interest of the parties to be confronted with the consequences of the
divorce petition, given that important property values were at stake.
On 24 January 1992 the Munich Court of Appeal (Oberlandesgericht)
confirmed this decision. This court pointed out that the divorce was
requested by the applicant's wife and that, as far as could be judged,
delays in the proceedings were attributable to the applicant who had
not shown that he had in fact given to the plaintiff all relevant
information as alleged by him.
On 17 February 1992 the applicant filed a divorce counter-action
and again made a request to sever the partition proceedings. This
request was rejected by the District Court on 16 March 1992. The court
again pointed out that the couple possessed a number of real estates
and therefore the applicant's wife would have an important equalisation
claim (Zugewinnausgleich). If the partition proceedings were severed
from the divorce proceedings a determination of the equalisation claim
would not be possible in the near future. The court furthermore
pointed out that the proceedings had been pending for two years already
and the defendant had had the time to have the property values
established by competent experts. As he had not done so the delays in
the partition proceedings were imputable to him.
The applicant's constitutional complaint against the
afore-mentioned decisions refusing a separation of the different
proceedings was rejected by a panel of three judges of the Federal
Constitutional Court (Bundesverfassungsgericht) on 6 May 1992 as
offering no prospects of success. The court considered that the
ordinary courts had correctly based their decisions on the
consideration that the refusal to sever the proceedings did not
constitute an unacceptable hardship for the applicant. There was
nothing to show that the arguments of the parties had not been
considered by the
courts and that their decisions were arbitrary and violated the
applicant's right to a fair trial.
COMPLAINTS
The applicant maintains that his arguments were not considered
by the civil courts and that he was therefore denied a fair hearing.
He also submits that he was denied a determination of his divorce claim
within a reasonable time as there was the risk that the proceedings
would, due to the attitude of the plaintiff, drag on for years.
He also alleges a violation of Articles 8 and 12 of the
Convention as he is unable, pending the divorce proceedings, to create
a new family.
THE LAW
1. The applicant first complains of the refusal by the competent
court to deal with the different issues raised by the divorce matter
in different proceedings. He alleges that he was not granted a fair
hearing.
However, the question of whether a party was given a fair hearing
in the determination of civil rights and obligations is in principle
judged on the basis of the whole of the proceedings in question and on
the condition that in view of the end result, i.e. the final decision,
the party alleging to have been denied a fair hearing, can still claim
to be a victim of the alleged violation. In the present case the
proceedings are still pending and their outcome is uncertain. However,
even assuming that the part of the divorce proceedings related to the
procedural interim decision on the question of whether or not the
different issues raised in them should be dealt with in separate
proceedings constitutes an element of such importance that the fairness
of this part of the proceedings can and should be judged in itself,
regardless of the final outcome of the matter, the Commission finds in
agreement with the Federal Constitutional Court that there is nothing
to show that the applicant's request to deal with the different divorce
issues separately was rejected arbitrarily and without taking due
account of the arguments advanced by both parties to the divorce
proceedings.
This part of the application therefore does not disclose any
appearance of a violation of Convention rights and has to be rejected
as being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
2. In so far as the applicant complains of the length of the divorce
proceedings and invokes Article 6 (Art. 6) as well as Articles 8 and
12
(Art. 8, 12) of the Convention, the Commission notes that this
complaint was not raised before the Federal Constitutional Court.
In any event, the Commission further notes that, according to the
unrefuted findings of the civil courts dealing with the divorce matter,
the applicant has so far failed to submit all information needed for
the determination of his wife's equalisation claim. The applicant has
himself brought a counter-divorce action on 17 February 1992 only, and
his submissions do not show that the divorce matter has so far been
treated in a dilatory manner by the competent court. This part of the
application would therefore have to be rejected as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, even if domestic remedies were exhausted.
For these reasons, the Commission unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber a.i. Acting President of the First
Chamber
(M. de SALVIA) (E. BUSUTTIL)
Full & Egal Universal Law Academy