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