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M.L. v. GERMANY

Doc ref: 19322/92 • ECHR ID: 001-1545

Document date: March 31, 1993

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M.L. v. GERMANY

Doc ref: 19322/92 • ECHR ID: 001-1545

Document date: March 31, 1993

Cited paragraphs only

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)

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