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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)

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W.M. v. GERMANY

W.M. v. GERMANY

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