Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14365/88

by Berta MAAS

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 7 May 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 September 1988

by Berta MAAS against the Federal Republic of Germany and registered

on 8 November 1988 under file No. 14365/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

The applicant, born in 1916, is a German national and

resident in Wiesbaden.

In September 1977 the applicant instituted divorce proceedings

before the Wiesbaden District Court (Amtsgericht). In these and the

following proceedings the applicant was represented by counsel.

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.

SS. 622 et seq. of the German Code of Civil Procedure (Zivil-

prozeßordnung) govern the proceedings concerning divorce and related

family matters. S. 623 stipulates in particular that the court has to

conduct the proceedings concerning a divorce action and related family

matters (Folgesachen) 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.

On 3 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. She

also requested adjustment of the spouses' pension rights (Versorgungs-

ausgleich).

On 22 August 1978 the Wiesbaden District Court dismissed the

applicant's divorce action. The Court, having heard the parties,

found that the applicant had failed to prove the conditions for

divorce under S. 1565 and S. 1566 of the German Civil Code. The

judgment was served upon the parties on 29 August 1978.

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.

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 found that

the marriage had broken down within the meaning of S. 1565 para. 1 of the

Civil Code. The Court 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. The Court of Appeal did

itself not grant divorce on the ground that other matters related to

divorce (Scheidungsfolgesachen) were still pending before the District

Court.

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.

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.

In July 1980 the applicant complained that no hearing had been

fixed in the meantime and that the Court was apparently biased. In a

note of 22 August 1980 the competent judge at the Wiesbaden District

Court declared that he stepped down as being biased. This decision

was rejected by the Wiesbaden Regional Court (Landgericht) on 26 August

1980. However, on 22 September the applicant confirmed that she had

intended to challenge the judge concerned. In October 1980 the case

was assigned to another judge at the District Court.

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.

On 31 March 1981, in a further hearing before the District

Court, the defendant, upon the Court's order of 17 March 1981, made a

statutory declaration (eidesstattliche Versicherung) as to the

correctness of his list of assets at the end of the marriage (1

September 1977) filed with the Court on 2 March 1981 and he amended

this certified list. The Court fixed 24 April as a date for the next

hearing, when the defendant was supposed to give an affidavait as

regards the above amendments.

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

applicant in other court proceedings.

On 5 September the Court fixed 13 October as the date for the

next hearing. At that hearing the defendant gave the affidavit in

question.

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 to order her to supply

information about her assets at the end of the marriage.

On 29 December 1981, the Wiesbaden District Court, noting

these submissions, instructed the parties to give certain information

and 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.

On 17 March 1982 the District Court appointed the experts

to estimate the value of the defendant's real estate at Heddesheim.

On 27 September 1982 the expert S submitted his opinion. The

defendant accepted the opinion in general, whereas the applicant

lodged objections in November 1982. The expert S commented upon the

applicant's submissions on 23 February 1983.

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 set aside, as the parties had not pursued it for

over six months.

On 27 October 1983 the District Court fixed 29 November 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. On 14 February 1984 the District Court heard the expert S about

the applicant's objection to his expert opinion. Furthermore the

applicant filed a declaration of her assets at the end of the

marriage.

On 14 March 1984 the defendant requested the District Court to

order the applicant to make a statutory declaration that her

declaration concerning her assets was correct and complete.

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.

On 10 May 1984 the applicant lodged an appeal; she filed the

reasons after an extension of the time-limit on 10 July 1984.

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 defendant's claim for information had already been

fulfilled and, therefore, the defendant, in his memorandum of 14 March

1984, had requested a statutory declaration as to the correctness of the

applicant's declaration.

On 30 November 1094 the files were returned to the District Court.

On 10 July 1985 the Wiesbaden District Court, following a

further hearing on 16 April, ordered the defendant to pay the

applicant DM 39,840 with interest. It dismissed the remainder of

claims. The Court found that the parties' contract of 1971, where they

had agreed upon the matrimonial regime with an apportionment of the

increase of the spouses' assets at the end of marriage (Zugewinnge-

meinschaft), was valid, in particular that the defendant had not been

incapable of entering into legal transactions (geschäftsunfähig) at

the time in question. 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 a further 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.

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.

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 the value of particular plots of

land. The Court of Appeal also instructed the District Court to

examine whether the opinion of the expert Sch had properly estimated

the value of the two houses which had been the subject of the friendly

settlement of 1982.

On 3 July 1986 the files were sent back to the Wiesbaden

District Court.

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.

In the next oral hearing of 4 November 1986 the Wiesbaden

District Court made proposals as to a friendly settlement between the

parties. On 25 November 1986 the Court postponed a further hearing in

order to allow the applicant to submit observations on the friendly

settlement proposals, which had been accepted by the defendant on

21 November 1986. The applicant refused the proposed friendly

settlement and submitted in particular that she had already refused a

similar proposal in the appeal proceedings on 7 January 1986.

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. The Court

also requested the parties to submit supplementary information

concerning their assets.

On 30 March 1987 the Wiesbaden District Court granted a

request of the Wiesbaden Public Prosecutor's Office (Staatsanwalt-

schaft) for transmission of the files of the civil proceedings. The

request had initially been refused for lack of motivation. The

files were sent back after two months.

On 29 June 1987 the District Court fixed 30 September as the

time-limit for both parties to submit the information as ordered on

9 December 1986. The parties were also informed that 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.

On 22 December 1987 the applicant stated that her observations

previous to the decision of 9 December 1986 had already contained the

relevant information.

On 5 April 1988 Judge N at the Wiesbaden District Court, the

successor in office of Judge H, upon further submissions of the

parties, 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.

In June 1988 the applicant submitted her comments and paid the

advance fees.

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 nominated the expert H. On 29 July the expert, having

regard to his workload, requested the District Court to appoint

another expert.

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.

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 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. 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.

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 the District Court,

having first consulted the expert Sch, appointed him to prepare the

opinion in question.

On 4 January 1989 the applicant increased her claim for

apportionment to DM 430 000.

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, upon the Court's further inquiry, he stated that the estate

concerned could not be inspected 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. The proceedings are still pending.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention about the length of the proceedings before the Wiesbaden

District Court.

She considers in particular that the proceedings were

unreasonably delayed by the conduct of the Wiesbaden District Court

which failed efficiently to examine the parties' submissions and to

take evidence as necessary. Moreover, the proceedings had essential

defects, such as the judgment of 30 March 1984. She also submits that

she requested the District Court to expedite the proceedings in May

1978; however, following the Court's judgment of 22 August 1978

dismissing her divorce action, she was involved in appeal proceedings

in this respect and could not separately pursue the claim concerning

the apportionment of the spouses' assets.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 September 1988 and

registered on 8 November 1988.

On 14 April 1989 the Commission decided to invite the

respondent Government, pursuant to Rule 42 para. 2 ((b) of its Rules

of Procedure, to submit written observations on the admissibility and

merits of the application.

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.

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.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1)

of the Convention that, in her divorce case, she has not received a fair

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."

The Government do not raise objections against the

admissibility of the applicant's complaint about the length of the

proceedings though they make various submissions on the merits of the

case.

The Commission finds that the applicant's complaint about the

length of her divorce proceedings raises questions of fact and law

which are of such complexity that their determination requires an

examination of the merits. The application is therefore not

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention and no other ground for declaring it

inadmissible has been established.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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MAAS v. GERMANY

MAAS v. GERMANY