THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8722/02 by Elke BECKER against Germany

The European Court of Human Rights (Third Section), sitting on 8 July 2004 as a Chamber composed of:

Mr I. Cabral Barreto , President , Mr G. Ress , Mr L. Caflisch , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , Mr K. Traja, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 19 February 2002,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Elke Becker, is a German national who was born in 1952 and lives in Frankenthal. She was represented before the Court by Mr L. Ose, a lawyer practising in Lugdwigshafen.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 28 May 1991 the applicant’s husband instituted proceedings with the Frankenthal District Court, sitting as a court competent in family matters, with a view to obtain the spouses’ divorce.

On 21 February 1992 the Frankenthal District Court pronounced the spouses’ divorce. It ordered the applicant’s former husband to pay alimony to their son. Having regard to a marriage contract in which both parties had agreed to manage their property separately and to waive alimony in case of a divorce, it found that the applicant was not entitled to any alimony payments. Contrary to the applicant’s allegations, it considered the marriage contract to be compatible with German law, finding that the applicant’s pregnancy at the time that it was concluded did not place her at an excessive disadvantage that would automatically make the contract null and void.

On 12 November 1992 the Palatinate Court of Appeal, following the applicant’s appeal, amended the District Court’s decision. It obliged her former husband to pay her a monthly alimony of 300 German marks (approximately 153 Euro), finding that this was necessary to ensure the upbringing of their child and the applicant’s other child from an earlier marriage, who is severely disabled. The Court of Appeal also increased the monthly alimony to be paid to the spouses’ son. Referring to the reasoning in the District Court’s decision, it also found that the marriage contract was compatible with German law.

On 2 December 1992 the applicant lodged a constitutional complaint with the Federal Constitutional Court.

On 29 March 2001 the Federal Constitutional Court found that the decision of the Court of Appeal violated the applicant’s rights under the German Basic Law. It found that when determining the validity of the marriage contract, the Court of Appeal had not taken into account that the applicant’s pregnancy, in addition to the strain of caring for a handicapped child, placed her at an obvious disadvantage towards her former husband when concluding the marriage contract. The matter was thus remitted to the Court of Appeal.

On 8 November 2001 the proceedings before the Court of Appeal were discontinued following the applicant’s former husband’s engagement, in the context of a court settlement, to pay monthly alimony to the applicant, as well as a lump sum with respect to the past.

COMPLAINT

The applicant complains about the length of the court proceedings, in particular those before the Federal Constitutional Court. She argues that the length of the proceedings - which began on  28 May 1991 and ended on 8 November 2001 - is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

THE LAW

The applicant’s complaint relates to the length of alimony proceedings. She relies on Article 6 § 1 of the Convention which, as far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government contested the admissibility and the merits of the application. The applicant did not submit any observations in reply and referred to her initial submissions.

1. Objections of the Government

a) Non respect of the six months’ rule

The Government contend at the outset that the application does not comply with the six months time-limit imposed by Article 35 § 1 of the Convention. They allege that the last decision within the meaning of this Article was taken by the Federal Constitutional Court on 29 March 2001 although the court thereby remitted the case to the Palatinate Court of Appeal for re-examination. The Government argue insofar that the Palatinate Court of Appeal was not competent to remedy the length of the proceedings before the Federal Constitutional Court. They further hold that the applicant only complains about the length of the proceedings before the Federal Constitutional Court.

The Court notes that the applicant does not confine her complaint to the proceedings before the Federal Constitutional Court as she complains that the proceedings lasted ten years and a half and ended on 8 November 2001. The Court further observes that the proceedings did not end before the Federal Constitutional Court as the case was remitted to the Palatinate Court of Appeal.

Given that the court agreement concluded before the Palatinate Court of Appeal finally determined the applicant’s rights, the Court holds that the proceedings rather ended on 8 November 2001. The Court therefore considers this decision to be final within the meaning of Article 35 § 1 and that the case was accordingly introduced within six months of the final decision.

Accordingly, the Government’s objection must be dismissed.

b) Non-exhaustion of domestic remedies

The Government further contend that the applicant did not exhaust domestic remedies as required by Article 35 § 1 of the Convention. They submit that the applicant ought to have complained about the length of the proceedings before the Frankenthal District Court and the Palatinate Court of Appeal in her constitutional complaint dated 2 December 1992. With regard to the length of proceedings in their entirety, the Government hold that the applicant failed to lodge a further constitutional complaint upon conclusion of the proceedings on 8 November 2001. They assert that the guarantees laid down in Article 6 § 1 of the Convention are also subject to constitutional protection.

The Court decides to join to the merits the question whether the applicant has exhausted domestic remedies as required by Article 35 § 1.

2. Merits

The Government hold that the proceedings before the Frankenthal District Court and the Palatinate Court of Appeal which lasted nine and seven months respectively were accelerated properly. They underline in this respect the complexity of the case, namely the question as to the validity of a waiver of any alimony in case of a divorce.

With regard to the proceedings before the Federal Constitutional Court, they emphasise the heavy case-load of the court during the pertinent period, which had obliged the court to deal with more urgent cases of considerable political and social importance, some of which were related to the German reunification. The Government further submit that a decision was however planned for 1996 but that the proceedings had been delayed due to the illness (in 1996) and early retirement (in 1999) of the Judge Rapporteur. They assert that the succeeding Rapporteur began his service in January 1999 and that the constitutional complaint was then concluded within the following two years.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

For these reasons, the Court unanimously

Decides to join to the merits the question whether the applicant has exhausted domestic remedies;

Declares admissible, without prejudging the merits, the applicant’s complaint relating to the length of the proceedings.

Vincent Berger Ireneu Cabral Barreto Registrar President