FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 32247/96

by Ulf EVERS [Note1]

against Germany [Note2]

The European Court of Human Rights ( Fourth Section) sitting on 12 January 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr G. Ress ,

Mr  L. Caflisch ,

Mr I. Cabral Barreto ,

Mr V. Butkevych ,

Mrs N. Vaji ć,

Mr J. Hedigan , Judges ,

with Mr V. Berger, S ection Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 July 1996 by Ulf EVERS [Note3] against Germany and registered on 16 July 1996 under file No. 32247/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1959, is a German national and residing in Wattenbek . In the proceedings before the Court, he is represented by Mr. Traulsen , a lawyer practising in Kiel.

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

On 29 November 1994, in the context of divorce proceedings before the Itzehoe District Court ( Amtsgericht ), the applicant and Mrs F.E. , his wife, concluded a maintenance agreement. Under the terms of this agreement, the applicant committed himself to pay maintenance for his two children Jankl and Yorrick , born in wedlock in 1990 and 1992, in the monthly amount of DEM 241 each, and for Mrs F.E. in the monthly amount of DEM 836. The agreement also indicated the considerations underlying the calculation of the maintenance payments, in particular the applicant’s monthly net income amounting to DEM 2624 and his personal financial needs ( Eigenbehalt ).

On 29 October 1995 the applicant, represented by counsel, applied to the Itzehoe District Court for legal aid with a view to institute proceedings against Mrs F.E. , claiming that his maintenance payments for her as well as Jankl and Yorrick be reduced to zero as from 1 November 1995.  He submitted that he had remarried in the meantime and that, following the birth of his daughter Pauline in July 1995, he had agreed with his wife to take parental leave from October 1995 to July 1998.  His only income was therefore an educational allowance.

On 13 December 1995 the Itzehoe District Court dismissed the applicant's request for legal aid on the ground that the intended action lacked sufficient prospect of success.

In its decision, the court stated that the action was inadmissible to the extent that the applicant's maintenance obligations towards his children Jankl and Yorrick were concerned, as Mrs F.E. was not the proper defendant in this respect.

As regards his claim that his maintenance payments for Mrs F.E. be reduced, the court found that the applicant could not invoke his choice concerning the repartition of roles in his new family and resulting reduction of his income vis-à-vis Mrs F.E.   In this respect, the court noted that the applicant was obliged to pay maintenance to Mrs F.E. on the ground that she took care of their two minor children. The court, referring to the case-law of the Federal Court of Justice ( Bundesgerichtshof ), stated that, for the purposes of maintenance, the divorced spouse only had to accept the termination of occupational activities in order to care for a new child, if such a repartition of roles had considerable advantages for the new family.  The decisive factor in this respect was the overall amount of the family income.  However, the solution envisaged by the applicant did not change the family income.  It was only advantageous if his maintenance obligations towards Mrs F.E. and his minor children Jankl and Yorrick would be set aside. In such a situation, the applicant could not evade his primary maintenance obligations towards Mrs F.E. as well as Jankl and Yorrick .

On 22 January 1996 the Itzehoe District Court, upon the applicant’s appeal ( Beschwerde ), confirmed its decision of 13 December 1995.

On 28 February 1996 the Schleswig -Holstein Court of Appeal ( Oberlandes-gericht ) dismissed the applicant's appeal.  The Court of Appeal found that the impugned decision was consistent with the constant case-law of the Federal Court of Justice.  According to the Court of Appeal, Mrs F.E. was entitled to maintenance under section 1570 of the Civil Code ( Bürgerliches Gesetzbuch ) in order to be in a position to take care of the divorced spouses’ minor children.   Referring to section 1582 of the Civil Code, the Court of Appeal observed that, for the purposes of maintenance matters, a divorced spouse taking care of minor children took precedence over the second wife.

According to section 1570 of the Civil Code, a divorced spouse can claim maintenance from the other divorced spouse, as long as and to the extent that, taking care of the spouses’ child, he or she cannot be expected to take up gainful occupation.  Section 1581 provides that maintenance obligations of a divorced spouse may be reduced in case that the divorced spouse, given his or her earned income, assets and other financial obligations, would risk not to dispose of sufficient own financial means.  In determining the maintenance entitlement of a divorced spouse under section 1581, the divorced spouse takes, as a rule, precedence over a new spouse (section 1582).

On 7 May 1996 the Federal Constitutional Court ( Bundesverfassungsgericht ) refused to entertain the applicant's constitutional complaint ( Verfassungsbeschwerde ).

Meanwhile, on 1 April 1996 the applicant had accepted part-time occupation of twelve hours per week, with a salary of DEM 1,446.

COMPLAINTS

The applicant complains that the above court decisions amount to a violation of his right to respect for his private and family life.  He submits that the impugned decisions prevented him from taking parental leave to take care of his child Pauline. He further alleges discrimination on the ground of sex, as his divorced wife was entitled to take care of the then already six-year-old Jankl and four-year-old Yorrick .  He invokes Article 14 in conjunction with Articles 8 and 12 of the Convention, Article 1 of Protocol No. 1 and Article 5 of Protocol No. 7.

THE LAW

1. The applicant complains about German court decisions refusing his application for legal aid with a view to institute proceedings against his divorced wife, Mrs F.E.   In such proceedings, he envisaged to have his maintenance obligations towards Mrs F.E. as well as their two minor children Jankl and Yorrick set aside.  The applicant invokes Article 14 in conjunction with Article 8 the Convention, and of Article 14 in conjunction with Article 12 of the Convention, Article 1 of Protocol No. 1 and Article 5 of Protocol No. 7.

2. The Court notes at the outset that, following the unsuccessful legal aid proceedings, the applicant did not pursue his claims for a reduction of his maintenance obligations in proceedings on the merits.  The question therefore arises whether the applicant has exhausted the remedies available to him under German law, as required by Article 35 § 1 of the Convention.  However, it is not necessary to resolve this matter, as the application is anyway inadmissible for the following reasons.

3. The applicant considers that the above decisions interfere with his right to respect for his private and family life and discriminate against him on the ground of sex.

Article 8 of the Convention, insofar as relevant, reads as follows:

“1. Everyone has the right to respect for his private and family life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.”

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court notes that divorce of the applicant’s first marriage with Mrs F.E. was granted in 1994.  The applicant had to pay maintenance to the two children who had been born of this marriage in 1990 and 1992, and to Mrs F.E. who had to take care of them and could not, therefore, be expected to have earned income.   Following divorce, the applicant remarried and, in June 1995, a child was born of this new marriage.

The applicant’s submissions concern his maintenance obligations towards his divorced wife and the two children born of his first marriage, as stated by the courts in the legal aid proceedings, and their effects on the organisation of his new family life, in particular his wish to take paternal leave to take care of his child born in 1995.  While not constituting any legal impediment to the applicant’s intention to take parental leave, his continuing obligation to pay maintenance, in the absence of own earned income, affected de facto the applicant’s new family life.  The case thus falls within the ambit of Article ï€ 8.

The Court recalls that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (cf. the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, pp. 15-16, §§ ï€ 32-34; Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 18, § 41; Hoffmann v. Austria judgment of 23 June 1993, p. 58, § ï€ 31; McMichael v. the United Kingdom judgment of 24 February 1995, Series A No. 307-B, p. 58, § ï€ 97).

The applicant in the present case implicitly seeks to compare himself with his divorced wife Mrs F.E. who has custody of their two minor children Jankl and Yorrick .  The Court is of the opinion that these are not analogous situations.  There exist significant differences between the applicant and Mrs F.E.   Under German legislation, the applicant was liable to maintenance for Jankl and Yorrick .  Moreover, he was liable to maintenance for Mrs F.E. who took care for Jankl and Yorrick and was not, therefore, expected to pursue a gainful occupation.  The applicant had accepted these obligations in a court settlement.  The applicant himself was again living in a matrimonial relationship together with his third child Pauline and the new couple had joint responsibility for Pauline’s care and maintenance.  It was his and his second wife’s free choice that he should give up work and take parental leave to care for the child born of the second marriage.

The Court considers that German legislation and case-law which, in such a situation, take an overall view of parents’ responsibility for all of their children and uphold maintenance obligations in favour of minor children of a first marriage, cover that very difference.

    The Court accordingly concludes that the situation of the applicant is not comparable to that of his divorced wife Mrs F.E.

The Court, having regard to all material before it, finds that the applicant’s complaint does not disclose discriminatory treatment for the purposes of Article 14 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. With regard to the above complaint, the applicant also claims a violation of Article 14, taken together with Article 12 of the Convention, of Article 1 of Protocol No. 1 and Article 5 of Protocol No. 7.

The Court finds that no issue arises under Article 12 of the Convention in respect of the applicant who had remarried prior to the impugned decisions. Moreover, the Federal Republic of Germany has not ratified Protocol No. 7.

Furthermore, the Court is of the opinion that in all the States Parties to the Convention, legislation governing private law relations between individuals includes rules which determine the effects of these legal relations with respect to property and, under certain conditions, compel a person to surrender a possession to another or impose financial obligations towards  a third person.  This type of rule cannot be considered contrary to Article 1 of Protocol No. 1, unless there is arbitrariness.

In the present case, the Court, referring to its above findings, considers that this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Vincent Berger Matti Pellonpää Registrar President

[Note1] Please check if public or not. If not, put initials only. Name and, in capital letters, surname ; corporative name in capital letters ; no translation of collective names.

[Note2] First letter in capital letters plus the article according to normal speech.

[Note3] In small letters.