FIFTH SECTION

CASE OF BELLUT v. GERMANY

( Application no. 21965/09 )

JUDGMENT

STRASBOURG

21 July 2011

This judgment is final but it may be subject to editorial revision.

In the case of Bellut v. Germany ,

The European Court of Human Rights ( Fifth Section ), sitting as a Committee composed of:

Boštjan M. Zupančič , President, Ganna Yudkivska , Angelika Nußberger , judges, and Stephen Phillips , Deputy Section Registrar ,

Having deliberated in private on 28 June 2011 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 21965/09) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr J ö rg Bellut (“the applicant”), on 21 April 2009 .

2 . The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling -Vogel, Ministerialdirigentin , of the Federal Ministry of Justice, and by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat , of the Federal Ministry of Justice.

3 . On 22 March 2010 the President of the Fifth Section decided to communicate the complaints concerning the length of the proceedings and the lack of an effective remedy to the Government . In accordance with Protocol 14, the application was assigned to a Committee of three Judges.

4 . The applicant and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1963 and lives in Lübz .

6 . In 1992 the applicant married his wife M r s S. They have three children, born in 1992, 1995 and 1997. In April 2003 the applicant moved out of the common household and moved in with his new partner.

7 . On 10 August 2004 the applicant filed a petition for divorce with the Schwerin District Court. The petition was received by that court on 17 August 2004. On 1 September 2004 his wife Mrs S. likewise filed a petition for divorce. Both parties were represented by lawyers.

8 . On 2 September 2004 the District Court granted the applicant legal aid.

9 . On 17 October 2005 the District Court scheduled an oral hearing for 15 November 2005. The hearing was subsequently cancelled as Mrs S. had announced shortly before the hearing that she had changed co u nsel .

10 . On 14 November 2005 Mrs S. announced further motions concerning post-marriage maintenance ( nachehelicher Unterhalt ).

11 . On 11 April 2006 the District Court held an oral hearing. The parties agreed on the applicant being obliged to supply specific information on his additional i ncome from company shares and granting loans , notably to assess his ability to provide maintenance.

12 . On 19 September 2006, referring to a n earlier request of 3 February 2006, the applicant asked the court to decide on his request to separate the divorce proceedings from the proceedings concerning ancillary matters ( Folgesachen ) and to grant the divorce ahead of those proceedings.

13 . On 27 September 2006 the District Court requested Mrs S. to specify the requested maintenance in terms of amount within two weeks.

14 . From 4 June 2007 to 27 August 2007 Mrs S. had treatment in a psychiatric hospital due to mental distress in conjunction with the proceedings and the legal a nd financial uncertainty. On 13 June 2007 Mrs S . therefore requested to cancel a hearing scheduled for 22 June 2007.

15 . On 10 October 2007 the applicant anew requested the District Court to separate the divorce proceedings from the proceedings concerning ancillary matters .

16 . On 10 June 2008 the District Court scheduled an oral hearing for 11 September 2008. On 12 August 2008 t he summons was sent out to the parties and on 11 September 2008 the hearing took place as scheduled .

17 . On 7 January 2009 the applicant a gain requested the District Court to separate the divorce proceedings from the proceedings concerning ancillary matters, in particular maintenance, and to grant the divorce ahead of those proceedings . On 23 January 2009 the District Court informed the parties about its legal view on the request .

18 . In February 2009 the applicant for three days had treatment in a psychiatric hospital due to the mental distress caused by the divorce proceedings. Since 2007 the applicant has been in therapeutic treatment.

19 . On 12 March 2009 the District Court rejected the applicant ’ s request . It found that the legal requirement s la id down in Article 628 sentence 1 no. 4 of the Code of Civil Procedure (see Relevant domestic law below) had not been met. It was true that t here had been an ex ceptional delay in the divorce proceedings . However, the applicant was not suffering unacceptable hardship. Such an unacceptable hardship was only given where one party ’ s interest in an immediate divorce outweighed the other party ’ s interest in a decision on the divorce and the ancillary matters at the same time.

20 . On 12 Ja nuary 2010 the District Court delivered its judgment . Both parties appealed against the judgment.

21 . On 16 November 2010 the Rostock Court of Appeal held a hearing . T he case was concluded as the parties reached a settlement regard ing maintenance and withdrew the appeal concerning divorce.

II. RELEVANT DOMESTIC LAW

22 . Article 623 of the Code of Civil Procedure in force at the relevant time provided that divorce proceedings as such and proceedings relating to maintenance , partition of property, pension rights adjustments and custody – so called ancillary matters ( Folgesachen ) – have to be examined and decided in joint proceedings ( Verbundverfahren ).

23 . Article 628 sentence 1 no. 4 of the Code of Civil Procedure in force at the relevant time stipulated that the court may grant the divorce decree before deciding on an ancillary issue only if the joint decision would delay the decision on divorce to such an extraordinary extent that the delay would amount to an unacceptable hardship, even taking into account the importance of the ancillary matter.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

24 . The applicant complained that the length of the proceedings before the domestic courts had been incompatible with the “reasonable time” r equirement, laid down in Article 6 § 1 of the Convention, which 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 ... ”

25 . The Government did not contest that argument but emphasized that the subject matter had been both factually and legally complex . They pointed to the German law provisions stipulating that ancillary matters and the divorce petition shall in principle be dealt with and decided together at the same time (see relevant law above) . The ancillary matters had been complex in the instant case as the applicant had additional income from company shares and granting loans . Moreover, there was the complicated legal question of a prenuptial agreement concluded between the parties to limit the amount of maintenance. T he Government acknowledged that the applicant was interested in a speedy c onclusion of the proceedings in order to be able to marry his new partner. They conceded that there had been delays of which two years and three and a half months were attributable to the Schwerin District Court . Those delays were partly due to two changes of the judge responsible for the case , which respectively required some time for the new judge to familiarise with the case . Finally , they p o inted ou t that there was a nother delay of five months which was not attributable to them but to Mrs S. , as it had been c aused by the cancellation of the hearing or iginally scheduled for November 2005 and rescheduled for A pril 2 0 06 , which was necessitated by a change of Mrs S. ’ s counsel .

26 . The applicant contested that the subject matter had been factually and legally complex .

27 . The period to be taken into consideration began on 17 August 2004 and ended on 16 November 2010 . It thus lasted six years and three months for two level s of jurisdiction .

A. Admissibility

28 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

29 . The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). In cases relating to civil status, what is at stake for the applicant is also a relevant consideration, and special diligence is required in view of the possible consequences which the excessive length of proceedings may have, notably on enjoyment of the right to respect for family life ( Laino v. Italy [GC], no. 33158/96, § 18, ECHR 1999-I).

30 . The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender , cited above).

31 . Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.

32 . The Court considers that the proceedings were rendered difficult and to some extent delayed by the fact that, as prescribed by Articles 622 et seq. of the Code of Civil Procedure (see paragraphs 21-22 above), the domestic court had to take its decision on the parties ’ divorce at the same time as on the ancillary matters (see , mutatis mutandis , Wildgruber v. Germany , nos. 42402/05 and 42423/05 , § 59, 21 January 2010). T he Court also accepts that a small part of the delay was caused by circumstances attributable to Mrs S. Nevertheless , the Court finds that there have been substantial periods of inactivity and delay , notably during the first instance proceedings , which are solely imputable to the domestic court s (see, in this context, among many other authorities, Süßmann v. Germany , 16 September 1996, § 55 , Reports of Judgments and Decisions 1996 ‑ IV) .

33 . Having regard to the above considerations and to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

34 . T he applicant further complained of the fact that in Germany there was no court to which application could be made to complain of the excessive length of pr oceedings. He relied on Article 13 of the Convention , which reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

35 . The Government did not contest that argument but submitted that work on a new draft bill in this regard was underway .

36 . The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

37 . The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).

38 . The Court reiterates that according to its recent case-law there is no effective remedy under German law capable of affording redress for the unreasonable length of civil proceedings (see Sürmeli v. Germany [GC], no. 75529/01, § § 103-108 , ECHR 2006 ‑ VII and Herbst v. Germany , no. 20027/02, §§ 63 - 68 , 11 January 2007 ) . Moreover, the Court recently delivered a pilot judgment against the respondent State because of the continuous lack of such an effective remedy ( Rumpf v. Germany , no. 46344/06 , 2 September 2010 ) .

39 . Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicant could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.

III. THE REMAINDER OF THE APPLICANTS ’ COMPLAINTS

40 . The applicant further complain ed under Article 6 § 1 of the Convention about the District Court ’ s refusal to separate the divorce proceedings from the proceedings concerning maintenance. Lastly, he complain ed under Article 12 of the Convention that due to the length of the divorce proceedings he is prevented from getting married to his new partner.

41 . In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. If follows that it is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

42 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial rep ara tion to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

43 . The applicant claimed 6 4,498 . 02 euros (EUR) in respect of pecuniary damage . H e specifi ed that an amount of EUR 26,000 was attributable to the fact that he was unable to re marry his new partner unless he was divorced and thus barred from benefiting from tax advantages granted to married couples ; an amount of EUR 16,500 was due to higher claim s for maintenance pend ing divorce ( Trennungsunterhalt ) compared with post-marriage maintenance ( nachehelicher Unterhalt ) ; an amount of EUR 20,000 was related to h igher claims for maintenance due to Mrs S. ’ s inability to work resulting from the psychological problems caused by the length of the proceedings ; and finall y, an amount of EUR 1,998.02 related to treatment expenses which had not been reimbursed . The applicant further claimed EUR 20,000 just satisfaction in respect of non-pecuniary damage for the excessive length of the proceedings which had caused him chronic stress as well as health and psychological problems .

44 . The Government contested the applicant ’ s claims in respect of pecuniary damage and argued in particular that the damages were e ither not caused directly by the length of the proceedings, n ot sufficiently substantiated or not quantifiable at all as the point in time in which the divorce would have been granted had there been no delays cannot be clearly determined. As regards non-pecuniary damage, the Government referred to the case-law of the Court and submitted that the applicant ’ s claims were far exaggerated .

45 . The Court does not discern a sufficient causal link between the violation found and the pecuniary damage alleged and , moreover, the amounts claimed to a large part remain speculative; i t therefore rejects this claim. On the other hand, it considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 4,550 under that head.

B. Costs and expenses

46 . The applicant also claimed EUR 5,000 for the costs and expenses incurred before the domestic court s . He did not specify his costs incurred before the Court.

47 . The Government co ntested the claim on the ground that a causal connection between the alleged costs and the duration of the proceedings was lacking .

48 . Regard being had to the documents in its possession and to its case ‑ law , the Court considers it reasonable to award the applicant, who was not represented by a lawyer, the sum of EUR 500 for costs and expenses in the domestic proceedings.

C. Default interest

49 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1 . Declares the complaint concerning the excessive length of the proceedings and the lack of an effective remedy admissible and the remainder of the application inadmissible;

2 . Holds that there has been a violation of Article 6 § 1 and Article 13 of the Convention;

3 . Holds

(a) that the respondent State is to pay the applicant , within three months

( i ) EUR 4,550 ( four thousand five hundred and fifty euros ) in respect of non-pecuniary damage ;

(ii) EUR 5 0 0 ( five hundred euros ) in respect of costs and ex penses ,

(iii) any tax that may be chargeable to the applicant on the above amounts;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4 . Dismisses the remainder of the applicant ’ s claim s for just satisfaction.

Done in English, and notified in writing on 21 July 2011 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stephen Phillips BoÅ¡tjan M. Zupančič              Deputy Registrar              President