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You are here: BAILII >> Databases >> European Court of Human Rights >> MONNET v. FRANCE - 13675/88 [1993] ECHR 50 (27 October 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/50.html
Cite as: (1994) 18 EHRR 27, [1993] ECHR 50, [1994] 2 FCR 459, 18 EHRR 27
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In the case of Monnet v. France*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr A. Spielmann,
Mr J. De Meyer,
Mr S. K. Martens,
Mr A.N. Loizou,
Mr J.M. Morenilla,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 23 April and
22 September 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 35/1992/380/454. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the Government of the
French Republic ("the Government") on 16 October 1992, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 13675/88) against France lodged with the European
Commission of Human Rights ("the Commission") under Article 25
(art. 25) by a French national, Mr Claude Monnet, on 26 November 1987.
Before the Commission, the applicant had been designated by the
initials "C.M.", but he subsequently consented to the disclosure of his
identity.
The Government's application referred to Article 48 (art. 48).
The object of the application was to obtain a decision as to whether
the facts of the case disclosed a breach by the respondent State of its
obligations under paragraph 1 of Article 6 (art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 30 October 1992, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr Thór Vilhjálmsson, Mr R. Macdonald, Mr A. Spielmann,
Mr J. De Meyer, Mr S.K. Martens, Mr A.N. Loizou and Mr J.M. Morenilla
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Government,
the applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant
to the order made in consequence, the Registrar received the
applicant's memorial on 24 February 1993 and the Government's memorial
on 4 March. On 7 April 1993 the Secretary to the Commission informed
the Registrar that the Delegate would address the Court at the hearing.
5. On 22 March 1993 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
6. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
20 April 1993. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr B. Gain, Head of the Human Rights Section,
Legal Affairs Department, Ministry of
Foreign Affairs, Agent,
Miss M. Picard, magistrat, on secondment to the
Legal Affairs Department, Ministry of
Foreign Affairs,
Mr G. Bitti, Human Rights Office, European and
International Affairs Department,
Ministry of Justice, Counsel;
(b) for the Commission
Mr F. Ermacora, Delegate;
(c) for the applicant
Mr L. Hincker, avocat, Counsel,
Mr J. Paillot, avocat, Adviser.
The Court heard addresses by Mr Gain for the Government, by
Mr Ermacora for the Commission and by Mr Hincker and Mr Paillot for the
applicant.
AS TO THE FACTS
I. The particular circumstances of the case
7. In March 1969 Mr Claude Monnet, a doctor specialising in
radiology, married Miss C. Grosclaude. They had two children; the
first was born on 8 January 1971 and the second on 2 August 1973.
A. The first-instance proceedings
1. The applications for judicial separation and divorce
8. On 15 September 1981 the applicant's wife filed an application
for judicial separation. By an order pronouncing the failure of the
conciliation process dated 24 November 1981, the matrimonial causes
judge of the Valence tribunal de grande instance, giving an
interlocutory ruling as the judge responsible for preparing the case,
awarded custody of the children to their mother, set the father's
contribution to their maintenance at 2,000 francs per month, and in
addition ordered Mr Monnet to pay his wife a monthly sum of
1,500 francs.
9. On 30 December 1981 Mrs Grosclaude instituted judicial
separation proceedings against her husband. The applicant entered an
appearance by appointing a lawyer on 18 February 1982. He was to
change lawyers three times in the course of the proceedings. In his
first submissions of 24 May 1982 he cross-petitioned for divorce. He
made further submissions on 6 January 1984.
10. On 21 September 1984 Mrs Grosclaude filed her submissions,
after she had been directed to do so. She communicated her evidence
on 21 November. The parties lodged additional submissions on 11 and
12 December. On 17 December the judge responsible for preparing the
case made an order closing the preliminary stage (ordonnance de
clôture). The hearing took place two days later.
11. On 13 February 1985 the Valence tribunal de grande instance
pronounced the couple's divorce, finding that both were at fault; it
deferred its decision on the custody of the children and the amount of
maintenance pending the filing of a second social inquiry report and
a psychological report on the children (see paragraph 12 below). The
provisions relating to custody and maintenance decided by the judge
responsible for preparing the case remained in force. The court
rejected an application for a psychiatric expert opinion filed by the
applicant on 26 October 1984.
2. The ancillary measures
12. In the meantime, on 15 June 1982, the matrimonial causes judge
had considered it necessary to have recourse to a social inquiry. The
educational guidance report was filed on 2 February 1983; the social
inquiry report on 10 June 1983. On the basis of submissions made by
Mr Monnet on 18 January 1984 and by his wife in June 1984, the same
judge ordered, on 14 August, a second social inquiry and a
psychological report on the children.
13. On 19 November 1982 Mrs Grosclaude sought an increase in the
paternal contribution and maintenance payments. Before ruling, the
judge ordered, on 1 February 1983, an accountant's report on the
applicant's income, a measure which was made subject to the deposit by
the latter, before 1 March, of the sum of 3,000 francs. This amount
was not paid until 8 September, following a reminder sent on 7 June.
On 15 May 1984, in the light of the expert's report filed on
2 February 1984, the judge fixed the overall monthly payment at
8,000 francs. The applicant challenged this decision unsuccessfully
in the Grenoble Court of Appeal, which dismissed his appeal on
26 September 1984. His appeal on points of law was rejected by the
Court of Cassation on 28 April 1986.
B. The appeal proceedings
14. In the intervening period, on 18 March 1985, the applicant had
appealed from the judgment of 13 February 1985, asking the Grenoble
Court of Appeal to pronounce the divorce with fault being attributed
exclusively to his wife.
15. By way of interlocutory application, he requested, on
6 December 1985, that his maintenance payments be reduced. On
21 January 1986 the judge responsible for the preparation of the appeal
case dismissed this application, which had been contested by
Mrs Grosclaude.
By an interlocutory appeal from this order, Mr Monnet sought,
on 16 June 1986, a new financial expert's report. On 18 September the
same judge dismissed his application, which had been opposed by his
wife in submissions of 11 September.
16. On 5 September 1985 the judge in question scheduled the
conclusion of the preliminary stage of the proceedings for
30 September 1986 and the hearing for 25 November.
The order closing the preliminary stage of the appeal
proceedings, which was postponed at the applicant's request to
14 November 1986 and then to 22 February 1987, was finally issued on
27 February, after the exchange of several sets of submissions; the
applicant had not filed his first appeal submissions on the merits
until 12 November 1986, after being directed to do so following an
application from his wife. The hearing was held on 2 March 1987.
17. On 16 March 1987 the Court of Appeal, setting aside the
contested judgment, dismissed as ill-founded the petitions for judicial
separation and divorce. Ruling of its own motion by virtue of
Article 258 of the Civil Code, it awarded custody of the children to
the mother, authorised her to live apart from her husband and ordered
the latter to pay 8,000 francs as his monthly maintenance contribution.
C. The cassation proceedings
18. Mr Monnet appealed on points of law on 4 August 1987. He
produced his memorial on 4 January 1988. The judge rapporteur, to whom
the file was assigned on 20 April 1988, filed his report on 5 May 1988.
The applicant's wife communicated her observations on 17 May 1988.
On 12 October 1988 the Court of Cassation (Second Civil
Division) dismissed the appeal.
II. The relevant legislation
A. The Civil Code
19. The following provisions of the Civil Code are relevant in the
present case:
Article 248-1
"In the event of divorce on grounds of fault, and at the
request of the couple, the court may confine itself to noting
in the reasons for its judgment that there are grounds for
divorce without having to set out the transgressions and
complaints of the parties."
Article 251
"Where divorce is sought because of long-term de facto
separation or on grounds of fault, prior to the judicial
proceedings an attempt shall obligatorily be made at
reconciliation. Further such attempts may be made during the
proceedings.
Where divorce is sought on the basis of mutual consent, an
attempt at reconciliation may be made in the course of the
proceedings in accordance with the specific rules of
procedure applicable to this type of divorce."
Article 258
"When the court gives a final decision rejecting the
divorce petition, it may rule on the maintenance
contributions, the place of residence of the family and the
custody of minor children."
Article 259
"The facts relied on as grounds for divorce or as a defence
to a divorce petition may be established by any type of
evidence, including a confession."
Article 259-3
"Spouses must communicate to each other and to the judge
and to the experts appointed by him, all information and
documents which are useful in determining the allowances and
contributions and for the realisation of the matrimonial
assets.
The court may order any useful inquiries in respect of
debtors or those who hold assets on behalf of the couple,
regardless of whether such information is protected by a duty
of confidentiality."
Article 296
"Judicial separation may be pronounced at the request of
one of the spouses in the same cases and subject to the same
conditions as divorce."
B. The new Code of Civil Procedure
20. The following Articles of the new Code of Civil Procedure may
also be cited:
Article 2
"The parties shall conduct the proceedings in accordance
with the responsibilities incumbent on them. They shall
carry out the steps in the proceedings in the manner and in
compliance with the time-limits laid down."
Article 3
"The court shall ensure the proper conduct of the
proceedings; it shall be empowered to lay down time-limits
and order necessary measures."
Article 265
"The decision ordering an expert opinion shall:
set out the circumstances which render necessary the expert
opinion and, if appropriate, the appointment of several
experts;
appoint the expert or experts;
set out the terms of reference for the expert;
lay down the time-limit within which the expert shall give
his opinion."
Article 765
"The judge responsible for preparing the case may invite
the lawyers to reply to any arguments in respect of which
they have not made submissions.
He may also invite them to supply any explanations as to
the facts and law which may be necessary to resolve the
dispute.
He may order that the originals of documents adduced in
court be communicated to him or require the production of
copies thereof."
PROCEEDINGS BEFORE THE COMMISSION
21. Mr Monnet lodged his application with the Commission on
26 November 1987. Relying on Article 6 (art. 6) of the Convention he
complained of the length of the judicial separation and divorce
proceedings and of criminal proceedings brought against him for wilful
neglect to maintain his family. He also alleged that his case had not
had a fair hearing either at first instance or in the appeal
proceedings.
22. On 6 March 1991 the Commission found the complaint concerning
the length of the civil proceedings admissible and declared the
remainder of the application (no. 13675/88) inadmissible as manifestly
unfounded. In its report of 1 July 1992 (made under Article 31)
(art. 31), it expressed the opinion, by seven votes to one, that there
had been a violation of Article 6 para. 1 (art. 6-1). The full text
of the Commission's opinion is reproduced as an annex to this
judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 273-A of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
23. In their memorial, the Government requested the Court to
"dismiss the application lodged by Mr Monnet".
24. The applicant, on the other hand, urged the Court "to find
that the French State had breached the Convention on the ground that
the French courts had not dealt with the judicial separation
application submitted by his wife and his counter-petition for divorce
within a reasonable time as required under Article 6 para. 1 (art. 6-1)
of the Convention".
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
25. Mr Monnet complained of the time taken to hear the judicial
separation and divorce petitions. He relied on Article 6 para. 1
(art. 6-1) of the Convention, according to which:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ..."
The Government disputed this claim; the Commission accepted
it.
A. The period to be taken into consideration
26. The period to be taken into consideration began on
15 September 1981, the date on which the petition for judicial
separation was filed. It ended on 12 October 1988, when the Court of
Cassation delivered its judgment. It therefore lasted seven years and
approximately one month.
B. Reasonableness of the length of the proceedings
27. The reasonableness of the length of proceedings must be
assessed in the light of the circumstances of the case and with
reference to the criteria laid down in the Court's case-law, notably
the complexity of the case and the conduct of the parties and of the
relevant authorities (see, inter alia, the Vernillo v. France judgment
of 20 February 1991, Series A no. 198, p. 12, para. 30).
As the Government stressed, Article 2 of the new Code of Civil
Procedure leaves it to the parties to take the initiative: it is
incumbent on them to "carry out the steps in the proceedings in the
manner and in compliance with the time-limits laid down". However,
this does not absolve the courts from ensuring that the proceedings are
conducted within a reasonable time (see, inter alia, the Martins
Moreira v. Portugal judgment of 26 October 1988, Series A no. 143,
p. 17, para. 46). Moreover, as the applicant pointed out, under
Article 3 of the Code the court is required to ensure the proper
conduct of the proceedings and is empowered "to lay down time-limits
and order necessary measures".
1. Complexity of the case
28. In the applicant's submission the case was not a particularly
complex one.
The Court, however, shares the Government's view that the
large number of interlocutory applications filed by the parties,
especially Mr Monnet, made it so. Moreover, the Court of Appeal drew
attention in its judgment to this intense activity.
2. Conduct of the parties
29. According to the Government, the French authorities could not
take responsibility for the consequences of the choice made by the
Monnets, who preferred to put an end to their marriage by a contentious
procedure rather than opting for divorce by mutual consent, which was
much quicker. In addition the attitude of the applicant, who filed the
majority of his many submissions late, changed his lawyer several times
and made numerous applications for financial expert reports and for
psychological or social inquiry reports, slowed down the progress of
the proceedings in a manner which was decisive.
The applicant maintained that he had displayed due diligence.
Mrs Grosclaude and he had done no more than have recourse to the
different means available to secure the best protection of their
interests; the interlocutory applications, which had related to the
crucial question of the custody of the children and to the payment of
maintenance, had in no way been used as a delaying tactic.
30. The Court reiterates that only delays for which the State can
be held responsible may justify a finding that a "reasonable time" has
been exceeded (see, inter alia, the H. v. France judgment of
24 October 1989, Series A no. 162, pp. 21-22, para. 55).
In this instance the parties were hardly diligent in filing
their submissions.
In the Valence tribunal de grande instance Mr Monnet waited
almost five months, from 30 December 1981 until 24 May 1982, before
lodging his cross-petition for divorce and more than nineteen months,
from 24 May 1982 to 6 January 1984, before submitting grounds in
support thereof (see paragraphs 8-9 above). At the same time the court
had to resort to directing Mrs Grosclaude to reply (see paragraph 10
above).
In the Grenoble Court of Appeal Mr Monnet, the appellant in
those proceedings, twice requested the deferment of the order
concluding the preliminary stage of the proceedings (ordonnance de
clôture) and did not file his first submissions on the merits
until 12 November 1986, following a direction to this effect and twenty
months after he had lodged his appeal (see paragraph 16 above).
31. It therefore appears that the parties, especially the
applicant, contributed considerably to prolonging the proceedings.
3. Conduct of the judicial authorities
32. The Commission considered that the failure to comply with the
"reasonable time" requirement stemmed essentially from the conduct of
the judicial authorities. Thus the accountant had taken a year
(1 February 1983 - 2 February 1984) to submit his report and the judge
responsible for preparing the case had scheduled the hearing for a date
almost one year and eight months after the appeal was filed
(18 March 1985 - 25 November 1986); in addition, according to the
applicant, the social inquiry had taken nearly a year (15 June 1982 -
10 June 1983) (see paragraphs 12, 13, 14 and 16 above). Yet the courts
ought to have shown special diligence as the proceedings concerned
civil status (see the Bock v. Germany judgment of 29 March 1989,
Series A no. 150, p. 23, para. 49).
On that last point, the Government affirmed that in appealing
the applicant had been motivated by financial considerations rather
than the desire to divorce. In addition, in fault-based divorce
proceedings, the judge had a limited role to play: he could not
accelerate the dissolution of the marriage and only the parties could
adduce evidence to substantiate the grounds for the divorce. There had
been no exceptional circumstance calling for special expedition on the
part of the tribunal de grande instance and the Court of Appeal.
33. With regard to the financial report, the Court notes that
Mr Monnet waited seven months (1 February - 8 September 1983) before
depositing the amount fixed by the relevant judge, thus making it
impossible to appoint an accountant earlier. Once appointed the
accountant carried out the task assigned to him (see
paragraph 13 above). The social inquiry showed that the expert had
encountered all manner of difficulties in his dealings with the
Monnets, who were bitterly divided on the question of the children.
The period of one year does not seem unreasonable in view of the
consequences that the report might have on the future of those
concerned (see paragraph 12 above).
Furthermore, the two years that the appeal proceedings lasted
(18 March 1985 - 16 March 1987) do not appear excessive in the light
of the conduct of the applicant, who caused the adjournment to
2 March 1987 of the hearing, which had originally been set down for
25 November 1986 (see paragraph 16 above).
The cassation proceedings did not give rise to criticism.
34. Having regard to all the circumstances of the case and in
particular to the role of the parties in the conduct of the
proceedings, the Court does not consider excessive the total length of
those proceedings. It therefore takes the view that the applicant's
complaint is unfounded.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 6 para. 1
(art. 6-1).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 27 October 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar