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European Court of Human Rights
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BECKER v. GERMANY - 8722/02 [2006] ECHR 1097 (14 December 2006)
URL: http://www.bailii.org/eu/cases/ECHR/2006/1097.html
Cite as:
[2006] ECHR 1097
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FIFTH
SECTION
CASE OF BECKER v. GERMANY
(Application
no. 8722/02)
JUDGMENT
(Friendly
settlement)
STRASBOURG
14
December 2006
This
judgment is final but it may be subject to editorial revision.
In
the case of Becker v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section
Registrar,
Having deliberated in
private on 20 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 8722/02) 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, Mrs
Elke Becker (“the applicant”), on 19 February 2002.
The
applicant was represented by Mr L. Ose, a lawyer practising in
Ludwigshafen. The German Government (“the Government”)
were represented by their Agent, Mrs A. Wittling-Vogel,
Ministerialrätin, of the Federal Ministry of Justice.
The
applicant complained under Article 6 § 1 of the Convention about
the length of a set of civil proceedings which the applicant had
joined as a private party.
On
8 July 2004, after obtaining the parties' observations, the Court
declared the application admissible.
On
24 August 2006, after an exchange of correspondence, the Registrar
suggested to the parties that they should attempt to reach a friendly
settlement within the meaning of Article 38 § 1 (b) of the
Convention. On 19 and 16 October 2006 the applicant and the
Government respectively submitted formal declarations accepting a
friendly settlement of the case.
THE FACTS
The applicant was born in 1952 and lives in
Frankenthal.
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 DEM 300
(approximately EUR 153), 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 engagement of the applicant's former
husband, 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.
THE LAW
On
16 October 2006 the Court received the following declaration from the
Government:
“I, Mrs Almut Wittling-Vogel, Agent of the
Government, declare that the Government of Germany offer to pay ex
gratia 9,500 euros to Mrs Elke Becker with a view to securing a
friendly settlement of the above-mentioned case pending before the
European Court of Human Rights.
This sum, which is to cover any pecuniary and
non-pecuniary damage as well as costs and expenses, will be free of
any taxes that may be applicable. It will be payable within three
months from the date of notification of the judgment by the Court
pursuant to Article 39 of the European Convention on Human Rights. In
the event of failure to pay this sum within the said three-month
period, the Government undertake to pay simple interest on it, from
expiry of that period until settlement, at a rate equal to the
marginal lending rate of the European Central Bank during the default
period plus three percentage points. The payment will constitute the
final resolution of the case.
The Government further undertake not to request that the
case be referred to the Grand Chamber under Article 43 § 1 of
the Convention.”
On
19 October 2006 the Court received the following declaration signed
by the applicant's representative:
“I, Mr Ludwig Ose, Lawyer, note that the
Government of Germany are prepared to pay ex gratia the sum of
9,500 euros to Mrs Elke Becker with a view to securing a friendly
settlement of the above-mentioned case pending before the European
Court of Human Rights.
This sum, which is to cover any pecuniary and
non-pecuniary damage as well as costs and expenses, will be free of
any taxes that may be applicable. It will be payable within three
months from the date of notification of the judgment by the Court
pursuant to Article 39 of the European Convention on Human Rights.
From the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
I accept the proposal and waive any further claims
against Germany in respect of the facts of this application. I
declare that this constitutes a final resolution of the case.
This declaration is made in the context of a friendly
settlement which the Government and the applicant have reached.
I further undertake not to request that the case be
referred to the Grand Chamber under Article 43 § 1 of the
Convention after delivery of the Court's judgment.”
The
Court takes note of the agreement reached between the parties
(Article 39 of the Convention). It is satisfied that the settlement
is based on respect for human rights as defined in the Convention or
its Protocols (Article 37 § 1 in fine of the Convention
and Rule 62 § 3 of the Rules of Court).
Accordingly,
the case should be struck out of the list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list;
Takes note of the parties' undertaking not to
request a rehearing of the case before the Grand Chamber.
Done in English, and notified in writing on 14 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
