European Court of Human Rights

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10732/05
by Petra BÄHNK
against Germany

The European Court of Human Rights (Fifth Section), sitting on 22 January 2008 as a Chamber composed of:

Peer Lorenzen, President,
Snejana Botoucharova,
Volodymyr Butkevych,
Margarita Tsatsa-Nikolovska,
Rait Maruste,
Javier Borrego Borrego,
Renate Jaeger, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 17 March 2005,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Petra Bähnk, is a German national who lives in Buchholz.

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

The applicant divorced from her husband on 21 September 1995. On the same day, they concluded an interim settlement (Zwischenvergleich) regarding the applicant’s maintenance claims subject to future changes from the date of the divorce.

On 10 August 2001, the applicant instituted proceedings before the Hamburg-Wandsbek District Court in order to obtain information on her former husband’s income as well as his assets. The claim was registered under the file number “732 F 8/01”. In March 2002, an oral hearing was held in which the Hamburg-Wandsbek District Court ordered an expert opinion regarding the applicant’s invalidity. The expert opinion was delivered in December 2003.

On 15 August 2004, the applicant lodged a constitutional complaint with the Federal Constitutional Court about the length of proceedings before the Hamburg-Wandsbek District Court. On 24 August 2004, the Registry of the Federal Constitutional Court asked the Hamburg-Wandsbek District Court for information on the proceedings. The Hamburg-Wandsbek District Court subsequently replied that the date for a further oral hearing was set for 20 October 2004. The Registry of the Federal Constitutional Court informed the applicant on 13 September 2004 about the reply by the Hamburg-Wandsbek District Court and suggested that the examination of her constitutional complaint about the length of proceedings would not be pursued.

On 23 November 2004, the Hamburg-Wandsbek District Court dismissed the applicant’s claim. The applicant wrote to the Federal Constitutional Court on 24 November 2004, again complaining about the length of proceedings before the Hamburg-Wandsbek District Court.
On 15 December 2004, the Registry of the Federal Constitutional Court replied to the applicant that her constitutional complaint would be inadmissible as the Hamburg-Wandsbek District Court had meanwhile announced to deliver a judgment on 23 November 2004. Moreover, the applicant had failed to exhaust available domestic remedies against the judgment of the Hamburg-Wandsbek District Court of 23 November 2004.

The applicant subsequently appealed against the judgment of 23 November 2004. On 10 June 2005, the proceedings were terminated by a settlement between the applicant and her former husband before the Hanseatic Court of Appeal regarding monthly payments to the applicant.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention about the allegedly erroneous court decisions, in particular about the length of the proceedings which caused severe economical and health problems for the applicant. She further claimed that she had not had an effective remedy within the meaning of Article 13 of the Convention to complain about the duration of the proceedings.

THE LAW

A.  Article 6 § 1 of the Convention

The applicant complained about the length of proceedings under Article 6 § 1, 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 Court notes that the present proceedings began with bringing the action in the Hamburg District Court on 10 August 2001 which delivered its judgment on 23 November 2004. The dispute was terminated on 10 June 2005 with the conclusion of the settlement between the parties before the Hanseatic Court of Appeal. The Court finds it therefore necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.

B.   The existence of an effective remedy to complain about the length of the custody proceedings

The applicant further took the view that there had not been an effective remedy for her to complain about the duration of the proceedings.
In particular, she had not been able to obtain redress before the Federal Constitutional Court. She relied on Article 13 of the Convention in this respect, which provides:

“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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

C.  The remainder of the complaints

Invoking Article 6 § 1 of the Convention the applicant complained in substance about the decisions rendered in the aforementioned proceedings. In the light of all the material in its possession, and insofar as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of proceedings and the lack of an effective remedy;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President