European Court of Human Rights

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38961/07
by Wolfgang GRIMM
against Germany

The European Court of Human Rights (Fifth Section), sitting on
8 December 2009 as a Chamber composed of:

Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Rgistrar,

Having regard to the above application lodged on 6 August 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Wolfgang Grimm, is a German national who was born in 1955 and lives in Nürtingen. He is represented before the Court by Mr W. Burdenski, a lawyer practising in Frankfurt. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialdirigentin, of the German Ministry of Justice.

A.  The circumstances of the case

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

1. Proceedings before the domestic courts

On 30 December 1998 the applicant instigated divorce proceedings before the Frankfurt/Main District Court (Amtsgericht). The couple has two children, born in 1987 and 1990.

Between 1998 and 2006 the Frankfurt District Court held a number of hearings.

During a hearing held on 11 May 2007 the parties agreed that the issue of parental authority had been disposed of. However, the issues of alimony and equalisation of accrued assets remained controversial. The applicant lodged a request with the District Court to sever these ancillary matters from the divorce proceedings pursuant to section 628 § 1 No. 4 of the Code of Civil Procedure (see Relevant domestic law, below). The applicant’s wife opposed this request.

Following the hearing, the District Court rejected the applicant’s request and refused to issue a divorce decree before the settlement of the ancillary matters. It conceded that the divorce proceedings, which had already lasted eight years, had been extraordinarily lengthy. However, the applicant had not established that the length of the proceedings amounted to an unacceptable hardship. A date for a new hearing was scheduled for
17 August 2007. By letter of 11 July 2007 the applicant’s previous counsel indicated that he no longer represented him. The hearing was then postponed to 15 February 2008 in response to the request of the applicant’s new counsel in view of the extent of the case-file.

On 27 August 2007 and 12 February 2008 the applicant expanded his cross-action.

On 19 November 2007 the applicant lodged a fresh request to sever the ancillary matters and to decree the divorce. He alleged that the length of the proceedings as such constituted an unacceptable hardship. It was preventing him from marrying his new partner and his psychological health had been ruined. He further alleged that the length of the proceedings was primarily imputable to his wife’s conduct.

On 15 February 2008 the District Court held a hearing.

By a decision given in written proceedings on 30 April 2008, the District Court submitted to the parties a proposal for a friendly settlement regarding alimony for the applicant’s wife and children and distribution of accrued assets. The parties were granted a time-limit until 30 May 2008 to make a statement on the settlement proposal, and until 1 July 2008 on other aspects. The applicant was further informed that, for reasons of procedural efficiency, the severing of the ancillary matter could not be envisaged as long as it had not been established how to deal with the applicant’s pension entitlement.

On 29 May 2008 the applicant’s wife rejected the settlement proposal.

By letter of 22 July 2008 the applicant’s counsel requested an extension of the time-limits for an indefinite period in view of extra-judicial settlement negotiations regarding all ancillary matters. The other party confirmed the settlement negotiations by letter of 28 July 2008.

On 20 October 2008 the District Court asked the parties’ counsels whether it was likely that the dispute would be disposed of by friendly settlement.

On 12 December 2008 the applicant’s counsel informed the District Court that a response was not yet possible due to ongoing settlement negotiations.

In response to a status enquiry by the District Court dated 30 March 2009 the applicant’s opponent’s counsel replied on 27 April 2009 that the applicant had not yet replied to his latest settlement proposal.

During a hearing in parallel proceedings which took place on
8 May 2009 the parties confirmed that they continued to negotiate on an overall friendly settlement.

2. Previous proceedings before the Court (application no. 27696/05)

On 1 August 2005 the applicant lodged an application with the Court, complaining about the length of the divorce proceedings pending before the Frankfurt District Court.

On 29 January 2007 and 12 February 2007 the Court received friendly settlement declarations signed by the parties under which the applicant agreed to waive any further claims against Germany in respect of the facts giving rise to this application against an undertaking by the Government to pay him 9,000 euros to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 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 as far as it regards the length of the divorce proceedings, pending before the Frankfurt am Main District Court
(file no. 35 F 3003/99-54), until the date on which the parties conclude the friendly settlement.

On 13 March 2007 the Court decided to strike the application out of its list of cases pursuant to Article 37 § 1 of the Convention.

B.  Relevant domestic law

Section 623 of the Code of Civil Procedure provides that divorce proceedings as such and proceedings relating to alimony, partition of property, pension rights adjustments and custody – so called ancillary matters (Folgesachen) – have to be examined and decided in joint proceedings (Verbundverfahren).

Section 628 § 1 No. 4 stipulates 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.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the length of the divorce proceedings. He further invoked Articles 8 and 14 of the Convention.

THE LAW

According to the applicant the length of the divorce proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention and violated his rights under Articles 8 and 14 of the Convention. The Court considers that the applicant’s complaint falls to be considered under Article 6 alone, 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 ...”

The Government rejected the allegation.

1. Period to be taken into considerations

The applicant’s complaint relates to the length of the divorce proceedings, which began on 30 December 1998 and are still pending before the Frankfurt District Court. According to the applicant, the scope of the complaint could not be limited to the period of time that had elapsed after the conclusion of the friendly settlement on 12 February 2007, as the applicant only entered this settlement in view of his firm conviction that the divorce would be decreed at the next oral hearing before the domestic courts.

The Court notes that in the friendly settlement concluded on
12 February 2007 (see Grimm v. Germany (dec.), no. 38961/07,
13 March 2007), both parties expressly declared this to constitute the final resolution of the case insofar it regarded the length of the divorce proceedings, pending before the Frankfurt am Main District Court
(file no. 35 F 3003/99-54), until the date on which the parties concluded this friendly settlement. The text of the friendly settlement does not contain any reference to the termination of the domestic proceedings. It follows that the applicant’s frustrated expectations as to the termination of the divorce proceedings were not part of the friendly settlement and do not impair the binding nature of the said agreement. It follows that the Court, in the present proceedings, is called upon only to examine the period of time which has elapsed after 12 February 2007. The divorce proceedings, insofar as relevant, have therefore lasted some 2 years and 8 months in one court instance.

2. The reasonableness of the length of the proceedings

The Government considered that the length of the proceedings was not unreasonable having regard to the circumstances of the case. They pointed out that the domestic proceedings were carried out in a highly contentions manner and were further complicated by the cross-actions lodged by the applicant. The Government further alleged that the applicant himself made a substantial contribution to the length of the proceedings. They emphasised, in particular, that the applicant, on 22 July 2008, applied for time-limits set by the District Court to be extended indefinitely in view of the negotiations on an extra-judicial settlement.

The applicant considered that the delays caused by the
friendly-settlement negotiations were not imputable to him, as his wife obviously intended to delay the friendly settlement negotiations as long as possible or even to cause their failure. The delay necessitated by the change of the applicant’s counsel was a direct consequence of the excessive length of the proceedings, as the applicant’s former counsel had to withdraw from the proceedings on account of his age. The applicant further alleged that the length of the proceedings had caused his physical and mental collapse, prevented his re-marriage and had led to his losing his work and apartment.

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).

Turning to the circumstances of the present case, the Court notes that the divorce proceedings are of a very contentious nature and that the
cross-actions lodged by the applicant further complicated the proceedings. As to what was at stake for the applicant, the Court does not consider it necessary to examine in detail whether the negative developments in the applicant’s life were attributable to the overall length of the proceedings; the Court accepts, in any event, that the applicant has a considerable interest in the termination of the divorce proceedings and the severing of his marriage, having particular regard to the fact that the divorce proceedings had already been pending for more than eight years prior to the period of time which forms the subject-matter of the present complaint.

As regards the period of time between February 2007 and July 2008, the Court notes that there is no indication that the District Court failed sufficiently to expedite the proceedings. It notes, in particular, that the District Court held a hearing on 11 May 2007 and set the date for a new oral hearing for 17 August 2007, which had to be postponed to
15 February 2008 in order to allow the applicant’s new counsel to acquaint himself with the extensive case-file. While it can be accepted that the applicant had been obliged to change counsel because of the latter’s retirement, the occasioned delay of some six months cannot be held imputable to the domestic courts.

As to the applicant’s own conduct since July 2008, the Court notes that the proceedings before the domestic courts are halted following the applicant’s own request to extent time-limits indefinitely in order to allow for friendly-settlement negotiations. There is no indication that the applicant has, at any time after this date, requested the District Court to resume the contentious proceedings. There is further no indication that the friendly settlement negotiations, which had been promoted by the District Court and pursued by both parties to the domestic proceedings, were devoid of any prospect of success. It follows that the period of time which has elapsed since July 2008 cannot be held imputable to the domestic court.

In conclusion, the Court considers that the length of the proceedings during the relevant period of time did not exceed a “reasonable time” within the meaning of Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President