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You are here: BAILII >> Databases >> European Court of Human Rights >> BOCK v. GERMANY - 11118/84 [1989] ECHR 3 (29 March 1989) URL: http://www.bailii.org/eu/cases/ECHR/1989/3.html Cite as: (1990) 12 EHRR 247, [1989] ECHR 3

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In the Bock case*,

_______________

* Note by the Registrar: This case is numbered 1/1988/145/199. The

first two figures indicate its place on the list for the year in which

the case was referred to the Court; the last two figures indicate,

respectively, the case's order on the list of cases and of originating

applications (to the Commission) referred to the Court since its

creation.

_______________

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,

Mrs D. Bindschedler-Robert,

Mr L.-E. Pettiti,

Sir Vincent Evans,

Mr R. Bernhardt,

Mr J. De Meyer,

Mr N. Valticos,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 21 November 1988 and

21 February 1989,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 25 January 1988, within the

three-month period laid down in Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention for the Protection of Human

Rights and Fundamental Freedoms. It originated in an application

(no. 11118/84) against the Federal Republic of Germany lodged with the

Commission under Article 25 (art. 25) by Mr Hermann Bock, a German

citizen, on 2 July 1982.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) of the Convention and to the declaration whereby

the German Government ("the Government") recognised the compulsory

jurisdiction of the Court (Article 46) (art. 46). It sought a

decision from the Court as to whether the facts of the case disclosed

a breach by the respondent State of its obligations under

Article 6 para. 1 (art. 6-1) of the Convention.

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 pending before the Court and

was granted leave to present his own case pursuant to the second

sentence of Rule 30 para. 1. The applicant, who was referred to as "B" in

the proceedings before the Commission, subsequently consented to the

disclosure of his identity.

3. The Chamber to be constituted included ex officio Mr R. Bernhardt,

the elected judge of German nationality (Article 43 of the Convention)

(art. 43), and Mr R. Ryssdal, the President of the Court

(Rule 21 para. 3 (b)). On 30 January 1988, in the presence of the

Registrar, the President drew by lot the names of the other five

members, namely Mrs D. Bindschedler-Robert, Mr G. Lagergren,

Sir Vincent Evans, Mr J. De Meyer and Mr N. Valticos (Article 43 in

fine of the Convention and Rule 21 para. 4) (art. 43). Subsequently,

Mr L.-E. Pettiti, substitute judge, replaced Mr Lagergren who had

resigned from the Court and whose successor at the Court had taken up

his duties before the hearing (Rules 2 para. 3 and 22 para. 1).

4. Mr Ryssdal, who had assumed the office of President of the

Chamber (Rule 21 para. 5), consulted - through the Deputy Registrar - the

Agent of the Government, the Delegate of the Commission and the

applicant on the need for a written procedure (Rule 37 para. 1). In

accordance with his order, the Government's memorial and the

applicant's memorial were both received by the registry on

30 May 1988; the applicant's in German, by leave of the President

(Rule 27 para. 3). On 25 July the Secretary to the Commission notified

the Registrar that the Delegate would submit his observations at the

hearing.

5. Having consulted - through the Deputy Registrar - those

appearing before the Court, the President directed that the oral

proceedings should commence on 21 November 1988 (Rule 38). On

8 October 1988, he granted the members of the Government's delegation

leave to address the Court in German (Rule 27 para. 2).

On 17 November, the Registrar received from the Commission several

documents which he had requested on the President's instructions.

6. The hearing took place in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory

meeting immediately beforehand.

There appeared before the Court:

(a) for the Government

Mr J. Meyer-Ladewig, Ministerialdirigent,

Federal Ministry of Justice, Agent,

Mr H.A. Stöcker, Ministerialrat,

Federal Ministry of Justice, Adviser;

(b) for the Commission

Mr J.A. Frowein, Delegate;

(c) the applicant in person, Mr Hermann Bock.

The Court heard their adresses and their replies to its questions.

On 21 November and 21 December 1988 and on 13 and 20 January 1989, the

Registrar received observations from, respectively, the applicant, the

Government and the Commission on the question of the application of

Article 50 (art. 50) of the Convention to this case.

AS TO THE FACTS

7. The applicant was born in 1928 and is a German citizen living

in Düsseldorf where he works as a senior legal officer in the Ministry

of Science and Research of North Rhine-Westphalia.

He married in 1961 and there were three children of the marriage.

Divorced in 1983, he complains of the length of divorce proceedings

which he started against his then wife in 1974.

1. THE PROCEEDINGS BEFORE THE DÜSSELDORF REGIONAL COURT (LANDGERICHT)

(18 MARCH 1974 - 30 JUNE 1977)

8. On 18 March 1974 the applicant started divorce proceedings in

the Düsseldorf Regional Court. He stated that he doubted whether his

wife was faithful to him and that she had threatened to have him

placed under guardianship on the ground of mental illness. However, a

psychiatric examination by Dr Lemmer, a public medical officer, which

he underwent, at his wife's instigation, in September 1973, revealed

no indication of any mental illness. The applicant put the medical

report in evidence and cited Dr Lemmer as a witness.

9. After the applicant had filed his divorce petition, the

applicant's wife brought guardianship proceedings

(Gebrechlichkeitspflegschaft) before the Ratingen District Court

(Amtsgericht) against Mr Bock. On 24 April 1974, the Court heard

evidence given by the applicant's wife, by a friend, Dr Firnhaber, a

judge, and by her aunt. It then made the guardianship order and

appointed Dr Firnhaber to be the applicant's guardian. Two days

later, on 26 April 1974, at the guardian's request, the District Court

ordered that the applicant should be committed to a mental hospital.

On the same day Dr Firnhaber entered Mr Bock's place of employment

and, without prior notice, had him taken from his office to a mental

hospital where he remained until 3 May when the orders of 24 and

26 April were set aside on appeal on the ground that they had been given

without the applicant's being heard. The case was referred back to

the District Court before which, on 30 May 1974, Mr Bock objected to

the doctors who had examined him at the mental hospital. The

Düsseldorf Regional Court upheld the objection on 21 June 1974.

Subsequently, the District Court, on 4 July 1975, rejected the

application to have a guardian appointed for Mr Bock on the ground

that, even if he did have mental-health problems, he was still capable

of dealing with his personal affairs; moreover, no complaint had ever

been made as regards the exercise of his professional duties.

A subsequent attempt by Mrs Bock to have her husband declared

incapacitated (Entmündigung) also failed; on 1 July 1976, the

Düsseldorf District Court refused her application and this decision

was upheld on 17 September 1976 by the Düsseldorf Regional Court.

10. On 31 May 1974, Mrs Bock had submitted her reply to the

divorce petition. According to her, her husband was afflicted by a

mental illness and therefore was not competent to start legal

proceedings. As evidence of such incapacity, she asked Dr Firnhaber

to be called as a witness.

Under section 52 of the German Code of Civil Procedure, a person shall

have the capacity to conduct legal proceedings to the same extent as

he can bind himself by contracts, in accordance with the relevant

provisions of the Civil Code. Under the terms of section 104 of the

latter:

"The following shall be incapable of performing legal transactions:

1. minors under seven years of age;

2. persons who, owing to a pathological disturbance of their

mental faculties, are unable freely to determine their intentions,

in so far as this state of affairs is not by its nature purely

temporary;

3. a person who has been declared incapacitated on account of

mental illness."

However, persons who have been declared incapacitated or placed under

temporary guardianship on account of imbecility, prodigality,

dipsomania or drug addiction, have, as regards the performance of

legal transactions, the same capacity as children of more than seven

years of age. Nevertheless, such a person may conduct matrimonial

proceedings (Ehesachen; Article 607 of the Code of Civil Procedure).

It is recognised under German law that a person may be regarded as

being partially incapacitated in respect of certain matters, such as

matrimonial causes. To that extent, a person cannot introduce an

action under section 52 aforesaid.

In accordance with section 56 para. 1 of the Code of Civil Procedure, the

courts are required ex officio to take into consideration a lack of

capacity to take legal proceedings.

11. On 6 June 1974, the Düsseldorf Regional Court heard the

parties and Mr Bock declared that he was prepared to undergo a medical

examination. On 10 July 1974, the court instructed Dr Wegener to give

an opinion on the applicant's state of mental health. He received the

applicant's file on 22 July 1974 and reported to the court in

November 1974 that he had examined the applicant.

On 13 November 1974, Mr Bock challenged the doctor and informed the

court that he had instructed a new lawyer. On 21 November 1974,

Dr Wegener presented his report: he considered the applicant to be

seriously ill and suffering from a paranoid psychosis. However,

on 9 December 1974, the court upheld the challenge of 13 November. On

23 December 1974, it appointed Dr Baucke as the expert and asked the

parties for their views on this choice.

12. On 1 April 1975, after an extension of the time-limit for

submitting his observations, Mr Bock challenged Dr Baucke and refused

to be examined by him: according to the applicant, having succeeded

to Dr Wegener's official functions, Dr Bauke might be influenced by

the expert opinion given by his predecessor.

The Regional Court found against the applicant on 17 April 1975; the

applicant's appeal (sofortige Beschwerde) dated 9 May 1975 was

dismissed by the Düsseldorf Court of Appeal (Oberlandesgericht) on

26 August 1975. Prior thereto, that is to say on 13 August 1975, the

applicant had changed his lawyer; he did so again on 3 December 1975.

On 26 January 1976, Dr Baucke returned the file, stating that the

applicant still refused to be examined. Three days later, the court

instructed its registry to inform the parties thereof but the registry

inadvertently omitted to do so.

On 12 May 1976, Mr Bock's lawyer asked for the proceedings to be

continued. On 25 May 1976, the Court decided to hold a hearing on

1 July 1976.

13. At the hearing on 1 July 1976, the Regional Court decided to

hear two witnesses proposed by the applicant's wife, namely

Dr Firnhaber and a medical doctor, Dr De Boor. However, at the

hearing on 9 September 1976, only Dr Firnhaber appeared. The

applicant requested the court to adjourn the hearing but it refused to

do so. The applicant then challenged the judges who overruled his

objection on 3 November 1976. He appealed against this decision

on 19 November 1976 and, on 14 February 1977, challenged one of the

judges at the Court of Appeal. The file was then transferred to

another chamber of the Court of Appeal which found against the

applicant on 8 March 1977.

14. On 30 March 1977, the Regional Court decided to hold a hearing

on 2 June 1977 to take the evidence of Dr Firnhaber and Dr De Boor.

However, the hearing was cancelled at the request of the applicant's

new lawyer, whom Mr Bock had chosen on 1 June 1977. On 16 June 1977

the lawyer informed the court that he no longer represented the

applicant.

15. Prior thereto, a fresh incident had occurred between the

spouses.

On 20 August 1976, Mrs Bock had alerted the police, claiming that her

husband was threatening her. The applicant was forcibly conducted to

a psychiatric hospital where he was examined by two doctors, including

Dr Roth who, as a result of their examination refused to admit him.

The police then released Mr Bock who, on 31 August 1976, was barred

from the matrimonial home pursuant to a court order obtained by his

wife.

A complaint laid by the police officers against the applicant for

resisting them in the course of their duty was dismissed. On

25 March 1977, Mr Bock was acquitted by the Magistrates Court

(Schöffengericht) after testimony was given by Dr Roth who declared

that the applicant was not mentally deranged. On 23 December 1981,

the Düsseldorf Court of Appeal awarded him compensation for the police

action which was held to have been unjustified.

16. In 1976, new legislation reforming the law on marriage and the

family was enacted in the Federal Republic of Germany. It provided,

inter alia, for the abolition of the notion of matrimonial fault in

divorce proceedings and established at the District Courts special

divisions for family cases (Familiengerichte), consisting of a single

judge.

As a result of the new laws, the pending divorce proceedings were

transferred, with effect from 1 July 1977, from the Regional Court to

the Family Court in Düsseldorf.

2. THE FIRST PROCEEDINGS BEFORE THE FAMILY COURT AND THE DÜSSELDORF

COURT OF APPEAL (1 JULY 1977 - 9 JANUARY 1980)

(a) Family Court proceedings (1 July 1977 - 5 January 1979)

17. On 26 July 1977, the Family Court invited the parties to amend

their arguments in the light of the new legislation. Mr Bock's new

lawyer - the sixth withdrew from the case on 30 November 1977 -

submitted his observations on 21 December 1977.

The Court heard the parties on 22 May 1978 and, having regard to the

applicant's supplementary memorial relating to custody of the

children, decided to hold a fresh hearing which, for organisational

reasons affecting the parties and the court, did not take place until

13 November 1978.

Having seen the children on 30 November and held a fresh hearing

on 4 December, the Family Court pronounced the divorce on

21 December 1978. In its view, the divorce petition was admissible.

Mr Bock was capable of taking legal proceedings. The applicant's

alleged behaviour was not necessarily the manifestation of a mental

illness.

The divorce judgment, which granted custody of the children to their

mother, was served on the parties on 5 January 1979.

(b) Appeal proceedings (5 February 1979 - 9 January 1980)

18. One month later, the applicant's wife appealed to the

Düsseldorf Court of Appeal. On the same date, Mr Bock cross-appealed

as to custody rights and the costs of the proceedings.

On 18 April 1979, the applicant challenged the Appeal Court judges on

the ground that they had previously refused him access to the

children. The Court of Appeal rejected his challenge on 27 April 1979.

His appeal to the Federal Constitutional Court

(Bundesverfassungsgericht) was declared inadmissible on

11 September 1979.

19. Having both been granted extensions of time, the parties

submitted their observations on 7 June and 3 October 1979

respectively.

The Court of Appeal granted legal aid to Mrs Bock on 5 November and

heard the parties on 12 November 1979. Having in the meantime

instructed a new lawyer, the applicant submitted supplementary

observations on 11 December relating to his capacity to take legal

proceedings and a private expert opinion by Dr Lemmer dated

7 December 1979.

20. On 9 January 1980, the Düsseldorf Court of Appeal quashed the

divorce judgment pronounced on 21 December 1978 by the Family Court

and ordered that court to hear the case again. By failing to consider

the applicant's alleged lack of capacity to take proceedings in this

case, it had failed to observe section 56 of the Code of Civil

Procedure (see paragraph 10 above).

The Düsseldorf Court of Appeal set out its reasoning as follows

(translation):

"Generally speaking, a court may act on the assumption that a party is

capable of conducting legal proceedings. However, should serious

doubts arise about capacity, the court may not permit litigation to

continue where a decision on the merits is being sought, but, under

section 56 of the Code of Civil Procedure, must examine the question

of capacity ex officio as a precondition for the lawfulness of a

decision on the merits. In such a case, the court, without being

bound by any procedural rules on the taking of evidence, must exhaust

all the evidentiary possibilities necessary to the forming of a

definite view ... This the court failed to do in disregard of the

applicable substantive and procedural provisions.

In the present case, as may be seen from the following considerations,

there are serious doubts about the petitioner's capacity to conduct

proceedings, which are not dispelled by the report of the retired

chief medical officer, Dr Lemmer, of 7.12.1979, now submitted, this in

turn meaning that there is no need to re-open the oral hearing in

pursuance of section 156 of the Code of Civil Procedure.

In a letter of 17.4.1974 ..., Dr Firnhaber, who was for many years a

friend of the petitioner, approached the Ratingen District Court with

the aim of securing - by way of a guardianship - medical treatment for

him. In this letter, Dr Firnhaber, referring to numerous occurrences

in the past, known to him as a result of conversations with the

petitioner himself or with members of his family, voiced the suspicion

that the petitioner was suffering from a persecution complex directed

more and more at the respondent. Mrs Linn, an aunt of the respondent,

also expressed similar views to the Ratingen District Court ... . One

cannot without more ado accuse these persons of merely being hostile

to the petitioner; rather, in the view of this court, it must be

presumed that they acted out of genuine concern for the petitioner.

Their statements cannot therefore be ignored and are such as to raise

doubts as to the petitioner's legal capacity and therefore his

capacity to conduct legal proceedings. In this respect it is not of

decisive importance whether accounts of the occurrences are accurate

in every detail and the conclusions drawn the right ones. In any

event, such statements raise doubts which need to be looked into.

These doubts are not, for example, unfounded because the occurrences

referred to concern solely the personal and family sphere and the

petitioner is successfully carrying on a professional activity in a

post of responsibility. This is evident from the fact that capacity

to conduct legal proceedings may be present only as regards a specific

number of matters, that this possibility cannot be excluded in the

light of what has already been said, and that the present case

concerns precisely a matter falling within the area of the

petitioner's relationship with the respondent.

These doubts have not thus far been dispelled. Least apt in this

respect are the observations made by the petitioner on 1.5.1974.

Nor does the assessment provided by the senior doctor Dr Roth, when

the petitioner was brought by the police to the Grafenberg Hospital on

20/21.8.1976, as also when the hearing took place before the court

hearing the criminal charge on 25.3.1977, permit any such conclusion.

The latter is, admittedly, an expert opinion given by a doctor. It

cannot however be ruled out that the basis for this assessment was not

broad enough and that the personal and family area, including the

relationship between the petitioner and the respondent, was not

considered in the assessment.

Nor can the opinion of Dr Lemmer ... remove the doubts which have

arisen. This specialist, commissioned by the petitioner, drew up his

report following repeated and lengthy examinations of the petitioner,

and after familiarising himself with those sections of the file which

are important in this respect. He found no morbid paranoid tendencies

and comes to the conclusion that there were no limiting factors or

signs of a partial lack of capacity to conduct legal proceedings.

What is missing from his expert opinion, however, is any detailed

discussion of Dr Wegener's report of 7.1.1975, which he had at his

disposal and to which he makes reference; the latter report came to

the conclusion that the petitioner was suffering from a paranoid

psychosis negating his power of judgment in certain areas. Again, the

value of the testing procedures used by Dr Lemmer in producing his

specialist report is not apparent to the panel, in the absence of

detailed explanations. It is furthermore not made sufficiently clear

in this report whether the expert takes as correct the occurrences and

remarks of the petitioner described by the other side - for instance,

Dr Firnhaber, the respondent or Dr Wegener - or whether he merely

proceeds on the basis of what the petitioner has told him during the

examinations. Similarly, the rather summary assessment of the

observations made by the petitioner on 1.5.1974 in reply to the

respondent's statements to the Ratingen District Court and on

20.3.1975 in reply to the expert opinion of Dr Wegener, do not appear

to suffice as they stand. The expert does not go into detail; in

particular, he does not consider more closely the concern expressed by

the petitioner himself that, during a stay in Holland, he may have

been sterilised at the instigation of the respondent.

The question of the petitioner's capacity to conduct proceedings,

which accordingly is still open, can only be resolved by means of

expert opinion. This was the task of the District court. The failure

to conduct such an examination constitutes a serious procedural defect

which, pursuant to section 539 of the Code of Civil Procedure requires

the setting aside of the contested judgment."

3. THE SECOND PROCEEDINGS BEFORE THE FAMILY COURT AND THE DÜSSELDORF

COURT OF APPEAL (18 MARCH 1980 - 29 SEPTEMBER 1980)

(a) Family Court proceedings (18 March 1980 - 3 July 1980)

21. On 16 June 1980 the Family Court, which had been in possession

of the file since 18 March and held hearings on 5 and 22 May 1980,

again pronounced the divorce granting custody of the children to the

mother. The Family Court disagreed with the Court of Appeal's

statement that it had not examined the applicant's capacity to take

part in the proceedings. If the Court of Appeal had reason to doubt

the applicant's capacity, it should have examined and determined this

question itself. For these reasons, the Family Court considered

itself not bound by the Court of Appeal's decision of 9 January 1980

and refused to take further evidence on the question of the

applicant's alleged mental illness. In view of the expert opinion

submitted by Dr Lemmer on 7 December 1979 and the fact that the

applicant never gave rise to any objections in his career as a

high-ranking civil servant, not to mention the personal impression he

gave at several oral hearings, there was no reason to doubt his mental

capacities.

The judgment was served on the parties on 3 July 1980.

(b) Appeal proceedings (14 July 1980 - 29 September 1980)

22. On 29 September 1980, on the appeal of the applicant's wife

dated 14 July 1980, the second divorce judgment was also quashed and

the case again sent back for a new trial. The Düsseldorf Court of

Appeal relied on the principle laid down in settled case-law that in

the same proceedings a lower court is bound by the decision of the

higher court. In the Appeal Court's view, the Family Court, which was

bound by the judgment of 9 January 1980, had wrongly refused to take

expert evidence on the question of the applicant's state of mental

health.

4. THE THIRD PROCEEDINGS BEFORE THE FAMILY COURT AND THE DÜSSELDORF

COURT OF APPEAL (15 OCTOBER 1980 - 7 JUNE 1983)

(a) Family Court proceedings (15 October 1980 - 24 February 1982)

23. On 15 October 1980, the case files were returned to the Family

Court judge whom Mrs Bock challenged on the same date. The Regional

Court rejected the challenge on 27 November 1980 but it was upheld on

appeal on 22 January 1981. The Court of Appeal stated that, in view

of the Family Court judge's attitude as expressed in the judgment of

16 June 1980, the applicant's wife had reason to doubt his

impartiality. The applicant's constitutional complaint against the

decision of 22 January 1981 was rejected on 1 April 1981 by the

Federal Constitutional Court.

24. On 22 May 1981 the Family Court appointed another medical

expert. On 6 July 1981 an assistant of that expert was heard by the

Family Court. He considered the applicant fully capable of taking part

in the proceedings.

At the hearing the applicant's wife challenged the Family Court judge.

This motion was rejected by the Regional Court on 8 July 1981. Her

second motion of 15 July 1981 was rejected by the Regional Court

on 25 September 1981 and by the Court of Appeal on 19 November 1981.

25. On 24 February 1982 the divorce was pronounced for the third

time. Custody of the daughter (the two older children having reached

the age of majority in 1979 and 1980, respectively) was granted to the

applicant's wife who was also granted a right to pension splitting

(Versorgungsausgleich).

(b) Appeal proceedings (25 February 1982 - 7 June 1983)

26. On 25 February 1982 the applicant's wife again appealed

against the divorce judgment, which was served on the parties on

10 March 1982. On 13 April 1982 the applicant, who had in the

meantime changed his lawyer, cross-appealed with regard to the right

to custody of the daughter and the pension splitting. A statement of

the grounds of Mrs Bock's appeal was, after an extension of the

time-limit, filed on 16 April 1982. Having appointed a new lawyer the

applicant filed a statement of the grounds of his appeal on

9 June 1982.

27. On 4 August 1982 the Düsseldorf Court of Appeal, following a

hearing of the parties on 14 June 1982, decided to take further

evidence and instructed the expert, who had been appointed on

22 May 1981 (see paragraph 24 above) to examine the applicant again.

The supplementary expert opinion was received on 15 October 1982. On

21 December 1982 the applicant's wife challenged the expert, and

on 22 December 1982 the applicant challenged some of the judges at the

Court of Appeal. These challenges were both rejected: the applicant's

on 21 January 1983 and his wife's on 1 February 1983.

On 28 February 1983 the Düsseldorf Court of Appeal, following a

hearing of the parties on 21 February 1983, decided to hear the same

expert, which it did on 6 April 1983.

28. On 30 May 1983 the Court of Appeal dismissed both the appeal

and the cross-appeal. The Court stated that the expert medical

opinion showed that no doubts as to the applicant's legal capacity now

existed. It further considered it justified to give custody of the

daughter to the mother as the latter had expressed the wish to live

with her. As regards the claim to pension splitting the Court found

the applicant's wife had not forfeited it on the ground that in 1973

she caused her husband's examination by a psychiatrist. She could not

be blamed for having misinterpreted the applicant's distrusting

attitude towards her as indicating a need for medical treatment.

There had been reasons to doubt the applicant's capacity to take part

in the proceedings and these doubts could not solely be attributed to

his wife's allegations.

The judgment was served on the parties on 7 June 1983. The divorce

thereby became effective.

5. PROCEEDINGS BEFORE THE FEDERAL CONSTITUTIONAL COURT

(a) First complaint (11 March 1983 - 11 October 1983)

29. On 11 October 1983 the Federal Constitutional Court, sitting

as a panel of three judges, rejected a constitutional complaint

submitted by the applicant on 11 March 1983 against mainly the length

of the divorce proceedings partly as being inadmissible and partly as

offering no sufficient prospects of success. The Court stated that

there was nothing to show that any delays in the proceedings were not

justified by objective procedural requirements. Admittedly, an

avoidable delay was caused by the fact that the Family Court only

obtained an expert opinion after the Court of Appeal's decision of

29 September 1980 as the two courts had differing opinions as to the

need for an expert opinion and the binding nature of the decision for

the Family Court. However, as the Constitutional Court pointed out,

the Family Court had accepted the applicant's argument on the capacity

question. From this point of view, it would have meant delaying the

proceedings, had an expert opinion, which the Family Court considered

unnecessary, been obtained.

(b) Second complaint (4 July 1983 - 11 January 1984)

30. A further constitutional complaint submitted by the applicant

on 4 July 1983 against the final divorce judgment was rejected by the

Federal Constitutional Court on 11 January 1984, partly as being

inadmissible and partly as offering no prospects of success. As

regards the right to care for his daughter, this could no longer be

invoked as she had reached the age of majority. The pension splitting

ordered by the Court of Appeal gave rise to no misgivings under the

Constitution, either as regards its legal basis, the 1977 legislation,

or as regards the fact that, owing to doubts as to the applicant's

capacity to conduct legal proceedings, the divorce was pronounced only

after the entry into force of this legislation. The duration of the

proceedings had not infringed the applicant's fundamental rights. Nor

did the judgment impugned disclose an erroneous conception of the

fundamental rights alleged to be infringed. Nor had the applicant's

right to be heard in the proceedings (rechtliches Gehör) been

infringed.

PROCEEDINGS BEFORE THE COMMISSION

31. Mr Bock applied to the Commission on 2 July 1982. He

complained under Article 6 para. 1 (art. 6-1) of the Convention of the

length of the divorce proceedings. He also complained under this

provision that the proceedings were unfair. Moreover, he alleged,

under Article 8 of the Convention and Article 1 of Protocol No. 1

(art. 8, P1-1), a violation of his right to respect for his private life

and his possessions as a consequence of the court orders denying him

access to the matrimonial home, and under Article 8 para. 1 (art. 8-1)

that he was deprived of contact with his daughter.

32. By decision of 13 November 1986, the Commission declared the

application admissible in respect of the complaint made under

Article 6 para. 1 (art. 6-1) concerning the length of the divorce

proceedings. The other claims made by the applicant were all declared

inadmissible.

In its report adopted on 13 November 1987 (Article 31 of the

Convention) (art. 31), the Commission expressed the opinion, by

thirteen 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

and the dissenting opinion is reproduced in an annex to this judgment.

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

33. At the hearing of 21 November 1988 the Government maintained

the final submissions contained in its memorial, whereby it requested

the Court "to hold that the Federal Republic of Germany has not

breached the first sentence of Article 6 para. 1 (art. 6-1)".

AS TO THE LAW

I. ALLEGED BREACH OF ARTICLE 6 PARA. 1 (art. 6-1)

34. According to the applicant, the time taken by the German

courts to hear his divorce action was not "reasonable" within the

meaning of 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 Commission agreed with this view which was contested by the

Government.

A. Relevant period to be taken into consideration

35. The starting point of the relevant period to be taken into

consideration is 18 March 1974, the date on which the divorce petition

was lodged with the Düsseldorf Regional Court (see paragraph 8 above).

36. As far as the close of the relevant period is concerned, the

divorce proceedings proper came to an end on 7 June 1983, which was

the date of service of the final decree (see paragraph 28 above). The

applicant did, however, also bring two complaints before the Federal

Constitutional Court (see paragraphs 29 and 30 above). The first

complaint was brought against mainly the length of the divorce

proceedings; the second related to various matters ancillary to the

divorce judgment. They were instituted and decided on 11 March and

11 October 1983 and 4 July 1983 and 11 January 1984, respectively. The

question arises whether either of these proceedings is to be taken

into account in addition to the divorce proceedings themselves in

order to calculate the length of the time whose reasonableness falls

to be reviewed, thus bringing the overall period to an end

on 11 October 1983 or 11 January 1984, rather than 7 June 1983.

The Government maintained that Article 6 para. 1 (art. 6-1) of the

Convention does not apply to constitutional complaint proceedings

before the Federal Constitutional Court. They invited the Court to

reaffirm, on this point, its Buchholz judgment of 6 May 1981

(Series A no. 42, p. 15, para. 48), and not to follow its Deumeland

judgment of 29 May 1986 (Series A no. 100, p. 26, para. 77).

37. The Court has also had occasion to address itself to this

question in the Eckle judgment of 15 July 1982 (Series A no. 51,

pp. 17-18, para. 34, and pp. 34-35, paras. 76-79), the Erkner and Hofauer

judgment of 23 April 1987 (Series A no. 117, p. 46, para. 16, p. 50, para. 33

and pp. 61-62, para. 65), the Poiss judgment of 23 April 1987 (Series A

no. 117, p. 103, paras. 50-52) and, mutatis mutandis, the Ringeisen

judgment of 16 July 1971 (Series A no. 13, pp. 11-12, para. 23, p. 34,

paras. 79-80, and pp. 39-41, paras. 94-99), the Sramek judgment of

22 October 1984 (Series A no. 84, pp. 11-12, paras. 16-17, and p. 17,

para. 35) and the Ettl and Others judgment of 23 April 1987 (Series A

no. 117, p. 17, paras. 33-35). As a review of its case-law demonstrates,

there are circumstances in which proceedings before the Constitutional

Court of a State must be taken into the reckoning in determining the

relevant period. It has to be considered whether the Constitutional

Court's decision was capable of affecting the outcome of the case

which has been litigated before the ordinary courts. The question

whether Article 6 para. 1 (art. 6-1) is applicable to constitutional

complaint proceedings must accordingly be treated on the merits of

each case, in the light of all the circumstances.

It should be noted that the applicant himself asked that the duration

of the proceedings before the Federal Constitutional Court should be

left out of consideration because, according to him, his

constitutional complaints cannot be said to have involved lengthy

proceedings. Indeed, the Federal Constitutional Court dealt with the

two complaints lodged by Mr Bock in an expeditious manner; the first

complaint took seven months and the second six months and one week

(paragraphs 29 and 30 above).

The Court considers that the question whether those proceedings come

within the purview of Article 6 para. 1 (art. 6-1) does not need to be

resolved in order to decide the main issue, regard being had to all

the circumstances of the present case and the overall length of the

applicant's divorce proceedings. The Court will therefore confine its

examination to the period from 18 March 1974 to 7 June 1983.

B. Reasonableness of the length of the proceedings

38. The reasonableness of the length of proceedings must be

assessed in the light of the particular circumstances of the case and

having regard, inter alia, to the complexity of the case, the conduct

of the parties and of the authorities concerned and what is at stake

in the litigation (see the H v. the United Kingdom judgment of

8 July 1987, Series A no. 120-B, p. 59, para. 71).

The most striking feature of this case was the amount of time devoted

to a consideration of the applicant's mental capacity to take legal

proceedings. The German courts, as the Government pointed out, have

an ex officio duty under section 56 of the Code of Civil Procedure to

investigate a plaintiff's capacity to take proceedings; this being so

they have all the more reason to comply with the requirement of

Article 6 (art. 6) as to reasonable time (see the Martins Moreira

judgment of 26 October 1988, Series A no. 143, p. 17, para. 46). Also the

Code of Civil Procedure itself (section 272) provides generally for

proceedings to be expedited.

It is in the light of these factors that the Court will review the

conduct of the several stages of the proceedings.

1. Proceedings before the Düsseldorf Regional Court (18 March 1974 -

30 June 1977)

39. The divorce action before the Düsseldorf Regional Court,

brought by the applicant on 18 March 1974, lasted three years, three

months and approximately two weeks (see paragraphs 8-16 above). When

that court's jurisdiction in divorce matters ceased at the end of

June 1977, Mr Bock's divorce petition had not been examined as to its

merits; the Court had limited itself to an investigation of a question

going to admissibility, namely the applicant's capacity to sue.

Although Mr Bock's mental state had been investigated in

September 1973 by Dr Lemmer (see paragraph 8 above) whom the applicant

cited as a witness, the Regional Court ordered on 6 June 1974 that the

applicant be examined by another specialist, Dr Wegener. On

13 November 1974, Mr Bock made an application challenging Dr Wegener

for bias. On 21 November 1974, Dr Wegener reported to the court that

he considered the applicant to be suffering from a paranoid psychosis.

But less than three weeks later, on 9 December 1974, Mr Bock's

application challenging Dr Wegener was granted and another expert,

Dr Baucke, was asked to prepare an expert opinion (see paragraph 11

above). Mr Bock refused to be examined by Dr Baucke but his

objections against this expert were finally dismissed on appeal

on 26 August 1975. Five months later, Dr Baucke informed the Court

that he had been unable to examine the applicant. Owing to

inadvertence on the part of the court's registry, it was not until

May 1976 that the proceedings were continued (see paragraph 12 above).

40. On the assumption that doubts as to the state of Mr Bock's

mental health could be legitimately entertained, the Düsseldorf

Regional Court failed to ensure a speedy taking of evidence on this

issue.

Certainly, as the Government contended, it cannot be regarded as

arbitrary that the Regional Court considered it necessary to take

evidence as to the applicant's capacity to sue. The appointment of

Dr Baucke, after Dr Wegener had been successfully challenged, was

consonant with the provisions of the Code of Civil Procedure.

In the Court's view, the Düsseldorf Regional Court did, however,

persist too long in its attempts to have Dr Baucke accepted and ought

to have chosen another expert. This is particularly so in the light

of the Government's own argument to the effect that German law does

not provide any possibilities for coercive measures to oblige the

divorce petitioner to submit to a psychiatric examination. Moreover,

as early as 4 July 1975 the Düsseldorf District Court had dismissed

the guardianship application against Mr Bock (see paragraph 9 above).

41. As to the latter half of 1976, the Court notes that into this

period fell the second forced admission of Mr Bock into a mental

hospital (see paragraph 15 above). This measure was found by the

domestic courts to be unjustified. However much of a distraction it

may have been for the conduct of the divorce proceedings proper, it

did result in Mr Bock's incidentally receiving two further favourable

opinions on his mental health, both by Dr Roth, of which, so it

appears, no account was taken in the context of those proceedings.

Instead, the Düsseldorf Regional Court was seeking, at this time, to

hear Dr De Boor, who - it later transpired - had never examined the

applicant and Dr Firnhaber, at a time when the application for him to

be made Mr Bock's guardian had been dismissed.

In fact, by the time the Regional Court's jurisdiction ceased, no

examination of the merits of Mr Bock's divorce petition had taken

place, although attestations by two doctors of his soundness of mind

were in existence against one contrary diagnosis whose author had been

disqualified for bias. The Court therefore considers that the conduct

of the Düsseldorf Regional Court had the effect of delaying unduly

this stage of the proceedings. Certainly, some measure of

responsibility also rests with the parties. The applicant's frequent

changes of lawyer and his objections to certain judges cannot be

overlooked. Moreover, it appears, as the Government pointed out, that

the respondent to the divorce petition sought to prolong the

proceedings. However, these factors cannot exclude the Regional

Court's responsibility.

2. The subsequent proceedings following the reform in the law

(1 July 1977 - 7 June 1983)

(a) First set of proceedings (1 July 1977 - 9 January 1980)

42. The first proceedings before the newly established Family

Court lasted from 1 July 1977 to 5 January 1979 (see paragraph 17

above). There were hearings on 22 May 1978 and 13 November 1978. In

view of the delays which had already accumulated, it may be thought

that it would have been better at least to have advanced the second

hearing somewhat.

43. As regards the first appeal proceedings, which were pending

before the Düsseldorf Court of Appeal from 5 February 1979 to

9 January 1980 (see paragraphs 18-20 above), the Commission stated that

it was not satisfied that the prolongation of the proceedings caused

by the decision to refer the case back to the Family Court was

justified in the interests of a proper administration of justice

(paragraph 102 of the report). The Government argued that the Court

of Appeal was entitled to do this under section 539 of the Code of

Civil Procedure as the first instance proceedings disclosed a serious

defect due to a failure to take the necessary evidence.

However, the Court of Appeal's judgment of 9 January 1980 is, to some

extent, based on evidence adduced in the context of the earlier

guardianship application which had been dismissed and on the opinion

of Dr Wegener against whom a challenge had previously been upheld by

the Regional Court. The question may legitimately be asked why the

capacity question could not have been determined by the Court of

Appeal.

Be that as it may, the Düsseldorf Court of Appeal was in the best

position to judge whether the case ought to be referred back to the

lower court under the relevant provision of German law.

(b) Second set of proceedings (18 March 1980 - 29 September 1980)

44. The second proceedings before the Family Court lasted from

18 March 1980 to 3 July 1980 (see paragraph 21 above). This in itself

was not a long period. However, the Family Court granted the divorce

without taking the evidence which had been required by the Court of

Appeal's earlier judgment. This led to further appeal proceedings

before the Düsseldorf Court of Appeal (see paragraph 22 above) and

thus occasioned further delay.

The Government argued that no State can guarantee that its judges will

not make mistakes. An error of law made by a judge can lead to an

appeal and thus extend the length of proceedings. If this in itself

were to give rise to a violation of the right to a hearing "within a

reasonable time", that would be tantamount to acknowledging that there

is a right to court decisions free of error.

In the Court's view, an error by a court leading to a delay in the

proceedings brought about by the need for appeal proceedings to

correct the error may, in combination with other factors, be taken

into account in the determination of the reasonableness of the

relevant period pursuant to Article 6 para. 1 (art. 6-1). In the

present case, the Family Court's failure to give effect to the Court

of Appeal's earlier decision was a factor which contributed to the

delay. However, the resulting proceedings before the Court of Appeal,

which took from 14 July 1980 to 29 September 1980, were not of

unreasonable duration.

(c) Third set of proceedings (15 October 1980 - 7 June 1983)

45. For a third time, therefore, the divorce action came before

the Family Court. The proceedings were pending before that court for

a period of one year, four months and about one week (15 October 1980 -

24 February 1982, see paragraphs 23-25 above). Much of this period

was taken up by the wife's challenges of the Family Court judge, one

of which succeeded on appeal and gave rise, in its turn, to an

unsuccessful constitutional complaint by the applicant. During these

proceedings also, the Family Court obtained the expert psychiatric

evidence which it had been required to do in pursuance of the appeal

court's judgment. In all the circumstances, therefore, the Court,

like the Commission, does not find this period to be excessive.

46. As to the third set of appeal proceedings before the

Düsseldorf Court of Appeal (25 February 1982 - 7 June 1983), the

Commission expressed doubts as to the reasonableness of this period,

particularly in view of the overall time already spent by the German

courts on the applicant's divorce petition.

The Court agrees with the Commission that there was by this stage an

even greater obligation on the Court of Appeal to act as speedily as

possible. A period of more than fifteen months - including ten which

were lost before the appeal court heard the expert psychiatrist -

therefore appears excessive.

C. Overall assessment

47. This case, viewed as a whole, differs from certain others

involving the "reasonable time" requirement of Article 6 para. 1

(art. 6-1). Here there was not so much a lack of judicial activity as

an excessive amount of activity which focused on the petitioner's

mental state. A decisive cause of the protracted length of the

proceedings was the doubt cast by Mr Bock's then wife on his capacity

to conduct legal proceedings.

In principle, national courts have to proceed on the basis that a

prospective or actual plaintiff is not suffering from mental

incapacity. Should any reasonable doubt arise in this regard, they

have to clarify as soon as possible the extent to which he is

competent to conduct legal proceedings. The relevance of this

principle in the present case is heightened by the availability in

German procedural law of special provisions enabling parties to

matrimonial causes to take part in proceedings even where their legal

capacity is found to be attenuated (see paragraph 10 above).

It may be, as the Government argued, that the rift between Mr and

Mrs Bock was so serious that it presented the German courts with very

difficult problems, but such a situation cannot absolve the courts

from their obligation to determine the capacity question as quickly as

possible. The Court emphasises that, whilst it does not question the

right of national courts to investigate a plaintiff's capacity to take

proceedings, arrangements must be made to ensure a swift determination

thereof.

48. In the present case, the Court notes first that, one after the

other, proceedings based on Mr Bock's alleged mental ill-health

failed. A guardianship application was dismissed in 1975; a further

action for a declaration of his incapacity was turned down in the

following year (see paragraph 10 above). Yet doubts still persisted

in the national courts as to his soundness of mind, although, by the

time of the final divorce judgment, there was a total of five reports

attesting Mr Bock's soundness of mind against one whose author had

been disqualified. Moreover, this case concerned matters central to

the enjoyment of private and family life, namely relations between

spouses, as well as between the parents and their children.

Finally, the Court cannot disregard the personal situation of the

applicant who, for some nine years, suffered by reason of the doubts

cast on the state of his mental health which subsequently proved

unfounded. This represented a serious encroachment on human dignity.

Conclusion

49. In all, the litigation extended over more than nine years. A

period of this length is abnormal for the circumstances. Although

some responsibility for the duration of the proceedings rests with the

parties, the applicant's divorce petition was not heard within a

reasonable time owing to the cumulative delays which are attributable

to the competent courts. Regard being had to the particular diligence

required in cases concerning civil status and capacity, there has

accordingly been a breach of Article 6 para. 1 (art. 6-1) of the Convention.

II. APPLICATION OF ARTICLE 50 (art. 50)

50. The applicant seeks just satisfaction under Article 50

(art. 50) which is in the following terms:

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising from

the ... Convention and if the internal law of the said Party allows

only partial reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

A. Non-pecuniary damage

51. First of all, Mr Bock asks the Court to award to him such sum

as it may think fit ex aequo et bono in respect of non-material damage

flowing from the excessive length of his divorce proceedings. In the

Commission's view, too, Mr Bock should be compensated for the

prolonged uncertainty engendered by the problems raised in connection

with his mental capacity.

The Government contended that, as the applicant was largely to blame

for any delays, it was not appropriate to make an award under this

head; in any event, he had received compensation of DM 5,000 from the

North Rhine-Westphalian authorities in respect of unjustified police

action (see paragraph 15 above), and this already constituted adequate

satisfaction.

52. The compensation referred to by the Government was not

intended to indemnify the applicant for the hardship caused to him by

the excessive length of the proceedings but merely for certain

incidents not directly connected with the present case. The Court

considers that the excessive length of the proceedings, brought about

by the persistent doubts as to Mr Bock's mental health, was highly

detrimental to a person in the applicant's position. It is therefore

appropriate, on an equitable basis, to award him under this head the

amount of DM 10,000.

B. Pecuniary damage

53. In addition, Mr Bock seeks damages related to pension

splitting (Versorgungsausgleich), available following the 1977 reform,

maintenance payments and expenditure incurred in renting separate

accommodation for himself. The Government contended that no causal

connection existed between the pecuniary damage claimed and the length

of the divorce proceedings.

54. Even if the proceedings before the Düsseldorf Regional Court

had been conducted without delay, it is not established that the

divorce action would have been disposed of before the reform of the

divorce laws (see paragraph 16 above). Furthermore, had the

proceedings been concluded before the entry into force of the new

legislation it is by no means certain that Mr Bock would not have been

obliged to make financial provision for his former wife, or, in any

case, for the maintenance of the children of the marriage.

As to the amount representing expenditure by Mr Bock on rent here

again, it is not established that, even if it had been possible to

conclude the divorce proceedings somewhat earlier, similar costs would

not have been incurred in respect of the accommodation arrangements of

Mr Bock and his family.

It is therefore not appropriate to make an award under these heads.

C. Costs and expenses

55. Finally, Mr Bock claims an amount of DM 74,590.72 for legal

costs and expenses - a year-by-year list of which he also furnished

together with invoices in support - in respect of the proceedings

conducted by him between 1974 and 1987. Of this amount DM 26,544.57

related to the divorce proceedings proper. The Court will deal with

this claim in accordance with the criteria it has established (see,

among other authorities, the Belilos judgment of 29 April 1988,

Series A no. 132, p. 33, para. 79).

1. Costs incurred in the domestic proceedings

56. The Government pointed out that the greater part of these

costs did not result from the excessive length of the proceedings in

this case.

Certainly, the application brought on 4 March 1983 before the

Constitutional Court did essentially relate thereto (see paragraph 29

above). The costs incurred in that connection may be taken into

account but do not appear specifically from the itemised details

provided by the applicant. Nevertheless, the excessive length of the

proceedings must have involved the applicant in some additional

expenses, which the applicant is entitled to recover. The Court

awards him the sum of DM 10,000 in this respect.

2. Costs incurred in the European proceedings

57. Mr Bock represented himself in the proceedings before both the

Commission and the Court and was not afforded legal aid. He appeared

in person before the Commission and the Court on 13 November 1986 and

21 November 1988 respectively and incurred travelling and other

expenses, in respect of which he did not give precise figures. In

particular, he claimed expenses for photocopying and undertaking five

journeys to Strasbourg. On an equitable basis, it is appropriate to

award him the sum of DM 2,000 under this head.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a breach of Article 6 para. 1 (art. 6-1)

of the Convention;

2. Holds that the defendant State shall pay to Mr Bock, for

non-pecuniary damage, DM 10,000 (ten thousand Deutschmarks) and, in

respect of costs and expenses, DM 12,000 (twelve thousand

Deutschmarks);

3. Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in

the Human Rights Building, Strasbourg, on 29 March 1989.

Signed: Rolv Ryssdal

President

Signed: Marc-André Eissen

Registrar