DITZ v. GERMANY
Inadmissible
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicants, Ms Nicole Ditz and Mr Sebastian Ditz, are German nationals who were born in 1978 and 1977 respectively and live in Hamelin. They were represented before the Court by Ms Eva Beate Bäumler, a lawyer practising in Hanover. On 19 August 2000 the applicants’ first child was born with severe physical disabilities, having, inter alia, no arms and hands, a shortened thigh and serious hip dysplasia. The applicants brought a civil action in the Hanover Regional Court, seeking alimony and compensation for non-pecuniary damage from the attending gynaecologist. They argued that, had the mother been informed about the disability, she would have opted for an abortion. During a hearing, the Regional Court conveyed to the parties its intention to first take evidence on the question of whether the gynaecologist had committed a grave diagnostic error. On 6 November 2003 the Regional Court informed the applicants that, contrary to its earlier intention, the taking of evidence would commence with the issue of whether an abortion would have been legally possible. On 17 March 2005 the Regional Court dismissed the action in its entirety. It considered that it could leave open the question of whether the gynaecologist had committed a grave diagnostic error as the alimony claim required proof of whether, had the parents been informed of the disability, an abortion would have been legally possible. The court found that, for the abortion to be legal, the applicants had to demonstrate that it would have been the only reasonable means to avert a risk for the mother’s life or severe interference with her physical or mental integrity. Referring to an expert report, the court found that the mother had not demonstrated that an abortion could have been legally possible. The expert had noted in his report that the applicants had failed to submit sufficient documents and provide sufficient facts from the time of the pregnancy to allow him to come to the conclusion that the requirements for a legal abortion were met. The applicants appealed against the judgment. On 28 July 2005 the Celle Court of Appeal notified the applicants of its intention to decide the appeal without conducting a hearing, giving the applicants two weeks to make further submissions. It informed the applicants that it was of the opinion that the Regional Court had correctly desisted from taking evidence on the alleged grave diagnostic error. As to their claim in respect of non-pecuniary damage, the Court of Appeal considered that the applicants had failed to sufficiently substantiate it; in particular, they had not explained how the shock had manifested itself and had not described the psychological condition of the mother after the birth of the child. With respect to the alimony claim, the Court of Appeal also confirmed that the Regional Court had been under no obligation to hear evidence on the alleged grave diagnostic error, as the lack of proof of the abortion’s legality already meant that the claim was unfounded and that an expert opinion on the existence of the grave diagnostic error was redundant. It also rejected the applicants’ complaint that they had not been granted a hearing as to the Regional Court’s decision to first take evidence on the question of whether the child could have been legally aborted. It observed that the applicants had had plenty of time to object to the Regional Court’s decision of 6 November 2003, but had chosen not to. In so far as the applicants challenged the expert report, the Court of Appeal held that the expert’s conclusions, though not clearly distinguishing between issues of law and fact, had been sufficiently clear. The expert had found that no documents or indications existed that demonstrated an elevated risk of grave interference with the mother’s mental integrity, either during the pregnancy or after the delivery. The Court of Appeal noted in that context that the parents had failed to submit further documentation, despite having been asked by the Regional Court to do so. Furthermore, the expert had sufficiently explained that an examination of the mother, four years after the delivery of the baby, would have been inconclusive without further documentary proof. On 22 August 2005 the applicants made further submissions to the Court of Appeal. On 6 September 2005 the Court of Appeal, referring to the reasoning set out in its decision of 28 July 2005, dismissed the appeal without holding a hearing, also dismissing the applicants’ further submissions contesting the expert report. On 31 October 2005 the Court of Appeal dismissed an objection alleging a violation of the right to be heard (Anhörungsrüge) as being manifestly illfounded. The applicants had been informed of the reasons why it intended to dismiss the appeal. It had addressed all the arguments put forward by the applicants, in particular the submissions concerning the claim for damages, the requirements of the legality of the abortion, the challenges against the expert report, and the alleged denial of the right to be heard. On 10 January 2006 the Federal Constitutional Court held that the constitutional complaint by the applicants had no prospect of success as there was no appearance of a violation of the right to be heard or the principle of equality of arms.