GRIMM v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
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. The facts of the case, as submitted by the parties, may be summarised as follows. 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. 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. 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.