CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 décembre 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 20308/92                       by W.M.                       against the Federal Republic of Germany           The European Commission of Human Rights (First Chamber) sitting in private on 2 December 1992, the following members being present:                  MM.   E. BUSUTTIL, Acting President of the First Chamber                   J.A. FROWEIN              Sir   Basil HALL              Mr.   C.L. ROZAKIS              Mrs. J. LIDDY              MM.   M. PELLONPÄÄ                   B. MARXER                Mr.   M. de SALVIA, Secretary to the First Chamber a.i.         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 26 May 1992 by W.M. against the Federal Republic of Germany and registered on 16 July 1992 under file No. 20308/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     THE FACTS         The applicant is a German citizen, born in 1946 and living in Augsburg.   He is represented by Mr. Peter Kragler, a lawyer in Munich.         It follows from the applicant's statements and the documents submitted that on 28 July 1989 the applicant's wife instituted divorce proceedings against him.         It appears that the competent court first dealt with the problems relating to the right of care concerning the two children of the parties to the divorce proceedings and maintenance claims.         On 29 April 1991 the applicant's counsel requested the court to deal with the divorce action alleging that as far as the parallel partition proceedings (Zugewinnausgleichsverfahren) were concerned, the defendant had submitted all relevant information as requested by the plaintiff.         On 12 August 1991 the applicant's counsel requested the court to sever the partition proceedings from the divorce proceedings stating that, as no agreement had been reached between the parties in the partition proceedings, it was likely that they would last a long time.         The applicant's wife and plaintiff replied on 4 November 1991 that she first wished to have the partition proceedings decided before the divorce issue in order to settle as many of the issues between the parties as possible together.         On 25 November 1991 the competent District Court (Amtsgericht) in Augsburg rejected the applicant's request of 12 August 1991.   In the court's opinion it did not constitute an unreasonable hardship for the parties not to sever the partition proceedings; rather it was in the interest of the parties to be confronted with the consequences of the divorce petition, given that important property values were at stake.         On 24 January 1992 the Munich Court of Appeal (Oberlandesgericht) confirmed this decision.   This court pointed out that the divorce was requested by the applicant's wife and that, as far as could be judged, delays in the proceedings were attributable to the applicant who had not shown that he had in fact given to the plaintiff all relevant information as alleged by him.         On 17 February 1992 the applicant filed a divorce counter-action and again made a request to sever the partition proceedings.   This request was rejected by the District Court on 16 March 1992.   The court again pointed out that the couple possessed a number of real estates and therefore the applicant's wife would have an important equalisation claim (Zugewinnausgleich).   If the partition proceedings were severed from the divorce proceedings a determination of the equalisation claim would not be possible in the near future.   The court furthermore pointed out that the proceedings had been pending for two years already and the defendant had had the time to have the property values established by competent experts.   As he had not done so the delays in the partition proceedings were imputable to him.         The applicant's constitutional complaint against the afore-mentioned decisions refusing a separation of the different proceedings was rejected by a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) on 6 May 1992 as offering no prospects of success.   The court considered that the ordinary courts had correctly based their decisions on the consideration that the refusal to sever the proceedings did not constitute an unacceptable hardship for the applicant.   There was nothing to show that the arguments of the parties had not been considered by the   courts and that their decisions were arbitrary and violated the applicant's right to a fair trial.   COMPLAINTS         The applicant maintains that his arguments were not considered by the civil courts and that he was therefore denied a fair hearing. He also submits that he was denied a determination of his divorce claim within a reasonable time as there was the risk that the proceedings would, due to the attitude of the plaintiff, drag on for years.         He also alleges a violation of Articles 8 and 12 of the Convention as he is unable, pending the divorce proceedings, to create a new family.   THE LAW   1.     The applicant first complains of the refusal by the competent court to deal with the different issues raised by the divorce matter in different proceedings.   He alleges that he was not granted a fair hearing.         However, the question of whether a party was given a fair hearing in the determination of civil rights and obligations is in principle judged on the basis of the whole of the proceedings in question and on the condition that in view of the end result, i.e. the final decision, the party alleging to have been denied a fair hearing, can still claim to be a victim of the alleged violation.   In the present case the proceedings are still pending and their outcome is uncertain.   However, even assuming that the part of the divorce proceedings related to the procedural interim decision on the question of whether or not the different issues raised in them should be dealt with in separate proceedings constitutes an element of such importance that the fairness of this part of the proceedings can and should be judged in itself, regardless of the final outcome of the matter, the Commission finds in agreement with the Federal Constitutional Court that there is nothing to show that the applicant's request to deal with the different divorce issues separately was rejected arbitrarily and without taking due account of the arguments advanced by both parties to the divorce proceedings.         This part of the application therefore does not disclose any appearance of a violation of Convention rights and has to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     In so far as the applicant complains of the length of the divorce proceedings and invokes Article 6 (Art. 6) as well as Articles 8 and 12 (Art. 8, 12) of the Convention, the Commission notes that this complaint was not raised before the Federal Constitutional Court.         In any event, the Commission further notes that, according to the unrefuted findings of the civil courts dealing with the divorce matter, the applicant has so far failed to submit all information needed for the determination of his wife's equalisation claim.   The applicant has himself brought a counter-divorce action on 17 February 1992 only, and his submissions do not show that the divorce matter has so far been treated in a dilatory manner by the competent court.   This part of the application would therefore have to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, even if domestic remedies were exhausted.         For these reasons, the Commission unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber a.i.       Acting President of the First Chamber             (M. de SALVIA)                               (E. BUSUTTIL)