APPLICATION/REQUÉTE N° 11564/8 5 W. v/the FEDERAL REPIJBLIC OF GERMAN Y W. c/RÉPUBLIQUE FÉDÉRALE D'ALLEMAGN E DECISION of 4 Decentber 1985 on the admissibility of the application DÉCISION du 4 décembre 1985 sur la recevab"dité de ]a requêt e Article 6, paragra~ph I of the Convention : A refusal to grant legal aid for cUvorce proceedings to a person rvho married a foreigner soiely to enaKé him to oütain a residence permit aôes not violate Ihis provision (access to courtl . Article 14 wf the Convention in conjunction with Article 6, paragraph i : It is not diseriminatory to refuse legal cid to a,oerson who wishes to oring divorce proeeedings following a second sham marriage, even if the person is impecunious . Article 6, paragraphe 1, de la Cunvention : Ne viole pas cette dispositior (droit d'accès à un tribunal) le refus d'accorder l'assistance judiciaire, en vue d'une action en divorce, à une personne qui n'a épousé un étranger que pour- lui procurer une autorisation de sé)our. Article 14 de la Convention,. com7Siné avec l'article 6, paragraphe 1 : Il n'est pas discriminatoire de refuser l'assistance judiciaire à celui, mëmc nécessiteia, qui désire iateraer une action en divorce après un second mariage jictif. THE F9C'PS (français : voir p. 296) The facts of the ease as they have been submitted by the applicant rnay be summarised as follows . Ttie applicant, a German ciaizen born in 1960, is a hon,ewife resident in Heilbronn, Federal Republic of Gei-many . 13efore the Commission she is repn:sented by Messrs.'Wingerter, Hohbachand Stiefel-IBechdolf,lawyerspractising inHeïlbrorin . 291 On 17 December 1982 the applicant married a Pakistani citizen . She submits that she married her husband in order to enable him to obtain a residence permit in the Federal Republic of Germany, rather than to lead a married life with him . For this service she received from her husband 8,000 .- DM. The applicant's husband has not disputed these facts . On 13 September 1983 the applicant attempted to bring divorce proceedings against her husband before the Heilbronn District Court . On 20 January 1984 she requested legal aid in respect of these proceedings . The applicant submitted that she was unemployed, without any means, and unable to pay the costs of the divorce proceedings . Tho- 8,000.- DM received from her husband had been spent for her maintenance before the institution of the divorce proceedings . According to Article 78(1) of the German Code of Civil Procedure (Zivilprozessordnung), parties beforc the family courts in matrimonial matters must be represented by a lawyer. The conditions for granting legal aid are regulated in Article 114(1) of the Code of Civil Procedure . Article 114(1) states : "A party who, in view of his personal or economic situation, cannot afford, - or can only afford in instalments, to pay the costs for conducting the proceedings, receives upon application legal aid if the intended legal application or legal defence offers sufficient prospects of success and does not appear wilful (mutwillig). The following provisions and the table joined to this law as Annex I are relevant . " According to Article 117(2), the request for legal aid must be accompanied b y a declaration of the party concerning his personal and economic situation . On 23 January 1984 the Heilbronn District Court rejected the applicant's request for legal aid . The judgment states, inter alia : "It is true that the application for divorce offers sufficient prospects of success . In particular, it has become clear after hearing the parties that a marital eommunity between the parties was never founded ; at least the applicant also never had the intention to live together with the respondent party on the ground of the concluded marriage . The parties therefore have been living separately already for more than one year. In the court's view it could therefore be expected of the applicant to bear the costs for the divorce proceedings herself. In particular, the applicant has, according to her own submissions, married the respondeht party only to enable him to obtain residence in the Federal Republic of Germany, rather than to found a marital community with him . For this reason the applicant had receivcd an amount of 8,000.- DM. . 292 In view of the fact that the applicant a priori did not have the intention to fôund a marital comniunity and could fierefore count with early divorce proceedings, she would have had, and been able, to hold baclc the corresponding antount from the 8,000 .- DM in order to finance the divorce proceedings . This consideration is all the more valid in view of the fact that the applicant had already in previous proceedings entered a marriage in a similar way with anotheir fore.gner and had, in orcter to dissolve this marriage, also instituted divorce proceedings . Already in the preceding proceedings it had been indicated to the applicant that in principle shewould have to bear the costs of the divorce proeeedings herself . In view thereoF the applicant is not in need of protecton (schutzbedürftig) . It is trae that the institution of legal aid stems from the notion of the social rule of law (soziale.r Rechtsstaat) (:ee Articles 20, 28 Basic Law) . This does not mean, however, that the State's assistance should also be granted if, as in the present case, the legal institu :ion of marriage is abused for alien or selfinteiested motives . " The applicant was then apparently requested by the District Court to make att advance payment on the costs of the divorce proceedi ;igs. On 23 February 1984 the Stuttgart Court of Appeal rejected the applicant's appeal. In lier subsecuent constitutional conrplaint, the applicant alleged tttat it constituted a violation of her basic rights if legal aid was denied to her in orcter to react against an abuse of marriage . Otherwise, rich and poor persons would not be treated in the same way and there would be discrimination contrary to the constimtion . The applicant thereby relied on Article 6 of the Basic Lavv which protects marriage, farnily and children born cut of wedlock, as well as Article 103 (1) whiclt grants to everyone ihe right to a fair hearing . On 7_8 July 1984 the First Senate of the Federal Constitutional Court, composed of eight judges, dismissed the applicant's constitutional camplain- as being insuffaeientiy substantiated insofar a~s it concerned Artiele 6 of the Basic Law, and rejeeted the other aliegations as being unfounded . The Federal Constimtional Court examined in the light of Article 3 of the Basic Law which e:nshrines the principle oP equality before the lavv, whether the applicant had been prevented from pursuing her divorce applicalion in a manner which conformed with the principle of cquality in the application of the law (Rechtsanwendungsgleichheit) . The Federal Constitutiomd Court found. that the German courns' case-law concerning the granting of legal aid was not uriiform . However, it was not necessary 293 to enter into these issues in view of the fact that in the present case the previous courts had stated that the applicant could have held back from the 8,000 .- DM received the amount necessary for the divorce proceedings . The court found that this view might not conform with the predominant opinion according to which legal aid should only be refused if the respective party had made itself poor in bad faith . This was an issue of interpreting Article 114 of the Code of Civil Procedure the correcmess of which could certainly be discussed in the sense of equity. This interpretation fell to the competent courts, and it could not be the duty of the Federal Constitutional Court to substitute its own views for those of the ordinary courts. In the present case it raised no constitutional objections if the respective courts had, in their decisions, considered that the applicant had, for a second time, entered into a fake marriage (Scheinehe), and had already been referred in the first divorce proceedings to her obligation in principle to pay the proceedings . COMPLAINTS 1 . The applicant now complains under Article 6 para . 1 of the Convention that she had no effective right of access to a family court in order to conduct divorce proceedings . Under Article 6 para . I, the State has an obligation to assist a person seeking his rights (Rechtssuchender) with a lawyer free of costs and not to demand court costs if this was necessary to guarantee the effective access to court . In divorce proceedings in the Federal Republic of Germany the representation by a lawyer in divorce proceedings is required by law . Therefore, under Article 6 para . 1, the State has the obligation to assist the impecunious applicant in order to enable him to conduct divorce proceedings with a lawyer by means of granting legal aid . Moreover, the Heilbronn,District Court knew that the applicant couldnot afford to pay the court costs in advance . It nevertheless requested the applicant to inake such an advance payment. 2. The applicant also complains under Article 14 of the Convention in connection with Article 6 para., 1, that she has been prevented from conducting divorce proceedings which a rich person could conduct in the same situation .THELA W 1 . The applicant complains that shehad no effective rightof access to a family court in order to conduct divorce proceedings. In particular, the Heilbronn District Court which knew that the applicant could not afford to pay the court costs in advance, nevertheless requested her to make such an advance payment . She invokes Article 6 para . I of the Convention which states that "in the detertnination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law" . 294 The. Commission notes that the applicant had already previously inslituted divorce proceedings against a former husband . It appears from the court decisions r,ubmitted by the applicant that the previous marriage had been entered into in a way oimilar to the marriage at issue. In view thereof the German courts had during the previous divorce proceedings already told the applicarit that in principle she would have to bear the covrt costs herself. The applicant was, therefore, clearly aware of Ihe simation when she entered into her subsequent marriage . In Ihis light the Commission does not find it unreasonable that the German courts then stated that the applicant was not in need of legal protection, having iegard also to ttie fact that she could have held back the sum required tc conduct divorce proceedings from tbe 8,000 .- DM which she had received.for her marriage, As a result, the complaint does not disclose any appearance of aviolation of ihe rights set forth in Article 6 para . I of the Convention. The Commission concludes iherefore that this part of the applica :ion is manifestly ill-founded within the meaning of Article 2'7 para. 2 of the Convention .2 . The applicant also complains under Article 14 in connection with Article 6 para. I that she had been preventec-from conducting divorce prooeedings w?ich a rich person could conduct in the same situation . However, the Commission has just found that it was not unreasonable for thie German courts to expect the applicant to pay the court costs out of the money she had received from her marriage . Accordingly, the Commission finds that ttie dif- Perent treatment which the applicant alleges cannot amount to discrimination within ihe meating of Article 14 of the Convention .Itfollowsthatthispartcftheapplicationmustalsob e declared manifes*.ly illiounded within the meaning of Art cle 27 para . 2 of the Convention . For these reasons, the Commssion DECLARES THE APPLICATION INADMISS]BLL:. 295