THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49935/99 
by Barbara ZABAWSKA 
against Germany

The European Court of Human Rights (Third Section), sitting on 2 March 2006 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr L. Caflisch
 Mr C. Bîrsan
 Mr V. Zagrebelsky
 Mrs A. Gyulumyan
 Mrs R. Jaeger, 
 Mrs I. Ziemele, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 12 January 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Barbara Zabawska, is a Polish national who was born in 1949 and lives in Piła.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is the mother of a child born out of wedlock in 1989. The child’s father is married to another woman and lives with her and their two children in Germany near Hamburg.

On 24 September 1991 the Piła District Court (sąd rejonowy) ordered the child’s father to pay maintenance in an amount of 1,000,000 old Polish zlotys (PLZ) corresponding to approximately 65 German marks (DEM) at the exchange rate prevailing at the material time. Thereafter the applicant applied to the Lauenburg District Court (Amtsgericht) for an increase in the child maintenance. On 1 February 1993 the applicant and the child’s father concluded a settlement before the District Court according to which the father agreed to pay a further monthly maintenance sum of DEM 35 in addition to the sum fixed by the Polish court. Apparently the father initially paid the total maintenance sum of DEM 100 on a regular basis.

On 5 September 1995 the Federal Administration Office (Bundesverwaltungsamt), designated in Germany as Receiving Agency pursuant to the United Nations Convention on the Recovery Abroad of Maintenance, received a letter from the applicant dated 25 June 1995 containing a request for an increase in the monthly maintenance payments. On 24 May 1996 she reduced her initial claim to DEM 250.

Pursuant to the Convention on the Recovery Abroad of Maintenance, the Poznan District Court, as the competent Transferring Agency on the Polish side, was informed by the Federal Administration Office of this request. On 14 December 1995, after having investigated the father’s last known place of residence, the Federal Administration Office contacted the child’s father and requested him to disclose his financial situation.

On 18 January 1996 the child’s father, represented by a lawyer, drew the attention of the Federal Administration Office to the settlement reached on 1 February 1993. On 29 January 1996 he submitted information concerning his ability to pay. On 30 April 1996 the Federal Administration Office informed the Poznan District Court of the state of the proceedings.

On 24 June 1996 the applicant informed the Federal Administration Office that she was currently receiving monthly maintenance payments for her son from a relative of the child’s father in an amount of 160 Polish zlotys (PLN) corresponding at the material time to DEM 85.

At the beginning of October 1996 the competent employment office informed the Federal Administration Office that the child’s father had been unemployed for a certain time and some months later that he was unemployed since the end of December 1996.

Having received no further information on his financial situation from the child’s father despite several reminders, namely of 9 July 1996, 18 July 1997 and 30 March 1998, the Federal Administration Office brought an action against him on behalf of the child before the Schwarzenbek District Court (Amtsgericht).

On 29 May 1998 the District Court received the child’s maintenance claim together with a request for legal aid. After an extension of the time-limit, observations of the child’s father on the child’s maintenance claim were received by the District Court in August 1998. In reply to a request of the District Court of 18 August 1998, the Federal Administrative Office set the child support, as requested by the applicant, at the amount of DEM 250 per month. On 26 January 1999 the District Court granted the applicant’s son legal aid. The Poznan District Court was informed about the proceedings.

On 7 July 1999 a hearing was held before the Schwarzenbek District Court. The child and the Federal Administration Office were represented by Youth Office of the Duchy of Lauenburg. The District Court had regard to the fact that the child’s father had been again unemployed since January 1999 and, with the consent of both parties, ordered the stay of the proceedings. Following the hearing, the Federal Administration Office informed the Poznan District Court of this decision.

On 11 November 1999 and 25 January 2000 the competent employment office informed the Federal Administration Office that the child’s father was still unemployed.

In a letter to the Federal Administration Office of 28 January 2000 the applicant stated that the child’s father was the owner of a house and several cars in Poland. The Federal Administration Office forwarded this letter to the Poznan District Court and recommended an investigation into this matter by the Polish authorities, since for the time being there was no possibility under German law to obtain an increase in maintenance payments.

By a default judgment of 13 February 2002 the Piła District Court ordered the child’s father to pay monthly maintenance in an amount of PLN 550 (approximately 125 euros). On 11 March 2002 the Poznan District Court communicated to the Federal Administration Office a letter of the applicant dated 20 February 2002 in which she had confirmed that the amount of the child allowance had been increased and paid on a regular basis and that there were no arrears.

B.  Relevant International Law

  The Convention on the Recovery Abroad of Maintenance was adopted and opened for signature on 20 June 1956 by the United Nations Conference on Maintenance Obligations. The Convention came into force on 25 May 1957 and was ratified by Germany and Poland. As an agreement on legal assistance which concerns merely the receipt and the transmission of maintenance claims, it complements the existing legal remedies existing under domestic or international law. Pursuant to the Convention, the Receiving Agencies of maintenance claims designated by the Contracting Parties shall take on behalf of the claimant all appropriate steps fort he recovery of maintenance.

The relevant provisions of the Convention read as follows:

Article 1

“1.  The purpose of this Convention is to facilitate the recovery of maintenance to which a person, hereinafter referred to as claimant, who is in the territory of one of the Contracting Parties, claims to be entitled from another person, hereinafter referred to as the respondent, who is subject to the jurisdiction of another Contracting Party. This purpose shall be effected through the offices of agencies, which will hereinafter be referred to as Transmitting and Receiving Agencies.

2. The remedies provided for in this Convention are in addition to, and not in substitution for, any remedies available under municipal or international law.”

Article 2 §§ 1 and 2

“1. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate one or more judicial or administrative authorities, which shall act in its territory as Transmitting Agencies.

2. Each Contracting Party shall, at the time when the instrument of ratification or accession is deposited, designate a public or private body, which shall act in its territory as Receiving Agencies.”

Article 3 § 1

“Where a claimant is on the territory of one Contracting Party, hereinafter referred to as the State of the claimant, and the respondent is subject to the jurisdiction of another Contracting Party, hereinafter referred to as the State of the respondent, the claimant may make application to a Transmitting Agency in the State of the claimant for the recovery of maintenance from the respondent.”

Article 4 § 1

“The Transmitting Agency shall transmit the documents to the Receiving Agency of the State of the respondent, unless satisfied that the application is not made in good faith.”

Article 5 § 1

“The Transmitting Agency shall, at the request of the claimant, transmit, under the provision of Article 4, any order, final or provisional, and any other judicial act, obtained by the claimant for the payment of maintenance in the competent tribunal of any Contracting Party, and, where necessary and possible, the record of the proceedings in which such order was made.”

 

Article 6

“1. The Receiving Agency shall, subject always to the authority given by the claimant, take on behalf of the claimant, all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance.

2.  The Receiving Agency shall keep the Transmitting Agency currently informed. If it is unable to act, it shall inform the Transmitting Agency of its reason and return the documents.

3. Notwithstanding anything in this Convention, the law applicable in the determination of the questions arising in such action or proceedings shall be the law of the State of the respondent, including its private international law.”

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings concerning her claim for child support before the German authorities.

THE LAW

The applicant maintained that the length of the proceedings concerned had exceeded a “reasonable time”, in breach of Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government refuted that allegation.

The Court notes that the proceedings started on 5 September 1995 when the Federal Administration Office received the applicant’s request for an increase of the monthly maintenance payments. After an investigation into the applicant’s claim and an exchange of correspondence with the child’s father and the Poznan District Court, the Federal Administration Office decided to initiate proceedings before the Schwarzenbek District Court.

When determining the period to be taken into account, the Court has regard to its case-law according to which in civil proceedings, the “reasonable time” begins to run from the moment the action was instituted before the “tribunal” (see Erkner and Hofauer v. Austria, judgment of 23 April 1987, Series A no. 117, p. 61, § 64); it is, however, conceivable that in certain circumstances, the time may begin to run earlier (see Golder v. United Kingdom, judgment of 21 February 1975, Series A no. 18, p. 15, § 32).

The Court notes that according to Article 6 § 1 of the Convention on the Recovery Abroad of Maintenance, the Receiving Agency shall, subject always to the authority given by the claimant, take on behalf of the claimant all appropriate steps for the recovery of maintenance, including the settlement of the claim and, where necessary, the institution and prosecution of an action for maintenance and the execution of any order or other judicial act for the payment of maintenance. In the instant case, the Federal Administration Office, as the Receiving Agency, had the role of a legal representative acting on behalf of the applicant in respect of her child, and it was for the District Court to rule on the maintenance claim brought against the child’s father. The dispute (“contestation”) to be determined did therefore not arise before the 27 May 1998 when the District Court received the claim and accordingly this date marks the beginning of the period to be taken into consideration (unlike in cases which do not concern a dispute between the applicant and the child’s father, but the enforcement of a foreign judgment under the Convention on the Recovery Abroad of Maintenance - see K. v. Italy, no. 38805/97, ECHR 2004-VIII).

On 7 July 1999 the District Court, in agreement with the parties, decided to stay the proceedings, having regard to the financial situation of the child’s father. The proceedings thus are theoretically still pending. In such circumstances the period to be taken into account began on 29 May 1998 and is continuing. However, the parties retain their right to resume the proceedings at any time. The fact that they have not done so is not attributable to the District Court. In any event, for the time being any such proceedings would have had no prospects of success. In these specific circumstances, the Court is satisfied that the stay of the proceedings was relevant and reasonable.

Furthermore, with regard to what was at stake for the applicant in the proceedings before the Schwarzenbek District Court, the Court observes that she was paid child support in Poland by a relative of the child’s father and that subsequently she was awarded the requested increase in the maintenance payments by a judgment of the Poznan District Court. Moreover, there were no arrears in maintenance payments.

The Court concludes that in these specific circumstances, depending on a factual situation where no negligence can be attributed to the State authorities, the proceedings did not go beyond what may be considered reasonable in this particular case contrary to Article 6 § 1 of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

ZABAWSKA v. GERMANY DECISION


ZABAWSKA v. GERMANY DECISION