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The Committee on
the Elimination of Discrimination against Women, established under article
17 of the Convention on the Elimination of All Forms of Discrimination
against Women,
Meeting on: 14 July 2004
Adopts the following:
[Majority Opinion]
Decision on Admissibility
1. The author of the communication dated 20 August 2002, with supplementary
information dated 10 April 2003, is Ms. B.-J, a German citizen of about 57
years of age in April 2004, currently residing in N�rten-Hardenberg,
Germany. She claims to be a victim of violations by Germany of articles 1, 2
(a-f), 3, 5 (a and b), 15 (2) and 16 (1.c, d, g and h) of the Convention on
the Elimination of All Forms of Discrimination against Women. The author is
representing herself. The Convention and its Optional Protocol entered into
force for the State party on 9 August 1985 and 15 April 2002, respectively.
The Facts as Presented
2.1 In 1969, the author got married. Although she was a nurse by training,
the author and her husband agreed that she would take on the role of
homemaker during the marriage and not further her education so as to allow
her husband to pursue his career. The author has three grown children, born
in 1969, 1970, and 1981.
2.2 The author wanted to continue her education in 1984, but her husband
requested her not to do so, and to support him in a period of professional
difficulty. By 1998, the author's husband's difficulties were resolved and
she again wished to continue her education, but in May 1999 the author's
husband applied for a divorce.
2.3 In September 1999, in connection with her separation, the author and her
husband agreed in a settlement before a family court in Northeim that he
would pay her DM 973 per month in separation maintenance, DM 629 per month
in child support for their youngest child and DM 720 per month to cover the
mortgage on the house in which the author continued to live.
2.4 The divorce became final on 28 July 2000. While the issue of the
equalization of pensions was resolved as part of the divorce, no decisions
have been reached regarding the equalization of accrued gains and
maintenance after termination of the marriage.
2.5 On 10 July 2000, the author submitted a complaint to the Federal
Constitutional Court, claiming that statutory regulations regarding the law
on the legal consequences of divorce violated her constitutional right to
equality protected under articles 3.2 and 3.3 of the Constitution.
2.6 On 30 August 2000, the Federal Constitutional Court decided not to
accept the complaint for decision.
2.7 In April 2004, the Court of G�ttingen awarded the author a maintenance
payment of � 280 per month with retroactive effect to August 2002, the date
that the author's husband had stopped payment of separation maintenance. The
author has appealed against the decision.
2.8 The author has also written without success to the Federal Ministry of
Justice and the Ministry of Justice and of Women's Issues of the Land
Niedersachsen on 28 July 2001, 6 February 2002, and 2 March 2002, and on 15
January 2003, 22 February 2003, claiming disregard for marriage and family
as well as genderspecific discrimination by the courts of Niedersachsen.
2.9 Proceedings concerning maintenance after divorce, as well as
equalization of accrued gains continue.
The Complaint
3.1 The author alleges that she was subjected to gender-based discrimination
under the statutory regulations regarding the law on the legal consequences
of divorce (equalization of accrued gains, equalization of pensions, and
maintenance after termination of marriage) and that she has since continued
to be affected by those regulations. In her view, the regulations
systematically discriminate against older women with children who are
divorced after long marriages.
3.2 With respect to the issue of accrued gains, the author suggests that,
although the law provides that the spouse with the lesser accrued gains
receives half the excess of the higher-earning spouse, the law does not take
into account the improved or devalued .human capital. of marriage partners.
She maintains that this constitutes discrimination, as it results in
providing a husband with his wife's unremunerated labour. The author claims
that the law relating to reallocation of pension entitlements is similarly
discriminatory and that vague, unclear and discriminatory provisions govern
the question of maintenance.
3.3 The author furthermore claims more generally that women are subjected to
procedural discrimination because the risks and stress of court proceedings
to resolve the consequences of divorce are carried unilaterally by women,
who are also prevented from enjoying equality of arms. She also claims that
all divorced women in situations similar to hers are victims of systematic
discrimination, disadvantage and humiliation.
3.4 The author claims that she exhausted all domestic remedies when the
Constitutional Court decided not to accept for review her complaint of
omission on the part of the legislator to fulfil the Constitution's equal
treatment provisions (art. 3.2 and 3.3 of the Constitution) in respect of
the statutory regulations regarding the law on the legal consequences of
divorce.
The State Party's Observations on Admissibility
4.1 By its submission of 26 September 2003, the State party objected to the
admissibility of the communication.
4.2 The State party notes that the divorce decree, which the author did not
submit with her initial submissions, only contained a decision on pension
equalization. No final decision has yet been reached in separate proceedings
regarding maintenance after termination of the marriage and equalization of
accrued gains. The State party further notes that the author filed a
constitutional complaint against the divorce decree and against the law on
the legal consequences of divorce, in general, which the Federal
Constitutional Court did not accept for adjudication. In the ensuing period,
the author repeatedly turned to Federal and State Ministries to achieve an
amendment of the statutory regulations.
4.3 As regards relevant legal provisions governing the effects of marriage
and of the rights and duties of spouses, as well as those concerning divorce
and the legal consequences of divorce, the State party explained that in
event of divorce, .accrued gains. are to be equalized, if the spouses live
in the statutory marital regime of community of gains. The value of the
assets of the spouses at the time of marriage (original assets) and at the
time of termination (final assets) is first determined. The .accrued gains.
are the amount by which the final assets of a spouse exceed his or her
original assets. The spouse with the lower accrued gains is entitled to an
equalization claim amounting to one half of the difference in value compared
to the accrued gains of the other spouse (Section 1378 BGB). Regulations
concerning maintenance after termination of marriage are initially based on
self-responsibility of (former) spouses. Following the divorce, the spouses
are in principle required to be responsible for their own livelihood.
Consequently, maintenance is really only envisaged for certain categories of
cases. However, since these prerequisites are regularly met in a large
number of divorce cases, the existence of a claim to maintenance tends to be
more the rule. The reason for this is the opinion of the legislature that,
owing to his or her personal and financial situation, the financially
weaker, needy spouse should be able to rely on the post-marital solidarity
of the financially stronger, capable spouse. The law also provides under
certain circumstances for a maintenance claim for a period of training or
education for a spouse who may have omitted to acquire or interrupted formal
education or vocational training in the expectation of, or during marriage.
Furthermore, the law on equalization of pensions creates the duty of the
spouse who acquired greater overall pension entitlements than the other
spouse during marriage to equalize by one half of the difference in value.
4.4 According to the State party, the communication is inadmissible for lack
of grievance under article 2 of the Optional Protocol as only victims, who
have to illustrate that they, themselves are directly affected by a
violation of the law, can submit claims. An abstract review of
constitutionality by means of an individual complaint is inadmissible. The
situation could be different if the author were already directly adversely
affected by the legal position created by existing legal provisions.
However, this is not the case as the law on the legal consequences of
divorce still has to be implemented by the courts in regard to the author.
The State party submits that the author of a complaint cannot achieve a
general and fundamental review of German law on the legal consequences of
divorce with her complaint.
4.5 Based on this argument, the State party submits that the author's basis
for complaint is her own divorce proceedings; only in this framework can the
applied legal provisions relating to the law on the legal consequences of
divorce be (directly) reviewed.
4.6 The State party also argues inadmissibility for lack of sufficient
substantiation. The lack of concrete information from the author regarding
the financial settlements made in the divorce proceedings, the legal basis
on which they were reached and whether and to what extent they put her at a
financial disadvantage compared to her divorced husband, make it impossible
to examine whether and which rights set forth in the Convention were
violated in the author's case.
4.7 The State party notes, in particular, non-disclosure of the contents, or
submission of the divorce decree, lack of information as to whether, and
which legal provisions may have been applied in the author's case and with
what financial consequences, lack of information about equalization of
pensions and accrued gains, and about the amount of maintenance the author
receives after termination of marriage. The State party concludes that the
author's claims of being financially disadvantaged by German law on the
legal consequences of divorce compared to her divorced husband remain
unsubstantiated and that a global reference to studies on the alleged
financial disadvantages of divorced women is insufficient in this respect.
4.8 The State party further submits, only by way of precaution and
notwithstanding inadmissibility for lack of grievance, lack of exhaustion of
domestic remedies, which, in this case, would be the filing, in admissible
fashion, of a constitutional complaint. While the author filed a
constitutional complaint against the law on the legal consequences of
divorce in general, according to the Supreme Federal Constitutional Court
Act (section 93, para. 3), a complaint directly against a law can only be
filed within one year of the law entering into force, making the author's
constitutional complaint against the law in general inadmissible for this
reason alone.
4.9 The State party also submits that only the issue of equalization of
pensions has been settled so far in conjunction with the divorce. The author
restricted her appeal against the divorce decree solely to the pronouncement
of the divorce itself, omitting to also make the equalization of pensions
the subject of the review by the appellate court (Oberlandesgericht
Braunschweig). This would have been admissible and could have been
reasonably expected of the author. Failure to lodge a required and
reasonable appeal must result in inadmissibility of a complaint pursuant to
article 4.1 of the Optional Protocol.
4.10 As regards inadmissibility ratione temporis, the State party submits
that the facts that are the subject of the complaint occurred prior to the
entry into force of the Optional Protocol for the Federal Republic of
Germany. In this regard, the State party submits that since the divorce
proceedings alone are the subject of the complaint and a final and
conclusive decision has so far only been reached on the equalization of
pensions in conjunction with the divorce, the decisive point for
inadmissibility ratione temporis is the time at which this decision became
final, i.e. on 28 July 2000. The Optional Protocol entered into force for
Germany on 15 April 2002.
The Author's Comments on the State Party's Observations on Admissibility
5.1 The author submits that the State party's explanation of relevant legal
provisions governing the effects of marriage and of the rights and duties of
spouses, as well as those concerning divorce and the legal consequences of
divorce, fail to describe the continuous discrimination and disadvantage of
persons who are entitled to equalization in divorce proceedings, who, as a
rule, are women. She notes that, in Germany, social structures ensure that
men, as a rule, advance professionally during marriage, while women have to
interrupt their careers and professional advancement because of their
continuing main responsibility for the family and the raising of children,
thus putting them at a striking disadvantage, especially after separation or
divorce. These fundamental societal, familial and marital realities, as well
as their differential consequences after divorce are however, not
sufficiently, or not at all, accounted for in the law on the legal
consequences of divorce, to the disadvantage of women. This is particularly
the case for divorced older women who have deferred their own career plans
during marriage.
5.2 The author also submits that enforcement of claims upon divorce is
rendered extremely difficult because courts commonly ignore marital
agreements and family situations to the detriment of women, and equalization
provisions are made dependent upon women's proper behaviour during marriage
and after divorce, subjecting women to rigid social control by the divorced
husband and the courts. Inappropriate behaviour by a husband, on the other
hand, is not subject to any kind of sanction. The author argues that such
discrimination and disadvantage of divorced women is only possible because
of insufficient and vague legislation.
5.3 The author rejects the State party's argument with respect to
inadmissibility for lack of grievance by noting that since her divorce, she
continues to be personally and directly affected by the law on the legal
consequences of divorce. She maintains that she is affected not only by the
decisions of the family court, but by the discrimination in the court
proceedings resulting especially from an omission by the legislator to
regulate the consequences of divorce in accordance with article 3.2 of the
Constitution, in a manner in which no discrimination or disadvantage occurs.
In this regard, her constitutional complaint was directed specifically
against an .omission on the part of the legislator..
5.4 On the issue of lack of sufficient substantiation, the author submits
that, while she had quoted statistics and expert opinions in her
constitutional complaint and also in her submissions to ministries, the
insufficient legislative provisions and court practice and the resulting
discrimination against women were borne out by her personal situation as a
divorced woman. The author maintains that she has given a concrete account
of her fundamental material disadvantage. Had she not deferred to family
responsibilities and her husband's needs, she would have been able to
achieve her own income in the amount of euro 5,000 per month, with a
commensurate old age pension.
5.5 The author states that the concrete equalization of pension payments
reached in a divorce is irrelevant as the discriminatory disadvantages only
start, and continue, after divorce. In her concrete case, since her
husband's filing for divorce in May 1999, the 500 euro/months for her old
age pension had stopped. Had she not deferred to her husband's or family's
needs, between 47,000 (had she remained married) and 94,000 euro (in case of
her own income) would have been made towards her old age pension.
5.6 With respect to exhaustion of domestic remedies, the author maintains
that her constitutional complaint was directed against the legal
consequences of divorce because articles 3.2 and 3.3 of the Constitution had
been infringed in her very personal case, and was not solely directed in
general against the legal consequences of divorce. Her complaint had not
been directed .in general. against a law, but rather against the
discrimination contained therein and the omission of the legislator to
eliminate such discrimination and the disadvantage experienced by divorced
women, and from which she was directly affected.
5.7 She notes that the constitutional complaint was admissible and thus, she
exhausted domestic remedies. Her complaint concerning the legal consequences
of divorce had not been rejected as .inadmissible. or .unfounded. but rather
had not been accepted for decision. The author further submits that article
93 of the Federal Constitutional Court Act does not establish a statute of
limitations in regard to omissions by the State. In support of her argument,
the author refers to a decision of the Federal Constitutional Court (BverfGE
56, 54, 70) that constitutional complaints concerning continuing omission on
the part of the legislator do not necessarily require prior use of legal
remedies and do not require adherence to the statute of limitations provided
for in article 93.2 of the Federal Constitutional Court Act. In addition,
she submits that her Constitutional complaint against the law on the legal
consequences of divorce was admissible also without prior exhaustion of
legal remedies in accordance with article 90.2, second sentence, of the
Federal Constitutional Court Act, because of the general importance and the
fundamental constitutional questions posed.
5.8 The author further submits that her requests for financial assistance to
cover legal proceedings had been denied to her in several instances, because
of a lack of prospects to prevail in such proceedings, and the courts had
not taken into consideration family and marital facts. Without such
assistance she was prevented from using domestic remedies because of
financial constraints. Lastly, while divorce proceedings are dealt with very
expeditiously by courts, proceedings on the legal consequences of divorce
take forever when women claim equalization payments. This was also true in
her case where she had tried to obtain, since September 2001, the relevant
information from her divorced husband to calculate maintenance after
termination of marriage, leading to her filing a suit in August 2002 to
obtain such information. These proceedings had not yet resulted in obtaining
the required information.
5.9 The author reiterates that by August 2003, there was no Court decision
concerning maintenance after termination of marriage. While she had received
monthly maintenance payments of 497 euro 497, these were no longer paid as
of August 2002, after a lengthy and difficult court procedure that went
against her. The author submits that, while she has appealed against this
decision, she has no hope that the courts would be considering her concerns.
She estimates that, had she completed her studies and focused on her career
instead of supporting her husband and caring for the family, she would today
be able to earn as much income as her husband, i.e., 5,000 euro per month.
5.10 As regards the State party's arguments concerning inadmissibility
ratione temporis, the author notes that, while the divorce decree became
final in July 2000, she continues to be directly affected by the
discriminatory provisions of the law on the legal consequences of divorce.
The steps she took . constitutional complaint and interventions with
ministries . did not lead to results. Likewise, she continues to experience
discrimination, disadvantage and humiliations by the courts.
Additional Comments of the State Party on Admissibility Pursuant to a
Request of the Working Group
6.1 According to the State party, the author's general constitutional
complaint against the law on the consequences of divorce of 10 July 2000 had
been inadmissible on the whole for several reasons.
6.2 The State party submits that, according to Section 93, para. 3, of the
Federal Constitutional Court Act a constitutional complaint immediately
directed against an Act may only be lodged within one year following its
entry into force. This preclusive time limit serves the purpose of legal
security. Failure to observe the deadline, as in the case of the
constitutional complaint (file no. 1 BvR 1320/00) generally filed by the
author against the .law on the consequences of divorce. on 10 July 2000,
will render the constitutional complaint inadmissible. The Federal
Constitutional Court will not accept an inadmissible constitutional
complaint for adjudication.
6.3 The State party disagrees with the author's argument that the deadline
of Section 93, para. 3, of the Federal Constitutional Court Act is not
applicable because her constitutional complaint is aiming at an omission by
the legislator. An omission does not already exist when certain demands are
not met or are not met to the desired extent. Rather, the decisive factor is
the legislator's consideration of these demands. In the law on the
consequences of divorce the legislator has stipulated numerous legal
provisions which, from his point of view are sufficient, adequate and
appropriate. Regulations exist for the respective situations of life. It is
not relevant that the author considers these regulations to be an
infringement of Article 3, paras. 2 and 3, of the Basic Law for the Federal
Republic of Germany because of, in her view, insufficient consideration of
matrimonial and family work, and thus does not constitute a case of
omission.
6.4 The State party furthermore argues that her constitutional complaint
generally directed against the .law on the consequences of divorce. of 10
July 2000 had already been inadmissible for other reasons. As a prerequisite
for an examination of whether the deadline of Section 93, para. 3, of the
Federal Constitutional Court Act has been met, an applicant has to state
first against which actual provision, i.e. against which paragraph and which
subparagraph his or her complaint is directed. This is not the case in the
author's constitutional complaint of 10 July 2000 which does not refer to
particular sections, paragraphs or subparagraphs of the Civil Code as
infringements of the Constitution, nor does it indicate the number of
provisions complained about, thus making her constitutional complaint
inadmissible.
6.5 In addition, the State party asserts that the prerequisites of Section
90 of the Federal Constitutional Court Act had also not been fulfilled.
Pursuant to Section 90, para. 1, of the Federal Constitutional Court Act
anyone may lodge a constitutional complaint on the assertion that he or she
has been violated in his or her fundamental rights or in one of the rights
granted by Article 20, para. 4, Articles 33, 38, 101, 103 and 104 of the
Basic Law for the Federal Republic of Germany by the public authority.
Section 90, para. 2, of the Federal Constitutional Court Act furthermore
states that the constitutional complaint may only be filed when recourse to
the courts has been taken . as far as this is admissible in case of an
infringement of rights. If recourse to the courts can be taken, these legal
remedies have to be exhausted, i.e. recourse must be had to all instances.
This requirement of exhaustion of legal remedies and thus the principle of
subsidiarity applies particularly to constitutional complaints against legal
provisions. A constitutional complaint is not a general action. It cannot be
lodged by anybody but only by someone who asserts that his or her rights
protected by Section 90 of the Federal Constitutional Court Act have been
violated by the public authority.
6.6 The State party consequently notes that, exceptionally, a legal
provision can only be directly contested with a constitutional complaint if
the applicant himself or herself is currently and immediately . and not by
means of an act of enforcement . affected by this provision. In order to
determine whether and to what extent an Act and/or a concrete provision
affects the individual citizen, the concrete case first has to be subsumed
under a specific legal provision for decision by a court. This also applies
to the author in regard to the law on the consequences of divorce which she
complains is not consistent with fundamental rights. For this reason as
well, and irrespective of whether the deadline of Section 93, para. 3, of
the Federal Constitutional Court Act had been observed, the author could not
lodge a general constitutional complaint against the law on the consequences
of divorce. She would first have had to take action to obtain a decision by
the competent specialist courts concerning the different consequences of
divorce such as postmarital spousal support, pension sharing and
equalization of accrued gains. Only subsequently is it admissible to lodge a
constitutional complaint based on the assertion that the concrete provisions
of the law on the consequences of divorce applied by the courts are
infringing Article 3, paras. 2 and 3, of the Basic Law. In the latter case,
a deadline of one month following the service, pronouncement or
communication of the decision at last instance applies pursuant to Section
93, para. 1, of the Federal Constitutional Court Act.
6.7 The State party submits that a final decision has still not been reached
in the legal proceedings before the family court initiated by the author for
post-marital spousal support (Local Court of G�ttingen, file no. 44 F
316/02). In the main proceedings for post-marital spousal support, the
author has been granted legal aid and is represented by attorney. The court
is still to reach a decision on the amount of support to be paid to the
author. The author may file an appeal against this decision. Only then can
it be considered to bring the matter to the Federal Constitutional Court.
6.8 The State party submits that the proceedings concerning the equalization
of accrued gains are at the stage of consideration of the author's
application of 8 September 2003 for legal aid and assignment of an
attorney-at-law for the litigation. This application remains pending due to
subsequent motions of the author seeking disqualification of the judge on
grounds of conflict of interest in the proceedings for spousal support. The
author has also remonstrated against the decision of the Higher Regional
Court of Braunschweig of 11 February 2004, on which the latter still has to
decide.
6.9 The State party concludes that domestic legal remedies had not yet been
exhausted when the author lodged a general constitutional complaint against
the law on the consequences of divorce on 10 July 2000. Also for this reason
the constitutional complaint had been inadmissible.
6.10 The State party lastly argues that it is not sufficient merely to quote
scientific publications to justify a constitutional complaint, and to
maintain in general, as the author did, that the equalization of accrued
gains as such or the pension sharing and/or the law on spousal support as
such would be contrary to the Constitution.
6.11 The State party emphasized that the author's constitutional complaint
against the law on the consequences of divorce of 10 July 2000 was
inadmissible in general for the above-stated reasons. Since only a complaint
of unconstitutionality lodged in a lawful manner fulfils the prerequisites
for exhaustion of legal remedies, the author's communication is inadmissible
pursuant to article 4, para. 1, of the Optional Protocol.
6.12 The State party lastly recalls the other reasons set forth in its
original submission to declare the communication inadmissible.
Additional Comments of the Author on Admissibility
7.1 In regard to the divorce proceedings in first instance in 1999 (Amtsgericht
Northeim), the author recalls that the divorce judgement of 10 November 1999
also included the equalization of pensions, a legal requirement in
accordance with article 1587 of the Civil Code, on the basis of a formula
described in her earlier submission. The author reiterates that this
presumably .just equalization. is deeply unjust, unbalanced and
discriminatory as it does not take into account the postmarital consequences
of the division of labour and of understandings reached during marriage. In
her concrete case, her divorced husband will reach a pension that will be
significantly above the amount determined by the equalization of pensions.
On the other hand, there were serious doubts whether, when and to what
degree she will be able to obtain the determined amount.
7.2 The author further submits that notwithstanding her repeated urgings,
the questions of post-marital support and of equalization of accrued gains
were dealt with neither in the divorce judgement nor in her appeal against
the divorce, which the appellate court (Oberlandesgericht Braunschweig)
denied on 23 May 2000. This was the case as certain private commitments and
marital agreements concerning her material, social and old-age security had
been handed over by the Family Court to the Civil Court for decision. The
author asserts that the justifications of the Family Court of first instance
as well as of the appellate court in her divorce show that the organs of
Justice simply and solely take into consideration, and favour, the views and
interest of the male spouse who files for divorce.
7.3 The author, in regard to her constitutional complaint with decision of
30 August 2000, refers to her extensive earlier submissions and confirms
that the discriminatory nature of the legal consequences of divorce
continues to exist.
7.4 In regard to the exhaustion of remedies, the author asserts that
contrary to the State's views, it was not necessary to file a distinct
separate appeal against the equalization of pensions as such equalization is
part of the divorce judgement. Contrary to the State party's assertion, such
a separate appeal was, according to the established jurisprudence of the
Constitutional Court, neither necessary nor expected, as the statutory
equalization of pensions is, according to article 1587 of the Civil Code, an
.unambiguous legislative provision., and a repeal of the divorce would
automatically also have resulted in a repeal of the equalization of
pensions. Thus, the author asserts that her constitutional complaint was
admissible and justified also against the statutory equalization of pensions
without prior exhaustion of remedies in the lower courts. The Constitutional
Court's decision not to accept for decision her complaint also included part
B of her complaint, i.e. the complaint against the statutory equalization of
pensions. The author reiterates that her constitutional complaint was not
directed generally against the legal consequences of divorce but rather
against the omission of the legislator to eliminate those elements that were
discriminatory and disadvantageous to divorced women. As a result, the
author submits that her complaint is admissible also in relation to the
statutory equalization of pensions in accordance with article 4.1 of the
Optional Protocol as domestic remedies were exhausted with the admissible
constitutional complaint, which was, however, not accepted for decision.
7.5 The author submits that, contrary to the State's assertions, in regard
to her constitutional complaint of violation of articles 3.2 and 3 of the
Constitution, exhaustion of remedies through the courts was not necessary
for reasons that article 3.2 clarified the explicit instruction of the
Constitution concerning the content and scope of the legislator's duty to
legislate. Furthermore, prior exhaustion of remedies was also not necessary
as her constitutional complaint raised issues of general relevance and
fundamental constitutional issues, in accordance with article 90.2 of the
BVerfGG. The author reiterates that her complaint is admissible under
article 4.1 of the Optional Protocol as the exhaustion of remedies through
the courts was not necessary, and domestic remedies had been exhausted with
the admissible constitutional complaint which had, however, not been
accepted for decision.
Issues and Proceedings Before the Committee Concerning Admissibility
8.1 In accordance with rule 64 of its rules of procedure, the Committee
shall decide whether the communication is admissible or inadmissible under
the Optional Protocol.
8.2 In accordance with rule 66 of its rule of procedure, the Committee may
decide to consider the question of admissibility and merits of a
communication separately.
8.3 The Committee has ascertained that the matter has not already been or is
being examined under another procedure of international investigation or
settlement.
8.4 The Committee considers that the facts that are the subject of the
communication concern the consequences of divorce, i.e. in particular with
regard to equalization of accrued gains, equalization of pensions, and
maintenance after termination of marriage. It notes that divorce proceedings
were initiated by the author's husband in May 1999. It also notes that the
divorce, itself, became final together with the matter of the equalization
of pensions on 28 July 2000, that is, prior to the entry into force of the
Optional Protocol in respect of the State party on 15 April 2002.
Considering that the author has not made any convincing arguments that would
indicate that the facts, insofar as they relate to the equalization of
pensions, continued after this date, the Committee considers that, in
accordance with article 4, paragraph 2 (e), of the Optional Protocol, it is
precluded ratione temporis from considering the part of the communication
that relates to the equalization of pensions.
8.5 Furthermore, with regard to the issue of the equalization of pensions,
the Committee notes the State party's argument that the author restricted
her appeal against the divorce decree solely to the pronouncement of the
divorce itself and did not make the equalization of pensions the subject of
a review by an appellate court. The Committee also notes the author's
contention that a successful appeal of the divorce decree would
automatically have repealed the equalization of pensions as this element is
a mandatory part of the divorce decree. The Committee considers that
notwithstanding the mandatory resolution of the equalization of pensions in
divorce decrees, the author could reasonably have been expected to include a
specific appeal on the issue to the appellate court, as well as in her
constitutional complaint. It concludes that the author has thereby not
exhausted domestic remedies concerning the issue of the equalization of
pensions. This part of the communication is therefore inadmissible also
under article 4, paragraph 1, of the Optional Protocol.
8.6 The Committee further notes that the author's complaint was rejected by
the Federal Constitutional Court and, in this connection, relies on the
State party's explanation that the filing was carried out in an inadmissible
manner for several reasons, including because the complaint was time-barred.
The Committee is not persuaded by the author's argument that her
constitutional complaint was filed in an admissible manner as a complaint of
omission on the part of the legislator to eliminate discriminatory elements
of the legislation by which she was personally affected . rather than a
general complaint about the legal consequences of divorce. The Committee
therefore concludes that the improperly filed constitutional complaint of 10
July 2000 cannot be considered an exhaustion of domestic remedies by the
author.
8.7 The Committee notes that separate proceedings regarding both the
equalization of accrued gains and maintenance after termination of marriage
have not yet been settled definitively. In light of the fact that the author
has not denied that this was the case nor argued persuasively for the
purpose of admissibility that the proceedings have been unreasonably
prolonged or are unlikely to bring relief, the Committee considers that
these claims are inadmissible under article 4, paragraph 1, of the Optional
Protocol.
8.8 The Committee therefore decides:
(a) That the communication is inadmissible under article 4, paragraph 1, for
the author's failure to exhaust domestic remedies, and paragraph 2 (e),
because the disputed facts occurred prior to the entry into force of the
Optional Protocol for the State party and did not continue after that date;
(b) That this decision shall be communicated to the State party and to the
author.
Individual Opinion of Committee Members Krisztina Morvai and Meriem
Belmihoub-Zerdani (Dissenting)
[9] In our view, the author's communication is partly admissible. While I
agree with the majority that the claim concerning the divorce and
equalization of pensions decision of 28 July 2000 is inadmissible ratione
temporis I believe that the separate claim regarding the ongoing proceedings
concerning the issues of accrued gains and spousal maintenance in fact do
meet all admissibility criteria.
[10] In the majority's view, the separate claims (regarding the alleged
violations of the Convention in relation to substantive and procedural
aspects of the equalization of accrued gains and of post-divorce
maintenance) are inadmissible due to the lack of exhaustion of domestic
remedies (Article 4.1).
[11] In accordance with the Optional Protocol as a general rule all
available domestic remedies have to be exhausted, "unless the application of
such remedies is unreasonably prolonged or unlikely to bring effective
relief".
[12] In our view, the domestic proceedings must be evaluated on a
case-by-case basis regarding their "unreasonably prolonged" character.
[13] In the present case, proceedings concerning spousal maintenance and
accrued gains have been ongoing for about five years. (According to para.
7.2 of the Committee's decision on admissibility the author submitted that
"notwithstanding her repeated urgings, the questions of post-marital support
and of equalization of accrued gains were dealt with neither in the divorce
judgement nor in her appeal against the divorce, which the appellate court/Oberlandesgericht
Braunschweig/ denied on 23 May 2000". According to the State party's
observations on admissibility, summarized in paragraph 4.2 of the
Committee's decision, "No final decision has yet been reached in separate
proceedings regarding maintenance after termination of the marriage and
equalization of accrued gains".) Even though in April 2004, the Court of
G�ttingen awarded the author a maintenance payment of 280 euros per month,
with retroactive effect to August 2002 (see para. 2.7 of the decision of the
Committee), the decision regarding maintenance is still not final, due to
the author's appeal. Similarly, no final decision has been reached in the
equalization of accrued gains case. Two years of these ongoing proceedings
period follow the ratification of the Optional Protocol by the State party.
[14] Indeed, there might be cases and situations where the same length of
time could not be considered "unreasonably prolonged". However, in the
present situation the subject matter of the proceedings is basically the
determination and granting of the financial/material sources of the survival
of the author. Ms. B.-J. is now 57 years old, she was 52 when her husband
divorced her after three decades of marriage. The author, as so many women
in the world, devoted her whole adult life to unpaid work in the family,
while her husband, on whom she was therefore financially dependent, had
advanced his career and his income. According to the submissions of the
author her financial situation is deeply uncertain, to say the least. There
are times when she receives some maintenance, and there are times when she
does not receive anything. (In the meantime, the former husband, who
successfully capitalized the 30 years of unremunerated work of the author,
apparently has an income of about 5,000 euros per month, a very good salary
(see decision of the Committee, para. 5.9, final sentence)). The applicant,
who has no work experience outside the home and the family and who is
considered to be an "older woman", has very little chance to enter the
labour market and to support herself financially. It is sad and shameful
that following the upbringing of three children and a lifetime of work in
the home she has to live without a regular, reliable income, even five years
after the divorce that took place against her will. In these circumstances,
the domestic courts should have determined and granted a decent maintenance
for her a long time ago. A legal and judicial system that is able to
finalize contested divorce proceedings following three decades of marriage
in just one year would be able to finalize post-divorce maintenance (and
accrued gains) proceedings with similar speed and efficiency. For an older
woman who raised three children and worked for the benefit of her spouse for
three decades living in such uncertainty five years after the divorce is
rightly considered to be unacceptable and a serious violation of her human
rights in and of itself.
[15] In our opinion it follows that under all the circumstances of the case
the application of domestic remedies is unreasonably prolonged. Moreover, it
follows that the general rule in article 4.1 concerning the need to exhaust
all domestic remedies does not apply here, instead the unreasonable
prolongation exception to the rule applies.
(Signed) Krisztina Morvai
(Signed) Meriem Belmihoub-Zerdani
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