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FOURTH
SECTION
CASE OF NIEDZWIECKI v. GERMANY
(Application
no. 58453/00)
JUDGMENT
STRASBOURG
25
October 2005
FINAL
15/02/2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Niedzwiecki v. Germany,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall, President,
Mr G.
Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr J.
Borrego Borrego,
Ms L. Mijović,
Ms R. Jaeger,
judges,
and Mr M. O’Boyle, Section Registrar,
Having
deliberated in private on 4 October 2005,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 58453/00) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Polish national, Mr
Jaroslaw Niedzwiecki (“the applicant”), on 27
October 1999.
- The
German Government (“the Government”) were represented by
their Agent, Mr K. Stoltenberg, Ministerialdirigent, and,
subsequently, Mrs A. Wittling-Vogel, Ministerialrätin,
of the Federal Ministry of Justice.
- The
applicant alleged, in particular, that the refusal of child benefits
between July and December 1995 amounted to discrimination in the
exercise of his right to respect for family life.
- The
application was allocated to the Fourth Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
- By
a decision of 17 June 2003 the Court declared the application partly
admissible.
- On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Fourth Section (Rule 52 § 1).
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961. At the time the application was lodged he
lived in Erlenbach in Germany. He currently resides in Swidnica in
Poland.
1. The applicant’s situation in Germany
- The
applicant immigrated to Germany in February 1987. His request for
asylum was rejected. His expulsion was, however, suspended under the
agreement of the Home Secretaries of the Länder not to
expel Polish nationals (“Ostblockbeschlüsse” der
Innenminister der Länder). In November 1989 the
applicant obtained a provisional residence permit
(Aufenthaltserlaubnis). In January 1991, following an
amendment of the Aliens Act, he was issued with a limited residence
title for exceptional purposes (Aufenthaltsbefugnis). This
residence title was renewed every two years, the last time in January
1995 until January 1997. In April 1997 the applicant obtained an
unlimited residence permit (Aufenthaltsberechtigung).
- In
July 1995 the applicant’s daughter was born.
2. The child benefit proceedings before the Labour
Office
- On
28 July 1995 the applicant applied to the Aschaffenburg Labour Office
(Arbeitsamt) for child benefits according to Section 1 of the
Federal Child Benefits Act (Bundeskindergeldgesetz, see
relevant domestic law below).
- On
18 August 1995 the Labour Office dismissed the applicant’s
request under Section 1 § 3 of the Child Benefits Act. It noted
that the applicant only had a limited residence title for exceptional
purposes, and no unlimited residence permit or provisional residence
permit, as required under Section 1 § 3.
- On
12 October 1995 the Federal Labour Office (Bundesanstalt für
Arbeit) rejected his objection.
3. The proceedings before the Social Court
- The
applicant lodged an action with the Würzburg Social Court
(Sozialgericht), claiming that he had been residing in Germany
since 1987 and that he should, therefore, have the right to child
benefits.
- On
21 April 1997 the Social Court dismissed the applicant’s action
regarding child benefits between July 1995 and April 1997. It
confirmed that only aliens with an unlimited residence permit or with
a provisional residence permit were entitled to the payment of child
benefits under Section 1 § 3 of the Child Benefits Act, as in
force until 31 December 1995. According to the Social
Court, the legislature had only intended to grant child benefits to
aliens who were likely to stay in Germany on a permanent basis.
Aliens with only a limited residence title for exceptional purposes
were, however, not likely to stay. The court further pointed out that
this distinction did not violate the German Basic Law. In the present
case, the legislature had remained within its wide margin of
appreciation in social law matters.
4. The appeal proceedings
- On
23 April 1998 the Bavarian Social Court of Appeal
(Landessozialgericht) dismissed the applicant’s appeal
to the extent that his claims under the Child Benefits Act until 31
December 1995 were concerned. The Court of Appeal confirmed the lower
court’s reasoning, noting that the applicant did not have a
stable residence permit in 1995, as his limited residence title for
exceptional purposes had had to be renewed every two years. Likewise,
referring to the wide margin of appreciation of the legislature, it
took the view that Section 1 § 3 of the Federal Child Benefits
Act was compatible with the Basic Law. In this respect, it considered
that until December 1995 families had benefited from child benefits
and tax deductions (Kinderfreibetrag) as a system of
compensation (dualer Familienlastenausgleich). The applicant
and his wife had paid taxes in 1995 but had not obtained child
benefits. In the court’s view, this taxation, not the refusal
of child benefits, might have violated the Basic Law; however,
it was not for the social courts to decide on that matter.
- On
18 March 1999 the Federal Social Court (Bundessozialgericht)
dismissed the applicant’s appeal on points of law.
- The
applicant lodged a constitutional complaint combined with a request
for an interim measure. He claimed that the relevant provision of the
Federal Child Benefits Act was discriminatory and racist, and
violated his right to respect for his family life. In addition, he
alleged that the refusal of his request for child benefits infringed
the principle of social justice (Sozialstaatsprinzip) laid
down in Article 20 § 4 of the Basic Law.
- On
21 October 1999 the Federal Constitutional Court
(Bundesverfassungsgericht) refused to entertain his complaint
and rejected his request for an interim measure.
5. The proceedings concerning claims after 1 January
1996
- On
3 July 2001 the Würzburg Social Court decided that it was not
competent to deal with the applicant’s claims regarding child
benefits for the period after 1 January 1996 and transferred the
proceedings to the Nuremberg Tax Court (Finanzgericht). The
proceedings before the Tax Court are still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
1 of the 1994 Federal Child Benefits Act
(Bundeskindergeld-gesetz,
Federal Gazette - Bundesgesetzblatt 1994-I, S. 168),
as in force until 31 December 1995, provided for the payment of child
benefits which are financed by the Federation. Section 1, as far as
relevant, provided as follows:
“(1) Under the provisions of the
present Act, anybody is entitled to child benefits for his or her
children ...,
1. who has a place of residence (Wohnsitz)
or regular residence (gewöhnlicher Aufenthalt)
within the scope of the present Act,
...
(3) An alien is entitled to a benefit under
the present Act, if he has a residence permit or a provisional
residence permit. ...”
- Following
a reform of the law on child benefits with effect from 1 January
1996, an equivalent provision on child benefits is to be found in
Section 62 § 2 of the Income Tax Act (Einkommenssteuergesetz).
- By
decision of 6 July 2004 (1 BvL 4/97, 1 BvL 5/97, 1 BvL 6/07), the
Federal Constitutional Court ruled that section 1 § 3 of the
Child Benefits Act in the above cited version was incompatible with
the right to equal treatment under Article 3 of the Basic Law.
Accordingly, the legislator was ordered to amend the law by 1 January
2006.
- The
Federal Constitutional Court found, in particular, that the different
treatment of parents who were and who were not in possession of a
stable residence permit lacked sufficient justification. As the
granting of child benefits related to the protection of family life
under Article 6 § 1 of the Basic Law, very weighty reasons would
have to be put forward to justify unequal treatment. Such reasons
were not apparent. In so far as the provision was aimed at limiting
the granting of child benefits to those aliens who where likely to
stay permanently in Germany, the criteria applied were inappropriate
to reach that aim. The fact that a person was in possession of a
limited residence title did not form a sufficient basis to predict
the duration of his or her stay in Germany. The Constitutional Court
did not discern any other reasons justifying the unequal treatment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH
ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the German
authorities’ refusal of child benefits for the period of time
between July and December 1995 amounted to discrimination, racism and
inhuman treatment.
- The
Court has examined this complaint under Article
14, taken together with Article 8, of the Convention, which as far as
relevant, provide as follows:
Article 8
“1. Everyone has the right to respect
for his private and family life, ...”
Article 14
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government maintained that child benefits did not fall within the
ambit of Article 8 of the Convention, as the State’s general
obligation to promote family life did not give rise to concrete
rights to specific payments. The statutory provision of Section 1 §
3 of the Child Benefits Act and its application in the present case
did not discriminate against the applicant in the exercise of his
right to respect for his family life.
- The
applicant contested these submissions.
- The
Court reiterates that, according to its established case-law, Article
14 is only applicable if the facts at issue fall within the ambit of
one ore more of the substantive provisions of the Convention and its
Protocols (see, among many other authorities, Petrovic v. Austria,
judgment of 27 March 1998, Reports of Judgments and Decisions
1998 II, § 22; Willis v. United Kingdom,
no. 36042/97, § 29, ECHR 2002-IV).
- As
the Court has held on many occasions, Article 14 comes into play
whenever “the subject-matter of the disadvantage...constitutes
one of the modalities of the exercise of a right guaranteed”,
or the measures complained of are “linked to the exercise of a
right guaranteed” (see Petrovic, cited above, §
28; National Union of Belgian Police v. Belgium, judgment
of 27 October 1975, Series A no. 19, § 45; Schmidt and
Dahlström v. Sweden, judgment of 6 February 1976, Series A
no. 21, § 39).
- By
granting child benefits, States are able to demonstrate their respect
for family life within the meaning of Article 8 of the Convention;
the benefits therefore come within the scope of that provision
(see, mutatis mutandis, Petrovic, cited
above, § 30). It follows that Article 14 – taken
together with Article 8 – is applicable.
- According
to the Court’s case-law, a difference of treatment is
discriminatory for the purposes of Article 14 of the Convention if it
“has no objective and reasonable justification”, that is
if it does not pursue a “legitimate aim” or if there is
not a “reasonable relationship of proportionality between the
means employed and the aim sought to be realised”. The
Contracting States enjoy a certain margin of appreciation in
assessing whether and to what extent differences in otherwise similar
situations justify a different treatment (see, among other
authorities, Willis,
cited above, § 39).
33. The
Court is not called upon to decide generally to what extent it is
justified to make distinctions, in the field of social benefits,
between holders of different categories of residence permits. Rather
it has to limit itself to the question whether the German law on
child benefits as applied in the present case violated the
applicant’s rights under the Convention. In this respect the
Court notes the decision of the Federal Constitutional Court
concerning the same issue which was given after the proceedings which
form the subject matter of the present application had been
terminated (see paragraph 24 above). Like the Federal Constitutional
Court, the Court does not discern sufficient reasons justifying the
different treatment with regard to child benefits of aliens who were
in possession of a stable residence permit on one hand and those who
were not, on the other. It follows that there has been a violation of
Article 14 in conjunction with Article 8 of the Convention.
II. FURTHER ALLEGED
VIOLATIONS
- In his further observations on the merits of 1 June
2005, the applicant complained under Article 6 § 2 of the
Convention about the length of the proceedings before the Tax Courts
and about the Federal Constitutional Court’s refusal to issue
an interim order in his favour.
- The
Court notes that these complaints fall outside the scope delimited by
the Chamber’s decision on admissibility. It follows that the
Court has no jurisdiction to examine the merits of these complaints
(see, among other authorities, Süßmann v. Germany,
judgment of 16 September 1996, Reports of Judgments and
Decisions 1996 IV, § 29; and Ionescu v. Romania,
no. 35037/99, § 68, 28 June 2005).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant claimed compensation for pecuniary and
non-pecuniary
damage, and the reimbursement of his costs and expenses.
A. Damage
- The
applicant, partially relying on documentary evidence, claimed 16,000
euros (EUR) in respect of pecuniary damage, including child benefits
for the months July to December 1995 (DEM 420), additional child
benefits (Kindergeldzuschlag) (approximately DEM 1,000), lost
interests (DEM 1,943.37), the costs of the Administrative Court
proceedings aimed at obtaining a residence permit (DEM 1,112.50) and
the costs of legal counsel relating to these proceedings (DEM
550.04); costs charged by his legal counsel in the proceedings
relating to the child benefits (DEM 1,469.15); the applicant’s
own expenses (DEM 17,000); and an appropriate compensation for
inflation (DEM 5,032.92). He argued, in particular, that he
instigated proceedings aimed at obtaining a residence permit merely
in an attempt to secure the payment of child benefits.
- The
applicant also sought compensation for non-pecuniary damage, arguing
that the discrimination and alleged attacks against their human
dignity had caused his family severe suffering. He further complained
about political persecution. He claimed a total of EUR 200,000 under
this head. He additionally claimed a sum of EUR 200,000 as
compensation for the violation of the Convention to the detriment of
thousands of families.
- The
Government did not express an opinion on the matter within the set
time-limit.
- The
Court awards the applicant EUR 600 as recompense for the child
benefits and supplements for the months July to December 1995,
including compensation for lost interests. With respect to the costs
incurred by the proceedings aimed at obtaining a residence permit,
the Court does not discern a sufficient causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim.
- As
to the non-pecuniary damage claimed, the Court, having regard to all
the elements before it, considers that the finding of a violation of
Article 14 in conjunction with Article 8 constitutes in itself
sufficient just satisfaction in respect of any non-pecuniary damage
sustained by the applicant.
- The
Court further finds that the applicant’s claims for
reimbursement of the costs and expenses incurred before the domestic
courts and before this Court should be considered under the head of
“costs and expenses” below.
B. Costs and expenses
- The
applicant claimed DEM 1,469.15 for costs and expenses incurred before
the domestic courts and EUR 17,000 for his own expenses (see
paragraph 38 above).
- The
Government did not express an opinion on the matter.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, taking into
account the fact that the applicant’s complaint was only
declared partially admissible, the Court considers it reasonable to
award the sum of EUR 300 for costs and expenses incurred by the
domestic proceedings. With respect to the applicant’s own
expenses before this Court, the Court considers it reasonable to
award the applicant, who was not represented by a lawyer, the sum of
EUR 500 under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
14 in conjunction with Article 8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, 1,400 (one
thousand four hundred euros) for pecuniary damage and costs and
expenses, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Holds that the finding of a violation
constitutes sufficient just satisfaction in respect of any
non-pecuniary damage sustained by the applicant;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 October 2005, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Michael O’Boyle Josep Casadevall
Registrar President
