Corte europea dei diritti dell’uomo
(Sezione IV), 25 ottobre 2005
(Application
no. 58453/00)
CASE OF NIEDZWIECKI v. GERMANY
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
1. 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.
2. 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.
3. 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.
4. 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.
5. By a decision of 17 June 2003 the
Court declared the application partly admissible.
6. 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).
7. The applicant and the Government
each filed observations on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. 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
9. 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).
10. In July 1995 the applicant’s
daughter was born.
2. The child benefit proceedings before
the Labour Office
11. 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).
12. 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.
13. On 12 October 1995 the Federal Labour Office (Bundesanstalt
für Arbeit) rejected
his objection.
3. The proceedings before the Social
Court
14. 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.
15. 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
16. 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.
17. On 18 March 1999 the Federal Social
Court (Bundessozialgericht) dismissed the
applicant’s appeal on points of law.
18. 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.
19. 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
20. 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
21. 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. ...”
22. 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).
23. 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.
24. 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
25. 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.
26. 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.”
27. 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.
28. The applicant contested these
submissions.
29. 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).
30. 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).
31. 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.
32. 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
34. 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.
35. 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
36. 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.”
37. The applicant claimed compensation
for pecuniary and non-pecuniary damage, and the reimbursement of his costs and
expenses.
A. Damage
38. 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.
39. 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.
40. The Government did not express an
opinion on the matter within the set time-limit.
41. 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.
42. 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.
43. 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
44. 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).
45. The Government did not express an
opinion on the matter.
46. 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
47. 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
1. Holds
that there has been a violation of Article 14 in conjunction with Article 8 of
the Convention;
2. 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;
3. Holds
that the finding of a violation constitutes sufficient just satisfaction in
respect of any non-pecuniary damage sustained by the applicant;
4. 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