European Court of Human Rights

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30209/05
by Jaroslaw NIEDZWIECKI (II)
against Germany

The European Court of Human Rights (Fifth Section), sitting on 10 February 2009 as a Chamber composed of:

Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 23 July 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jaroslaw Niedzwiecki, is a Polish national who was born in 1961 and lives in Świdnica in Poland.

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

The applicant entered Germany in 1987. Until January 1997 he was in possession of a limited residence title for exceptional purposes (Aufenthaltsbefugnis). In April 1997 he obtained an unlimited residence permit (Aufenthaltsberechtigung).

The applicant’s daughter was born in July 1995. On 14 December 1995 he requested a child-raising allowance for the first year of the child’s life under the Child-raising Allowance Act (Bundeserziehungsgeldgesetz).
For the applicant the benefits under that Act amounted to 600 German marks (DEM) (approximately 306.00 euros (EUR)) per month.

On 20 December 1995 the Würzburg Office for Care and Family Promotion rejected his request. The applicant filed an administrative objection on 17 January 1996, which the Bavarian Regional Office for Care and Family Promotion dismissed on 27 March 1996. It held that the applicant did not meet the requirements of the Child-raising Allowance Act as he was not a German national and he did not have the necessary unlimited residence permit. According to the relevant provisions of the Child-raising Allowance Act, the limited residence title for exceptional purposes did not suffice for the allowance.

On 21 April 1996 the applicant lodged an action with the Würzburg Social Court (Sozialgericht) arguing that the pertinent provisions of the Child-raising Allowance Act discriminated against foreign nationals.

In connection with a different set of proceeding (concerning family allowance), the applicant lodged a constitutional complaint against, inter alia, the pertinent provisions of the Child-raising Allowance Act, arguing that those provisions discriminated against foreigners. On 2 June 1997, the Federal Constitutional Court refused to admit the constitutional complaint for failure to exhaust effective remedies.

On 18 July 1996 the applicant requested a child-raising allowance for the second year of his daughter’s life. On 26 February 1997 the Würzburg Office for Care and Family Promotion rejected the request.
On 26 May 1997 it amended the decision and granted the applicant the requested allowance from 9 April 1997 onwards as on that day the applicant was in the possession of an unlimited residence permit. The applicant filed an administrative objection against the refusal of the authorities to grant the allowance also for the period prior to 9 April 1997. On 17 June 1997 the Regional Office for Care and Family Promotion rejected the objection.

On 9 July 1997 the applicant extended his action before the Social Court to include his claim for the second year of his daughter’s life concerning the period before 9 April 1997.

On 11 November 1997 the Würzburg Social Court rejected the applicant’s action in its entirety, holding that the applicant did not meet the requirements of the Child-raising Allowance Act. It also held that that Act’s requirement for foreign nationals to be in possession of a residence permit was not discriminatory. On 10 December 1997 the applicant lodged an appeal against the judgment.

On 28 March 2001 the Bavarian Social Court of Appeal (Landessozialgericht) allowed an ancillary request concerning a cost decision but dismissed the appeal on the merits in its entirety.
On 5 September 2001 the applicant lodged an appeal on points of law against that judgment.

On 14 April 2003 the defendant acknowledged that the applicant’s claim on the merits was justified in so far as it concerned the two-day period of 7 and 8 April 1997.

On 24 April 2003 the Federal Social Court (Bundessozialgericht) dismissed the appeal on points of law.

On 30 June 2003 the applicant lodged a constitutional complaint to the Federal Constitutional Court (Bundesverfassungsgericht).

On 6 July 2004 the Federal Constitutional Court held, in proceedings by which the applicant was not directly concerned, that the pertinent provisions of the Child-raising Allowance Act violated the right to equal treatment enshrined in the German Basic Law (case no. 1 BvR 2515/95). It added that if the Child-raising Allowance Act was not amended until 1 January 2006, the law prior to the amendment of the Child-raising Allowance Act in 1993 should be applied to cases that were not subject to a final decision. On the same day, the Federal Constitutional Court also declared, for the same reasons, the provisions of the Federal Child Benefits Act (Bundeskindergeldgesetz) to be unconstitutional (case nos. 1 BvL 4/97, 5/97, and 6/97), also allowing for a transitional period until 1 January 2006.

In relation to the applicant’s constitutional complaint the Federal Constitutional Court, on 17 March 2005, rescinded the judgment of the Federal Social Court referring to its earlier decision of 6 July 2004.

It remitted the case to the Federal Social Court and decided that the Federal Social Court was to adjourn the case until the impugned provisions of the Child-raising Allowance Act had been amended. The Federal Constitutional Court added, in line with its earlier decision, that if the Act was not amended until 1 January 2006, the Federal Social Court should apply the law prior to the amendment of the Child-raising Allowance Act in 1993.

On 18 September 2006 the defendant acknowledged the applicant’s claim; on 1 December 2006 it also offered to pay interest on the outstanding amount.

On 13 December 2006 the German legislator amended the Child-raising Allowance Act to allow foreigners with limited residence titles for exceptional purposes, whose proceedings had not yet ended with a final decision, to benefit from the child-raising allowance. This amendment entered into force retroactively on 1 January 2006.

On 10 May 2007 the Federal Social Court allowed the applicant’s appeal on points of law. The Federal Social Court noted that the applicant had not accepted the defendant’s acknowledgment. It ordered the defendant to pay the agreed child-raising allowance plus the accrued interest.

COMPLAINTS

The applicant complained that the proceedings before the domestic courts violated his rights under Article 6 of the Convention. He complained in particular that the length of the proceedings had been excessive.

He also asserted that the entire proceedings had been unfair because the Federal Constitutional Court had refused in 1997 to allow his constitutional complaint, which would have put an early end to the discriminatory provision of the Child-raising Allowance Act. He also complained that the Federal Constitutional Court had refused to render a just and fair ruling for all foreigners who had been deprived of a child-raising allowance.

THE LAW

A.  The length of the proceedings

The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which reads in its relevant part as follows:

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

1. Period to be taken into account

The Court reiterates that the relevant period to be taken into consideration begins with the date when the applicant filed his objection, a necessary first step before proceedings can be brought in the social courts (see Janssen
v. Germany, no. 23959/94, § 40, 20 December 2001, and König v. Germany, judgment of 28 June 1978 Series A no. 27, § 98).

In the present case, the relevant proceedings began on 17 January 1996, when the applicant lodged an administrative objection against the decision of the Würzburg Office for Care and Family Promotion.

The proceedings ended with the Federal Social Court judgment of 10 May 2007 and thus lasted over eleven years and three months for four levels of jurisdiction and the administrative proceedings.

2. Reasonableness of the length of proceedings

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case, taking into account the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

The Court considers that the main facts of the case were not of any particular complexity as they were uncontested before the social courts. However, the case involved points of law of some complexity, such as the compatibility of the relevant provisions of the Child-raising Allowance Act with the constitution and international treaties.

As to the conduct of the applicant, the Court notes that he extended his initial claim before the social court in July 1997 to include the child-raising allowance for his daughter’s second year and amended his action regarding the costs. However, the fact that the applicant availed himself of the possibility to amend his claim did not contribute to the length of proceedings as the legal issues remained the same. The Court also observes that, while the case was pending the second time before the Federal Social Court, the defendant acknowledged the applicant’s claim on 18 September 2006 and agreed to pay interest on the outstanding amount on 1 December 2006. According to the Federal Social Court’s judgment of 10 May 2007, the applicant did not accept this acknowledgment, thus preventing an immediate termination of the proceedings. For this reason the Court considers that the period of approximately five months which elapsed between the defendant’s full acknowledgment and the Federal Social Court’s final judgment cannot be held imputable to the domestic authorities.

With respect to the conduct of the domestic authorities, the Court observes that the proceedings featured a distinct particularity. The social courts’ refusal to grant a child-raising allowance was based on the requirements set out in the Child-raising Allowance Act. In 2004 the Federal Constitutional Court declared the relevant provisions of the Child-raising Allowance Act in violation of Germany’s Basic Law and set the legislator the target date of 1 January 2006 by which to amend them. The Court considers that where there was a systemic wrong based on an unconstitutional legislative act, it was adequate to allow, as the Federal Constitutional Court did, for a transitional period to enable the State to react to the ruling of the Federal Constitutional Court and amend the Child-raising Allowance Act. In the specific circumstances of the case, that period, which for the applicant lasted some nine months, from the decision of the Federal Constitutional Court in his proceedings on 17 March 2005 until the end of the transitional period on 1 January 2006, cannot be held imputable to the domestic courts.

As to what was at stake for the applicant in the dispute, the Court observes that the proceedings concerned a claim for benefits under the Child-raising Allowance Act, namely the question whether the applicant was entitled to a child-raising allowance of some EUR 306.00 per month for a period of about 18 months (from 30 November 1995 to 6 April 1997).

The outstanding amount owed by the defendant was limited to a fixed period and did not, therefore, accumulate while the proceedings were pending before the courts. Apart from the temporary loss of interest, for which the applicant was eventually compensated, the financial prejudice suffered by the applicant did not increase over time.

The Court considers that an overall period of fourteen months cannot be held imputable to the domestic authorities, leaving a relevant period of nine years and eleven months. The Court reiterates that the proceedings involved, in addition to the administrative proceedings, a total of four levels of jurisdiction and one remittal. Though the length of proceedings before the Social Court of Appeal appears particularly long, the Court considers that the average time taken per level of jurisdiction and before the administrative body, respectively, was about two years. The overall length of proceedings was, at least in part, attributable to the systemic wrong caused by unconstitutional provisions of the Child-raising Allowance Act and by the Federal Constitutional Court’s consequential decision to allow for a transitional period that affected all pending cases relating to the child benefits.

Assessing the particular circumstances of the case as a whole, the Court concludes that the overall length of the proceedings can still be considered reasonable within the meaning of Article 6 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B.  The alleged unfairness of the proceedings

The applicant also complained about the alleged unfairness of the proceedings in general. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President