FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35556/03 by Manfred PAUL against Germany

The European Court of Human Rights (Fifth Section), sitting on 29 May 2007 as a Chamber composed of:

Mr P. Lorenzen , President, Mrs S. Botoucharova , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger , judges, and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 30 October 2003,

Having deliberated, decides as follows:

THE FACTS

The app licant, Mr Manfred Paul, is a German national who lives in Lebrade .

A. The circumstances of the case

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

The applicant is a farmer and horse breeder. During the summer of 1996, fourteen of his horses were on a paddock near a sewage treatment plant operated by the Lebrade municipality. In November 1996, after he had returned the horses from the paddock, the applicant noted alterations to the horses ’ hide at the croup, the neck and the back. Subsequently, some horses suffered from diarrhoea and lameness. Between December 1996 and summer 1998, all horses except two died naturally or had to be put down.

The applicant subsequently sued the municipality. After he had filed an objection to a default judgment of 4 July 1997, the Kiel Regional Court dismissed his claim on 6 August 1999. It found that, irrespective of the legal basis for his claim and whether chemical or biological substances from the plant had reached the applicant ’ s property, the applicant had not established that there was a causal link between the impact of the sewage plant and the horses ’ diseases. An expert opinion prepared for the court had concluded that there was hardly any available medical evidence which could clarify the cause of the death of the horses with any certainty. The Kiel Regional Court heard three veterinary surgeons who were familiar with horse diseases but found that none of them had established a reason for the horses ’ demise: there was no support for the applicant ’ s suspicion that corrosive vapours from the plant had reached the skin of the horses, and it was not likely that the skin diseases of the animals had been caused by a form of corrosion. Rather, it was likely that the animals had died from enteritis caused by salmonellae. The Kiel Regional Court also noted that the applicant had filed a motion to hear the expert in person during the court hearing, but had not sufficiently substantiated his criticism of the expert ’ s findings.

On 17 May 2001 the Schleswig Court of Appeal rejected the applicant ’ s appeal. It held that the Kiel Regional Court had no reason to obtain a further expert opinion or to hear the expert in person. The applicant had not submitted substantiated claims concerning the extent of the plant ’ s emissions or concerning the link between the alleged emissions and the damage. The Schleswig Court of Appeal found that section 6 of the Environmental Liability Act , which provides for a shifting of the burden of proof if a facility listed in Appendix 1 of the Act is inherently capable of causing the damage (see Relevant domestic law, below), did not apply because the sewage plant was not listed in Appendix 1 to the Act. The Schleswig Court of Appeal also considered that the applicant had not sufficiently substantiated how the plant could possibly produce corrosive vapours and how they could reach his property, which was not located in the prevailing wind direction. Thus, the Schleswig Court of Appeal saw no need to obtain further evidence at the appeal stage.

On 28 February 2002 the Federal Court of Justice dismissed the applicant ’ s appeal on points of law. The Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint on 30 April 2003.

B. Rele vant domestic law

Relevant provisions of the Environmental Liability Act of 10 December 1990:

“1. Facility liability for environmental impacts

If a person suffers death or injury to his body or health, or if property is damaged, due to an environmental impact that issues from one of the facilities named in Appendix 1, then the operator of the facility shall be liable to the injured person for the damage caused thereby.

6. Presumption of causation

(1) If a facility is inherently capable, on the facts of the particular case, of causing the damage that occurred, then it shall be presumed that this facility caused the damage. Inherent capability in a particular case is determined on the basis of the course of business, the structures used, the nature and concentration of the materials used and released, the weather conditions, the time and place at which the damage occurred, the nature of the damage, as well as all other conditions which speak for or against causation of the damage in the particular case.

(2) Paragraph (1) shall not apply if the facility has been properly operated. A proper operation is present if the special operational duties have been complied with and no disruption of operations has occurred.

...”

The sewage treatment p l ant operated by the defenda n t municipality is not among the facilities listed in Appendi x 1 to the Environmental Liability Act.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the decision of the national courts had been unfair, mainly because the burden of proof had rested on him and not on the defendant municipality.

He also complained under Article 1 of Protocol No. 1 of the Convention about the damage he had suffered because of the loss of his horses which had been caused prima facie by the clarification plant.

THE LAW

1. The applicant complained under Article 6 § 1 of the Convention that he did not receive a fair trial before the national courts. The relevant part of Article 6 § 1 provides:

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

The applicant submitted that in the present case, which concerned a claim for damages allegedly caused by effluents from a sewage treatment plant, it was unfair that the applicable law should put the burden of proof on the applicant. The national courts had failed to recognise that the right to a fair trial demanded a shifting of the burden of proof on the defendant. This would have been possible through the analogous application of section 6 of the Environmental Liability Act which provides for such a shifting of the burden of proof. Even though sewage treatment plants were not listed in the Appendix 1 to the Act, the national courts had failed to take into account that the list was not meant to be exhaustive. Moreover, it was contrary to the right to a fair trial that the burden of proof lay with the applicant whereas the defendant municipality had not done anything to rebut the presumption that the damage had been caused by the plant. The applicant however had called three veterinaries and had taken numerous other steps in order to investigate the relationship between the clarification plant and the death of his horses which had severely threatened his financial situation. It was not reasonable to expect that the applicant, as a private person, should conduct further investigations on the environmental impact of the plant which would also be in the interests of society as a whole. Furthermore, the national courts should have granted the applicant ’ s motion for a further expert opinion in the light of the evidence of the three veterinary surgeons.

The Court notes that in the present application, the applicant ’ s claim for damages failed because, pursuant to the ordinary law of torts and regardless of the specific basis for his claim, the burden of proof lay with the applicant as the plaintiff. The Court reiterates that questions of interpretation and application of domestic law are primarily for the national courts to determine unless and insofar as they may have infringed rights and freedoms protected by the Convention ( Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). Moreover, the Convention does not lay down rules on evidence as such. Those rules are primarily a matter for the regulation under national law (see Schenk v. Switzerland, ju dgment of 12 July 1988, Series A no. 140, p. 29, § 46). It is for the national courts to assess the evidence they have obtained and the relevance of any evidence that a party wishes to have produced (see, mutatis mutandis , Pélissier and Sassi v. France , judgment of 25 March 1999, § 45). Applying those principles in the present case, it is for the domestic courts, in interpreting the domestic legislation, to determine how the burden of proof should be distributed. Provided the proceedings as a whole cannot be considered to be unfair, Article 6 § 1 does not prescribe whether the burden lies with one party or the other.

The applicant contends that in his case, rather than applying the ordinary rules on burden of proof, the domestic courts should have applied section 6 of the Environmental Liability Act by analogy. The Court would first note that a requirement on a person making a claim in civil proceedings to establish those claims to a certain standard is a normal incident of tort law, and does not of itself give rise to any issues under Article 6 § 1. If the domestic courts had applied section 6 of the Environmental Liability Act , they would have been doing so without legislative or other authority, as section 6 only applies where the allegedly polluting facility is included in the Appendix to the Act, which was – contrary to the applicant ’ s submissions – not the case. The Court does not accept that to leave the burden of proof with the applicant was arbitrary or manifestly erroneous.

The applicant also submitted that he did his utmost as a private person to establish the proof for a causal link between the damage and the operation of a municipal clarification plant. Therefore, the applicant seems to imply that the national courts did not sufficiently consider the requirement of "equality of arms" when considering the evidence. Regarding the litigation involving opposing private interests, "equality of arms" means that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. It is left to the national authorities to ensure in each individual case that the requirements of a "fair hearing" are met (see the Dombo Beheer B.V. v. the Netherlands , judgment of 23 October 1996, Series A no. 274, p. 30, § 34).

In the present case, the national courts considered an expert ’ s opinion and heard three further veterinaries as witnesses. The applicant ’ s motion to call the expert was dismissed by the Kiel Regional Court as unsubstantiated. The Schleswig Court of Appeal found that the applicant had failed to object to that refusal or to apply afresh in the two remaining hearings before the Kiel Regional Court for the expert to be called. The applicant was, however, able to comment on the opinion, and did call other evidence of his own. Thus, there is no indication that the national courts violated the applicant ’ s right to have a reasonable opportunity to present his case. Nor did the national courts place him at a substantial disadvantage.

Having regard to the above, the Court cannot find that the proceedings as a whole before the national courts were unfair in the present application. It follows that this complaint must be re j ected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant also complained under Article 1 of Protocol No. 1 of the Convention that the damage he had suffered had been caused prima facie by the clarification plant and therefore constituted a disproportionate interference with his right to property. Article 1 of Protocol No. 1 provides that:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Given that the national courts, after considering an expert ’ s report and hearing three veterinary surgeons as witnesses, gave a tenable and detailed reasoning that there was no proof of a causal link between the damage suffered by the applicant and the operation of the clarification plant, the Court finds that the applicant has failed to establish that there was interference with his right to property. It follows that this complaint must likewise be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Cou rt unanimously

Declares the application i nadmissible .

Claudia Westerdiek Peer Lorenzen Registrar President