FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58453/00

by Jaroslaw NIEDZWIECKI against Germany

The European Court of Human Rights ( Fourth Section) , sitting on 17 June 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr G. R ess , Mrs E. Palm , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , judges , and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced on 28 October 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Jaroslaw Niedzwiecki, is a Polish national, born in 1961 and living in Erlenbach (Germany). The respondent Government are represented by Mr K. Stoltenberg, Ministerialdirigent , of the Federal Ministry of Justice.

A. The circumstances of the case

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

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 for exceptional purposes 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 for child benefits according to Section 1 of the Federal Child Benefits Act ( Bundeskindergeldgesetz ).

On 18 August 1995 the Aschaffenburg Labour Office dismissed the applicant’s request under Section 1 § 3 of the Child Benefits Act. In this respect, the office 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 rejected his objection.

3. The proceedings before the Social Court

The applicant lodged an action with the Würzburg Social Court, 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 at the hearing before the social court the Federal Labour Office agreed to grant child benefits as from April 1997 ex nunc , the date when the applicant had obtained an unlimited residence permit. According to the hearing record, the parties declared to limit the dispute to claims before April 1997.

On 21 April 1997 the Social Court dismissed the applicant’s action regarding child benefits between July 1995 and 7 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’s Benefits Act, as in force until 31 December 1995 or the equivalent Section 62(3) of the Income Tax Act, which had entered into force on 1 January 1996. 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.

The applicant’s requests for amendments of the Social Court’s decision of 21 April 1997 were to no avail.

On 8 September 1997 the Social Court, following a hearing, dismissed the applicant’s request to the effect that his further claims for child benefits as from 7 April 1997 be decided upon. The court considered that the parties had agreed to limit the dispute to the applicant’s claims before that date.

4. The appeal proceedings

On 26 May 1997 the applicant lodged an appeal against the Social Court decision of 21 April 1997. The Bavarian Social Appeals Court separated the proceedings concerning the applicant’s claims under the Child’s Benefits Act (first set of appeal proceedings) and those governed by the Income Tax Act (second set of appeal proceedings).

Moreover, on 23 September 1997 the applicant lodged an appeal against the Social Court’s decision of 8 September 1997. These appeal proceedings were joined with the above second set of appeal proceedings concerning the claims under the Income Tax Act.

a. The first set of appeal proceedings

On 23 April 1998 the Bavarian Social Appeals Court dismissed the applicant’s appeal to the extent that his claims under the Child’s Benefits Act until 31 December 1995 were concerned.

The Social Appeals Court 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 24 September 1998 the Social Appeals Court rejected the applicant’s request to amend its decision of 23 April 1998 so as to include his claims for the period after 1 January 1996.

On 18 March 1999 the Federal Social Court dismissed the applicant’s appeal on points of law, referring to its jurisprudence according to which the legislative provisions on which the refusal of child benefits was based did not violate the applicant’s constitutional rights.

The applicant lodged a constitutional complaint with the Federal Constitutional Court. 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 refused to entertain his complaint.

b. The second set of appeal proceedings

On 15 February 2001 the Bavarian Social Appeals Court quashed the Social Court’s decision of 21 April 1997 to the extent that it concerned claims for the period after 1 January 1996 and sent the matter back to the Social Court. In this respect, the Appeals Court found in particular that the Social Court had failed to examine its competence to decide on the above claims, governed by the Income Tax Act following the legislative changes. The Appeals Court also quashed the Social Court’s decision of 8 September 1997, as its decision to quash the relevant part of the decision of 21 April 1997 had rendered the request for its amendment obsolete. The Appeals court further rejected the applicant’s repeated claims concerning child benefits between July and December 1995.

On 19 April 2001 the Social Appeals Court rejected the applicant’s renewed request to render a single decision on his claims since July 1995.

On 28 May 2001 the Federal Social Court rejected the applicant’s appeal on points of law for lack of legal representation.

5. The resumed proceedings (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 Nurembourg Tax Court.

On 28 January 2002 the Bavarian Social Appeals Court dismissed the applicant’s appeal against the transfer decision.

The proceedings before the Nurembourg Tax Court are still pending.

6. Payment of child benefits for the applicant’s child

Following the hearing before the Social Court in April 1997, the Federal Labour Office paid child benefits with effect from April 1997. Payment was discontinued in August 1997, apparently on account of the applicant’s failure to cooperate with the competent authorities. In November 2001, the authorities, having received a request of August 2001, granted retroactively payment of the outstanding amounts of child benefits as from April 1997.

B. Relevant domestic law

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 ).

COMPLAINTS

1. The applicant complained that the German authorities’ refusal of child benefits amounted to discrimination and racism and inhuman treatment. He invoked Article 3 of the Convention and Article 2 § 2 of Protocol No. 4.

2. He also complained under Article 6 of the Convention about the length of the social court proceedings.

3. The applicant further complained under Articles 6 and 13 of the Convention that the social courts refused to consider all relevant evidence and that the proceedings were not fair.

THE LAW

1. The applicant complained that the German authorities’ refusal of child benefits amounts to discrimination and racism and inhuman treatment.

The Court has examined this part of the application under Article 14, taken together with Article 8, of the Convention. In this respect, the Court recalls that it is free to attribute to the facts of the case a characterisation in law different from that given by an applicant (see Rehbock v. Slovenia , no. 29462/95, 28.11.2000, § 63). Articles 8 and 14, 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.”

a) With regard to the German decisions regarding the applicant’s claims for the period between July and December 1995, the Government maintained that the applicant’s complaint was manifestly ill-founded. According to them, 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.

First, child benefits did not fall within the ambit of Article 8, as the State’s general obligation to enhance family life did not give rise to concrete rights to specific payments. The applicant had a right to social assistance in the event of his means not being sufficient.

Second, the difference in treatment under the Child Benefits Act was justified. The German legislator did not transgress the margin of appreciation when distinguishing according to the residential status of foreigners. Foreigners who were likely to stay in Germany on a long-term or possibly permanent basis had, as a rule, established certain ties with the German State, which in turn justified their entitlement to social benefits. Foreigners with a residence title for exceptional purposes were mainly de-facto refugees staying in Germany as long as the exceptional reasons continued to exist.

No other conclusions were to be drawn as far as the position of foreigners following the “ Ostblockbeschlüsse ” were concerned. They did not involve a prohibition on expulsion, but only a temporary - though regularly prolonged - suspension of the expulsion of the foreigners concerned.

Moreover, considering the German legislation on social assistance and the personal tax allowance in respect of dependent children, the difference in treatment concerning child benefits was not disproportionate. The applicant had not challenged his income tax assessments and the instant case did not relate to tax matters.

The Government added that under the laws of the European Communities only recognised refugees were entitled to equal treatment as German nationals.

The applicant affirmed that the Government’s argument as to the nature of a foreigner’s stay in Germany was not pertinent.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

b) The Government submitted that the applicant’s complaints regarding claims between 1 January 1996 and April 1997 were inadmissible for non-exhaustion of domestic remedies. They noted that the applicant’s appeal against the Social Court’s decision of 15 February 2001 had been inadmissible for lack of legal representation and that the Tax Court had not yet decided on the merits of the claims under Section 62(2) of the Income Tax Act.

The Court finds that domestic remedies are not exhausted as required by Article 35 § 1 of the Convention, since the proceedings concerning claims under Section 62(2) of the Income Tax Act, which took effect as from 1 January 1996, are still pending before the Würzburg Tax Court.

There are no circumstances absolving the applicant from awaiting a final decision in the tax court proceedings before addressing that aspect of his case in proceedings before the Court.

It is true that the statutory conditions for granting child benefits under Section 62(2) of the Income Tax Act are equivalent to those under Section 1(3) of the former Child Benefits Act and that the applicant indeed unsuccessfully challenged the refusal of the Federal Labour Office to grant child benefits in application of the latter provision. There might therefore be doubts as to a successful outcome of the tax court proceedings.

However, the Court recalls that, while Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism, the existence of mere doubts as to the prospects of success of a particular remedy, which is not obviously futile, is not a valid reason for failing to exhaust domestic remedies (cf. Van Oosterwijck v. Belgium , judgment of 6 November 1980, Series A no. 40, p. 18, § 37).

As regards the length of the proceedings involved, the Court notes that, following social court proceedings at several levels of jurisdiction, this part of the applicant’s case has been transferred to the Nurembourg Tax Court only in mid-2001. The applicant has not argued that the length of the administrative court proceedings so far was excessive and could be a special circumstance absolving him from the obligation to exhaust this remedy.

It follows this part of the application must be rejected under Article 35 § 4 of the Convention.

c) To the extent that the applicant appeared to affirm that, in the proceedings before the Social Court in 1997, he had not agreed to limit the dispute to claims before April 1997, and to pursue this matter in the context of his application, the Court notes that retroactive payment was granted.

Having regard to these circumstances, the Court finds that the applicant can no longer claim to be a victim of the alleged violation, as required by Article 34 of the Convention.

It follows that this aspect of the complaint is manifestly ill-founded with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 35 § 4.

2. He also complains under Article 6 of the Convention about the length of the social court proceedings. Article 6 § 1, as far as relevant, provides as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time..."

The Court notes that, as far as his claims for the period between July and December 1995 were concerned, the applicant failed to show that he addressed the length issue in his complaint with the Federal Constitutional Court. Regarding the second set of appeal proceedings and the proceedings pending before the Tax Court, the applicant did not lodge any complaint at all with the Federal Constitutional Court. In the absence of any explanation from the applicant as to why he refrained from doing so, and failing any indication that in the instant case that remedy would not have been effective, the Court finds that the domestic remedies have not been exhausted.

The complaint about the length of the respective proceedings must, therefore, be rejected under Article 35 § 4 of the Convention.

3. The applicant further complains under Articles 6 and 13 of the Convention that the social courts refused to consider all relevant evidence and that the proceedings were not fair.

In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they did 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 admissible, without prejudging the merits, the applicant’s complaints that the refusal of child benefits between July and December 1995 amounted to discrimination in the exercise of his right to respect for his family life;

Declares inadmissible the remainder of the application.

Michael O’Boyle Nicolas Bratza Registrar President