AS TO THE ADMISSIBILITY OF

                      Application No. 12816/87

                      by George VEARNCOMBE, Werner HERBST

                       Lothar CLEMENS and Ellen SPIELHAGEN

                      against the United Kingdom and the

                       Federal Republic of Germany

        The European Commission of Human Rights sitting in private

on 18 January 1989, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 10 December 1986

by George VEARNCOMBE, Werner HERBST, Lothar CLEMENS and Ellen SPIELHAGEN

against the United Kingdom and the Federal Republic of Germany and

registered on 4 March 1987 under file No. 12816/87;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having regard to:

-       the Commission's decision of 14 July 1987 to bring the

        application to the notice of the respondent Governments and

        invite them to submit written observations on its

        admissibility and merits;

-       the observations submitted by the Government of the

        Federal Republic on 19 October 1987 and by the Government

        of the United Kingdom on 23 October 1987 and the

        observations in reply submitted by the applicants

        on 22 and 23 February 1988;

-       the Commission's request of 9 July 1988 for supplementary

        observations;

-       the supplementary observations submitted by the Government

        of the United Kingdom on 25 August 1988 and the applicants'

        supplementary observations in reply submitted on 28 October 1988;

        Having deliberated;

        Decides as follows:

THE FACTS

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

summarised as follows:

&_Particular circumstances of the case&S

        The first applicant is a craftsman, born in 1942.  He is of

British nationality.  The second applicant is a pensionner, born in

1916.  The third applicant, born in 1939, is a teacher by profession.

The fourth applicant is an administrative assistant, born in 1944.

The second, third and fourth applicants are German nationals.  Before

the Commission the applicants are represented by Dr.  R. Geulen, a

lawyer practising in Berlin, and by Mr.  John MacDonald and

Mr.  Owen Davies, barristers, and by Ms.  Sarah Burton, solicitor, of

London.

        All four applicants are owners or co-owners of houses in the

Spandau district of Berlin (West) in the British Sector, where they

live together with their families.

        In 1983, the British Military Government of Berlin started

constructing a military shooting range in the immediate vicinity of

the premises where the applicants and their families live.  The land

on which the range is built was requisitioned by the British

occupation authorities in 1945.  Construction of the range has been

terminated and it has been in operation since the end of 1985.

        The range lies close to, and parallel with the border of the

German Democratic Republic (DDR) which is on its north-west side while

on its eastern side there is a housing area called Habichtswald where

the applicant Werner Herbst lives at Hafeldweg as well as some other

350 people.  The nearest dwelling is situated at about 300 metres from

the northern end of the range.  The applicants George Vearncombe and

Lother Clemens live in a residential area of Gross-Glienicke

south-west of the range, about one kilometre from the southern end of

the range (the firing end).  The applicant Ellen Spielhagen lives in

another part of Gross-Glienicke where the nearest building is 600

metres from the firing end of the range.

        In the south of the range and between the two residential

areas Habichtswald and Gross-Glienicke lies Gatow airport which is,

however, rarely used.

        Two kilometres from the border there is another shooting range

at Döberitz on the territory of the DDR.

        The British shooting range is controlled by the British

commandant and it is used only by the British and from time to time

French and United States garrisons in Berlin.

        It extends for approximately 600 metres by 300 and consists of

twelve lanes of which eight have a length of 600 metres, and four

a length of 300 metres.  It also includes streets and ramps for tanks.

It is designed for training in small arms up to a maximum calibre of 9 mm.

The weapons used are standard infantry weapons, such as self-loading

rifles, light machine guns and sub-machine guns.  It is not used with

heavy calibre weapons such as the main armament of tanks.

        No firing is permitted at weekends or on public holidays.

Firing is authorised between 8.00 and 17.00 hours with a possibility,

for a maximum of four days a month, of an extension to 21.00 hours

(October to April) or 22.00 hours (May to September).

        The range has a grassed floor sunk to eight metres below

ground level and grassed sides and banks.  It has overhead and side

baffles made of reinforced concrete, with anti-ricochet timbers on the

firers' side.  While the main purpose of the baffles is to prevent the

escape of bullets, sound-absorbing materials are incorporated near the

firing points, and the baffles are angled to deflect noise downwards.

All target systems are located at the northern end of the range and

are housed in protective construction in front of a sand bullet

catcher.

        At the time when the application was introduced the range

was used occasionally for some time to a limited extent for trial

shooting and other exercises.

        The applicants and other persons tried to obtain court orders

enjoining the British military authorities in Berlin from constructing

and using the shooting range which according to their submissions

will cause excessive noise nuisance.  However, as regards proceedings

instituted in the High Court of London, the Secretary of State for

Foreign and Commonwealth Affairs issued a certificate under the Crown

Proceedings Act 1947 stating that any alleged liability of the Crown

arose otherwise than in respect of the United Kingdom Government and

consequently the action was struck out on 10 July 1986.  An action

before the Berlin Administrative Court (Verwaltungsgericht) was

rejected on 16 March 1987 as being inadmissible for lack of

jurisdication the Allied Kommandatura in Berlin not having authorised

this Court in accordance with Allied Kommandatura Law No. 7 to

exercise jurisdiction.

&_The legal situation&S

1.      Berlin (West)

a.      Background

        Following the unconditional surrender of the German High

Command on 8 May 1945 the Governments of the four allied occupation

forces assumed supreme authority with respect to Germany.  In

October 1949 the Soviet Military Governor decided to transfer to the

Provisional Government of the German Democratic Republic the function

of administration which hitherto belonged to the Soviet Military

Administration.  On 5 May 1955 the Convention on Relations between the

Three Powers (France, United Kingdom and USA) and the Federal Republic

of Germany entered into force terminating the Occupation régime in the

Republic.  The Three Powers retained however the rights and

responsibilities, heretofore exercised or held by them, relating to

Berlin, which had since 1948 been exercised with the abstention of the

Soviet authorities.

b.      Kommandatura Law

        Under Article 1 and 2 of Allied Kommandatura Law No. 7, the

German courts are prohibited from exercising criminal or civil

jurisdiction over the Allied forces, or in respect of acts arising out

of or in the course of performance of duties or services with the

Allied forces, except when expressly authorised, either generally or

in specific cases, by the Allied Kommandatura or the appropriate Sector

Commandant.  In non-criminal cases, such authorisation is also

required where the issues to be decided may affect the right of

control of any Power in occupation.

        Article 3 of Allied Kommandatura Law No. 7 provides that no

German court shall render a decision which impeaches the validity or

legality of any legislation, regulation, directive, decision or order

published by the occupation authorities.  Provision is also made in

Article 3 for the appropriate Sector Commandant to give a certificate,

binding on the court, as to the existence, terms, validity and intent

of any order of the occupation authorities in cases where this is in

question.

        The occupation authorities and forces are thus immune from the

jurisdiction of the German courts in Berlin except insofar as, by

prior consent of the Allied authorities, those courts are authorised

to exercise jurisdiction.  They are similarly immune from the

jurisdiction of other local Berlin authorities.

        In addition to being immune from local German jurisdiction,

the occupation authorities and forces are not subject to the German

law in force in Berlin except where they have expressly subjected

themselves thereto.

c.      Sector Ordinance No. 508

        Allied legislation makes detailed provision with respect to

compensation in the case of loss or damage, suffered in Berlin

by natural or juridical persons, caused by the occupation authorities

and forces.  These provisions are contained in the three parallel

Sector Ordinances No. 508 of 21 May 1951, as amended, and in various

provisions issued in implementation thereof.

        Subject to certain specific exceptions, Article 3 of Ordinance

No. 508 sets out the general principle that:

        "The act or omission must be such as would have given the

        person who suffered the loss or damage a right according

        to the provisions of German Law to recover compensation

        from the person who committed the act or omission or who

        was responsible for it."

        Detailed provision is made as regards valuation and assessment

of compensation, time-limits and questions of procedure.

        The machinery for determining whether compensation is to be

awarded and for assessing the amount of compensation is established

in the implementing Regulations, which vary somewhat as between the

three Sectors.  The basic provisions are, however, similar in granting

competence to Berlin administrative authorities and courts.  The

decision-making authority is the Berlin Occupation Costs Office

(Landesamt für Besatzungslasten, Berlin), against whose decisions

there is a right of appeal to the Senator for Finance.  Under Article

11 (5) of implementing Regulation No. 4, decisions on compensation may

be challenged:

        "in the same manner and by the same process as other

        Administrative Acts may be challenged under the provisions

        of the law applicable to German administrative authorities.

        German courts and authorities are hereby authorised to

        exercise jurisdiction in such cases notwithstanding the

        provisions of Article 2 (b) of Allied Kommandatura Berlin

        Law No. 7 (Judicial Powers in the Reserved Fields)".

        Successful claims are paid out of the Occupation Costs Budget.

d.      Allied Mediation Commission

        With effect from 1 July 1988 the Allied Kommandatura Berlin

established an Allied Mediation Bureau, composed of a secretariat and

a Mediation Commission composed of the members of the Allied

Kommandatura Legal Committee and a German consultant.  In addition, a

contact point is established at each of the three Allied Missions in

Berlin (West).  A person resident in Berlin, other than members of the

Allied Forces, may lodge a complaint with the Secretary of the

Mediation Bureau about any action or proposed action of the Allies

which would prejudice or cause damage to the complainant.  If a

complaint cannot be resolved by the competent contact point, the

Mediation Commission makes a decision in the form of a recommendation.

The recommendation is not binding.  The final decision is taken by the

Allied Kommandatura or the Commandant of the appropriate sector.

2.      United Kingdom

a.      Crown Proceedings Act 1947

        The proceedings brought by the four applicants in the United

Kingdom courts turned on the Crown Proceedings Act 1947.  This Act

substantially altered both the procedure to be followed in civil

proceedings by and against the Crown and the substantive law governing

the rights and liabilities of the Crown.

        Subject to certain exceptions, the Act abolished the special

forms of procedure which previously governed civil proceedings by and

against the Crown and enables civil proceedings to be taken against

the Crown in the same circumstances as they can be taken against a

subject.

        Except as otherwise expressly provided in the Act, proceedings

cannot be taken against the Crown under or in accordance with the Act

in respect of any alleged liability arising otherwise than in respect

of Her Majesty's Government in the United Kingdom (S. 40 (2) (c)).  A

certificate of a Secretary of State to the effect that any alleged

liability arises otherwise than in respect of Her Majesty's Government

in the United Kingdom is conclusive for the purposes of the Act (S. 40

(3)).

b.      State Immunity Act 1948

        Earlier proceedings brought by other persons on the same

subject matter in the United Kingdom courts involved in addition

the State Immunity Act 1948.  This Act, which, inter alia, enabled

effect to be given to the European Convention on State Immunity, made

new provision for State immunity in the law of the United Kingdom.

        Section 1 (1) of the 1948 Act provides:

        "A State is immune from the jurisdiction of the courts of

        the United Kingdom except as provided in the following

        provisions of this Part of this Act."

        The exceptions are set out in sections 2 to 11.  The Act also

deals with procedural matters, and with the recognition of judgments

against the United Kingdom in States parties to the European

Convention on State Immunity.

        Section 21 of the 1948 Act reads as follows:

        "A certificate by or on behalf of the Secretary of State

        shall be conclusive evidence on any question -

        (a) whether any country is a State for the purposes of

        Part I of this Act, whether any territory is a constituent

        territory of a federal State for those purposes or as to

        the person or persons to be regarded for those purposes as

        the head or government of a State; ..."

COMPLAINTS

        The applicants complain about the disturbances they have to

and will have to suffer due to the noise caused by shooting on the

range in their immediate vicinity.  Based on expert reports they

consider that the noise will be multiplied by an unlimited use of the

range as envisaged.  They fear adverse effects on their state of

health in consequence thereof.  They also submit that because of the

construction of the range they are unable to sell their premises which

have lost their economic value.

        Relying on the case-law of the Commission and the Court and

referring, in particular, to the Commission's decisions on the

admissibility of Applications No. 7889/77 (Dec. 15.7.80, D.R. 19

p. 186) and No. 9310/81 (Dec. 16.10.85), the applicants claim to be

victims of a violation of their right to peaceful enjoyment of their

possessions under Article 1 of Protocol No. 1 and of their right to

respect for their private and family life and their home under

Article 8 of the Convention.

        Having no possibility to have their complaints considered by

any German or English court they also complain that they are denied

access to court and that they have no effective remedy against these

violations.  They invoke Article 6 para. 1 and, alternatively,

Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 10 December 1986 and

registered on 4 March 1987.

        On 14 July 1987 the Commission decided to invite the

respondent Governments, pursuant to Rule 42 para. 2, sub-para. b,

of its Rules of Procedure, to submit written observations on

admissibility and merits before 23 October 1987.

        The observations of the Government of the Federal Republic of

Germany were subitted on 19 October and the United Kingdom

Government's observations on 23 October 1987, the applicants'

observations in reply on 22 and 23 February 1988.

        On 9 July 1988 the Commission decided to request the parties

to submit supplementary observations.  Such supplementary observations

were submitted by the Government of the United Kingdom on 25 August 1988

and by the applicants on 28 October 1988.

SUBMISSIONS OF THE PARTIES

A.      The respondent Governments

1.      Federal Republic of Germany

        As to the facts, the Government submit that expert opinions

obtained in 1986 indicate only the noise level per single shot while

the average noise level was not yet known but is expected to be below

60 dB/A.

        Referring to a declaration by the Allied Kommandatura of

5 May 1985 reserving the right of the Allied Forces to take all

measures considered necessary to comply with their international

obligations, the Government submit that the Federal Republic of

Germany had no responsibility under the Convention with regard to acts

or omissions of the Allied Forces in Berlin and the German courts may

exercise jurisdiction in this respect only if they are expressly

authorised by the Allied Kommandatura in accordance with Allied

Kommandatura Law No. 7.

2.      United Kingdom

a.      Responsibility under the Convention

        The Government's principal submission is that the United

Kingdom cannot be held responsible under the Convention for acts or

omissions of Allied authorities in Berlin (including the British

Military Government).  Such acts or omissions are not imputable under

international law to the United Kingdom.  Acts of Allied authority in

Berlin are not within the jurisdiction of the United Kingdom within

the meaning of Article 1 of the Convention.  Moreover, the United Kingdom

has not extended the Convention to Berlin or accepted the right of

individual petition in respect of acts and omissions in Berlin.

Insofar as the present complaints concern acts or omissions of Allied

authorities in Berlin, the Government therefore submit that the

Commission is without competence ratione personae.

        Insofar as the applicants complain of the lack of jurisdiction

of the German courts in the proceedings commenced by them in Berlin,

resulting from the terms of Article 2 of Allied Kommandatura Law No. 7,

the Government submit that persons affected by the application of this

law are not "within the jurisdiction" of the United Kingdom within

the meaning of Article 1 of the Convention because the Law was enacted

by the Allied Kommandatura, and not a legislature for which the United

Kingdom bears responsibility under international law.  Moreover, the

decision not to authorise jurisdiction was in each case that of the

Allied Kommandatura.

        As regards the construction and use of the range at Gatow

Airfield these acts of the British Military Government are,

like those of the Allied Kommandatura, attributable, under

international law, to Germany.  All acts of Allied authority in

Berlin, whether joint (for example, of the Allied Kommandatura) or

individual (for example, of a Sector Commandant), are attributable,

under international law, not to the United Kingdom, France, the United

States or the Soviet Union, but to Germany as a whole which continues

to exist as a State under international law.

b.      The complaints under Articles 6 and 14 of the Convention

        As regards the applicants' complaint under Article 6 the

Government submit that even assuming that in the special circumstances

of Berlin a "civil right" was at issue the provision was not violated.

The right of access to a court implicit in Article 6 para. 1 does not

mean that there should be a particular remedy available or that the

courts should necessarily have jurisdiction over the particular matter

in question.  As the applicants could, under Sector Ordinance No. 508,

have had the question of compensation ultimately determined by the

German administrative courts, this would have satisfied the right of

access to a court.

        In the alternative the Government point out that the right of

access is not absolute and cannot mean that a person has the right

to have every civil claim decided on the merits regardless of the

jurisdictional rules of the court in question.  Lack of jurisdiction

because of immunities of the kind here in question does not involve a

violation of Article 6.

        Furthermore, there was no discrimination, contrary to Article 14,

as to the enjoyment of the rights guaranteed by Article 6 because the

absence of jurisdiction of British courts did not arise from the place

of residence or any other ground connected with the applicants but, on

the contrary, resulted from the status of the defendant in the

proceedings.

B.      The applicants

1.      Reply to the Federal Government's observations

        The applicants state that they consider the United Kingdom and

not the Federal Republic of Germany to be responsible within the

meaning of Article 1 of the Convention for the construction and

operation of the shooting range.  The aplication was nevertheless

also directed against the Federal Republic as a measure of precaution

only.

2.      Reply to the British Government's observations

a.      Responsibility under the Convention

        The applicants consider that their application was properly

directed against the United Kingdom since the construction and

operation of the shooting range through which their rights are

allegedly infringed constituted an action which fell entirely within

the jurisdiction of this State within the meaning of Article 1 of the

Convention.

        They submit that apart from the overall responsibility of the

Four Powers for Greater Berlin and a limited common regulatory body

for the three Western powers after 1947 for their three sectors

individual powers regulated all military activities within their

sectors themselves.

        Each of the three Powers maintained separate barracks,

training grounds, shooting ranges and other military facilities

exclusively in their own sectors.  In legal disputes too the three

Powers had stressed the sector commandant's exclusive authority for

the airport and other facilities in this sector.  It followed from

documents and reports published by the Berlin Senate that the Berlin

authorities were kept informed by the British Military Government

about the construction of the shooting range but had no power to stop

or delay the construction or the use of the range.

        Unlike in the Hess case which concerned the execution of a

life sentence in the Allied Military Prison of Berlin-Spandau, which

was administered by the four occupying powers jointly, the

construction and use of the shooting range was exclusively a matter of

the British Military Government.

        Each contracting party was liable for acts of its military

forces outside its territory, and the respondent Government's

submissions on the status of Berlin were therefore irrelevant.

b.      On the possibility to claim compensation

        The applicants admit that compensation for losses caused by

acts or omissions of the occupational forces may be claimed under

Ordinance No. 508.  This Ordinance, however, guarantees claims for

compensation only in respect of direct infringements of rights and it

has not been shown that nuisances of the kind in question likewise

give rise to compensation claims.

        If life in their residential areas became impossible as a

result of damage to health caused by the shooting they could be

compensated effectively only by the provision of appropriate and

comparable property.

        In any event the applicants consider that, as a matter of

principle, compensation cannot be a substitute for restitution.  Also,

a compensation claim would have to be determined by Berlin

authorities, while it is the United Kingdom only that has to provide

redress for the violation of their rights.

c.      As to the complaints under Article 8 of the

        Convention and Article 1 of Protocol

        Since the end of 1985 the shooting range has been used only

sporadically.  As yet no tanks have been used, nor any machine guns

or other heavy weapons for which it was designed.  In addition only

individual firing lanes have been used.  As far as the applicants are

aware, in recent months the range has hardly been used at all.

        In 1987 they heard heavy shooting on certain days, although

it did not appear that machine guns were used.  For a short time the

noise was already so great that the residents of nearby housing

developments came out of their houses to prevent the shooting from

being continued.

        As to the expected noise level they commissioned the

consultants "Landschaft, Planen und Bauen" to produce a complementary

expert report to the reports which were submitted with the

application.

        The consultants' observations of 15 February 1988 consider in

particular additional information which was contained in the two

reports submitted by the respondents and which had not been available

in 1984 and 1985.

        Like the respondents the consultants proceeded on the basis of

the maximum legal limit of 55 dB/A.  The two housing developments in

which the applicants live, which are located next to the shooting

range, are residential areas, both as a matter of fact and under the

planning regulations.  Since these areas were already classified as

residential areas in the Berlin building programme before 1961 - the

date of the entry into force of the Federal Planning Act (Bundesbau-

gesetz) - this classification continued  to apply as a so-called

"carried over" development plan and guaranteed the applicants the

appropriate protection.  55 dB/A was the maximum permissible level

for noise in residential areas.

        On the basis of realistic estimates as to the utilisation of

the shooting range in the light of the somewhat lower noise produced

by new weapons, the consultants predicted for the day-time period

taken as a whole (07.00 hours to 17.00 hours) a continuous overall noise

level of from 64 to 66 dB/A.  This meant that in relation to the

maximum permissible limit of 55 dB/A, the (perceived) noise level was

doubled, since, according to the logarithmic progression of decibel

calculation, for each additional 10 dB/A the perceived noise exposure

for individuals is doubled.

        As regards peak noise levels attained by indivdual shots,

levels which would be reached frequently if the 600 metre lanes

(target distance of more than 300 metres) were used realistically, the

consultant report sets the noise exposure at from 85 dB/A.  In

relation to the limit of 55 dB/A, 65 dB/A doubled the noise exposure

for individuals, 75 dB/A quadrupled it and 85 dB/A represented a noise

exposure increased eight-fold.

        In this respect it should be noted that these figures

represented noise levels at 45/46 Hafeldweg, the premises of the

second applicant.  The corresponding emission levels - i.e. the levels

measured at the noise source at the range - for these weapons were

calculated at from 110 to 130 dB/A.

        If by way of example a comparison was made between the noise

exposure resulting from the shooting range and the noise created by

pneumatic drills, which at the emission source may be calculated at

from 90 to 105 dB/A, it was clear that the noise pollution for this

applicant under realistic conditions of use of the range was likely

to be as bad as the disturbance caused by six fully operational

pneumatic drills 50 m from his house (see Expert Report para. 7.1).

        The consultants' report reached the conclusion that temporary

or permanent residence in the Habichtswald area in the conditions of

noise exposure described was likely to damage health, particularly

where people who are specially vulnerable are concerned.

d.      As to Article 13 of the Convention

        The applicants argue that the possibility of lodging

complaints with the recently created Allied Mediation Bureau does not

constitute an effective remedy within the meaning of Article 13 of the

Convention as the Bureau's Mediation Commission is not an independent

court and can only formulate recommendations.

        For such vulnerable categories of persons - which include

infants, schoolchildren, elderly people, pregnant women and invalids -

damage to physical and mental health was to be expected.

        For these reasons, in the applicant's view, the nuisance is

considerably greater than that experienced by residents in the take-off

and landing paths of airports.  In the first place the noise at source

of military small arms and machine guns is greater than that of jet

aeroplanes (Expert Report, diagram 2).  Secondly, the parties to the

proceedings accept scientific findings according to which the noise of

shooting as an "impulse" noise causes damage to health more quickly

than the continuous noise of jet aeroplanes.

THE LAW

1.      The application is directed against both the United Kingdom

and the Federal Republic of Germany.  It therefore has to be

determined first whether both States can be held responsible under the

Convention for the situation complained of.

a.      As to the Federal Republic of Germany

        The jurisdiction exercised by the Commandant of the British

Sector of Berlin was originally based on belligerent occupation.

It is not in dispute that the United Kingdom still exercises

jurisdiction in Berlin as a consequence of the occupation.  Acts

performed by organs of an occupying State (including members of its

army) are generally attributable to this State and not to the occupied

State (No. 8007/77, Dec. 10.7.1978, Cyprus v.  Turkey, D.R. 13, 85 [149]).

Whether this might be different in specific circumstances (see, for

example, below under 3.: the jurisdiction of German authorities in

compensation matters) can be left undecided as no such circumstances

have been shown to exist.

        The Commission notes that under the existing regulations in

the Allied Kommandatura Law German authorities do not exercise any

control with regard to the Forces of the Allied Powers in Berlin nor

do German courts exercise criminal or civil jurisdiction over the

Allied Forces, except when expressly authorised by the Allied

Kommandatura or the appropriate Sector Commandant.

        The shooting range in question is not only used exclusively by

the British Army but it was also constructed entirely under the

control of the British Military Government.  Although the German

authorities in Berlin were informed of the plans for constructing the

range and certain consultations took place between British and German

authorities, the responsibility for the construction and/or use of the

range lies solely with the British Military Government.

        The Commission concludes that, insofar as the application is

directed against the Federal Republic of Germany, it is incompatible

ratione personae with the provisions of the Convention and must to

this extent be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention.

b.      As to the United Kingdom

        The construction, as well as the actual use of the range, is

consequently attributable only to the United Kingdom authorities in

Berlin.

        As the range is situated outside the territory of the United

Kingdom, the question arises whether this matter also comes within the

jurisdiction of the United Kingdom within the meaning of Article 1 (Art. 1) of

the Convention.

        The Commission has already found that this term is not

equivalent to or limited to the national territory of the State

concerned.  The Commission further observed that authorised agents of

a State (including armed forces) not only remain under the

jurisdiction of that State when abroad, they also bring other persons

or property "within the jurisdiction" of that State to the extent that

they exercise authority over such persons or property.  Insofar as, by

their acts or omissions, they affect such persons or property, the

responsibility of the State is engaged (Nos. 6780/74 and 6950/75,

Cyprus v.  Turkey, Dec. 26.5.75, D.R. 2 p. 125 [136].

        This view was confirmed by the Commission on later occasions

(Nos. 7289/75 and 7349/76, Dec 14.7.77, D.R. 9 p. 57 [71]; No. 8007/77,

Cyprus v.  Turkey , Dec. 10.7.78, D.R. 13 p. 85 [148]).

        As regards more specifically the situation of the United

Kingdom authorities in Berlin, the Commission has already expressed

the opinion that "there is, in principle, from a legal point of view,

no reason why acts of the British authorities in Berlin should not

entail the liability of the United Kingdom under the Convention"

(No. 6231/73, Ilse Hess v.  United Kingdom, Dec. 28.5.75, D.R. 2 p. 72

[73]).  However, the Commission found that in that specific case the

subject matter of the complaint (i.e. the continued detention of the

applicant's husband, Rudolf Hess) came not within the jurisdiction of

the United Kingdom alone but was a matter for which the Four Powers

were jointly responsible.

        It can be left open whether the particular facts alleged are

within the jurisdiction of the United Kingdom in the sense of Article 1

(Art. 1) of the Convention, for even assuming this were the case the complaints

should be rejected for the following reasons.

2.      The applicants first complain that the noise nuisance emanating from

the British shooting range in Berlin-Gatow interferes with their right to

respect for their private life as guaranteed by Article 8 para. 1 (Art. 8-1) of

the Convention as well as with their right to the peaceful enjoyment of

possessions under Article 1 of Protocol No. 1 to the Convention.

        These provisions state:

Article 8 para. 1 (Art. 8-1) of the Convention:

"1.      Everyone has the right to respect for his private

and family life, his home and his correspondence.

2.      ..."

Article 1 of Protocol No. 1 (P1-1):

"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."

        The applicants refer to an expert opinion of 15 February 1988,

according to which measurements taken "at the wall and street side"

(wallseitig und strassenseitig) of the range resulted in an expected

average noise level between 64 and 66 dB/A on the assumption that

10,000 shots were fired daily with the new weapon SA 80 which the

British army is supposed to use shortly.  This level would

considerably exceed the standard value (Richtwert) of 55 dB/A in the

daytime fixed in the building programme (Baunutzungsplan) of the city

of Berlin.  The applicants also allege that on some days in 1987 the

noise caused by the firing was so great that the inhabitants of the

closest residential area gathered together in order to protest.

        The United Kingdom Government have not submitted any arguments

in relation to this particular complaint.  They have only stated that

the range is in full use.

        It is true that the Commission considered in previous cases

that continuous excessive noise nuisance, which is imputable to a

High Contracting Party, may raise an issue under the Articles invoked

by the applicants.  In fact the Commission declared admissible two

complaints lodged by persons living in the immediate vicinity of an

airport (No. 7889/77, Dec. 15.7.80, D.R. 19 p. 186; No. 9310/81,

Dec. 16.10.85, X v.  UK, to be published in D.R.).  In both cases the

noise nuisance complained of was of considerable importance both as

to level and frequency.  As regards application No. 7889/77, the

applicant's home was not only situated near the end of a runway of

Gatwick Airport, but also close to a motorway which had been

constructed to serve the airport.  According to a report of domestic

authorities, this applicant suffered "intolerable stress by reason of

the intensity, duration and frequency of noise primarily from low-flying

aircraft passing almost overhead".  The situation in application

No. 9310/81 was even worse and was described by domestic authorities in

the following terms:

"The conditions which Mr. and Mrs.  X and their family have been forced

to endure for years without respite or redress are truly shocking and

deplorable".  Aircraft noise levels at the home of those applicants,

who lived within a 72.5 NNI (Noise and Number Index) varied from a

minimum of 83 dB to a maximum of 127 dB.

        The present applicants live at different distances from the

shooting range.  The closest home is that of the applicant Werner

Herbst, which is situated in a residential area some 300 metres off

the northern end of the shooting range.  The homes which are farthest

away are those of the applicants George Vearnecombe and Lothar

Clemens, being situated about one kilometre from the southern end of

the shooting range.  No exact figures as to the actual noise levels at

these different places have been submitted.

        The expert opinion of 15 February 1988 does not indicate

clearly at which distance the measurement of the noise caused by

firing on the range was taken.  The comparison made in this expert

opinion between noise caused by rifle firing on the one hand and

pneumatic drills on the other is calculated on the basis of a distance

of 200 metres while the nearest residential area (Hafeldweg) is,

according to the uncontested statements made by the respondent

Government, some 300 metres away from the northern end of the range.

This is the target end which means that the point where the shots are

fired is still further away.  In any event the expert opinion does not

reflect an existing situation but evaluates a possible future

development on the assumption that 10,000 shots will be fired daily.

        The applicants do not contest the respondent Government's

statement that no firing is permitted at weekends or on public

holidays and in the evening and at night (i.e. firing is authorised

from 8.00 hours to 17.00 hours with a possibility of an extension

to 21.00 hours [October to April] or 22.00 hours [May to September]

for a maximum of four days a month only).

        While the applicants allege that occasionally the noise had

been unbearable so that on some days in 1987 the inhabitants of the

closest residential areas spontaneously gathered together in order to

protest, they also state that during the last months the range has

practically not been used at all.  On the other hand the United

Kingdom Government have submitted that the range is in full use.

        In the light of these contradictory submissions there is

nothing to show that for the time being the shooting range is used in

such a manner as to cause continuous important noise nuisance.  It is

not established that the present situation is a result of the protests

mentioned above and reflects the British Military Government's concern

about the residents in the residential areas near the shooting range.

The Commission can only note with satisfaction that, according to the

uncontested statements of the respondent Government of the United

Kingdom, efforts to limit the noise caused by the use of the shooting

range continue, and more noise reduction measures will be considered

in the light of the final outcome of present studies and a computer

analysis carried out in order to identify appropriate ways of reducing

noise even further.

        In these particular circumstances the present case is clearly

distinguishable from the afore-mentioned airport noise cases as it

cannot be found that the present applicants are, or have to expect to

be, exposed to an intolerable and exceptional noise nuisance of such a

level and frequency as to amount to a possible interference with their

right to protection of private life (Article 8 para. 1 (Art. 8-1) of the

Convention) or their right to the peaceful enjoyment of possessions

(Article 1 of Protocol No. 1 (P1-1)) which were invoked by the applicants.

        It follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.      The applicants further complain under Article 6 para 1 (Art. 6-1) of

the Convention read also in conjunction with Article 14 that they are unable to

have their alleged claim for a court order preventing the British Military

Government in Berlin (West) from constructing and/or using the shooting range

determined by any court, as neither German nor British courts have jurisdiction

in the matter.

        Article 6 para. 1 (Art. 6-1) first sentence provides:

"1.   In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by

law.  ..."

Article 14 (Art. 14) provides:

"The enjoyment of the rights and freedoms set forth in

this 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 respondent Government admit that British courts do

not have jurisdiction under the Crown Proceedings Act 1947 and that

jurisdiction of German courts is according to Allied Kommandatura Law

No. 7 limited to decide on compensation claims that may be raised

under Ordinance No. 508.

        The Commission has frequently stressed that Article 6 para 1 (Art. 6-1)

does not impose requirements in respect of the nature and scope of the relevant

national law governing the "right" in question and that the Convention organs

are, in principle, not competent to determine or review the substantive content

of the civil law which ought to obtain in the State Party.  The question of

whether or not a substantive right is at all at issue depends primarily on the

legal system of the State concerned (Sporrong and Lönnroth v.  Sweden, Comm.

Report 8.10.80, para. 150; Kaplan v. the United Kingdom, Comm.  Report 17.7.80,

D.R. 21 para. 134; No. 8282/78, Dec. 14.7.80, D.R. 21 p. 109; No. 10475/83,

9.10.84, D.R. 39, 246 [252]).

        As regards the situation in Berlin (West) the Commission considers that

the effect of the Crown Proceedings Act and the Allied Kommandatura Law No. 7

is that of delimiting the very content of any right that may normally arise

under British or German law; the United Kingdom cannot be held responsible for

acts or omissions of the British military forces in Berlin.  In these

circumstances the

Commission considers that the regulations in question do not confer an immunity

from liability in respect of action of certain and distinct groups of persons

and do not limit jurisdiction of civil courts with regard to certain classes of

civil action but exclude generally any possible claim against the United

Kingdom related to acts of their military forces in Berlin which caused damage

or nuisance to persons living in that city.  The applicants, therefore, cannot

invoke a substantive right to have the United Kingdom military Government

prevented from constructing and/or using the shooting range.

        The only substantive right that may arise in the case of loss or damage

suffered by the citizens of Berlin caused by the United Kingdom occupation

authorities and forces is a compensation claim under Sector Ordinance No. 508

which may be pursued before the competent German authorities and courts.

        The fact that the specific remedy sought after by the

applicants was not enforceable in the courts is therefore not

equivalent to depriving them of the right of access to a court.

        The Commission further notes that there is nothing to show

that other persons in a similar or comparable situation could have

brought their case before an English court.

        It follows that this complaint does not disclose any

appearance of a violation of the rights and freedoms set out in

the Convention and in particular in Articles 6 para. 1 and 14 (Art. 6-1, 14).

4.      The applicants finally complain that they had no

effective remedy for their complaints under Article 8 (Art. 8) of the

Convention and Article 1 of Protocol No. 1 (P1-1) and that there has

accordingly been a breach of Article 13 (Art. 13) of the Convention which

guarantees to everyone whose rights and freedoms as set out in the

Convention are (allegedly) violated an effective remedy before a

national authority in order both to have his claim decided and, if

appropriate, to obtain redress (Eur.  Court H.R., Klass and Others

judgment of 6 September 1978, Series A no. 28, p. 29 para. 64).  The

respondent Government, in referring to the Sporrong and Lönnroth

judgment of 23 September 1982 (Eur.  Court H.R., Series A no. 52,

para. 88), argue that the complaint under this Article is subsumed

in the Article 6 para. 1 (Art. 6-1) complaint.

        The Commission has found above that Article 6 para. 1 (Art. 6-1) of the

Convention has not been violated in the present case on account of the

fact that the applicants cannot sue the British Government to have the

construction and/or use of the shooting range in the British sector of

Berlin stopped by Court order.  The question therefore remains to be

decided whether or not the applicants can claim a right under Article

13 (Art. 13) of the Convention to have an effective remedy before a national

authority in regard to the alleged violation of Article 8 (Art. 8) of the

Convention and Article 1 of Protocol No. 1 (P1-1).

        Under the case-law of the European Court of Human Rights Article 13

(Art. 13) secures such a right to anyone claiming on arguable grounds to be the

victim of a violation of his rights and freedoms as protected in the Convention

(Plattform "Ärzte für das Leben", judgment of 21 June 1988, Series A no. 139,

para. 25).

        While a complaint that has been found inadmissible as being

manifestly ill-founded may nevertheless be considered arguable (loc.

cit., para. 27), the Commission notes in the present case that the

applicants' concern is mainly to prevent the future use of the

shooting range in question from creating a noise nuisance of such

continuous intensity as to amount to violations of Article 8 para. 1

(Art. 8-1) of the Convention and Article 1 of Protocol No. 1 (P1-1).

        The expert evidence submitted by the applicants relates to

expected future noise exposure but no allegation is made that, for the

time being, the shooting range constitutes an intolerable nuisance in

view of its actual degree and intensity.  On the contrary the

applicants have submitted that recently the shooting range has hardly

been used at all.  It can be left open whether this is still so or

whether full use is made of the shooting range and the noise level

kept low in consequence of appropriate measures taken by the British

Military authorities, as under all circumstances the present situation

is not such as to amount, on arguable grounds, to an interference with

the rights invoked by the applicants.  Consequently Article 13 (Art. 13) does

not apply in the present case.

        This part of the application therefore has to be rejected as

being incompatible with the Convention ratione materiae within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission         President of the Commission

    (H. C. KRÜGER)                       (C. A. NØRGAARD)