Information Note on the Court’s case-law 18

May 2000

Noack and Others v. Germany (dec.) - 46346/99

Decision 25.5.2000 [Section IV]

Article 8

Article 8-1

Respect for home

Proposed transfer of villagers belonging to a minority to another municipality due to expansion of coal mine: inadmissible

The applicants are residents of a municipality which is due to be dissolved to permit the extension of a lignite (brown coa l) mine; it is therefore planned to move them eventually to a neighbouring municipality. They belong to a Slav minority, the Sorbs, who make up one-third of the population of the municipality where they live. In 1994 the Land mines authority approved an ou tline plan for the continued extraction of lignite under which the residents of the municipality would have to be transferred. An appeal to the administrative court against the above decision, to which some of the applicants subscribed, was unsuccessful. A basic law on the subject enacted by the Land (“the Lignite Act”) subsequently came into force. This made express provision for the municipality’s dissolution. Before the Lignite Act was adopted the Environment Committee of the Land parliament had listened to what the representatives of associations and interest groups had had to say about the bill. Members of the Land parliament asked the Land Constitutional Court to rule on the bill’s constitutionality. In concurrent proceedings two of the applicants lodg ed a constitutional appeal. The Constitutional Court held that parliament’s decision to dissolve the applicants’ municipality to make it possible to operate a mine was compatible with those provisions of the Land ’s constitution which guaranteed the rights of the Sorbian minority and in particular with protection of their homeland. Compensatory measures had been provided for and the State’s determination to protect the original homeland of the Sorbian minority had been weighed against the objectives of devel oping employment opportunities and energy supplies. The applicants’ appeal was dismissed on those grounds. The municipality’s residents were consulted about the municipality they wished to be transferred to. By a decree of the Land government the operating plan acquired binding force. Negotiations then began with the residents who were to be transferred so that they could be offered land in the municipality they had chosen. All the costs of the transfer were to be covered by the company operating the mine. By a second implementing decree the Land government approved that part of the plan which concerned the transfer of the municipality’s residents. It was provided that the life of the municipality would be preserved during the transfer and that the conservat ion and development of Sorbian culture would be encouraged.

Inadmissible under Article 8: the Convention did not in general guarantee specific rights to minorities. Enjoyment of rights and privileges had to be secured without any distinctions, particularly one based on membership of a national minority. Under Article 8, however, the lifestyle of a minority could, in principle, be covered by the protection of private and family life and one’s home. Be that as it may, and irrespective of the protection of min orities, the transfer of the residents from their municipality to another directly affected their private lives and their homes. In the present case the Lignite Act and the implementing decrees promulgated by the Land government, which made provision for t he applicants’ transfer, constituted interference with their rights under Article 8. That interference, which was in accordance with the law, pursued the legitimate aim of protecting the country’s economic well-being. Regard being had to the wide margin of appreciation left to States in the matter of land-use changes, the Court’s task was to determine whether the grounds put forward in justification of the interference were relevant and whether it was proportionate to the aim pursued, while remaining mindfu l of the fact that the transfer of the municipality’s residents affected a minority. The process which had led up to the decision to push the extraction of lignite into the municipality’s territory had taken a number of years and had been marked by a broad debate in the Land parliament and among leading public figures in general. The Land parliament’s Environment Committee, for example, had listened to what the representatives of associations and interest groups had had to say about the bill which had eventually passed into law as the Lignite Act. Moreover, the applicants had been able to challenge the implementing decrees and lodge an appeal concerning the constitutionality of the Lignite Act with the Land Constitutional Court. With regard to protection of the rights of the Sorbian minority, the Constitutional Court had carefully considere d in its judgment whether parliament had duly taken into account the constitutional provisions guaranteeing the minority’s rights, whether it had weighed the aim of the Act against their other fundamental rights and whether the result was not disproportion ate. A decisive factor was that the residents were to be transferred to a municipality about twenty kilometres from their own, situated in the minority’s homeland. Moreover, the ancillary measures made provision for preserving and fostering the village com munity and Sorbian cultural identity. In the final analysis, while the interference had been distressing for the applicants, it had not been disproportionate to the legitimate aim pursued, regard being had to the State’s margin of appreciation in the matte r: manifestly ill-founded.

Inadmissible under Article 1 of Protocol No. 1: Any interference, including interference arising from compulsory purchase for the purpose of carrying out large-scale public works projects, had to maintain a fair balance between t he requirements of the general interest and protection of the fundamental rights of the individual. In the present case the Lignite Act made provision for compensation to be offered and required the company operating the mine to pay all the costs of transf er. However, the proceedings concerning the transfers of individual landholdings were only at the initial stage and the amounts of compensation payable or the nature of the land being offered in exchange had not yet been clearly defined. Consequently, dome stic remedies had not yet been exhausted regarding the complaint under Article 1 of Protocol No. 1.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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