Resolution CM/ ResDH (2011)111 [1]

Execution of the judgments of the European Court of Human Rights

Niedzwiecki and Okpisz against Germany

(Applications Nos. 58453/00 and 59140/00 , judgments of 25 October 2005,

final on 15 February 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern discrimination against the applicants in the exercise of their right to respect for family life due to the refusal of child benefits (violations of Article 14 in conjunction with Article 8) (see details in Appendix) ;

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicants the just satisfaction provided in the judgments and took required measures to stop the violations and prevent any further similar violations in the future;

DECLARES, having examined the measures taken by the respondent state, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2011)111

Information on the measures taken to comply with the judgments in the cases of

Niedzwiecki and Okpisz against Germany

Introductory case summary

The applicants were refused child benefits (in 1995-96 and 1994-95, respectively) because of their Polish nationality. Their temporary residence permit did not allow them to receive family benefits under the applicable federal legislation on family allowances ( violations of Article 14 in conjunction with Article 8) . The European Court found that there had been insufficient justification for difference in treatment between foreigners in possession of a permanent residence permit and those who were not.

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Niedzwiecki

600 EUR

-

800 EUR

1 400 EUR

Paid on 19/05/2006

Okpisz

2 500 EUR

-

-

2 500 EUR

Paid on 23/02/2006

b) Individual measures

The Court awarded the applicants just satisfaction in respect of pecuniary damage covering the child benefits in question.

It further held that the finding of a violation constituted in itself sufficient just satisfaction for non-pecuniary damage sustained by Mr Niedzwiecki . It made no award in this respect in the case of Okpisz because no claim was made.

It is noted that t he applicants are entitled to receive child benefits under the new legislation (see below). N o further individual measure seems necessary in these cases.

II. General measures

a) Legislative amendments

On 6 July 2004 the Federal Constitutional Court held that Section 1(3) of the Child Benefits Act, as effective from January 1994 until December 1995, had been incompatible with the right to equal treatment under Article 3(1) of the German Basic Law. It invited the legislator to amend the Child Benefits Act by 1 January 2006.

The new law concerning entitlement of foreigners to child benefits entered into force retroactively on 1 January 2006 and eliminated the shortcomings found by the Court . Moreover, it contained provisions for all cases concerning decisions on child benefits taken between 1 January 1994 and 18 December 2006 and which have not yet become final.

b) Publication and dissemination

The judgments of the European Court were widely distributed at national level and made accessible to the national courts concerned.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that Germany has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies