Resolution CM/ ResDH (2011)112 [1]

Execution of the judgment of the European Court of Human Rights

Van Kück against Germany

(Application No. 35968/97, judgment of 12 June 2003, final on 12 September 2003)

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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerned the unfairness of certain court proceedings (violation of Article 6, paragraph 1), as well as the breach of the applicant ’ s right to respect for her private life (violation of 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 judgment;

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, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

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 this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)112

Information about the measures to comply with the judgment in the case of

Van Kück against Germany

Introductory case summary

The case concerns unfairness of the proceedings brought in 1992 by the applicant, a transsexual, against a private health insurance company for reimbursement of medical expenses in respect of her hormone treatment and gender re-assignment surgery. The German courts dismissed these claims on the basis of the applicant ’ s failure to prove the medical necessity of the treatment, without obtaining supplementary expert medical evidence on this point. Such burden of proof was considered disproportionate by the European Court, which also found that the question of whether the applicant had deliberately caused her transsexuality had not been assessed in an inappropriate manner by the courts (violation of Article 6§1).

Furthermore, the European Court held that the German authorities had failed to strike a fair balance between the interests of the insurance company and those of the applicant, which amounted to the breach of the latter ’ s right to respect for her private life (violation of Article 8).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

15 000 EUR

2 500 EUR

17 500 EUR

Paid on 7/11/2003

b) Individual measures

The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicant. It made no award for pecuniary damage in the absence of a claim to this effect.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The German authorities considered that the violations constituted isolated incidents resulting from the particular circumstances of the case. In view of the direct effect of the Convention and the European Court ’ s case-law in Germany , publication and dissemination of the Court ’ s judgment to the relevant authorities should prevent similar violations.

On 19 December 2003 the European Court ’ s judgment was disseminated to the courts and authorities concerned and to all judicial authorities of the Länder . It was published in Neue Juristische Wochenschrift (NJW 2004, pp. 2505–2509). Furthermore, all judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice ( www.bm j .de , Themen : Menschenrechte , EGMR).

III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction and that the general measures adopted 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