FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25553/02 
by Istvan FODOR 
against Germany

The European Court of Human Rights (Fifth Section), sitting on 11 December 2006 as a Chamber composed of:

Mr P. Lorenzen, President,

Mrs S. Botoucharova,

Mr V. Butkevych,

Mrs M. Tsatsa-Nikolovska,

Mr R. Maruste,

Mr J. Borrego Borrego,

Mrs R. Jaeger, judges,

and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 28 February 2000,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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, Mr Istvan Fodor, is a German national, who was born in Budapest in 1920 and lives in Cologne. He is represented before the Court by Mr. Klausbodo Hartung, a lawyer practising in Niederkassel.  
The respondent Government are represented by their Agent,  
Mrs A. Wittling-Vogel, Ministerialrätin, 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.

In October 1941 the applicant, who was then a Hungarian national, was compelled to forced labour by the German authorities. In June 1942 he was transferred to the east front, where he carried out forced labour for the German army. In January 1943 he was captured by the Soviet army and detained as a prisoner of war until July 1945. In 1969 he entered the territory of the Federal Republic of Germany and obtained German citizenship in 1978.

1.  First set of proceedings

In 1975 the Cologne Chief Administrative Officer (Regierungs-präsident) granted the applicant compensation for the deprivation of liberty for the period of October 1941 to January 1943 pursuant to section 43 of the Federal Act on Compensation for Victims of Nazi Persecution (Bundesentschädigungsgesetz), hereinafter referred to as the Federal Compensation Act. On 20 January 1981 the Pension Office (Versorgungsamt) rejected the applicant’s request for benefits for the damages caused to his health.

On 22 April 1982 the Düsseldorf Regional Court confirmed this decision. It based its decision on internist, orthopaedic and neurological expert opinions stating that the damages caused by the forced labour and the detention as a prisoner of war amounted only to a reduction of the ability to work (Minderung der Erwerbsfähigkeit) of 10 %.

2.  Second set of proceedings

In November 1985 the applicant requested a pension pursuant to section 1 of the Federal Act on the Social Benefits for Victims of War (Bundesversorgungsgesetz), hereinafter referred to as the Federal Benefits Act (see “Relevant domestic law” below). The applicant submitted that he had performed forced labour for the German army. On 29 January 1987 the Pension Office rejected his request, finding that the applicant had not performed a military or quasi-military service while he was subjected to forced labour.

On 31 January 1989 the Cologne Social Court rejected the applicant’s claim. On 26 March 1991 the North Rhine-Westphalia Social Court of Appeal confirmed this decision, refusing the applicant leave to appeal.  
On 31 October 1991 the Federal Social Court dismissed the applicant’s complaint against the refusal of leave to appeal as inadmissible.

3.  Third set of proceedings

On 26 March 1991 the applicant filed a request for a pension based on a different provision of the Federal Benefits Act, namely section 6.  
On 3 November 1992 the Pension Office rejected his request stating that the applicant’s forced labour could not be likened to military or quasi-military service. The Pension Office elaborated that section 6 of the Federal Benefits Act was supposed to complement the definitions of the terms “military or quasi-military service” in sections 2, 3 and 5, but was not meant to extend that provision’s scope. On 17 June 1993 the Pension Office dismissed the applicant’s objection.

On 23 June 1993 the applicant brought an action in the Cologne Social Court. On 22 February 1994 the court rejected the applicant’s action.  
It stated that the decision whether the applicant had performed a military or quasi-military service within the meaning of section 6 of the Federal Benefits Act was a discretionary decision (Ermessensentscheidung) to be taken by the Pension Office. The court went on to say that it could only review if the Pension Office had exceeded or misused its margin of discretion (Ermessensüberschreitung oder Ermessensfehlgebrauch).  
The court found that there had been no such error in the exercise of the Pension Office’s discretion. Referring to the case-law of the Federal Social Court the court confirmed that the forced labour carried by the applicant was not similar to the military or quasi-military service mentioned in sections 2, 3 and 5 of the Federal Benefits Act. The court found that the applicant’s forced labour therefore fell rather within the ambit of the Federal Compensation Act, but not within the scope of the Federal Benefits Act. The court noted in this respect that the applicant had already received compensation for the forced labour under the Federal Compensation Act.

On 23 March 1994 the applicant lodged an appeal with the North-Rhine Westphalia Social Court of Appeal. The Federal Republic of Germany (“FRG”) was summoned as an interested party to those proceedings (beigeladen). The Federal Ministry of Labour and Social Affairs, which represented the FRG in those proceedings, submitted by letter of 1 September 1994 that the applicant might be entitled to benefits under section 89 (1) of the Federal Benefits Act, since the applicant fell within the scope of the circular of 2 May 1994.

By letter dated 1 December 1994 the Pension Office informed the Social Court of Appeal that the Federal Ministry of Labour and Social Affairs had consented to the grant of benefits under section 89 of the Federal Benefits Act. However, the Pension Office pointed out that medical examinations of the applicant were necessary in order to determine the nature and the extent of benefits.

The Social Court of Appeal therefore examined whether the applicant’s ability to work had been reduced. On 9 December 1994 the court therefore ordered the taking of orthopaedic and internist expert opinions.  
On 25 January 1996 the Social Court of Appeal ordered a neurological expert opinion to be taken as well. The medical examinations took place in February and June 1996. On 20 January 1998 the Social Court of Appeal conducted a hearing. On 15 April 1999 the court ordered an additional orthopaedic expert opinion to be taken. On 5 May 1999 the court changed the expert who should perform the examinations. On 23 December 1999, upon the applicant’s request, the court ordered an additional neurological expert opinion to be taken at the applicant’s expense.

On 18 December 2001 the applicant and the Pension Office concluded a friendly settlement before the Social Court of Appeal. It stipulated that the applicant was to receive a pension pursuant to section 89 of the Federal Benefits Act assuming a reduction of 30 % of his ability to work.

The pension was awarded retrospectively, beginning March 1991.

B.  Relevant domestic law

Section 1 of the Federal Benefits Act provides relief for the victims of war whose health or financial standing have been adversely affected by the performance of military or a quasi-military service or by an accident that occurred during the performance of such service. Sections 2, 3 and 5 of the Federal Benefits Act define the term “military” or “quasi-military service”.

If, however, an individual does not qualify under section 1 of the Federal Benefits Act, because he did not perform military or quasi-military service within the meaning of sections 2, 3 and 5 of the Federal Benefits Act, section 6 provides for an exception. It reads as follows:

“With the consent of the Federal Ministry of Labour and Social Affairs, a military or quasi-military service or direct consequences of war may be recognised in other particular well-founded cases not covered under sections 2, 3 and 5.”

If those requirements are not met, section 89 (1) of the Federal Benefits Act provides for a further exception, which reads as follows:

Should particular hardships arise in other cases due to the provisions of this Act, compensation may be awarded with the consent of the Federal Ministry of Labour and Social Affairs.

In a circular dated 2 May 1994 the Federal Ministry of Labour and Social Affairs decided, within the scope of discretion granted to it under section 89 (1), that compensation of this nature may also be granted to German-speaking Jews from Southeast Europe and to persons persecuted under the Nazi regime, if their military service was completed in a foreign army.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings before the North Rhine-Westphalia Social Court of Appeal. He submitted that the friendly settlement only awarded him a mere fraction of what he is entitled to. He further complained that he only agreed to the settlement because he had no strength to further pursue the proceedings.

THE LAW

A.  Article 6 § 1 of the Convention

The applicant submitted that the length of proceedings before the North Rhine-Westphalia Social Court of Appeal had been excessive and therefore in violation of the “reasonable time” requirement of Article 6 § 1, which, as far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

1.  The Government’s submissions

The Government held the opinion that Article 6 § 1 of the Convention did not apply to the present case, for the proceedings before the Social Court of Appeal did not relate to “civil rights and obligations” within the meaning of that provision. The Government elaborated that the Federal Benefits Act provided relief for the victims of war whose health or financial standing had been adversely affected by the Second World War. From the Government’s point of view claims under the Federal Benefits Act therefore originated in the very core of public law. The Government further stressed that the Commission had found in earlier cases that claims under the Federal Benefits Act did not fall within the ambit of Article 6 (see, among others,  
X and Y v. Federal Republic of Germany, no. 5713/72, Commission decision of 9 July 1973, European Yearbook of the European Convention on Human Rights 1973, pp. 268-274).

2.  The applicant’s submissions

The applicant contested the Government’s conclusion. He argued that the term “civil rights” within the meaning of Article 6 had to be interpreted broadly. From the applicant’s point of view, all claims, which were pursued by individuals and which were adjudicated by courts were to be considered “civil rights”. The applicant therefore concluded that claims under the Federal Benefits Acts fell within the scope of Article 6.

3.  The Court’s assessment

The court recalls that it must first ascertain whether there was a dispute (“contestation”) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is also protected under the Convention (see Neves e Silva v. Portugal, judgment of 27 April 1989, Series A no. 153-A, p. 14, § 37).

In view of the status of the Convention within the German legal order, the Court observes that neither the Convention nor the Protocols thereto grant compensation for events which occurred before the Convention entered into force on 3 September 1953. It follows that the question whether such a right exists must be answered solely with reference to domestic law. In this connection, in deciding whether a right, civil or otherwise, could arguably be said to be recognised under German law, the Court must have regard to the wording of the relevant legal provisions and to the way those provisions are interpreted by the domestic courts (see Masson and  
van Zon v. The Netherlands
, judgment of 28 September 1995, Series A  
no. 327, p. 19, § 49).

The Court notes that the proceedings in the present case solely dealt with the question whether the applicant was to receive a pension according to sections 6 or 89 of the Federal Benefits Act. According to section 6 the Pension Office “may”, with the consent of the Federal Ministry of Labour and Social Affairs, decide to recognise “other well-founded cases”  
as military or quasi-military service. Furthermore, section 89 stipulates that the Pension Office “may”, with the consent of the Federal Ministry of Labour and Social Affairs, decide to grant compensation in cases of “particular hardship” which do not fall within the scope of the aforementioned provisions. Hence the question whether the applicant is to receive an according pension is left at the discretion of the Pension Office (see “Relevant domestic law” above).

The Court recalls that the existence of a margin of discretion on the part of the domestic authorities does not necessarily preclude the applicability of Article 6. If the subject of the court proceedings in question was a discretionary decision which interfered with the applicant’s rights, the Court has held Article 6 to be applicable (see Pudas v. Sweden, judgment of 27 October 1987, Series A no. 125-A, pp. 14-15, § 34; Obermeier  
v. Austria
, judgment of 28 June 1990, Series A no. 179, p. 22, § 69;  
Mats Jacobsson v. Sweden, judgment of 28 June 1990, Series A no. 180,  
pp. 12-13, § 32).

Yet if the subject of the court proceedings was a discretionary decision as to whether the plaintiff was to receive certain benefits or was entitled to actions by the authorities, the Court has held that unfettered discretion or even a wide margin of discretion on the part of the domestic authorities indicated that no “right” to those benefits or actions is recognised under domestic law. As a consequence, Article 6 is not applicable to those court proceedings (see Masson and van Zon, cited above, § 51; Ankarcrona  
v. Sweden
(dec.), no. 35178/97, ECHR 2000-VI).

The Court has furthermore specified that a ”right” within the meaning of Article 6 § 1 must be related to certain tangible criteria, which can be examined without difficulties by the competent authorities, and upon appeal, by the national courts (see Ankarcrona, cited above).

In the instant case the cardinal question whether the applicant was to receive an according pension was left entirely at the discretion of the Pension Office and was dependent of the consent of the Federal Ministry for Labour and Social Affairs. The provisions of the Federal Benefits Act highlight the exceptional character of the benefits. Section 6 provides that in “other well-founded cases” benefits may be granted while section 89 stipulates that in cases of “particular hardship” a further exception may be made. The courts therefore could only review whether the Pension Office had exceeded or misused its discretion.

In the light of the foregoing the Court considers that those provisions of the Federal Benefits Act cannot be regarded as establishing any eligibility criteria. In this respect the Court finds that the present case is clearly distinguishable from the case of Wos v. Poland, which concerned a compensation scheme for certain types of slave and forced labour carried out during the Second World War. Stressing that the conditions of eligibility were defined by law, the Court concluded in that case that those provisions created a right to compensation (see Wos v. Poland (dec.), no. 22860/02, 1 March 2005).

As regards the circular issued by the Federal Ministry of Labour and Social Affairs, the Court finds that it created a new category of exceptional cases without, however, changing the character of the provisions of the Federal Benefits Act and the decisions based thereon. Furthermore,  
the Court considers that the recognition of the applicant’s case as a case of “particular hardship” by the Federal Ministry for Labour and Social Affairs did not convert his claim for compensation into a right to compensation under domestic law.

Having regard to the above considerations, and in particular to the wording of sections 6 and 89 of the Federal Benefits Act, the Court concludes that there was no actual “right” to the pension recognised under domestic law. It follows that the proceedings before the Social Court of Appeal do not attract the applicability of Article 6.

Therefore, the applicant’s complaint is incompatible ratione materiae with the provisions of the Convention and the protocols thereto within the meaning of Article 35 § 3 and must be rejected according to Article 35 § 4.

B.  Article 13 of the Convention

When communicating the present application to the respondent Government the Court also requested the Government to comment on the question as to whether the applicant had had an effective domestic remedy at his disposal for his complaint about the length of proceedings.

The Court recalls that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right  
(see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).

The Court found that the applicant’s complaint about the length of proceedings under Article 6 § 1 is incompatible ratione materiae with the provisions of the Convention and the Protocols thereto. Therefore, the Court considers that the applicant does not have an arguable claim under Article 13. It follows that this part of the application is manifestly  
ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

FODOR v. GERMANY DECISION


FODOR v. GERMANY DECISION