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)