CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 janvier 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                         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 n