CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 28 août 2007

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Lorenzen , President ,   Mr   K. Jungwiert ,   Mrs   M. Tsatsa-Nikolovska ,   Mr   R. Maruste ,   Mr   J. Borrego Borrego ,   Mrs   R. Jaeger ,   Mr   M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar , Having regard to the above application lodged on 16 July 2004, Having deliberated, decides as follows: THE FACTS The applicant, Ms Chonchita Weineis, is a German national who was born in 1951 and lives in Solingen in Germany. She was represented before the Court by Mr W. Burdenski, a lawyer practising in Frankfurt. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1. Background to the case On 11 April 1998 the applicant’s daughter N., born on 29 October 1980, was stabbed several times with a knife by her partner W. on a camping-site in France, where they had spent their holidays. N. died shortly afterwards. On the evening of 11 April 1998 the applicant was informed about her daughter’s death by two German police officers in Solingen. On 3 November 2000 the Seine-Maritime Criminal Court convicted W. of manslaughter and sentenced him to eighteen years’ imprisonment. 2. Compensation proceedings On 2 May 1998 the applicant lodged a request with the Wuppertal Pension Office ( Versorgungsamt ) to be granted compensation pursuant to the Crime Victims Compensation Act ( Opferentschädigungsgesetz , see relevant domestic law, below) for the emotional distress and health damage caused by learning about her daughter’s violent death. On 7 September 1998 the Pension Office rejected the applicant’s request on the ground that she had not been directly affected by the crime, as she had not been present at the site of crime. On 15 March 2000 the applicant lodged a request with the Pension Office to revoke its decision of 7 September 1998. Referring to recent case-law of the Freiburg Social Court, she alleged that her claims could not be rejected on the ground that she had not been present at the site of crime. On 10 November 2000 the Wuppertal Pension Office rejected the applicant’s request. While accepting that the applicant’s claim was not excluded because of the fact that she had not been present at the site of crime, the Pension Office considered that the applicant could not claim compensation because the crime had been committed outside German territory. On 21 December 2000 the Pension Office rejected the applicant’s objection. On 25 January 2001 the applicant lodged a motion with the Düsseldorf Social Court ( Sozialgericht ), which was rejected on 8 June 2001. On 16 July 2002 the Northrhine-Westfalia Social Court of Appeal ( Landessozialgericht ) rejected the applicant’s appeal. On 25 March 2004 the Federal Social Court ( Bundessozialgericht ) rejected the applicant’s appeal on points of law. The Federal Social Court confirmed that no compensation could be claimed for the health damage suffered by a close relative on learning about a crime which had been committed outside German territory. The granting of victim’s compensation was based on the concept that the State had a special responsibility for persons who became victims of crimes within its own territory, as it had not been able to protect this specific victim from a violent attack. The Federal Social Court further confirmed that the law was, in principle, applicable to third persons such as close relatives who suffered psychologically on learning about a crime (so-called “shock damage” – Schockschaden ). This did not, however, apply if the crime in question had been committed outside German territory. While the wording of the Victims Compensation Act was not clear in this respect, the protective purpose of the norm ( Schutzzweck ) excluded the possibility to apply it to the damage suffered by a third person on learning about a crime which was committed outside German territory. This was in line with the principle of equal treatment, as it could not be justified to treat a person who was informed in Germany about a crime committed abroad in a more favourable way than a person who had been present at the scene of crime. Had the applicant learned about the crime while residing in France or had she herself been present shortly after the crime, she would not have had any claims under the Victims Compensation Act. Neither would her daughter have had claims under that law, if she had survived the attack. Under these circumstances, it was not justified to grant the applicant compensation. B.     Relevant domestic law and practice Section 1, sentence 1 of the Crime Victims Compensation Act, as far as relevant, provides as follows: “A person who suffered health damage within the area of applicability of this law or on a German ship or airplane as the result of a deliberate, unlawful attack directed against himself or against a third person...receives on request compensation for the consequences to his health and economic situation...” On 10 December 2002 the Federal Social Court rejected the compensation claims of another plaintiff who was informed in Germany that her two children had been murdered in Spain on the ground that the crime had been committed outside German territory. On 10 April 2003 the Federal Constitutional Court refused to admit that plaintiff’s constitutional complaint without giving any reasons. COMPLAINTS 1. The applicant complained under Article 8 of the Convention about having been denied compensation for her health damage. Invoking Article 14 of the Convention, the applicant complained that the denial of compensation amounted to discrimination on the ground of her national origin. 2. She further complained under Article 2 § 2 of Protocol No. 4 to the Convention that her daughter had been denied the possibility to leave German territory without jeopardising her mother’s compensation claims. 3. The applicant finally complained about a violation of her right to the peaceful enjoyment of her possessions, as guaranteed by Article 1 of Protocol No. 1 to the Convention. THE LAW I. The applicant’s complaints under Articles 8 and 14 of the Convention Invoking Articles 8 and 14 of the Convention, the applicant complained that the denial of compensation under the Crime Victims Compensation Act amounted to discrimination on ground of her national origin. She alleged that a French national falling victim to a crime on German territory would have received compensation according to the Crime Victims Compensation Act. She further submitted that her health damage had been directly caused in Germany and that it did not make any difference to the damage she suffered whether her daughter had been murdered in France or in Germany. The Court considers it appropriate to examine the applicant’s complaint under Article 14, taken together with Article 8, of the Convention, which provide as follows: Article 14 “The enjoyment of the rights and freedoms set forth in [the] 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.” Article 8 “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Court observes, at the outset, that the applicant has not submitted her complaints to the Federal Constitutional Court by lodging a constitutional complaint. The Court takes note of the applicant’s submission that a constitutional complaint would have lacked reasonable prospect of success, as the Federal Constitutional Court had recently rejected a constitutional complaint in a similar case (see relevant domestic law and practice, above). However, the Court does not consider it necessary in the present case to examine whether the applicant has duly exhausted domestic remedies within the meaning of 35 § 1 of the Convention as, in any event, it considers that the application as a whole is inadmissible for the reasons set out below. Turning to the substance of the applicant’s complaint, the Court reiterates that, according to its established case-law, Article 14 of the Convention is only applicable if the facts at issue fall within the ambit of one ore more of the substantive provisions of the Convention and its Protocols (see, among many other authorities, Petrovic v. Austria , judgment of 27   March 1998, Reports of Judgments and Decisions 1998-II, § 22; Willis   v.   United Kingdom , no. 36042/97, § 29, ECHR 2002-IV; and Niedzwiecki   v. Germany , no.   58453/00, §   29, 25 October 2005). Moreover, a difference of treatment is discriminatory for the purposes of Article 14 of the Convention if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, among other authorities, Willis , cited above, § 39; and Niedzwiecki , cited above, § 32). Starting on the assumption that the applicant’s complaint falls within the ambit of Article 8 of the Convention, the Court observes that the domestic courts held that the applicant did not have a compensation claim under the Crime Victims Compensation Act, as the crime against her daughter had been committed outside German territory. According to the protective purpose of the law, the granting of victim’s compensation was based on the concept that the State had a special responsibility for persons who became victims of crimes within its own territory, as it had not been able to protect this specific victim from a violent attack. The Court considers, firstly, that compensation was not denied on the ground of the applicant’s nationality, but because of the fact that the relevant crime had been committed outside German territory. Accordingly, there is no indication that the applicant was subject to unequal treatment because of her German nationality. The Court is furthermore satisfied that the domestic authorities gave relevant reasons for limiting compensation claims to the effects of crimes which had been committed on German territory, namely the domestic authorities’ failure to protect that victim on their own territory. There has, therefore, been no violation of Article 14 in conjunction with Article 8 of the Convention in this case. 2. The remainder of the applicant’s complaints Invoking Article 2 § 2 of Protocol No. 4, the applicant complained that her daughter had been prevented from leaving German territory without jeopardising her mother’s compensation claims. She finally complained that the denial of her compensation claims amounted to a violation of her right to the peaceful enjoyment of her possessions, as guaranteed by Article 1 of Protocol No. 1 to the Convention. The Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all material in its possession, the Court finds that these complaints, even assuming that the applicant had exhausted domestic remedies, do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the remainder of the application must be rejected as being manifestly ill-founded, pursuant to Article   35 §§   3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Claudia Westerdiek   Peer Lorenzen   Registrar   President