Information Note on the Court’s case-law No. 147
December 2011
Althoff and Others v. Germany - 5631/05
Judgment 8.12.2011 [Section V]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Amendment, with retrospective effect, of statutory time-limit applicable to claims for restitution of land in the former GDR: violation
Facts – The Law on the resolution of outstanding property issues (the Property Act) was passed in the context of German reunification in 1990 with a view to settling conflicts relating to property situated on the territory of the former German Democratic Republic (GDR) in order to ensure long-term legal certainty. It covered property expropriated at the time of the GDR or which had been lost by forced sale, expropriation or other means under the National-Socialist regime. People who had been deprived of their property under these regimes were entitled to seek restitution. Claims had to be lodged by no later than 31 December 1992. In the event of competing claims for restitution in respect of the same property, the party who was “first” injured took precedence.
The applicants’ case concerned land that had originally belonged to Jewish owners who had been forced to sell it under the National-Socialist regime. The land was subsequently purchased by a shopkeeper before being expropriated in 1953 for use as “people’s property” in the GDR. Following German reunification in 1990, the applicants, who were the shopkeeper’s heirs, had filed a claim for restitution under the Property Act before the 31 December 1992 deadline. However, their claim was rejected in July 2001 on the grounds that the German State had paid compensation in 1997, inter alia, to the US heir of one of the original Jewish owners under an agreement made on 13 May 1992 between Germany and the United States on the settlement of property claims (“the German-US Agreement”). Under the terms of that Agreement, the heir had transferred her rights in the land to the German State and since, for the purposes of the Property Act, the original Jewish owners were the “first” injured party, those rights took precedence over the applicants’ rights. The applicants appealed arguing that the State’s right to restitution had lapsed as neither the heir nor Germany had made a claim for restitution under the Property Act within the statutory time-limit of 31 December 1992, but their argument was rejected on the grounds that a statutory amendment introduced in 1998 stipulated that the time-limit did not apply to rights held by Germany under the German-US Agreement. In their application to the European Court, the applicants complained that the amendment of the Property Act with retrospective effect had infringed their right to the peaceful enjoyment of their possessions.
Law – Article 1 of Protocol No. 1
(a) Applicability – On the expiry of the statutory time-limit, in the absence of any restitution claim by the Federal Republic of Germany (FRG), which as sole successor to the heirs of the original Jewish owners had a prior claim, the applicants had had a “legitimate expectation” of being able to exercise a right to restitution of the property. That “legitimate expectation” was also based on the Federal Administrative Court’s finding that the law of 21 December 1992 by which the German-US Agreement was incorporated into domestic legislation did not contain any specific provisions exempting the FRG from filing a claim, and on the Federal Constitutional Court’s view that it could be assumed that the applicants’ rights benefited from the protection of Article 14 § 1 of the Basic Law. In the light of the very particular circumstances of the case, the applicants therefore had a “possession” and Article 1 of Protocol No. 1 was applicable.
(b) Merits – The 1998 amendment had stipulated, with retrospective effect, that the original 31 December 1992 deadline for submitting claims under the Property Act did not apply to rights stemming from the German-US Agreement. As a result, the applicants had lost any entitlement they might otherwise have had to the restitution of the properties or to the proceeds of sale. The amendment had, therefore, interfered with their right to the peaceful enjoyment of their possessions. The interference was provided for by law. There was no reason to doubt that the aim of the legislative amendment – to clarify a legal situation that was uncertain in the eyes of the German legislature and to secure the State’s property rights stemming from the German-US Agreement – was in the public interest.
Turning to the question of proportionality, the Court reiterated that while, in principle, the legislature was not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of fair hearing enshrined in Article 6 precluded any interference by the legislature – other than on compelling grounds of general interest – with the administration of justice designed to influence the judicial determination of a dispute. In the instant case, the retrospective amendment to the legislation had created an inequality to the State’s advantage and the applicants’ detriment. A decisive factor here was that the initial statutory time-limit had applied to all property claims, including those arising from the German-US Agreement, and there had been no special provisions exempting the German State from the requirement to file a claim. Moreover, the State had been aware of the situation and had had more than seven months in which to file a claim before the expiry of the time-limit. It was relevant, too, that the retrospective amendment had not been introduced until some eight years after German reunification became effective and six years after the expiry of the initial time-limit, and that it had taken ten and a half years for the applicants’ restitution claim to be considered (and rejected) by the Office of the Land. Lastly, even though the applicants were entitled, as the heirs of owners whose property was expropriated by the former GDR, to claim compensation under the Compensation Act, the amount did not appear proportionate to the seriousness of the interference; indeed, it was not even certain that the applicants would be able to obtain any compensation at all, as the Government alleged that they had not filed their claim in time.
In the very particular circumstances of the case, and in spite of both the wide margin of appreciation afforded the State in the exceptional context of German reunification and the legitimate aim of the German legislature to secure the State’s assets under the German-US Agreement, the legislative amendment in question had upset the “fair balance” required between the protection of property and the demands of the general interest.
Conclusion: violation (unanimously).
Article 41: reserved.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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