The European Commission of Human Rights sitting in private on 12 May
1986, the following members being present:
MM. C. A. NØRGAARD
G. SPERDUTI
J. A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A. S. GÖZÜBÜYÜK
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs G. H. THUNE
Sir Basil HALL
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Art 25 (Art. 25) of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 October 1983 by
R.B. against the Federal Republic of Germany and registered on
20 February 1984 under file No. 10865/84;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the applicant may be summarised
as follows:
1. The applicant is a Canadian citizen of Jewish origin, born in
1906 in Poland and residing in D. (Canada). In the
proceedings before the Commission she is represented by Dr h.c. Otto
Küster, a lawyer practising in Stuttgart and Professor Dr. Dr. h.c.
F. A. Mann, London.
2. The applicant lived at the outbreak of the Second World War in
S.. In order to avoid Nazi persecution she fled with her
family, her husband and two children, to Russia. After a short time
she was deported by the Soviet authorities to Siberia where she had to
perform forced labour as a result of which she suffered irreparable
damage to her physical and mental health. In 1942 she was deported to
K. from where she returned in 1946 to Poland. In 1950 she
emigrated to Israel and from there in autumn 1951 to Canada.
3. After 1945 regulations were issued in the Federal Republic of
Germany for the redress of wrongs inflicted by the Nazi regime. Part
of these regulations forms the Federal Act on Compensation for Victims
of Nazi Persecution (Bundesentschädigungsgesetz), hereinafter referred
to as the Federal Compensation Act.
However, the case of the so-called Soviet Union refugees, ie Polish
Jews who fled to the Soviet Union to escape from Nazi persecution and
thus became the victims of Soviet persecution, was originally believed
to be exlcuded from the scope of the compensation legislation, and
normally no claims in cases such as that of the applicant were
notified.
The Toronto Office of the United Restitution Organisation (URO)
informed the applicant accordingly and refused a registration of her
compensation claim. Therefore the applicant did not submit any such
claim within the time-limit provided for by the Federal Compensation
Act, that is before 1 April 1958.
A change occurred when on 25 October 1961 and 18 April 1962 the
Federal Court of Justice (Bundesgerichtshof) decided that persecution
by the Soviets of refugees who had fled to escape Nazi persecution was
a natural consequence of that persecution and losses suffered in the
Soviet Union thus came within the scope of the German compensation law
(RzW - Rechtsprechung zum Wiedergutmachungsrecht - 1962, p 116, Nr 9,
p 449).
At the end of the year 1963 this new development became known to the
applicant who since 1951 was dispensed medical treatment in the
psychiatric ward of a Canadian hospital. Thereafter she addresssed
herself again to the Toronto Office of the URO. She was then informed
that a compensation claim had prospects of success and on 24 March
1964 the Berlin Office of the URO submitted her claim under the
Federal Compensation Act to the Compensation Office for the Land
Rheinland-Pfalz in Berlin. Her claim was accompanied by an
application for reinstatement in the form of an affidavit dated
13 February 1964 in which she declared that she had missed the
time-limit for application because she was told that she would not be
entitled to compensation.
In fact section 189 (3) of the Federal Compensation Act provides as
follows:
"If, through no fault of his own, the applicant was prevented from
observing the time-limit for the application, he is, upon his
application, to be granted reinstatement into the status quo. If the
Compensation Office expressly or impliedly has granted reinstatement
into the status quo, the compensation courts are bound by this
decision."
In the course of the following years the applicant submitted further
material to the Compensation Office.
4. On 7 February 1973 the then competent Compensation Office at
Mainz rejected the claim on the ground that it was lodged out of time
and refused reinstatement into the status quo on the ground that the
application for reinstatement had not been sufficiently
particularised. The applicant had failed to submit reliable
particulars on the question when and where she had obtained knowledge
of the opportunity which the compensation law offered.
5. Thereupon, the applicant, represented by lawyers, on
7 July 1973 instituted proceedings before the Mainz Regional Court
(Landgericht) against the Land Rheinland-Pfalz, and requested that the
decision of 7 February 1973 be set aside, that reinstatement be
granted and that she be given compensation.
On 30 May 1974 the Mainz Regional Court dismissed the action. The
basic reason once again was that the applicant had failed to
particularise in time and precisely under what conditions she had
learned of her right to compensation. The Regional Court referred in
this respect to the jurisprudence of the Federal Court of Justice
(RzW 1971, p 180 and 510; 1973 p 96).
On 16 December 1976 the Koblenz Court of Appeal (Oberlandesgericht)
dismissed an appeal lodged by the applicant against the above
judgment. A further appeal to the Federal Court of Justice was
disallowed.
7. Thereafter the applicant appealed to the Federal Court of
Justice against the refusal of leave to appeal. On 29 March 1983 the
appeal was dismissed on the ground that the applicant's case was
decided in accordance with the constant jurisprudence of the Federal
Court of Justice relating to Section 189 (3), first sentence of the
Federal Compensation Act (RzW 1971, p 510; 1975, pp 314, 315).
The Federal Court of Justice furthermore referred to a decision of the
Federal Constitutional Court (Bundesverfassungsgericht) dated
15 December 1982 - 2 BvR 893/79 - by which in a similar case a
constitutional appeal had been dismissed on the ground that it did not
offer sufficient prospects of success. The case in question was also
submitted to the Commission and was on 10 December 1984 rejected as
being incompatible with the provisions of the Convention (Application
No. 10612/83). In view of the Federal Constitutional Court's decision
of 15 December 1982 the applicant did not lodge a constitutional
complaint as such a complaint offered no prospects of success.
COMPLAINTS
The applicant complains that she was denied a fair hearing and that
the courts have not decided on the merits of her compensation claim.
She invokes Arts 6 (1) and 14 (Art. 6-1, art. 14) of the Convention.
The applicant criticises the Commission's case law according to which
Art 6 (1) (Art. 6-1) of the Convention is not applicable to the
proceedings in question. She refers, inter alia, to the judgment by
the European Court of Human Rights in the Golder case and argues that
there is no distinction between a right to damages for libel,
considered to be a "civil right" in the Golder case, and a right to an
annuity against a State for injuries to health and personal freedom.
Her status as a victim of Nazi persecution could not deprive her of
the protection of Art 6 (1) (Art. 6-1). She argues that the case law
in question is based on a misunderstanding, namely, that she claimed a
payment in respect of injuries "for which otherwise damages cannot be
recovered under the general principles of tort liability". From that
the Commission wrongly drew the conclusion that "accordingly the
proceedings relate to rights of individuals vis-à-vis the State which
clearly belong to the domain of public law". However, if there had
been no compensation law she would have had rights against the Federal
Republic of Germany under Sections 823, 826 and 839 of the Civil Code
(BGB), as had been acknowledged repeatedly in the case law of the
Federal Court of Justice. All that the special compensation law did
was to standardise damages caused by Nazi persecution in order to
expedite the completion of cases and of payment. The victims' claims
did not therefore become a matter of public law, as was, for instance,
evidenced by the fact that such claims are being dealt with by the
ordinary civil courts.
The "specific" character of the legislation in question was in no way
of relevance. The tortious liability of the railways, the airlines
and motorists was likewise dealt with by specific legislation, while
claims under such legislation did not lose their character as civil
rights.
Her case could furthermore not be compared to cases where the
applicant's claim was rejected in a decision on the merits which for
procedural reasons could not be attacked or was such as to put an end
to the proceedings. Contrary to such cases a hearing of her case was
from the outset blocked and she was denied a fair and substantive
hearing by procedural, unfair measures. There was no reason to limit
the application of Art 6 (Art. 6) to procedural unfairness of a purely
technical nature. The right to a fair hearing included the right to
be protected against decisions which are so grossly unjust, so plainly
unfair, so manifestly inequitable as to render the proceedings as a
whole unfair. In this context she stresses that the decision
requiring her fully to particularise the circumstances of the
acquisition of knowledge was rendered by the Federal Court of Justice
on 1 April 1971 (RzW 1971, p 510), that is a long time after the date
of her application. Consequently this decision had retroactive effect
and deprived her of her rights at a time when a great number of others
had obtained the compensation she was denied.
At the time when she submitted her application in March 1964, her
legal representatives could not foresee the course which the
jurisprudence would take. Furthermore the new development justifying
reinstatement occurred three years after the expiration of the
statutory time-limit for lodging claims. That it took a long time for
the news to spread to Canada and to become known to simple people out
of touch with Germany was obvious. It could have been expected from
the Compensation Office to assume that the applicant in her situation
had acted without fault when submitting her compensation claim.
Section 189 (3) of the Federal Compensation Act only required her to
prove the absence of fault; therefore the condition of a fully
particularised "when and how" as laid down in the decision of 1 April
1971 of the Federal Court of Justice was arbitrary in character.
Furthermore it was unfair to interpret Section 189 (3) second sentence
of the Federal Compensation Act to the effect that an implied
reinstatement by the Compensation Office occurred only when a decision
granting or rejecting compensation was made, but could not be inferred
from the fact that an applicant's case had already been under active
consideration.
It was furthermore unfair to reject her case without giving her the
opportunity of explaining and qualifying her original application.
A final ground of unfairness arose from the fact that she was the
victim of discrimination on account of her age. The practice was and
is that applications for compensation are dealt with in the order
determined by the age of the applicant. In 1964 she was 58, i.e.
relatively young, and according to the prevailing practice her
application had no chance of being attended to within the near future.
The result was that by 1971, when the new practice of the Federal
Court of Justice became known, her case had not been dealt with. It
followed that it was surely on account of her relative youth that she
did not obtain the compensation which thousands of others had received
between 1964 and 1971. The discriminatory unfairness arose from the
decision of 1971 and the retrospective character which was attributed
to it.
The applicant finally argues that there is a relevant disproportion
between the wrong suffered by her at the hands of Nazi and Soviet
persecutors, and the pettiness of the ground which deprived her of her
undoubted right to compensation.
THE LAW
1. The applicant, invoking Art 6 (1) (Art. 6-1) of the
Convention, also in connection with Art 14 (Art. 14), complains that
in the proceedings under the Federal Compensation Act she was denied a
fair hearing. Art 6 (1) (Art. 6-1), first sentence, provides as
follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law."
The Commission notes that in the present case the applicant was
refused reinstatement into the status quo and that therefore the
courts did not examine the merits of her compensation claim. The
examination of her case was limited to the question whether her claim
had been filed within the time-limit fixed by Section 189 of the
Federal Compensation Act.
The Commission observes that only a procedure which "determines" civil
rights and obligations enjoys the guarantees of the above-mentioned
provision of the Convention. It has decided on several occasions that
proceedings for re-opening a trial or, in some cases, for leave to
appeal are not within the scope of Art 6 (1) (Art. 6-1) of the
Convention (see eg N° 7761/77, Dec. 8.5.78, DR 14, p 171). Similarly,
it has decided that this provision is inapplicable in a case where a
procedural obstacle does not allow an examination of the merits of the
matter (N° 8000/77, Dec. 9.5.78, DR 13 p 81). Art 6 (1) (Art. 6-1)
is further inapplicable to proceedings by which preliminary measures
are taken which do not affect the merits of the case (N° 7990/77,
Dec. 11.5.81, DR 24 p 57; N° 8988/80, Dec. 10.3.81, DR 24 p 198;
N° 5263/71, Dec. 14.12.72 Collection 42 p 97).
By an analogous reasoning the Commission concluded in a matter similar
to the present case (No. 10612/83, Dec. 10.12.84) that Art 6(1)
(Art. 6-1) of the Convention is likewise inapplicable in a case where
the applicant's claim was in fact rejected on procedural grounds. The
Commission finds in the present case no reason to depart from this
case law. The court decisions of which the applicant complains cannot
therefore be considered as "determining" civil rights and obligations
within the meaning of Art 6 (1) (Art. 6-1) of the Convention.
2. The applicant submits furthermore that the German authorities
and courts acted unfairly when refusing her request for reinstatement
into the status quo. This constituted a grave injustice with regard
in particular to the development of the cases of the so-called Soviet
Union refugees and to the difficulties which these people encountered
abroad in obtaining information concerning their right to
compensation. The restrictive interpretation of Section 189(3),
second sentence, of the Federal Compensation Act, as applied by the
German courts was unfair and arbitrary. An even graver unfairness is
seen in the fact that the German courts rejected her case without
giving her the opportunity of explaining and amplifying her original
application. That in effect amounted, in her view, to a refusal to
hear her case.
The Commission interprets the applicant's complaint in this regard as
meaning that she has been denied a fair hearing by a court in the
determination of her civil rights and obligations as provided for in
Art 6 (1) (Art. 6-1) of the Convention.
3. In this respect, it has to be taken into account, as the
applicant also pointed out, that the concept of "civil rights and
obligations" in Art 6 (1) (Art. 6-1) of the Convention cannot be
interpreted solely by reference to the domestic law of the respondent
State, but must be given an autonomous interpretation in the light of
the object and purpose of the Convention (e.g. Eur. Court H.R., König
judgment of 28 June 1978, Series A, no. 27, para. 88). Consequently,
it is not decisive for the application of Art 6 (1) (Art. 6-1) in the
present case whether claims under the Federal Compensation Act are
regarded in German law as being of private law or of public law.
As regards the interpretation of the term "civil rights and
obligations" in Art 6 (1) (Art. 6-1), the European Court of Human
Rights has repeatedly stated that this term covers all proceedings the
result of which is decisive for private rights and obligations (e.g.
Eur. Court H.R., Ringeisen judgment of 16 July 1971, Series A, no. 13,
para. 94). The Court has added, however, that a tenuous connection or
remote consequences do not suffice for Art 6 (1) (Art. 6-1), that
civil rights and obligations must be the object - or one of the
objects - of the "contestation" (dispute), and that the result of the
proceedings must be directly decisive for such a right (Eur. Court
H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981,
Series A, no. 43, para. 47).
4. The present case concerns the right to receive compensation
for specified injuries under the Federal Compensation Act. In its
previous case law the Commission pointed out that, "without going in
detail into questions of State succession or of prescription, the
Federal Republic of Germany has undertaken in the Federal Compensation
Act to pay to victims of Nazi persecution compensation for specified
injuries or to grant such victims other forms of benefits, within the
limits laid down in the Act. This legislation constitutes an
undertaking on the part of the State to grant compensation for
injuries suffered in the course of special circumstances for which
otherwise damages cannot be recovered under the general principles of
tort liability. Accordingly, the proceedings in which the eligibility
of a particular claim is decided relate to rights of the individual
vis-à-vis the State which clearly belong to the domain of public law."
(see e.g. N° 4523/70, Dec. 23.7.1971, Collection 38 p. 115;
N° 4505/70, Dec. 2.10.1971, Collection 39 p. 51; N° 4618/70,
Dec. 21.3.1972, Collection 40 p. 11; N° 7014/75, Dec. 21.5.1976,
D.R. 5, 134).
In its decision of 16 October 1980 on the admissibility of Application
N° 8646/79 (not published) the Commission confirmed the above
jurisprudence and added that reinstatement proceedings with a view to
obtaining compensation under the Federal Compensation Act fall even
more clearly outside the scope of Art 6 (1) (Art. 6-1).
In a further above cited decision of 10 December 1984 concerning an
analogous case (N° 10612/83) the Commission confirmed the opinion
which it had formulated in the case law referred to. Considering the
nature, purpose and objectives of the Federal Compensation Act as
outlined in decisions of the Federal Constitutional Court (BVerfGE 13
p. 39 <42, 42> and p. 46 ) it noted that the legislation on
compensation for wrongs inflicted by the Nazi regime did by its
specific nature not constitute liability for damages according to
civil law but was founded upon the reasoning that national socialist
persecutions were illegal acts and that persons who were persecuted on
grounds of their convictions or religious belief or conscience
deserved to be granted a public law compensation.
The Commission therefore found that the notion of civil rights and
obligations could not be extended to a situation where, as in the case
at issue, a specific legislation had been passed in the implementation
of the State's aim to redress injuries which had been caused by acts
committed on a large scale and under general cover of State authority.
Civil rights within the meaning of Art 6 (1) (Art. 6-1) of the
Convention were mainly all those rights, be they constituted by
private or public law, which the citizen had towards other citizens or
towards state organs without any specific institutional or status
requirements arising. However, where the State had established very
specific regulations based on the idea of resolving by State authority
the problems resulting in the past from crimes of State and their
consequences, civil rights were no longer at issue.
This area had to be distinguished from civil rights in general by
which a satisfactory solution of the question of Nazi persecution
would not have been reached.
5. The Commission has considered the applicant's criticism of its
decision of 10 December 1984 but again sees no reason to depart from
its case law. It maintains the opinion that the legislation in
question created special rights which have to be distinguished from
private law claims. It concludes that the proceedings before the
courts in the present case did not concern the determination of the
applicant's "civil rights and obligations" and therefore fall outside
the scope of Art 6 (Art. 6) of the Convention. It follows that the
Commission has no competence ratione materiae to examine the
application which must be rejected in accordance with Art 27 (2)
(Art. 27-2) as being incompatible with the provisions of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)