AS TO THE ADMISSIBILITY OF
Application No. 25045/94
by Inge DOBBERSTEIN
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
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 May 1994 by
Inge DOBBERSTEIN against Germany and registered on 31 August 1994 under
file No. 25045/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen born in 1929 and living in
Bochum-Oberdahlhausen. She is represented by Mr. R. Schleifenbaum and
Partners, a law firm in Siegen.
It follows from the applicant's statements and the documents
submitted that the applicant inherited from her late husband, who died
on 12 January 1993, a farm of some 80 hectares situated in
Schlochau/Pommern, formerly German territory but which in consequence
of World War II is now part of Poland.
On 2 January 1990 the applicant's late husband requested the
Federal Republic for diplomatic protection by way of measures
safeguarding his property right and/or his claim for compensation for
the loss of the use of his property.
On 30 January 1990 the German Foreign Office (Auswärtiges Amt)
rejected the request stating that after careful examination of all
aspects of the matter and in particular of the circumstances which in
the present case were beyond the Federal Government's sphere of
influence, the Government did not for the time being consider it
appropriate to raise the alleged claims as suggested by the applicant
by way of diplomatic action on the interstate level.
Subsequently the applicant's late husband brought an action
against the Federal Republic before the Cologne Administrative Court
(Verwaltunggericht) with a view to obtaining a court order obliging the
Government to grant him the diplomatic protection he requested.
On 19 June 1991 the action was dismissed. Recognising that there
existed an obligation on the part of the State to give diplomatic
protection vis-à-vis foreign States to its citizens, the court noted
that in deciding whether or not such protection had to be given and if
so which measures had to be taken, the State enjoyed a wide margin of
appreciation in view of the fact that foreign relations not only
depended on the will of the Federal Republic but also on factors beyond
its influence. The courts therefore only had a limited power of
control and there was nothing to show that the defendant had wrongly
exercised its discretionary power.
The fact that in the Treaty of 17 June 1981 concluded between
Germany and the Polish Republic providing for friendly relations and
collaboration between the two neighbour States did not at all deal with
property questions showed that this matter had been deliberately left
out by the Federal Republic in order to avoid endangering the signing
of the Treaty by both parties. On the other hand the German Government
had made it clear in the Treaty negotiations that it considered the
expulsion of Germans from former German territories to be unlawful.
However, it had been sufficiently shown and explained in the present
proceedings that in view of the attitude of the Polish Government the
German Government had reason to believe that any diplomatic action on
behalf of Germans expelled by Polish authorities was bound to fail and
could only harm interstate relations.
An appeal against the judgment of 19 June 1991 was rejected by
the Administrative Court of Appeal of North Rhine Westphalia
(Oberverwaltungsgericht) on 28 April 1993. This court likewise
considered that the defendant Government's position in the matter in
question was unobjectionable. It considered it to be established that
the Federal Government had made it clear to the Polish authorities that
it considered the expulsion of Germans and the confiscation of their
property to be in violation of international law. In signing the
German/Polish Treaty of 1981 and the Treaty of 14 November 1990,
recognising the existing borders between the two countries, the Federal
Government had succeeded in keeping the property question
(Vermögensfrage) open. The court considered it unobjectionable that
the defendant Government for the time being saw no possibility of
reaching an agreement with the Polish Government on the property issues
but hoped that the treaties agreed upon with Poland opened
possibilities for the future that these matters could be settled in a
satisfactory manner.
Leave to appeal on points of law (Revision) was denied by the
Appellate Court and the applicant's complaint in this respect was
rejected by the Federal Administrative Court (Bundesverwaltungsgericht)
on 11 August 1993.
The applicant then lodged a constitutional complaint which was
rejected by a group of three judges of the Federal Constitutional Court
(Bundesverfassungsgericht) on 29 October 1993.
COMPLAINTS
The applicant maintains that she is entitled to a positive
diplomatic action on the part of the Federal Republic with a view to
securing her property right or her right to compensation. She submits
that the inactivity of the respondent Government amounts to a violation
of Article 1 of Protocol No. 1.
THE LAW
The applicant relies on the right to the peaceful enjoyment of
possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1) and
submits that this provision imposes a positive obligation on the German
Government to take diplomatic action vis-à-vis the Polish Government
in order to see to it that her family's property, confiscated after
World War II by Polish authorities, is either returned or compensation
paid to her.
The Commission first notes that there has been no direct
interference with the applicant's possessions by the German
authorities.
The Commission recalls that the Convention does not contain a
right which requires a High Contracting Party to espouse an applicant's
complaints under international law or otherwise to intervene with the
authorities of another State on his or her behalf (No. 7597/76,
Dec. 2.5.78, D.R. 14 p. 117 at 123, 124; see also No. 12822/87,
Dec. 9.12.87, D.R. 54 p. 201).
The Commission has also held in relation to the German-Polish
Border Treaty of 17 October 1991 that this treaty had neither the
effect of depriving persons definitely of the ownership of property
possessed before 1945 in regions which are now part of Polish territory
nor did it violate any assumed positive obligation on the part of
Germany to give protection to its citizens against violations of
fundamental rights. In the latter respect the Commission had regard
to the discretionary power which the High Contracting Parties to the
Convention enjoy in respect of their diplomatic actions. It concluded
in agreement with the Federal Constitutional Court that the general
interest of establishing normal and friendly relations with a
neighbouring state prevailed over the individual interests of persons
whose properties had been confiscated by Polish authorities (No.
24928/94, Dec. of 30.11.94; see also No. 20931/92, Dec. of 10.2.93, and
No. 21591/93, Dec. of 28.2.96 unpublished).
Likewise in the present case the Commission agrees with the
domestic courts that Germany enjoys large discretionary power and
therefore the denial of a concrete diplomatic action on behalf of the
applicant does not disclose any appearance of a violation of Article
1 of Protocol No. 1 (P1-1).
The application has therefore to be rejected in accordance with
Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly
ill-founded.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy