FIFTH SECTION
DECISION
Application no. 31828/03
by Katharina and Sieghard DÖMEL
against Germany
The European Court of Human Rights (Fifth Section), sitting on 9 May 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 1 October 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mrs Katharina and Mr Sieghard Dömel, are German nationals who were born in 1944 and 1940 respectively and live in Vienna. They are represented before the Court by Mr S. von Raumer, a lawyer practising in Berlin. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 September 1998 the applicants, a married couple, brought an action in the Dresden Administrative Court for restitution of property which had been expropriated in the German Democratic Republic in 1987.
On 6 November 1998 the applicants extended their action by alternatively requesting indemnification by real estate of comparable value according to § 9 of the Property Act.
The Administrative Court then stayed the proceedings, because the Office for the Resolution of Outstanding Property Issues (Amt zur Regelung Offener Vermögensfragen – hereinafter called “Property Office”) conducted a search for real estate of comparable value.
On 26 February 1999 the Property Office informed the court that the City of Dresden had no real estate of comparable value at its disposal for the time being. The Administrative Court then resumed the proceedings.
On 7 September 1999 the Property Office pointed out that the legislator considered repealing section 9 of the Property Act and therefore requested the stay of the proceedings.
On 15 September 2000 section 9 of the Property Act was repealed.
On 11 March 2003 the Dresden Administrative Court held that the Property Office had been obliged to transfer real estate of comparable value to the applicants prior to the abrogation of section 9 of the Property Act. The court found that, contrary to the Property Office’s allegations, the City of Dresden had had real estate of comparable value at its disposal at the material time and that there had been no objective reasons for not transferring that real estate to the applicants. The court further noted in this respect that it had been arbitrary (sachfremd) for the Property Office to await the abrogation of section 9 of the Property Act instead of transferring real estate pursuant to that provision as long as it was still in force.
The court further pointed out that the Property Office might be liable for the delayed processing of the applicants’ request for transfer of comparable real estate on the one hand and the untrue declaration that there had been no such real estate on the other hand. The court ordered the Property Office to bear the court fees and the applicants’ costs.
On 8 January 2004 the Federal Administrative Court rejected the Property Office’s complaint confirming the lower court’s reasoning.
COMPLAINTS
The applicants complained under Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention that they had had a legitimate expectation of obtaining compensation by real estate of comparable value, which they lost due to the abrogation of section 9 of the Property Act. Moreover, they found that they were discriminated against compared to those former owners who received compensation by real estate of comparable value.
Invoking Article 6 of the Convention, taken alone and in conjunction with Article 14 of the Convention, the applicants complained that the delayed processing of their case by the Property Office and the Administrative Court also accounted for the loss of their claim.
Lastly, the applicants held the opinion that there was no effective remedy under domestic law which would enable them to request compensation for the loss of their claim for transfer of real estate of comparable value.
In particular, they submit that an action for official liability (Amtshaftung) would be inefficient and furthermore time-barred, since the statutory time-limit had already expired on 31 December 2003, thus even before the decision of the Federal Administrative Court on 8 January 2004.
THE LAW
On 26 March 2007 the court received a certified copy of the following declaration from the Government, signed by the Government’s representatives on 6 and 13 March 2007 and by the applicants’ representative on 14 March 2007:
(translation)
“The Federal Republic of Germany, represented by their agent, Dr. Almut Witttling-Vogel, Ministerialdirigentin, Federal Ministry of Justice, Mohrenstraße 37, 10117 Berlin and
the Federal Ministry of Finances, represented by Dr. Hermann-Josef Rodenbach, Ministerialrat, acting on behalf of the Compensation Fund pursuant to section 9 of the Indemnification Act, authorised by the President of the Federal Office for Central Services and Outstanding Property Issues, Berlin,
as well as the applicants Katharina and Sieghard Dömel, both represented by Stefan von Raumer, Meinekestraße 13, 10719 Berlin, conclude the following friendly settlement in view of resolving the application no. 31828/03:
1. The Federal Republic of Germany undertakes to pay the applicants 370.000 (three hundred seventy thousand) euros to satisfy all claims arising from the above application. The aforementioned amount covers all conceivable claims against the Federal Republic of Germany and/or the Land of Saxony and/or the City of Dresden, in particular compensation, costs and expenses in connection with the refusal to grant indemnification by real estate of comparable value for the property Plauenscher Ring 47 in Dresden. The amount is payable within three months after the signing of this agreement.
2. The applicants, represented by Stefan von Raumer, legal counsel, declare that the application has been resolved in its entirety. They agree to have the application struck out of the list of pending cases. They waive all further claims against the Federal Republic of Germany and/or the Land of Saxony and/or the City of Dresden arising from the facts of the present case.
3. The Agent of the Federal Republic of Germany undertakes to promptly notify the European Court of Human Rights of the settlement.
The Government applied for the application to be struck out of the list of pending cases pursuant to Article 37 § 1 (b) of the Convention.
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy