AS TO THE ADMISSIBILITY OF
Application No. 31440/96
by I. G.
against Poland and Germany
The European Commission of Human Rights (Second Chamber) sitting
in private on 17 January 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, 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 1 November 1995
by I. G. against Poland and Germany and registered on 9 May 1996 under
file No. 31440/96;
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 facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant, a Polish citizen born in 1913, is a retired
physician, residing in Warsaw.
In 1942 the applicant's parents were killed by the German
occupation authorities which subsequently confiscated their movable
property.
On 26 October 1945 a Decree on Real Estate in Warsaw was enacted
by the Polish Government which transferred the ownership of all real
property located within the administrative borders of Warsaw to the
municipality.
In 1947 the Otwock Municipal Court (S*d Grodzki) declared that
the applicant had inherited the property of his late parents.
On 30 March 1993 the applicant apparently submitted a request to
the Warsaw District Office (Urz*d Rejonowy) for restitution of the
property located in Warsaw which had been owned by his parents.
On an unspecified date in 1993 the applicant complained to the
Warsaw District Office about the lack of progress in the proceedings.
On 28 November 1994 the applicant submitted documents to prove
the property rights of his late parents and his title as their legal
successor.
On 3 July 1995 the applicant again complained to the District
Office about the lack of progress in the proceedings concerning his
restitution claim.
In a letter of 2 May 1995 the applicant applied to the German
Embassy in Warsaw for compensation for his parents' property
confiscated during the German occupation of Poland in 1942.
In a letter of 2 September 1995 to the German Federal Government
the applicant requested compensation.
On 22 September 1995 the German Embassy in Warsaw informed the
applicant that no compensation could be granted for the loss of
property sustained in 1942 as in 1953 Poland had renounced any
compensation claims against Germany which might have arisen out of the
Second World War, and this was further confirmed in the Agreement
between Poland and Germany concluded in 1970.
On 30 April 1996 the German Federal Ministry of Finance informed
him that no compensation could be awarded to him as there was no legal
basis for his claim.
COMPLAINTS
The applicant complains about the confiscation of his parents'
movable property in 1942 by the German occupation authorities and that
his efforts to obtain compensation have failed.
He further complains that in 1945 the real property owned by his
parents was expropriated by the Decree on Real Estate in Warsaw and
that he cannot obtain restitution of this property.
THE LAW
1. The applicant complains about the confiscation of his parents'
movable property in 1942 by the German occupation authorities and that
his efforts to obtain compensation from the German authorities have
failed.
The Commission has examined these complaints under Article 1 of
Protocol No. 1 (P1-1) to the Convention, which reads, insofar as
relevant:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law."
Insofar as the application is directed against Germany, the
Commission observes that the expropriations concerned took place before
the entry into force of Protocol No. 1 with respect to the Federal
Republic of Germany on 13 February 1957. The Commission further
observes that no right to compensation can be derived from Article 1
of Protocol No. 1 (P1-1) in cases concerning facts which occurred
before the entry into force of Protocol No. 1 (P1-1) to the Convention.
It follows that this part of the application is incompatible
ratione temporis with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains that in 1945 the real property
owned by his parents was expropriated by the Decree on Real Estate in
Warsaw.
a) Insofar as the applicant complains about the expropriation of the
property owned by his parents by the 1945 Decree on Real Estate in
Warsaw, the Commission observes that Poland ratified Protocol No. 1 to
the Convention on 10 October 1994. The legislation complained of was
enacted in 1945.
The Commission further recalls its established case-law according
to which a deprivation of ownership or other rights in rem is in
principle an instantaneous act and does not produce a continuing
situation of "deprivation of right" (No. 7742/76, Dec. 4.7.78, D.R. 14
p. 146).
It follows that this part of the application is incompatible
ratione temporis with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
b) Insofar as the applicant's complaint against Poland concerns his
efforts to obtain restitution of the property nationalised by virtue
of the 1945 Decree on Real Estate in Warsaw, the Commission recalls
that Article 1 of Protocol No. 1 (P1-1) to the Convention does not
guarantee a right to restitution of property (cf., mutatis mutandis,
No. 23131/93, Dec. 4.3.96, D.R. 85-A, p. 65, No. 25497/94, Dec.
17.5.95, D.R. 85-A, p. 126).
It follows that this part of the application must be declared
inadmissible as being incompatible ratione materiae with the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy