FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 34909/04
by Peer GENTH
against Germany
The European Court of Human Rights (Fifth Section), sitting on 13 May 2008 as a Chamber composed of:
Peer Lorenzen, President,
Karel Jungwiert,
Volodymyr Butkevych,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
Otto Mallmann, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 29 September 2004,
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 unsuccessful friendly-settlement negotiations conducted pursuant to Article 38 § 1 (b) of the Convention,
Having regard to the Government’s request to strike the case partly out of its list of cases and the text of a unilateral declaration made with a view to resolving the complaint about the length of the proceedings,
Having regard to the applicant’s comments on the Government’s proposal for a unilateral declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Peer Genth, is a German national who lives in Rangsdorf. He is represented before the Court by Mrs B. Grün, a lawyer practising in Nuremberg.
The respondent Government are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s grandmother used to own real estate located on the territory of the former German Democratic Republic (“GDR”). In 1958 she left the GDR and the real estate was put under public administration. In 1971 the real estate was transferred into public property. In 1985 the tenant of the house purchased it from the State.
On 3 August 1990, prior to German Unification on 3 October 1990, the applicant’s grandmother requested the restitution of the real estate. On 6 October 1995 the Office for the Resolution of Outstanding Property Issues (Amt zur Regelung Offener Vermögensfragen – hereinafter called Property Office) rejected her request for restitution, because the tenant of the house had purchased the house in good faith (see “Relevant domestic law” below). However, the Property Office held that the applicant’s grandmother was entitled to compensation.
On 11 January 1996 the applicant’s grandmother lodged an objection. On 21 July 1997 the Regional Office for the Resolution of Outstanding Property Issues (Landesamt zur Regelung Offener Vermögensfragen) rejected her objection. On 29 August 1997 she brought an action for restitution in the Potsdam Administrative Court. On 23 February 1999 the applicant’s grandmother alternatively requested compensation by real estate of comparable value instead of money according to section 9 of the Property Act. On 4 March 1999 she also extended her action before the Administrative Court accordingly. On 19 March 1999 the Property Office stated that the request for transfer of real estate of comparable value could not be dealt with for the time being, but solely once all requests for restitution would have been examined.
In August 1999 the applicant’s grandmother transferred her claims relating to the real estate in question to the applicant.
Section 9 of the Property Act was repealed by the Property Rights Amendment Act of 15 September 2000.
On 22 July 2002 the court scheduled a hearing for 23 August 2002. A further hearing was scheduled and cancelled twice because the property’s current owner, invited as third party, was not available. The hearing took finally place on 24 June 2003.
On the same day the Administrative Court rejected the applicant’s request for restitution holding that the property’s current owner had purchased it in good faith. Furthermore, the court held that the applicant was only entitled to compensation in money, because the legislator had repealed section 9 of the Property Act while the proceedings were still pending. The court refused the applicant leave to appeal on points of law.
On 25 November 2003 the Federal Administrative Court rejected the applicant’s complaint.
On 19 March 2004 the Federal Constitutional Court refused to admit the applicant’s complaint.
B. Relevant domestic law
The Resolution of Outstanding Property Issues Act/Property Act (Gesetz über die Regelung offener Vermögensfragen/Vermögensgesetz – hereinafter called “Property Act”) provides that persons whose property was unlawfully expropriated at the time of the GDR are in principle entitled to restitution of their property unless it is impossible to return it in practice or it has been purchased in good faith (section 4(2) of the Act).
In such cases the former owners have a right to indemnification under the Act governing indemnification pursuant to the Resolution of Outstanding Property Issues Act / Indemnification Act of 27 September 1994 (Gesetz über die Entschädigung nach dem Gesetz zur Regelung offener Vermögensfragen/ Entschädigungsgesetz). That indemnification is not commensurate with the property’s market value.
However, section 9 of the initial versions of the Property Act (1990, 1994 and 1997), provided in addition to section 4:
“if restitution is impossible because the property has been acquired in good faith (redlicher Erwerb) by third parties, indemnification can be effected by the transfer of land if possible of comparable value (durch Übereignung von Grundstücken mit möglichst vergleichbarem Wert). If this is impossible, indemnification shall be made in accordance with the provisions of the Indemnification Act.”
That section was repealed by the Property Rights Amendment Act of 15 September 2000.
COMPLAINTS
Invoking Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention the applicant complained about the abrogation of section 9 of the Property Act.
Under Article 6 of the Convention the applicant furthermore complained about the length of the proceedings. In particular, he argued that due to the length of the proceedings his case had still been pending when section 9 of the Property Act was repealed.
THE LAW
1. Invoking Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention the applicant complained about the abrogation of section 9 of the Property Act. Those provisions read as follows:
Article 1 of Protocol No. 1
“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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Article 14 of the Convention
The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The applicant argued that he had had a concrete claim of transfer of real estate of comparable value under section 9 of the Property Act at the time of the provision’s abrogation. Hence he had lost a “possession” within the meaning of Article 1 of Protocol No. 1.
The Court reiterates that the Court already examined the abrogation of section 9 of the Property Act in its von Maltzan and Others decision of 30 March 2005. The Court found that compensation by transfer of real estate of comparable value was a mere possibility and did not create a concrete right. Therefore, the applicants had not had a legitimate expectation of transfer of real estate of comparable value at the time of the abrogation of section 9 of the Property Act. Their complaints under Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention were therefore held to be incompatible ratione materiae with the provisions of the Convention and the Protocols thereto (see von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, ECHR 2005-...).
Furthermore, the Court considers that the present case is clearly distinct from the case of Dömel v. Germany which also dealt with the abrogation of section 9 of the Property Act and which was struck out of the list of pending cases following the conclusion of a friendly settlement between the respondent Government and the applicants. In that case the domestic courts had 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 (see Dömel v. Germany (dec.), no. 31828/03, 9 May 2007).
Having regard to the above considerations, the Court concludes that the applicant’s complaint is thus incompatible ratione materiae with the provisions of the Convention and the Protocols thereto and must be rejected.
2. The applicant submitted that the length of the proceedings had been excessive and thus in violation of the “reasonable time requirement” of Article 6 § 1, the relevant parts of which read as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
On 29 June 2007 the Court received the following declaration from the Government signed on 14 June 2007:
“In this case the court proposed a friendly settlement which was rejected on behalf of the applicant by his counsel on 7 May 2007.
The Federal Government would therefore like to acknowledge – by way of a unilateral declaration – that the length of the proceedings at issue was incompatible with the “reasonable time” requirement within the meaning of Article 6 para. 1 of the Convention.
If the Court strikes this case from its list, the Federal Government is willing to accept the Applicant’s claim for compensation in the amount of EUR 3,100. This sum of EUR 3,100 would be deemed to settle all claims of the Applicant in connection with the above-mentioned Application against the Federal Republic of Germany or the Land of Brandenburg, including in particular, compensation for the Applicant’s damage (including non-pecuniary damage) as well as costs and expenses. In light of the Court’s rulings in similar cases, the Federal Government considers the amount of EUR 3,100.00 to be reasonable.
The Federal Government therefore requests that this application be struck out of the Court’s list of cases pursuant to Article 37 para. 1 (c) of the Convention. The Federal Government’s acknowledgment of a violation of Article 6 para. 1 of the Convention as regards the length of the proceedings and its acceptance of the claim for compensation in the amount of EUR 3,100.00 constitutes “[an]other reason” within the meaning of this provision.”
The applicant in his written reply requested the Court to reject the Government’s proposal arguing that the requirements of Article 37 § 1 c of the Convention were not met. He submitted that by applying that provision he would be forced to accept the friendly settlement without, however, receiving the full sum. The applicant repeated that he had sustained considerable financial damage, namely EUR 50,000 as costs and expenses and EUR 142,241.40 as loss for the property of comparable value which he had not received. He went on to say that if the proceedings had been terminated in due course he would have received property of comparable value as stipulated by section 9 of the Property Act.
The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the above declaration was made by the Government on 14 June 2007 outside the framework of the friendly-settlement negotiations and the Court will therefore proceed on the basis of that declaration.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the proviso that:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
In deciding whether or not it should strike the present case out its list of cases, the Court will have regard to the criteria emerging from its case-law (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003‑VI; and also Haran v. Turkey, no. 25754/94, § 23, judgment of 26 March 2002, Akman v. Turkey (striking out), no. 37453/97, §§ 30‑31, ECHR 2001‑VI, and Meriakri v. Moldova (striking out), no. 53487/99, §§ 30‑32, 1 March 2005; MacDonald v. the United Kingdom (dec.), no. 301/04, 6 February 2007; Oleksiw v. Germany (dec.), no. 31384/02, 11 September 2007).
The Court notes that the present case raises as issue the length of the proceedings within the meaning of Article 6 of the Convention.
It recalls that it has already specified in various judgments and decisions the nature and extent of the obligations which arise for the respondent State as regards the determination of “civil rights and obligations” within a “reasonable time”, also in respect of the Federal Republic of Germany (see, among many others, Sürmeli v. Germany [GC], no. 75529/01, ECHR 2006‑...; Nold v. Germany, no. 27250/02, 29 June 2006; Stork v. Germany, no. 38033/02, 13 July 2006; Klasen v. Germany, no. 75204/01, 5 October 2006; Grässer v. Germany, no. 66491/01, 5 October 2006; Herbst v. Germany, no. 20027/02, 1 January 2007).
The Government’s declaration contains an acknowledgment that the length of the proceedings in the instant case was not in accordance with the “reasonable time”- requirement. Furthermore, the Court considers the sum of EUR 3,100 for the applicant’s damage, including non-pecuniary damage and costs and expenses, to be acceptable.
Having regard to the above considerations and the particular circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application insofar as the applicant complained about the length of the proceedings (Article 37 § 1 (c) of the Convention). The Court is satisfied that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue examination of the application in this respect (Article 37 § 1 in fine).
3. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.
For these reasons, the Court unanimously
Declares the applicant’s complaints under Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention inadmissible;
Takes note of the terms of the respondent Government’s declaration;
Decides to strike the remainder of the application out of its list of cases.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy