AS TO THE ADMISSIBILITY OF
Application No. 20931/92
by H.K.
against the Federal Republic of Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 10 February 1993, the following members being present:
MM. F. ERMACORA, Acting President of the First Chamber
J.A. FROWEIN
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
G.B. REFFI
Mrs. M.F. BUQUICCHIO, Secretary to the First 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 27 October 1992
by H.K. against the Federal Republic of Germany and registered on 12
November 1992 under file No. 20931/92;
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 1966 and living in
Munich. He is represented by Mr. Peter Kloer, a lawyer practising in
Munich.
The applicant states that he is the heir of Eva Kloer who died
in 1986. He complains of the confiscation of Mrs. Kloer's real
property by Polish authorities. The real property is situated on
former German territories east of the Oder-Neisse Line which were put
under the administration of Poland and the Soviet Union according to
the Potsdam Protocol at the end of World War II in August 1945.
The applicant argues that the above-mentioned treaty does not
contain a definite regulation as to the borders between Germany and her
eastern neighbours. In his opinion a final regulation was left to an
international peace treaty.
Mrs. Kloer received some compensation, under the Equalisation of
Burdens Act (Lastenausgleichsgesetz) which, however, the applicant
considers to be insufficient.
The applicant submits that in consequence of German unification
and the treaties related thereto, in particular the treaty between the
Federal Republic of Germany and the Republic of Poland of 14 November
1990 confirming the existing border, all former property owners whose
property was confiscated by the Polish authorities were deprived of any
means of recuperating this property or of claiming just compensation
for its loss.
This opinion was however not shared by the Federal Constitutional
Court (Bundesverfassungsgericht) which rejected the applicant's
constitutional complaint on 27 August 1991 as being inadmissible,
stating that neither the Unification Treaty nor the Unification Treaty
Act contained regulations relating to private property situated on
territories east of the Oder-Neisse Line. On 5 June 1992 the Federal
Constitutional Court declared inadmissible another constitutional
complaint which had been lodged by the applicant and others concerning
the German-Polish Border Treaty. The Court stated that the treaty did
in no way affect the constitutional rights invoked by the complainants.
The treaty only confirmed the border and thereby a factual situation
which had existed for many years. The property in question had been
seized by the Polish authorities after the end of World War II and the
present treaty was in no way concerned with these confiscations.
Furthermore, it could not be argued that the respect of the
complainants' property rights obliged the Federal Republic of Germany
to see to it that the Polish authorities restituted the property or
paid compensation for the loss of it.
COMPLAINTS
The applicant alleges a violation of Article 1 of Protocol No. 1
to the Convention in that German unification was achieved at the
expense of persons having lost property in the former German
territories. Furthermore he considers his property right to be
violated by the fact that the Federal Republic of Germany surrendered
former German territory to Poland without seeing to it that Poland paid
compensation to all those who lost property. Finally, he alleges
discrimination in comparison to persons whose property was confiscated
by the authorities of the former German Democratic Republic.
THE LAW
1. Real property of the applicant's predecessor in title was
confiscated by Polish authorities in former German territory after it
had come under Polish administration in 1945.
The applicant alleges a violation of his right to the peaceful
enjoyment of possessions as guaranteed by Article 1 of Protocol No. 1
(P1-1) to the Convention because the Federal Republic of Germany
renounced any claim to former German territory in treaties concluded
with Poland without seeing to it that compensation was paid to the
expropriated persons.
a) In this respect the Commission notes that in so far as
confiscation is concerned, it was effected by Polish authorities and
occurred before the entry into force of the Convention (3 September
1953) and Protocol No. 1 (13 February 1957) in respect of the Federal
Republic of Germany.
The Commission has already held in a previous decision that
following the confiscation decision taken by the Polish authorities the
exercise of the property rights concerned had become impossible (cf.
Nos. 7655/76, 7656/76 and 7657/76, Dec. 4.10.77, D.R. 12 p. 111, at
p.119).
Moreover the Commission notes that the German-Polish Border
Treaty does not address the issue of property rights and the Federal
Constitutional Court (Bundesverfassungsgericht) has held that it did
not affect property rights which the applicant claims to have
inherited.
b) It remains to be examined whether a right to compensation
existed until the entry into force of the Treaty concluded between the
Federal Republic of Germany and Poland and whether it was affected
thereby. However, the Commission recalls that the Federal Republic of
Germany is not responsible for the confiscations in question. It
follows that the applicants never had any compensation claims against
this State before the conclusion of the Treaty in question. The Treaty
could not therefore have affected any property rights in the form of
pre-existing claims directed against the Federal Republic of Germany
(cf. No. 7742/76, Dec. 4.7.78, D.R. 14 p. 146, at p. 168 et seq.).
On this point the application therefore does not disclose any
appearance of a violation of Article 1 of Protocol No. 1 (P1-1) and has
to be rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant further considers to have been discriminated
against with regard to the enjoyment of his property right in that, as
opposed to owners of property expropriated by the authorities of the
former German Democratic Republic after 1949, he cannot claim
restitution or reparation.
Under Article 14 (Art. 14) of the Convention the enjoyment of the
rights and freedoms set forth in the Convention shall be secured
without discrimination on any of the grounds enumerated in the
provision, inter alia, on the ground of status.
The Commission recalls that Article 14 (Art. 14) complements the
other substantive provisions of the Convention and its Protocols.
Although application of Article 14 (Art. 14) does not presuppose a
breach of those provisions, there can be no room for its application
unless the facts at issue fall within the ambit of one or more of the
latter (cf. Eur. Court H.R., Abdulaziz, Cabales, and Balkandali
judgment of 28 May 1985, Series A no. 94, p. 35, para. 71).
In the present case the applicant's complaint falls within the
ambit of Article 1 of Protocol No. 1 (P1-1) which, inter alia, relates
to expropriation and compensation for the taking of property (cf. Eur.
Court H.R., Lithgow and Others judgment of 8 July 1986, Series A no.
102, p. 50, para. 120).
Article 14 (Art. 14) safeguards individuals, placed in analogous
situations, from discrimination (cf. Eur. Court H.R., Van der Mussele
judgment of 23 November 1983 Series A No. 70, p. 22, para. 46). Yet the
situation of persons whose real property was confiscated by foreign
powers and persons who were expropriated by German authorities in
regions which were and still are German territory is fundamentally
different and therefore incomparable. In the latter configuration the
real property is available to the German authorities, they are
consequently in a position to return the property to the previous owner
or to keep it and pay compensation. No such possibilities are given
to the German authorities with respect to properties confiscated by
third states.
It follows that there is no appearance of a violation of Article
1 of Protocol No. 1 taken together with Article 14 (P1-1+14) of the
Convention and this part of the application is therefore likewise
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons the Commission unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber Acting President of the First Chamber
(M.F. BUQUICCHIO) (F. ERMACORA)
Full & Egal Universal Law Academy