AS TO THE ADMISSIBILITY OF
Application No. 22353/93
by Johanna JÜNGLING (née KÜHN),
Beowulf v. PRINCE, Gerda SEBOROWSKI-BALTRUSCHAT,
Wilhelm MARREK, Grete SCHLEMMIGNER (née MOCZEK),
Horst MOCZALL, Gerda MÖßNER (née DUDA),
Heinz PETRUSCHKE, Josef HERDE, Margot DAUBACH,
Liesbet JECKEL (née ACHTERT), Herbert PIETSCH,
Eva JONISCHKEIT (née SCHARLACH),
Gert Adolf Arthur FREIHERR v. BUDDENBROCK,
Christa REMS (née SMOLNIK), Wolfgang MUCHE,
Margot ANSORGE, Günter SPIEKERMANN, Emmi NOLTE,
Hermann OPIOLLA, Wolfgang KÖNIG, Günther ERDMANN,
Brigitte KOSCHANY, Karl NOACK,
Erika GROKE (née KARBE),
Erika HAFEMANN, Margot STOOB (née SCHLÄGER)
Professor Dr. Heinz MARX, Albrecht HAUNSCHILD,
Christine JENTSCH-JOPPEN and Horst STEINER
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, 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
G.B. REFFI
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 3 December 1992
by the above applicants against Germany and registered on 27 July 1993
under file No. 22353/93;
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 thirty-one applicants are all German citizens, living in
Leipzig. They are represented by Mr. Thorsten Golf, a lawyer
practising in Leipzig.
The facts as submitted by the applicants may be summarised as
follows.
The applicants have lost properties in consequence of World
War II. The properties were situated on former German and now Polish
territory. They were confiscated after World War II by the Polish
authorities.
The present border between Germany and Poland was subject to the
German-Polish Border Treaty (Deutsch-Polnischer Grenzvertrag) concluded
on 17 October 1991.
A constitutional complaint, lodged by former property owners
other than the present applicants against this Border Treaty as well
as the Act of Ratification related to it, was rejected by a panel of
three judges of the Federal Constitutional Court (Bundes-
verfassungsgericht) on 5 June 1992 as being inadmissible, there being
no appearance of a violation of constitutional rights.
It is stated in the decision that the border treaty itself does
not contain any regulation on former German property, in particular it
could not be interpreted as a recognition by Germany of prior
expropriation measures effected by Polish authorities. Article 3 of
the treaty only contained a declaration to the effect that the Federal
Republic of Germany did not have any territorial claims vis-à-vis the
Republic of Poland. This declaration did not contain any express or
tacit renouncement with regard to property rights or claims of private
persons.
Nor had the treaty the effect of legalising expropriations
carried out by a foreign state within its own sovereign power.
According to the territorial principle, expropriations are effective
to the extent they are carried out under the territorial sovereignty
of the expropriating state. Foreign expropriations may only be limited
by the notion of "ordre publique" which however only applied to the
extent that there were sufficient links to the domestic territory and
the present time (hinreichende Inlands-und Gegenwartsbeziehung). The
fact that an expropriation was effected without payment of compensation
or in violation of other domestic equity principles (inländische
Gerechtigkeitsvorstellung) did not render foreign expropriations
ineffective. It could be left open whether from the point of view of
German law the expropriations had to be considered as legally binding
even before the coming into force of the border treaty. Even if that
question were to be answered in the negative the conclusion of the
border treaty would not have changed such a legal position because the
treaty did not have retroactive effect on territorial sovereignty. Its
border regulation related to the present and the future. The parties
to the treaty recognise in Article 1 the border line existing between
them in order to define the borders of the united Germany for the
present and the future. By ending the open question of the border 45
years after the end of World War II the parties intended to remove an
obstacle to the development of long lasting peaceful and friendly
relations and to reconciliation between the two peoples. In any event
the validity of the expropriation measures depended on the
circumstances prevailing at the relevant time.
Consequently the proprietorial position of the complainants had
in no way been affected by the border treaty. Their alleged claim for
restitution or compensation had neither before nor after the conclusion
of the border treaty been recognised by the Polish authorities.
Furthermore it was not a matter for the Federal Constitutional Court
to give a legal assessment on the basis of the constitutional law of
the Federal Republic in relation to events that occurred in 1945 and
thereafter under Polish administration.
The Federal Constitutional Court further rejected the applicants'
argument that the Federal Republic had an obligation to see to it that
they reobtained their property, or compensation for its loss. The
court pointed out that the individual citizen in principle had no claim
under constitutional law obliging the legislator to act in his or her
interests. There were also no particular circumstances which could
have created such an obligation from the point of view of
constitutional law. Such an obligation could not be derived from
Article 14 (3) second sentence of the German constitution (providing
the principle of compensation in case of expropriation) because the
expropriations in question had not been effected by the German
legislator. Also the principle of social solidarity (sozialstaatliche
Gründe) could not be invoked by the applicants. This principle
required that burdens imposed on a state community but affecting only
particular groups at random should be spread in an equitable manner.
However, this obligation had been respected by the legislator as all
persons whose property had been expropriated had received financial
compensation under the equalisation legislation (Lastenausgleich). A
claim for full compensation could however, not be derived from the
principle of social solidarity.
Insofar as the complainants had argued that the Federal
Government had violated its obligation to protect their legitimate
interests vis-à-vis foreign states, the Federal Constitutional Court
pointed out that such obligation was principally imposed on German
diplomatic representations abroad which had to protect German nationals
in concrete situations. With regard to the conclusion of international
agreements of a general political nature the Federal Government enjoyed
extensive discretionary power, limited mainly by the necessity to
respect the position of the treaty partner. Therefore a constitutional
complaint aimed at the finding of the unconstitutionality of certain
regulations in international treaties was inadmissible as the interests
of the general public prevailed in such cases over the interests of
individuals or a group of individuals.
Insofar as the applicants had argued that they were being
discriminated against by comparison with citizens whose property had
been expropriated by the authorities of the former GDR and who had now
been granted restitution of their property or compensation the Federal
Constitutional Court considered that the factual situations were not
comparable.
COMPLAINTS
The applicants maintain that the Polish-German Border Treaty and
the Act endorsing it violate their rights under Article 1 of Protocol
No. 1. They submit that the confiscation of their properties as well
as the expulsion of Germans from former German territories violated
cogent international law. Therefore the German Government, by signing
the Treaty in question, also violated international law as it thereby
renounced without the consent of the population concerned to German
territory and the German properties there situated. In their opinion
the international law aspect was overlooked by the Federal
Constitutional Court in its decision of 5 June 1992 and in view of this
decision there was no longer any effective domestic remedy.
THE LAW
The present application concerns the same subject matter as
application no. 24928/94, namely the complaint that the ratification
by the Federal Republic of Germany of the German-Polish Border Treaty
of 17 October 1991 had the effect of depriving the applicants
definitely of the ownership of property they allegedly possessed before
1945 in regions which are now part of Polish territory. They invoke
Article 1 para. 1 of Protocol No. 1 (P1-1-1) which reads:
"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 Commission rejected application No. 24928/94 on
30 November 1994. It referred to the reasons stated in a decision of
4 October 1977 rejecting a similar application relating to the Warsaw
Treaty of 7 December 1970 in which the Federal Republic had already
recognised the western frontier of Poland, subject to a general
reservation in Article 4 of that treaty.
Having also regard to the Hague Convention on the laws and
customs of war, the Commission found in its decision of 4 October 1977:
"The property right claimed by the applicants has not been
susceptible of effective exercise for more than thirty years,
following the confiscation announced by the Polish authorities.
Moreover the extent to which the Hague Convention was binding on
the Polish Government before 1970 either directly or by virtue
of general international law is doubtful. Equally doubtful is
the question whether the rules set forth in that Convention,
which govern the behaviour of belligerent states, can be invoked
by individuals with reference to acts performed subsequent to the
end of hostilities. Finally, doubt also surrounds the question
whether an act allegedly performed in violation of the Hague
Convention must be deemed null and void, or whether it merely
obliges the state performing it to pay compensation where
appropriate (Article 3 of the Hague Convention 1907).
Following the confiscation decision taken by the Polish
authorities, the applicants may have placed some hope of
recognition of the survival of the property rights in certain
legal arguments including the one discussed above. The
ratification of the Treaties of Moscow and Warsaw by the Federal
Republic has admittedly made it harder to use this latter
argument. In this regard, however, in as far as the effects of
the ratification go, both before and after it, the existence of
the applicants' property right was almost equally uncertain and
the exercise of such right equally impossible.
Further the Commission takes the view that a violation of
Article 1 of Protocol No. 1 (P1-1) can be envisaged only if there
exists a direct and sufficient causal relationship between the
act complained of (in this case ratification of the treaties by
the Federal Republic of Germany) and the loss to the right to
which claim is laid. The Commission considers that in this case
the applicants have not demonstrated the existence of such a
relationship either.
It follows that in this point the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention." (Nos. 7655-57/76, D.R. 12, p. 111 [128])."
The Commission considered in its decision of 30 November 1994
that the same reasons applied to the matter raised in application
no. 24928/94. It pointed out in addition
"even assuming that there exists a positive obligation on the
part of a member state to give protection to its citizens against
violations of fundamental rights, it agrees with the Federal
Constitutional Court that as far as international treaties are
concerned the contracting parties enjoy large discretionary power
which is by its nature limited to reaching results acceptable for
the contracting parties. The Commission notes that the Federal
Constitutional Court stated that the final recognition of the
border between the two states and of the sovereignty of Poland
in relation to these former German territories did not relate to
property rights or claims of private persons. The Commission
agrees with the Federal Constitutional Court findings that the
general interest of establishing normal and friendly relations
with a neighbouring state prevails over the individual interests
at stake in the present matter."
The Commission had regard to the arguments submitted in support
of the present application. It finds however no reason to divert from
its earlier jurisprudence.
It follows that the application likewise has to be rejected as
being 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 President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy