AS TO THE ADMISSIBILITY OF
Application No. 34197/96
by Oda Kremer-Viereck
and Helge Viereck
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 2 December 1996
by Oda Kremer-Viereck and Helge Viereck against Germany and registered
on 17 December 1996 under file No. 34197/96;
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 first applicant, born in 1937, is resident in Limburg. The
second applicant, born in 1940, is resident in Berlin. Both are German
nationals. In the proceedings before the Commission, they are
represented by Mr T. Gertner, a lawyer practising in Koblenz.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
A. Particular circumstances of the case
The applicants are the legal successors of a real property owner
whose property was expropriated by operation of law and transferred
into state-owned property (Volkseigentum) connection with the land
reform carried out between 1945 and 1949 in the former Soviet-occupied
zone of Germany. The expropriation also extended to movable property
on the premises such as household effects.
On 6 September 1994 the Neubrandenburg Regional Court
(Landgericht) dismissed the applicants' suit for rectification of the
land register. The Regional Court found that the entry in the land
register as regards the property right in question was correct.
Referring to the case-law of the Federal Constitutional Court
(Bundesverfassungsgericht), the Regional Court considered that the
property in question had been expropriated by operation of law by
Article 2 para. 3 of the Mecklenburg-Vorpommern Decree on Land Reform
(Verordnung über die Bodenreform) of 5 September 1945 which applied to
all estates of more than 100 hectares. The expropriation had been
confirmed by No. 2 of the Soviet Military Administration Order No. 110
of 22 October 1945 and was therefore imputable to the Soviet occupation
authorities. This loss of property was legally binding.
On 18 April 1996 the Federal Court of Justice (Bundesgerichtshof)
refused to entertain the applicants' appeal on points of law (Revision)
on the ground that it raised no legal issue of fundamental importance
and offered no prospect of success.
In its decision, the Federal Court of Justice, referring to its
case-law, noted that the validity of the expropriations carried out by
the land reform decrees between 1945 and 1949 was not subject to
control by standards of administrative law currently in force.
Furthermore, in the Court's view, a civil law suit based on an alleged
property right was barred by the priority of public law provisions
governing the compensation for expropriations carried out in the former
Soviet occupied zone of Germany. However, the suit could not be
referred to the Administrative Courts because the plaintiffs had not
claimed that they had applied for restitution. Moreover, the said suit
would have to be brought against another different defendant.
On 2 July 1996 the Federal Constitutional Court refused to
entertain the applicants' constitutional complaint (Verfassungsbe-
schwerde).
B. Relevant law
According to the Joint Declaration on outstanding property issues
(Gemeinsame Erklärung zur Regelung offener Vermögensfragen) made on
15 June 1990 by the Governments of the Federal Republic of Germany and
the German Democratic Republic, which is a constituent part of the
Treaty on German Unification of 31 August 1990 (Einigungsvertrag),
"expropriations carried out on the basis of occupation law or the
authority resulting from occupational power (1945 and 1949)"
("Enteignungen auf besatzungsrechtlicher bzw. besatzungshoheitlicher
Grundlage (1945-1949)") shall not be reversed.
The international matters concerning German unification were
agreed upon in negotiations between the two German States and the four
Allied Powers. In the Treaty of 12 September 1990 on the Final
Settlement with respect to Germany, the sovereignty of a united Germany
was recognised. In connection with the signing of this Treaty the
Ministers for Foreign Affairs of the former German Democratic Republic
and of the Federal Republic of Germany addressed a Joint Letter
(Gemeinsamer Brief) to the Foreign Ministers of the Four Powers
confirming the property regulation reached in the Joint Declaration of
15 June 1990 and aimed at being incorporated in the Unification Treaty.
The Act Regulating Unresolved Property Questions (Gesetz zur
Regelung offener Vermögensfragen) of 12 September 1990, as amended in
particular in March 1991, December 1994 and August 1997, reaffirms the
principle that there should be no restitution of property expropriated
on the basis of occupation law or the authority resulting from
occupational power in S. 1 para. 8 (a). With regard to other
expropriations effected in the German Democratic Republic without
compensation, this Act provides, in principle, for the return of
confiscated property, including businesses, where this is still
possible and does not violate user rights acquired in good faith. If
a return is excluded compensation has to be paid in accordance with
SS. 6(7) and SS. 9 et seq., while for certain cases mentioned in
S. 4(1) and (2) new legislation was envisaged.
On 27 September 1994 the Federal German Parliament adopted two
laws regulating the legal consequences of expropriations in the
territory of the former German Democratic Republic in respect of which
the restitution of property was excluded. Both laws entered into force
on 1 December 1994. They are the Compensation Act (Entschädigungs-
gesetz) concerning expropriations effected in the German Democratic
Republic after 1949 in respect of which the 1990 Act regulating
unresolved property questions had reserved further legislation; and the
Equalisation Act (Entschädigungs- und Ausgleichsleistungsgesetz)
providing for equalisation payments to natural persons who had been
expropriated on the basis of occupation law or the authority resulting
from occupational power between 1945 and 1949.
The Federal Constitutional Court, in leading decisions of
23 April 1991 and 18 April 1996, respectively, held that the amendments
to the German Basic Law on the basis of the German Unification Treaty,
including the Joint Declaration, excluding restitution of property
expropriated on the basis of occupation law or the authority resulting
from occupational power, were compatible with Article 79 para. 3 of the
Basic Law concerning the limits to permissible amendments to the Basic
Law.
COMPLAINTS
1. The applicants complain that the refusal of the German
authorities, after German unification, to return to them the unlawfully
confiscated property which had been expropriated by operation of law
at the instance of the Soviet occupation authorities in 1945 amounts
to a breach of Article 1 of Protocol No. 1 to the Convention.
2. The applicants further complain about discrimination against them
as expropriations effected after 1949 resulted in restitution or full
compensation.
THE LAW
1. The applicants complain that the non-restitution of the property
confiscated on the basis of the authority resulting from Soviet
occupational power between 1945 and 1949 violates their right to
peaceful enjoyment of their possessions, in accordance with Article 1
of Protocol No. 1 (P1-1) to the Convention .
This provision reads as follows:
"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.
2. 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 to secure the payment of taxes or other
contributions or penalties."
The Commission first recalls its decisions of 4 March 1996
concerning Applications Nos. 18890/91, 19048/91, 19049/91, 19342/92 and
19549/92 (Mayer et al. v. Germany, D.R. 85-A, p. 5) and of 24 February
1997 concerning Application No. 19918/92 (Geidel et al. v. Germany,
unpublished), where similar complaints under Article 1 of Protocol
No. 1 (P1-1) were declared inadmissible. The relevant passages of the
decision of 4 March 1996 in respect of the incompatibility ratione
personae and ratione temporis of these complaints read as follows:
"a) The Commission first notes that the original deprivation of
the applicants' property occurred at the instance of the Soviet
occupying forces in Germany, more than forty years ago, at a time
when the Federal Republic of Germany did not even exist. Even if
it is true that, as the Federal Constitutional Court observed in
its decision of 23 April 1991, the authorities of both German
States subsequently recognized the validity of the expropriations
in question, the German authorities can in no way be held
responsible for the deprivation of property as such, which is not
imputable to them. In this respect the Commission lacks
competence, ratione personae, to examine the circumstances in
which the expropriations were carried out.
b) The Commission further observes that the expropriations
took place before the entry into force of the Convention (3
September 1953) and before the ratification of Protocol No. 1 by
the Federal Republic of Germany (13 February 1957). It is true
that they continued to produce effect after the above dates and
also after 3 October 1990, when the Unification Treaty entered
into force and when the territory where the property concerned
was situated became part of the Federal Republic of Germany to
which the Convention and its Protocols are applicable. However,
the Commission recalls its constant 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' (cf. No. 7742/76, Dec. 4.7.78, D.R. 14,
p. 146)."
The Commission, in the light of the Court's Loizidou v. Turkey
(Merits) judgment of 18 December 1996 (Reports of Judgments and
Decisions 1996, p. 2215, para. 41) which concerned a continuous denial
of access to property in northern Cyprus, further developed this
reasoning in a subsequent case concerning a similar expropriation. The
relevant part of this decision (No. 19918/92, Dec. 24.2.97,
unpublished) reads as follows:
"In the case of Loizidou v. Turkey, there was, from the
outset, an interference with property rights in breach of
Article 1 of Protocol No. 1 (P1-1), engaging the responsibility
of Turkey, which also was held responsible for a continuing
violation of the said provision on account of the complete
negation of Mrs Loizidou's property rights in the form of a total
and continuous denial of access and a purported expropriation
without compensation (cf. Loizidou (Merits) judgment, op. cit.,
paras. 48-64).
In the present case, the deprivation of the applicant's
property occurred at the instance of the Soviet occupying forces
in Germany at a time when the Federal Republic of Germany had not
yet been established and the Convention as well as Protocol No. 1
had not yet entered into force. Between 1945 and 1949 there could
not be any interference with property rights in breach of
Article 1 of Protocol No. 1 (P1-1) which could entail the
responsibility of the Federal Republic of Germany and give rise
to a continuing violation."
As regards the incompatibility ratione materiae of the
above-mentioned complaints, the relevant passages of the decision of
4 March 1996, as confirmed in the decision of 24 February 1997, read
as follows:
"c) The applicants claim that the regulations of the
Unification Treaty interfered with their rights under Article 1
of Protocol No. 1 (P1-1) because in their submission they
retained an entitlement to the property in question, the
expropriations carried out between 1945 and 1949 having allegedly
been effected contrary to the rules of public international law.
In this respect the question arises whether the international
instruments governing the behaviour of belligerent States, such
as the Hague Convention on the Laws and Customs of War, can be
invoked by individuals with reference to acts performed
subsequent to the end of hostilities. Doubts also exist in regard
to 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 responsible to pay compensation where
appropriate.
However that may be, in any event the applicants could not
claim to be victims of a violation of their rights under
Article 1 of Protocol No. 1 (P1-1) unless the measure complained
of affected their 'possessions' or their 'property' within the
meaning of this provision. A person complaining of an
interference with his property must show that such right existed
(No. 7694/76, Dec. 14.10.77, D.R. 12, p. 131).
In this respect, the Commission recalls the constant case-
law of the Convention organs according to which "possessions" may
be either 'existing possessions' (cf. Eur. Court HR, Van der
Mussele v. Belgium judgment of 23 November 1983, Series A no. 70,
p. 23, para. 48) or valuable assets, including claims, in respect
of which the applicant can argue that he has at least a
"legitimate expectation" that they will realise (cf. Eur. Court
HR, Pine Valley Developments Ltd and Others v. Ireland judgment
of 29 November 1991, Series A no. 222, p. 23, para. 51, and
Pressos Compania Naviera S.A. and Others v. Belgium judgment of
20 November 1995, Series A no. 332, p. 21, para. 31). By
contrast, the hope of recognition of the survival of a former
property right which has not been susceptible of effective
exercise for a long period (Nos. 7655-7657/76, Dec. 4.10.77,
D.R. 12, p. 111) or a conditional claim which has lapsed as a
result of the non-fulfilment of the condition (No. 7775/77,
Dec. 5.10.78, D.R. 15, p. 143) are not to be considered as
'possessions' within the meaning of Article 1 of Protocol No. 1
(P1-1).
It is clear that the present case does not concern any
'existing possessions' of the applicants. The applicants'
properties were expropriated a long time ago and the applicants
have been unable for decades to exercise any owners' rights in
respect of the property concerned. Despite the applicants' claim
that the expropriations were contrary to international law and
thus unlawful, it appears that in the German legal order these
expropriations were being considered as legally valid even before
the conclusion of the Unification Treaty. The provisions of the
Treaty cannot therefore be seen as legalising the deprivation of
the applicants' property and thereby as being the source of the
deprivation for the purposes of German law.
It remains to be examined whether the applicants could have
any 'legitimate expectation' to realise claims, either based on
a right to compensation for the loss of their property which
continued to exist until the entry into force of the Unification
Treaty and was affected thereby, or created by the fact that
public-law bodies of the Federal Republic of Germany acquired
part of the expropriated estates by virtue of the unification.
As regards any possible compensation claim generated by the
loss of the property, the Commission refers to its constant
jurisprudence according to which it is not competent ratione
temporis and ratione materiae to examine complaints relating to
the refusal or denial of compensation claims based on facts that
occurred prior to the entry into force of the Convention with
respect to the State concerned (cf. No. 7694/76, Dec. 14.10.77,
D.R. 12, p. 131; No. 7742/76, Dec. 4.7.78, D.R. 14, p. 146). The
Commission would add with regard to the particular facts of the
present case that the Federal Republic of Germany was not
responsible for the expropriations in question and that therefore
any compensation claims which might have existed prior to the
Unification Treaty would not have been directed against that
State.
As regards the existence of any claim based on the fact
that, in consequence of the unification, part of the property
concerned passed into the hands of public-law bodies of the
Federal Republic of Germany, the Commission notes the Federal
Constitutional Court's finding that despite this fact there
existed no claim under German law for the restitution of the
available properties and that this situation was, from the
viewpoint of constitutional law, unobjectionable. There is
nothing to show that this finding is arbitrary and incompatible
with the applicable provisions. In particular it does not appear
that the Federal Constitutional Court's conclusion was based on
the Unification Treaty itself and that, without the provisions
of that Treaty, the situation under German constitutional law
would have been judged otherwise. Therefore it cannot be said
that the Treaty interfered with any pre-existing legal position
of the applicants in this respect either.
It follows that the applicants had no 'existing
possessions' nor any legally recognized compensation claims when
the Unification Treaty came into force. In these circumstances
it cannot be found that the regulation of property questions in
the Unification Treaty amounted to an interference with any
rights of the applicants under Article 1 of Protocol No. 1
(P1-1)."
The Commission finds that the arguments advanced by the
applicants in the present case do not justify any other conclusions.
The applicants mainly submit that the expropriation carried out
in 1945 by operation of law was unlawful under the then applicable
domestic provisions issued by the Soviet occupation authorities which
allegedly allowed the transfer of property from one private owner to
another but not the mere expropriation of a former owner in favour of
the State. The land reform decree, though, did not designate a new
owner; it only declared certain categories of property (including the
applicants') to be "expropriated". The applicants therefore consider
that they retained an entitlement to the property in question, namely
their property right. They argue that they were finally deprived of
this property right by the decision of the Federal Court of Justice
which found the civil law claim for rectification of the land register
to be superseded by S. 1 para. 8 (a) of the Act Regulating Unresolved
Property Questions, excluding restitution of property expropriated on
the basis of occupation law or the authority resulting from the
occupational power.
The Commission observes that the question of the unlawfulness of
the expropriation measures in 1945 is not within its jurisdiction
ratione temporis. Having occurred before the entry into force of the
Convention, these measures could not, therefore, give rise to a
continuing breach of the Convention with effect as to the temporal
limitation of the competence of the Convention organs (cf. Eur. Court
HR, Loizidou judgment, op. cit., p. 2230, para. 41; Papamichalopoulos
v. Greece judgment of 24 June 1993, Series A no. 260-B, p. 69,
para. 40).
As to its competence ratione materiae, the Commission recalls
that the notion of "possessions", pursuant to Article 1 of Protocol
No. 1 (P1-1), refers to "existing possessions" or "legitimate
expectations".
In the present circumstances, where the Commission is not
competent to examine the lawfulness of the initial expropriation
measures, the fact that, for a period more than forty years, the
applicants had no factual possibility to exercise any powers or control
regarding the estate is decisive for the purposes of Article 1 of
Protocol No. 1 (P1-1). In 1990 the expropriated estate did not,
therefore, form part of the applicants' "existing possessions".
Furthermore, given the facts that the applicants had not been able to
exercise any ownership rights in respect of the property concerned for
more than forty years and did not have any legally recognised
compensation claim at the time of the conlusion of the German
Unification Treaty, they could not have had, at that time, any
"legitimate expectation" of the revival of their former property right.
Moreover, the Commission notes that the German courts were called
upon to decide about the applicants' civil law claim based on their
allegedly retained property right. The Regional Court, as confirmed
by the Federal Court of Justice, found that the applicants' predecessor
had lost the property regarding the estate in question when it was
expropriated and transferred into state-owned property under the 1945
Mecklenburg-Vorpommern Decree on Land Reform and the 1945 Soviet
Military Administration Order No. 110. Any claim for restitution of
property expropriated on the basis of occupation law or the authority
resulting from the occupational power (1945 until 1949) was exclusively
governed by the Act Regulating Unresolved Property Questions, the
application of which belongs to the jurisdiction of the Administrative
Courts. These conclusions do not disclose any arbitrariness.
This part of the application is therefore incompatible ratione
materiae with the provisions of the Convention and must be rejected
under Article 27 para. 2 (Art. 27-2).
2. The applicants further complain about discrimination against them
as expropriations effected after 1949 resulted in restitution or full
compensation.
The Commission has examined this complaint under Article 14 of
the Convention in conjunction with Article 1 of Protocol No. 1
(Art. 14+P1-1). Article 14 (Art. 14) of the Convention reads as
follows:
"The enjoyment of the rights and freedoms set forth in this
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 Commission recalls that Article 14 (Art. 14) complements the
other substantive provisions of the Convention and its Protocols. It
has no independent existence, since it has effect solely in relation
to the rights and freedoms safeguarded by those provisions. Although
the application of Article 14 (Art. 14) does not presuppose a breach
of one or more of those provisions - and to this extent it is
autonomous -, there can be no room for its application unless the
facts at issue fall within the ambit of one or more of the latter (Eur.
Court HR, Inze v. Austria judgment of 28 October 1987, Series A no.
126, p. 17, para. 36).
As the Commission has found above that Article 1 of Protocol
No. 1 (P1-1) is not applicable to the facts of which the applicants
complain, they cannot claim to have been discriminated against in the
enjoyment of their property rights within the meaning of this provision
(cf. Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series
A no. 31, p. 23, para. 50; Nos. 18890/91, 19048/91, 19049/91, 19342/92,
19549/92 (joined), Dec. 4.3.96, D.R. 85, p. 5; No. 19918/92, Dec.
24.2.97, unpublished).
This part of the application must therefore also be rejected,
according to Article 27 para. 2 (Art. 27-2), as being incompatible with
the provisions of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy