AS TO THE ADMISSIBILITY OF
Application No. 27718/95
by Hermann NADLER and Erich RECKZIEGEL
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
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 20 February 1992
by Hermann NADLER and Erich RECKZIEGEL against Germany and registered
on 26 June 1995 under file No. 27718/95;
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, as they have been submitted by the applicants, may be
summarised as follows.
The applicants are both German nationals. The first applicant,
born in 1916, is resident in Düsseldorf. The second applicant, born in
1926, is resident at Wachtberg. In the proceedings before the
Commission, the second applicant is represented by the first applicant.
Following World War II, the applicants, Sudeten-Germans, had to
leave the territory of former Czechoslovakia and lost their properties,
which were confiscated by the former authorities of Czechoslovakia.
In 1973 Germany and former Czechoslovakia concluded a treaty on
their mutual relations (Vertrag über die gegenseitigen Beziehungen).
On 27 February 1992 Germany and the former Czech and Slovak Federal
Republic concluded a treaty on good neighbour relations and friendly
cooperation (Vertrag über gute Nachbarschaft und freundschaftliche
Zusammenarbeit).
On 29 September 1994 a panel of three judges of the Federal
Constitutional Court (Bundesverfassungsgericht) rejected the
constitutional complaint, lodged by inter alia the applicants against
this Border Treaty as well as the Act of Ratification related to it.
COMPLAINTS
1. The applicants complain that as Sudeten-Germans they had to leave
the territory of former Czechoslovakia and thereby lost their
properties following World War II. They invoke Articles 8, 14 of the
Convention, Article 1 of Protocol No. 1, Articles 3 and 4 of Protocol
No. 4 and Article 1 of Protocol No. 7.
2. The applicants further maintain that the respective treaties of
1973 and 1992 perpetuate this situation. They submit that their
expulsion following World War II and the confiscation of their
properties violated cogent international law. When concluding the
above treaties, the German Government had failed to protect their
interests in returning their former properties.
THE LAW
1. As regards the applicants' complaints about their expulsion from
former Czechoslovakia and the confiscation of their properties, the
Commission observes that the events in question relate to a period
prior to the entry into force of the Convention and its Protocols. It
follows that this part of the application is outside the competence
ratione temporis of the Commission and therefore incompatible with the
provisions of the Convention within the meaning of Article 27 para. 2
(Art. 27-2).
2. The applicants further maintain that the German Government, when
concluding the respective treaties of 1973 and 1992 with former
Czechoslovakia and the former Czech and Slovak Federal Republic,
perpetuated the above events and failed to protect their interests in
returning to their home regions and having their former properties
restored.
The Commission has examined these complaints under 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 has found in previous cases relating to the Warsaw
Treaty between Poland and Germany or the German-Polish Border Treaty
(No. 7655-57/76, Dec. 4.10.77, D.R. 12 p. 111; No. 24928/94,
Dec. 30.11.94 and No. 22353/93, Dec. 18.10.95, not published) that,
following the confiscation decisions in question, there may have been
some hope of recognition of the survival of property rights. The
conclusion of the respective Treaties by Germany may have made it
harder to use such arguments. However, the existence of any property
right and the ability of the applicants to exercise any such right was
almost as uncertain before the ratification of the treaties as it was
after their ratification. The Commission has noted in the above
mentioned decisions that none of the two treaties with Poland relate
to property question. The same is true for the Treaty of Moscow of
12 September 1990, the so called 2 + 4 Treaty between the Federal
Republic of Germany and the German Democratic Republic on the one side
and the Union of Soviet Socialist Republics, United Kingdom, United
States of America and France on the other side on the final settlement
in relation to Germany (No. 21591/93, Dec. 28.2.96, not published).
The same conclusions must be drawn in respect of the Treaty of
27 February 1992, between Germany and the (former) Czech and Slovak
Federal Republic, which deliberately did not refer to any property
question. Therefore, it cannot be deduced from this treaty that the
Federal Republic of Germany disposed of any property rights of their
citizens, if any such right still existed. The Commission found that
no causal relationship had been demonstrated between the act complained
of (in these cases ratification of the treaties by the Federal Republic
of Germany) and the loss of the right to which claim is laid. Finally,
even assuming that there existed a positive obligation on the part of
a member state to give protection to its citizens against violations
of fundamental rights, the Commission considered 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 and 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 found that nothing permitted it to
conclude that the German Government used its discretionary power in
weighing general and individual interests in an arbitrary manner.
The Commission has had regard to the arguments submitted in
support of the present application. It finds however no reason to
depart from its earlier jurisprudence.
It follows that this part of 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