AS TO THE ADMISSIBILITY OF
Application No. 35223/97
by Ingeborg PELTZER and Barbara von WERDER
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 19 February 1997
by Ingeborg PELTZER and Barbara von WERDER against Germany and
registered on 10 March 1997 under file No. 35223/97;
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 1939, is a German national. She is
resident in Frankfurt/Main. The second applicant is her only sister
Barbara von Werder, a German national born in 1936, resident in Mollie-
Margot (Switzerland). In the proceedings before the Commission, they
are represented by Mr. M. Peltzer, the first applicant's husband, and
Mr. K. Müller, both lawyers practising in Frankfurt/Main.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
A. Particular circumstances of the case
The applicants' late parents were owners of the manorial estate
"Karnitz", Rügen. Their property was expropriated in 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. Both applicants
claim to be the only legal successors of their late parents.
On 13 November 1992 the Schwerin Regional Office for the
Regulation of Unresolved Property Questions (Landesamt zur Regelung
offener Vermögensfragen) rejected the first applicant's request for
full restitution of the estate on her own behalf.
The decision was based on S. 1 para. 8 (a) of the Act
Regulating Unresolved Property Questions (Gesetz zur Regelung offener
Vermögensfragen), excluding the restitution of property expropriated
under Soviet occupation law or power between 1945 and 1949. This
provision was considered to be applicable to the real property in
question which had been expropriated by operation of law by a 1945 land
reform decree (Verordnung Nr. 19 der Landesverwaltung Mecklenburg über
die Bodenreform im Lande Mecklenburg vom 5.9.1945) applying to all
estates of more than 100 hectares.
On 5 October 1993 the Greifswald Administrative Court
(Verwaltungsgericht) dismissed the first applicant's suit against this
decision.
In its decision, the Administrative Court observed at the outset
that the first applicant had only submitted proof as to her legal
succession after her late mother who had initially owned an ideal share
of two thirds of the estate. The mere contention that the remaining one
third, initially owned by her late father, had upon his death passed
on to her mother and thus, upon the death of the mother, to the first
applicant, was not sufficient.
However, the Court found that this matter could be left open
because the expropriation had occurred under the authority of the
Soviet occupation power and S. 1 para. 8 (a) of the Act Regulating
Unresolved Property Questions excluded the restitution of such
property.
The Administrative Court, referring to two decisions of the
Federal Constitutional Court (Bundesverfassungsgericht) of
23 April 1991 and 15 April 1993, found that the exclusion from
restitution of this group of expropriations did not amount to a
violation of fundamental rights. As regards the first applicant's
argument that recent revelations had shown that the Soviet Union had
never regarded the non-restitution of property expropriated under its
occupation as a precondition for the German unification, the
Administrative Court, relying on the Federal Constitutional Court's
decision of 15 April 1993, considered that it was only competent to
review whether the Federal Government, at the time of the negotiations,
had arbitrarily misinterpreted the position of the Soviet Union. In
this respect, there was no indication of a violation of fundamental
rights on account of Article 41 para. 1 of the Unification Treaty. As
for the rest, the political discretion of the decision-making bodies
was not subject to judicial control.
On 1 September 1994 the Federal Administrative Court
(Bundesverwaltungsgericht) dismissed the first applicant's request for
leave to appeal on points of law (Nichtzulassungsbeschwerde).
On 22 August 1996 the Federal Constitutional Court refused to
entertain the first applicant's constitutional complaint
(Verfassungsbeschwerde). It referred to its previous case-law according
to which Article 143 para. 3 of the Basic Law and S. 1 para. 8 (a) of
the Act Regulating Unresolved Property Questions, both excluding the
restitution of property expropriated on the basis of Soviet
occupational power between 1945 and 1949, did not violate any
constitutional rights.
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
The applicants complain that the refusal of the German
authorities, after German unification, to return to them their
unlawfully confiscated property amounts to a breach of Article 1 of
Protocol No. 1 to the Convention. They criticize in particular the
case-law of the Commission, which, even in case of unlawful
expropriation, does not protect the former property rights if they had
not been susceptible of effective exercise for a long period of time.
THE LAW
The applicants complain that the non-restitution of their
property expropriated on the basis of the authority resulting from
Soviet occupational power between 1945 and 1949 violates their right
to peaceful enjoyment of their possessions under 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 applicants criticize the Commission's decision of
4 March 1996 concerning Applications Nos. 18890/91, 19048/91, 19049/91,
19342/92 and 19549/92 (D.R. 85-A, p. 5), 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
between 1945 and 1949 was unlawful both under public international law
and under the law of the Federal Republic of Germany. They therefore
consider that they retained an entitlement to the property in question
and that the Federal Republic of Germany unlawfully refused restitution
of this property as well as adequate compensation. In their view, the
Commission's line of reasoning, in its decision of 4 March 1996, namely
that former property which has not been susceptible of effective
exercise for a long period is not covered by the notion of
"possessions", would amount to recognising any unlawful situation on
the basis that it has lasted for a long period.
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).
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 which were regarded as legally valid by the German
authorities, the fact that, for a period of 45 years, the applicants
had no factual possibility to exercise any powers or control regarding
these estates 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 obtaining restitution or full compensation.
As regards the applicants' further submission that the Government of
the Federal Republic of Germany had given an assurance that, in case
of unification of Germany, the expropriated properties would be
restored, the Commission finds that political statements do not create
any "legitimate expectation" of obtaining restitution. In this
respect, the Commission notes that the German legislator had regard to
other relevant factors such as events which occurred subsequent to the
expropriations, the possible acquisition of vested rights by third
persons, and the public interest. Moreover, the Greifswald
Administrative Court, in the light of the case-law of the Federal
Constitutional Court, carefully examined the applicants' submissions,
including their contention that Soviet preconditions for German
unification, as invoked by the German Government, had never existed.
The German courts' reasoning does not disclose any appearance of
arbitrariness.
Therefore, there is no indication of a violation of Article 1 of
Protocol No. 1 (P1-1).
It follows that the application must be rejected in accordance
with Article 27 para. 2 (Art. 27-2) 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