SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 48662/99
by Josseline RIEDL-RIEDENSTEIN and Others
against Germany
The European Court of Human Rights, sitting on 22 January 2002 as a Chamber composed of
MM.J.-P. Costa, President,
A.B. Baka,
G. Ress,
Gaukur Jörundsson,
K. Jungwiert,
V. Butkevych,
MrsW. Thomassen, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced on 1 February 1999 and registered on 8 June 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Josseline Riedl-Riedenstein, Mr Viktor-Gottfried Riedl-Riedenstein, her husband, and Ms Maria Scholtz, the second applicant’s sister, are Austrian nationals, born in 1934, 1916 and 1921 respectively. The first two applicants are living in Niederkreuzstetten, and the third applicant in Vienna. They are represented before the Court by Mr Erich Proksch, a lawyer practising in Vienna, along with Mr Hans-Jochen Moser and Ms Sylvia Moser, lawyers practising in Baden-Baden (Germany). The respondent Government are represented by Mr K. Stoltenberg, Ministerialdirigent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
According to the applicants, the following shares belonged to the Riedl-Riedenstein family as from September 1944 up until their seizure by the authorities of the then Republic of Czechoslovakia in the summer of 1945: shares in I.G. Farben worth 410.000 Reichsmark (RM), shares in Dresdner Bank worth 142.000 RM and shares in Daimler Benz worth 154.000 RM. The applicants claim that in September 1944 the ownership of these securities, which had belonged originally to the mother of the second and third applicants, was transferred as a gift to the third applicant by her father, who put her initials on them. The shares were kept in the family castle in Aich (now Doubi) near Karlsbad until their seizure.
On 5 November 1965 the third applicant filed a claim for compensation (Bereinigung) with the Federal Compensation Office (Bundesausgleichsamt, “the Compensation Office”) set up under the four Laws on the settlement of stock issues (Wertpapierbereinigungsgesetze) which were enacted in Germany between 1949 and 1964 for the purpose of providing compensation to the former owners of securities which were lost or destroyed during the War or just after it. The claim was dismissed by a decision dated 20 December 1965, which was not appealed against by the applicant.
On 18 December 1970 the third applicant filed another claim for compensation concerning the same shares. It was dismissed on 11 February 1971 by a decision of the Compensation Office, which was not appealed against either.
On 17 February 1976 the first and third applicants filed another claim with the Compensation Office, relating to the same shares. On 16 June 1976 the first applicant requested the Office not to make any decision until the documents submitted in support of the claim were sufficient to allow for a positive decision. Thereupon counsel for the first and third applicants orally agreed on 6 September 1977 with the President of the Compensation Office that, in view of further investigations to be carried out, no decision on the claim should be made yet.
On 11 January 1978 the President of the Compensation Office (“the President”) informed counsel that a final decision was to be made and asked for his comments. After being informed on 19 January 1978 that the investigations were continuing, on 21 March the President granted an extension of the time-limit until 1 July 1978 for further evidence to be adduced. Following renewed requests by counsel for the two applicants, the time-limit was successively extended until 31 October 1978, 31 January 1979 and 31 May 1979. In response to an inquiry by the President dated 1 January 1980, counsel finally adduced further evidence on 5 May 1980. On 23 January 1981 the applicants’ claim was dismissed.
On 10 March 1981 counsel for the two applicants appealed. However, in accordance with an agreement reached on 19 May 1981 between counsel for the applicants and the President of the Compensation Office, a judicial decision was initially to be sought only in respect of the claim for compensation relating to the Dresdner Bank shares. It was not until 18 January 1991 that counsel for the applicants requested the Compensation Office to submit to the courts the compensation claims in respect of the Daimler Benz and IG Farben shares.
1. The proceedings concerning the Dresdner Bank shares
a) Proceedings before the Berlin Regional Court (171 KwpE 2/81) and the Berlin Court of Appeal (1 Wwp 469/82)
On 27 May 1981 the President of the Federal Compensation Office submitted for adjudication to the Securities Validation Chamber (Kammer für Wertpapierbereinigung) of the Berlin Regional Court the applicants’ claim for compensation in respect of the Dresdner Bank shares. On 12 August 1981 the Regional Court informed the applicants that the evidence thus far adduced was insufficient for the claim to succeed. This view was contested in two sets of written pleadings addressed to the court by counsel for the first applicant, who referred to the fact that the third applicant had transferred her claims to his client.
On 9 December 1981 the Securities Validation Chamber dismissed the first applicant’s claim on the ground, inter alia, that the origin and number of shares for which compensation was claimed could not be sufficiently determined on the basis of the evidence adduced by the applicants.
On 19 January 1982 counsel for the first applicant filed an appeal against this decision, which was put before the Berlin Court of Appeal (Kammergericht) on 25 January 1982. After the Compensation Office’s observations were received on 3 March 1982, counsel for the applicant asked the court for a stay of adjudication, as new evidence was to be obtained.
On 11 July 1983 counsel informed the court that additional material was still being sought, adding that a further delay would not be detrimental, “as the matter is surely not urgent”. In written pleadings dated 12 September 1983, counsel requested that the decision be postponed or the proceedings discontinued, until the litigation against the Republic of Czechoslovakia before the Vienne Regional Court concerning the restitution of securities had been concluded by a final judgment. The court initially granted the request.
On 29 June 1984 the second applicant asked for leave to join the proceedings. An exchange of further written pleadings followed.
On 1 October 1985, counsel for the first applicant notified the court of continued efforts to obtain further evidence.
On 24 May 1986 the rapporteur informed the parties that, despite the request made on 12 September 1983, the court would have to proceed.
On 11 November 1986 the Berlin Court of Appeal quashed the impugned decision of the Regional Court, remitting the case to the latter and rejecting the second applicant’s motion to join the proceedings.
b) Proceedings before the Berlin Regional Court (171 KWpE 1/86) and the Berlin Court of Appeal (1 Wwp 323/90)
On 2 April 1987 the Securities Validation Chamber asked counsel for the first applicant to obtain further certified statements (Eidesstattliche Erklärung) from witnesses.
On 2 July 1987 the first applicant withdrew her compensation claim.
On 14 July 1987 the first and second applicants were heard as witnesses.
On 30 September 1987 the Regional Court requested (Rechtshilfeersuchen) the Neu-Ulm District Court to hear another witness, Mr R. He was heard on 4 November 1987. A further exchange of written pleadings followed.
On 28 January 1988 the presiding judge asked the Dresdner Bank for further information and on 12 August 1988 he asked the third applicant to provide a written confirmation from the bank. Having received no response to these enquiries, the presiding judge announced that the court would soon proceed with the case.
In response, the third applicant requested that another witness, Mr Z., be heard. The hearing took place on 23 May 1989. On this occasion, the second applicant declared that he joined the proceedings (Beitritt). Another exchange of written pleadings followed.
On 9 November 1989 the compensation claim was dismissed by the Regional Court, on the ground, inter alia, that the origin and number of shares for which compensation was claimed could not be sufficiently determined on the basis of the evidence adduced by the applicants.
On 8 January 1990 counsel for the applicants filed immediate complaints (sofortige Beschwerden) against this decision. They were submitted to the Berlin Court of Appeal on 11 January 1990. The memorials dated 21 and 26 February 1990 provoked an intensive exchange of written pleadings between the parties.
On 18 September 1990 the rapporteur fixed 10 October as the deadline for the filing of concluding observations. On 27 September 1990 counsel for the second applicant asked for an extension of the time-limit, which was granted until 30 October 1990. The observations were received on 5 November 1990 and brought about a further exchange of correspondence between the parties and the court.
On 11 December 1990 the applicants’ complaints were dismissed.
c) Proceedings before the Berlin Regional Court (171 KWpE 1/92) and the Berlin Court of Appeal (1 Wwp 2118/93)
On 20 September 1991 the second and third applicants applied to the Berlin Regional Court for the proceedings to be reopened, as new evidence had been found. The application was rejected on 19 January 1993.
On 18 March 1993 the applicants appealed against this decision by way of an immediate complaint.
On 7 December 1993 the applicants’ complaint was dismissed.
On 5 January 1994 the applicants appealed to the Federal Constitutional Court, which on 22 June 1995 decided not to entertain their complaints.
d) Proceedings before the Berlin Regional Court (98/171 KWpE 1/94)
On 19 September 1994, the second applicant made another application to the Regional Court, in his own name and that of his sister, for the proceedings to be reopened. It was declared inadmissible on 7 February 1995.
e) Proceedings before the Berlin Regional Court (98/171 KWpE 1/95) and the Berlin Court of Appeal (1 Wwp 7441/95)
On 21 March 1995 the first and second applicants made another application to the Regional Court for the proceedings to be reopened, which was rejected on 13 June 1995. On 5 July 1995 they again applied for the reopening of the proceedings and the holding of an oral hearing.
On 21 September 1995 the first and second applicants filed an immediate complaint against the decision of 13 June 1995.
Further applications for the reopening of the proceedings were made by the applicants on 21 February 1996, 1 August 1996 and 4 February 1997.
On 14 October 1997 the Berlin Court of Appeal rejected the immediate complaints and the applications for the reopening of the proceedings.
On 27 November 1997 the applicants again asked for the proceedings to be reopened but their application was dismissed by the Court of Appeal for lack of jurisdiction.
On 29 December 1997 the Federal Constitutional Court decided not to entertain the applicants’ complaint made on 19 November 1997 against the decision of 14 October 1997.
f) Proceedings before the Berlin Regional Court (98/171 KWpE 1/96) and the Berlin Court of Appeal (1 Wwp 1991/98)
On 18 July and 1 August 1996 all three applicants requested the Berlin Regional Court to reopen the proceedings.
On 4 February 1997 counsel for the applicants filed a fresh application for the proceedings to be reopened.
On 25 November 1997 counsel for the applicants again filed an application for the reopening of the proceedings.
On 10 February 1998 the Securities Validation Chamber dismissed the applications for the reopening of the proceedings dated 21 February 1996, 18 July 1996, 1 August 1996, 4 February 1997 and 25 November 1997, for non-compliance with the five-year time-limit laid down in Section 586 § 2 of the Code of Civil Procedure, which started to run on 6 February 1991, being the date on which the decision of the Berlin Court of Appeal of 11 December 1990, the final decision in these various proceedings, became enforceable by being served upon the applicants. The Chamber added that, even if the said time-limit had been complied with, the new evidence adduced by the applicants in support of their applications did not meet the requirements laid down in Section 580 7 b) of the Code of Civil Procedure, and could not therefore justify the reopening the proceedings.
On 10 March 1998 counsel for the applicants filed an immediate complaint (sofortige Beschwerde) against this decision, which was submitted to the Berlin Court of Appeal on 17 March 1998.
On 22 September 1998 the Berlin Court of Appeal upheld the contested decision of the Securities Validation Chamber.
On 1 February 2000 the Federal Constitutional Court decided not to entertain the applicants’ constitutional complaint against the last-mentioned decision and the decision of the Berlin Regional Court of 10 February 1998.
g) Proceedings before the Berlin Regional Court (98 KWpE 2/99) and the Berlin Court of Appeal (1 Wwp 10102/99)
On 12 May 1999 the first and second applicants again requested that the proceedings before the Berlin Regional Court be reopened.
On 6 September 1999 the Securities Validation Chamber dismissed the application for the reopening of the proceedings for non-compliance with the five year time-limit laid down in Section 586 § 2 of the Code of Civil Procedure.
On 30 November 1999 counsel for the applicants filed an immediate complaint against this decision.
On 15 August 2000 the Berlin Court of Appeal upheld the decision of the Securities Validation Chamber. The applicants then filed a complaint with the Federal Constitutional Court, which appears to be still pending.
2. The proceedings concerning the Daimler Benz shares
a) Proceedings before the Stuttgart Regional Court (2 KfH O 62/91) and the Stuttgart Court of Appeal (11 W 17/92)
Following the applicants’ request of 18 January 1991 to the Compensation Office (see p. 3 above), counsel for the Federal Republic of Germany, presented in a letter dated 19 April 1991, the applicants’ application for compensation in respect of the Daimler Benz shares to the Securities Validation Chamber at the Stuttgart Regional Court.
An oral hearing was held before the Securities Validation Chamber on 4 September 1991, at which it was stated that the result of further investigations carried out at the National Bank of the Republic of Czechoslovakia should be awaited.
Upon the request of the presiding judge, counsel for the applicants submitted further documents on 16 January 1992.
On 13 March 1992 counsel for the applicants announced that he would file comments “in the forthcoming days”.
Not having received those comments, the Securities Validation Chamber decided on 10 April 1992 to reject the claim for compensation in respect of the Daimler Benz shares.
On 18 May 1992 counsel for the applicants filed an immediate complaint against this decision.
In written pleadings dated 30 July 1993, counsel for the applicants asked for the decision to be deferred, as new ways of obtaining evidence in the Czech Republic had been found. This request was renewed in a letter dated 10 November 1993.
On 20 May 1994 counsel for the applicants announced that new evidence would be adduced. This was done on 20 June 1994.
On 5 September 1994 the applicants’ immediate complaint was rejected by the Stuttgart Court of Appeal, for three different reasons. The court first noted that the claims for compensation had not been submitted by a person entitled to do so, as the third applicant could not be regarded as the former owner of the shares, since the mere inscription of her name on the blocks of shares by her father in September 1944 could not be considered a valid gift, either under Austrian or under German law. In addition, the claims had not been submitted before the expiry of the cut-off limit on 30 June 1976. Therefore, they were inadmissible. Due to the ineffectiveness of the alleged gift, the then still living mother of the second and third applicants would have to be regarded as the person entitled to file the claim. However, she had failed to do so.
Furthermore, the applicants could not provide prima facie evidence that they failed without fault to comply with the time-limit of 31 December 1964 for the registration of their claims. For this purpose, they would have had to demonstrate that, following the entry into force of the Act on the Validation of Securities, they had searched for the evidence which was accessible at that time. However, there was no substantiated submission of the applicants to this effect.
Finally, the applicants were not able to prove sufficiently their ownership of the shares in 1945, just before they were seized in Czechoslovakia. While the Law on the settlement of stock issues did not go as far as to require ownership to be fully established over the shares for which compensation was claimed, it did require such ownership to be made out to be very likely (überwiegende Wahrscheinlichkeit). This could not be achieved by oral testimony alone, even if proffered instead of an oath (eidesstattliche Versicherung). In support of such a claim, at least some original written evidence (urkundliche Unterstützung) had to be produced, which the applicants had failed to do in the instant case. This was all the more decisive, since a number of witnesses merely reported their knowledge from hearsay and could not provide any direct, reliable or precise information as to the shares involved.
On 7 October 1994 the second and third applicants filed a constitutional complaint (no. 1 BvR 574/00) against this decision and the decision of the Stuttgart Regional Court dated 10 April 1992.
On 10 February 1995 the applicants stated in a letter that they intended to apply for the proceedings before the Securities Validation Chamber to be reopened.
On 3 March 1995 the Federal Constitutional Court answered that it was assumed that the applicants wished the outcome of their request for a reopening of the proceedings to be awaited before their complaint was adjudicated and that, therefore, the processing of the complaint would be suspended.
As this letter remained unanswered, the Federal Constitutional Court informed the applicants on 15 September 1995 that the processing of their complaint continued to be suspended.
In written pleadings dated 25 September 1995, the applicants requested the processing of the complaint to be temporarily suspended, in compliance with the letter of 15 September 1995. Similar requests were made by the applicants in written submissions dated 9 January 1996, 26 July 1996, 4 March 1997 and 18 December 1997.
On 19 March 1999 the applicants forwarded new documentary evidence to the Federal Constitutional Court and renewed their request that the processing of the complaint be suspended until a decision had been made on their application for the reopening of the proceedings.
On 16 March 2000 the Presidency of the Federal Constitutional Court enquired with the applicants whether, in view of their application before the European Court of Human Rights, they still wished the processing of their constitutional complaint to be suspended. In reply, the applicants requested in a letter dated 22 March 2000 “a judicial decision or a formal processing of their submissions”.
On 26 August 2000 the applicants sent further documents to the Federal Constitutional Court.
On 9 November 2000 the Federal Constitutional Court decided not to entertain the applicants’ complaint on the ground, inter alia, that there was no indication in the file that the applicants had not been properly heard (rechtliches Gehör) by the lower courts.
b) Proceedings before the Stuttgart Regional Court (2 KfH O 94/92; 2 KfH O 18/95)
On 19 June 1992 counsel for the second and third applicants submitted to the Stuttgart Regional Court, as a protective measure, an application for the reopening of the proceedings.
On 7 February 1995 the Securities Validation Chamber decided to join the case with case no. 2 KfH O 149/94 (see below).
c) Proceedings before the Stuttgart Regional Court (2 KfH O 149/94) and the Stuttgart Court of Appeal (11 W 21/95)
On 19 September 1994 the second applicant filed another application for the reopening of the proceedings with the Stuttgart Regional Court.
On 21 March 1995 the applicants filed another application for the reopening of the proceedings, which was rejected on 16 June 1995.
On 14 July 1995 counsel for the applicants filed an immediate complaint against this decision.
The Stuttgart Court of Appeal rejected the immediate complaint on 22 March 1996, as none of the circumstances referred to in the complaint could be considered as new evidence fulfilling the requirements of Article 580 § 7 b) of the Code of Civil Procedure.
The applicants filed a constitutional complaint against the Stuttgart Court of Appeal decisions of 22 and 26 March 1996 (see below), which the Federal Constitutional Court decided on 6 November 2000 not to entertain.
d) Proceedings before the Stuttgart Regional Court (2 KfH O 102/95) and the Stuttgart Court of Appeal (11W 34/95)
On 5 July 1995 the first and second applicants filed another application for a reopening of the proceedings with the Stuttgart Regional Court, which was rejected on 30 August 1995.
On 6 December 1995, counsel for the applicants filed an immediate complaint against this decision.
On 26 March 1996 the Stuttgart Court of Appeal rejected the immediate complaint, on the ground that the document referred to in the complaint did not fulfil the requirements of Article 580 § 7 b) of the Code of Civil Procedure, it being only a written testimony drawn up after the oral hearing in the proceedings on the merits.
Against this decision, the applicants filed a constitutional complaint (see point c) above).
e) Proceedings before the Stuttgart Regional Court (2 KfH O 113/96) and the Stuttgart Court of Appeal (11W 8/97)
On 18 July and 1 August 1996, the three applicants filed further applications for the reopening of the proceedings before the Stuttgart Regional Court, which rejected them on 6 February 1997.
On 28 February 1997 counsel for the applicants filed an immediate complaint against this decision, combined with a further application for the proceedings to be reopened.
On 14 January 1998 the Stuttgart Court of Appeal rejected the applicants’ immediate complaint and their second-instance applications for the proceedings to be reopened.
On 19 February 1998 the applicants filed a constitutional complaint against the decisions of the Stuttgart Regional Court of 6 February 1997 and the Stuttgart Court of Appeal of 14 January 1998. On 6 January 1999 the Federal Constitutional Court decided not to entertain the complaint.
f) Proceedings before the Stuttgart Regional Court (2 KfH O 186/97) and the Stuttgart Court of Appeal (11 W 16/98)
On 16 December 1997 counsel for the three applicants filed another application with the Stuttgart Regional Court for the proceedings to be reopened.
On 16 March 1998 the Stuttgart Regional Court dismissed all pending applications.
On 4 May 1998 counsel for the applicants filed an immediate complaint against this decision. It was dismissed on 11 March 1999 by the Stuttgart Court of Appeal.
On 24 November 1999 the Federal Constitutional Court decided not to entertain the applicants’ complaint against the last-mentioned decision and the decision of the Stuttgart Regional Court of 16 March 1988.
g) Proceedings before the Stuttgart Regional Court (2 KfH O 49/99) and the Stuttgart Court of Appeal (11 W 17/99)
On 12 May 1999 the first and second applicants again applied to Stuttgart Regional Court for the proceedings to be reopened.
3. The proceedings concerning the IG Farben shares before the Frankfurt/Main Regional Court (WE 1/91) and the Frankfurt/Main Court of Appeal (20 W 466/92)
On 19 April 1991 the representative of the Federal Republic of Germany submitted the application for compensation in respect of the IG Farben shares to the Securities Validation Chamber at the Frankfurt/Main Regional Court for adjudication.
On 2 November 1992 the Securities Validation Chamber of the Frankfurt Regional Court dismissed the applicants’ claim as the applicants’ ownership of the shares in respect of which they requested compensation was not sufficiently plausible (glaubhaft).
On 25 November 1992 counsel for the applicants filed an immediate complaint against this decision.
On 30 July 1993 counsel for the applicants asked the court to defer its decision because new possibilities for obtaining evidence in the Czech Republic had arisen. He renewed this request on 12 November 1993.
On 5 July 1995, 18 July 1996 and 26 July 1996, counsel for the applicants and the applicants themselves made new applications for the proceedings to be reopened.
On 25 March 1998 the Frankfurt/Main Court of Appeal quashed the impugned decision and referred the matter back to the Regional Court.
On 29 November 1999 the Regional Court dismissed the applicants’ claim on the ground that the applicants’ ownership of the shares in respect of which they claimed compensation was not sufficiently plausible. No legal remedy was instituted against this decision.
B. Relevant domestic law and practice
Under the legislation relating to the validation of securities, the German securities system, which had been severely impaired by events during and after the War, was reformed between 1949 and 1964. Pursuant to section 3 of the Act on the Validation of Securities of 19 August 1949 [Wertpapierbereinigungsgesetz — WiGBl. 1949, 295; Annex 2] (“the 1949 Act”), most German securities were declared invalid. To replace the invalid securities, new collective certificates were issued under section 9, and subsequently individual certificates were issued under section 41 of the 1949 Act. Rights to these new securities were then allocated to the genuinely entitled persons in registration and verification proceedings, in accordance with sections 14 et seq. and sections 24 et seq. of the Act. When it came to tendering evidence, a distinction was drawn under section 23 of the 1949 Act between strict proof and prima facie evidence. However, section 22 of the 1949 Act required, in terms of prima facie evidence, the production first and foremost of official documents or bank certificates.
The Act to finalise the validation of securities (Viertes Gesetz zur Änderung und Ergänzung des Wertpapierbereinigungsgesetzes, BGBl. Part I, 1964, 45; Annex 1) of 28 January 1964 (“the 1964 Act”) ended the possibility of obtaining — following registration and verification — rights to securities with effect from 31 December 1964. The President of the Federal Compensation Office was instructed to sell those securities for which no rights had been established under the validation proceedings, and to place the proceeds in a compensation fund.
Under sections 15 et seq. of the 1964 Act, individuals unable to claim their rights to securities in validation proceedings prior to 31 December 1964 were entitled to compensation from the fund. Such entitlement was conditional on the prior (timely) registration of rights having been impossible through no fault of the applicant and on prima facie proof of the claim being provided later. The evidential requirements under the 1964 Act corresponded to those of the 1949 Act. A deadline of 30 June 1976 for the filing of compensation claims with the President of the Federal Compensation Office under sections 15 et seq. of the 1964 Act was imposed under section 11 of the Act to finalise the currency conversion (Gesetz zum Abschluss der Währungsumstellung) of 17 December 1975 (BGBI. Part I, 1975, 3123; Annex 3).
If the President of the Federal Compensation Office rejected a claim, the applicant could file a compensation claim with the Securities Validation Chambers set up at the Regional Courts, with jurisdiction in the geographical location of the headquarters of the company whose securities were at issue. Under the terms of Section 16, sub-section 4, of the 1964 Act, in conjunction with section 34, sub-section 1, of the 1949 Act, the sole legal remedy against a decision of the Securities Validation Chambers was an immediate complaint (sofortige Beschwerde) to the Court of Appeal. Section 16, sub-section 4, of the 1964 Act, in conjunction with section 61 of the 1949 Act, stipulated that the Act on non-contentious matters (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit) applied analogously to the proceedings.
COMPLAINTS
1. The applicants complain under Article 6 § 1 of the Convention about the length of the proceedings initiated by them under the Securities Validation legislation and about the failure of the Stuttgart Regional Court to hold a hearing satisfying the requirements of this provision.
2. They also complain under Article 1 of Protocol No. 1 to the Convention about the refusal of the German authorities to pay any compensation under this legislation for the shares which they claim belonged to them, but were seized in the course of post-War events.
THE LAW
A. Exhaustion of domestic remedies
Submissions of the parties
a) The Government
The Government submit, firstly, that the applicants did not exhaust the domestic remedies available in respect of their claims. As the guarantees laid down in Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 are also subject to the protection of Articles 2 § 1, 19 § 4, 20 § 3, 103 and 14 of the Constitution, the applicants ought to have filed a constitutional complaint in respect of each set of proceedings in which the domestic courts ruled on the merits of the cases. However, this was not done.
As regards the proceedings in respect of the Dresdner Bank shares, a final and binding decision was given by the Berlin Court of Appeal on 11 December 1990, but the applicants did not file a constitutional complaint against that decision. They merely filed constitutional complaints against the decisions of the Berlin Regional Court and Court of Appeal of 19 January 1993, 7 December 1993, 14 October 1997, 10 February 1998 and 22 September 1998, rejecting their applications for the proceedings to be reopened. However, these constitutional complaints cannot be considered to have also been directed against the Court of Appeal’s decision of 11 December 1990.
Proceedings instituted pursuant to Sections 578 et seq. of the Code of Civil Procedure with a view to having a case reopened, are independent and can lead, subject to very restrictive admissibility requirements, to a final and binding judgment being set aside and to a new hearing and decision on the merits. Although the reopening of the proceedings in practice can have the same effect as an appeal, it is an extraordinary, discretionary remedy. In these circumstances, the applicants’ constitutional complaints directed against the dismissal of their applications for reopening cannot be considered an adequate substitute for the constitutional complaint which they ought to have filed against the Court of Appeal’s decision of 11 December 1990. Domestic remedies have not therefore been exhausted in this respect.
As regards the proceedings in respect of the Daimler Benz shares, the Government concede that with the decision of the Federal Constitutional Court of 9 November 2000, domestic remedies were exhausted in respect of the proceedings instituted on 19 April 1991 before the Securities Validation Chamber at the Stuttgart Regional Court.
In respect of the IG Farben shares, the Government point out that the domestic remedies have not been exhausted, as no immediate complaint nor a constitutional complaint was filed against the Frankfurt Regional Court’s decision of 29 November 1999.
b) The applicants
The applicants refer to the great difficulties which they experienced in collecting the relevant evidence as to their ownership of the seized property during the communist regime in former Czechoslovakia. In their submission, it was not until this regime broke down and was replaced by democracy that they could gradually collect the evidence required to prove their claim. The applicants therefore had to have recourse several times to the special remedy of reopening proceedings, which could not, therefore, be considered an ineffective remedy for the purpose of Article 35 § 1 of the Convention.
The Court’s assessment
It is recalled that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case before the Court first to use the remedies provided by the national legal system. Consequently, States are dispensed from answering for their acts before they have had an opportunity to put matters right through their own legal system. Under this provision normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see the judgment of 16 September 1996 in the case of Akdivar and others v. Turkey, Reports of judgments and decisions 1996-IV, p. 1210, § 65).
IG Farben
As to this aspect of the case, it appears that the applicants did not avail themselves of any appeal against the Frankfurt Regional Court’s decision of 29 November 1999, be it an immediate complaint before the Frankfurt/Main Court of Appeal or a constitutional complaint before the Federal Constitutional Court. In the absence of any satisfactory explanation from the applicants why they refrained from doing so, and failing any indication that in the instant case those remedies would not have been accessible and effective, the Court finds that the domestic remedies have not been exhausted with regard to the compensation claim for the IG Farben shares.
Dresdner Bank
As far as the Dresdner Bank shares are concerned, the Court notes that the final decision on the merits of the applicants’ claim was given on 11 December 1990 by the Berlin Court of Appeal. No further appeal was filed against this decision by the applicants. Instead, they filed a number of applications to have the proceedings reopened.
In this connection, it is to be recalled that a request for re-opening a case cannot usually be regarded as an effective remedy within the meaning of Article 35 § 1 of the Convention (see mutatis mutandis, among other authorities, Väinö Uskela v. Sweden, no. 10537/83, dec. 10 October 1985, D.R. 44, p. 102). The Court notes that, whilst sometimes finding non-compliance with the five year time-limit laid down by Section 586 § 2 of the Code of Civil Procedure, some of the courts adjudicating the applicants’ requests nonetheless examined the new evidence adduced but found the share ownership claim insufficiently proved to justify re-opening the proceedings.
The evaluation of evidence and the interpretation of national law are necessarily matters for the domestic courts. They cannot be reviewed by the Court unless there is an indication that the judge has drawn grossly unfair or arbitrary conclusions from the facts before him or her (see, mutatis mutandis, Önsipahioglu v. Turkey (dec.), no. 29861/96, unpublished; Nemanova v. the Slovak Republic (dec), no. 32683/96, unpublished).
This cannot be said to have been the case here. On the basis of the evidence before them, the German courts concluded throughout that the applicants had not adequately established their ownership claim. The Court is of the opinion that the reasons on which they based this conclusion are sufficient to exclude the possibility that the evaluation of the evidence and the interpretation of domestic law were arbitrary.
Consequently the Court sees no reason to consider that, in view of the special circumstances invoked by the applicants, their requests for re-opening should be considered effective remedies which they were required to pursue in order to comply with Article 35 § 1 of the Convention.
It follows that the final decision for the purposes of Article 35 § 1 of the Convention is the decision which the Berlin Court of Appeal gave on 11 December 1990. As no constitutional complaint was filed against this decision with the Federal Constitutional Court, domestic remedies have not been exhausted in respect of the claim concerning the Dresdner Bank shares.
Consequently, the complaints in respect of the proceedings concerning the IG Farben and Dresdner Bank shares must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Compliance with the six month time-limit
Submissions of the parties
a) The Government
The Government also submit that in respect of the proceedings concerning, inter alia, the Daimler Benz shares, there has not been compliance with the six month time-limit laid down in Article 35 § 1 of the Convention.
They submit that the final decision is that of the Stuttgart Court of Appeal on 5 September 1994, from which the six month time-limit starts to run. It is true that on 7 October 1994 the applicants filed a constitutional complaint against this decision. However, they impeded a decision on this matter by making as many as six requests up to March 2000 for the Federal Constitutional Court to refrain from processing the complaint. In the Government’s opinion, the delays thus caused by the applicants cannot lead to an extension of the time-limit for filing an application before the Court. This would run counter to the intention and purpose of the time-limit contained in Article 35 § 1, which is in the interests of legal certainty and is intended to prevent past cases being called into question time and again without restriction. The six month time-limit for filing an application in respect of these shares has therefore expired.
b) The applicants
The applicants repeat that the reopening procedures were effective remedies which they were first obliged to pursue under Article 35 § 1 of the Convention. For this reason, they requested the Federal Constitutional Court to refrain from processing their complaint for as long as their search for evidence was incomplete. As this request was justified in the circumstances, it should have no adverse effect on the application of the six month time-limit laid down by Article 35 § 1. Consequently, this time-limit did not run until the date on which the Federal Constitutional Court’s decision of 9 November 2000 was served on them.
The Court’s assessment
The Court refers to its finding above in respect of the proceedings concerning the Dresdner Bank shares, i.e. that an application for re-opening proceedings cannot be considered an effective remedy within the meaning of Article 35 § 1 of the Convention. The Court sees no reason to come to another conclusion with regard to the applications concerning the Daimler Benz shares, as the applicants were no more successful in making out their ownership claim over these shares. It follows that the final decision in the proceedings relating to the Daimler Benz shares is the decision given on 9 November 2000 by the Federal Constitutional Court, which is after the present application was introduced.
In this respect, the Government contend that in view of the several suspension requests made by the applicants to the Federal Constitutional Court, the final decision within the meaning of Article 35 § 1 of the Convention should be the decision by which, on 5 September 1994, the Stuttgart Court of Appeal rejected the applicants’ immediate complaint. The Court is of the opinion that while such requests may be relevant in the assessment of the applicants’ contribution to the length of the proceedings (see below), they did not annul the effects of the proceedings before the Federal Constitutional Court for the purposes of Article 35 § 1, since the Federal Constitutional Court actually granted these requests. It follows that the Government’s objection relating to this part of the application must be rejected.
It therefore remains for the Court to examine the other aspects of the admissibility of the applicants’ complaints in respect of the proceedings concerning the Daimler Benz shares.
C. As to the applicants’ complaints in respect of the Daimler Benz shares
1. Article 6 § 1 of the Convention
The applicants complain about the length of the proceedings which they instituted to have the loss of their Daimler Benz shares compensated, and about the failure of the Stuttgart Regional Court to hold a proper oral hearing. They refer to Article 6 § 1 of the Convention, which reads:
“In the determination of his civil rights and obligations..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal...”
According to the Government, it is true that on 10 March 1981, the applicants applied for a judicial decision, following the dismissal of their applications for compensation by the Compensation Office on 23 January 1981. However, on 19 May 1981 counsel for the applicants agreed with the President of the Compensation Office that initially a judicial decision should only be obtained with respect to the application for compensation for the Dresdner Bank shares. The relevant period therefore only started to run with counsel for the applicants’ request of 18 January 1991 to the President of the Compensation Office also to submit to the Securities Validation Chamber the applications in respect of the Daimler Benz and IG Farben shares. It ended with the Federal Constitutional Court’s decision of 9 November 2000.
However, in the Government’s opinion, the major part of the period of time between the decision of the Stuttgart Court of Appeal of 5 September 1994 and the Federal Constitutional Court’s decision of 9 November 2000 cannot be taken into account, since at the applicants’ repeated request, the Federal Constitutional Court refrained from processing the applicants’ complaint. It was not until 22 march 2000 that the applicants formally requested that their complaint be processed. It then took the Federal Constitutional Court only 7 ½ months to do so. Since the proceedings before the Stuttgart Regional Court and Court of Appeal lasted almost 3 years and 8 months, the total length of the proceedings to be taken into account for the purpose of Article 6 § 1 of the Convention amounts to 4 years and 3 ½ months, which is reasonable in view of the fact that this duration is to a large extent attributable to the applicants’ conduct and that it is not possible to identify any interruption in the courts’ handling of the matter.
The applicants consider that the proceedings to be taken into account started to run on 5 November 1965, which is the date on which they filed their first claim for compensation with the Compensation Office, and ended with the Federal Constitutional Court’s decision dated 9 November 2000. Accordingly, in their submission, the proceedings lasted 35 years. In their opinion, the whole responsibility for this state of affairs lies with the German authorities who did everything they could to the benefit of the Treasury, including delaying the processing of the applications by all means, to dissuade the applicants from pursuing their claims.
The Court refers to its finding above, according to which the proceedings instituted with a view to having previous proceedings re-opened cannot be considered to have been effective remedies within the meaning of Article 35 § 1 of the Convention. Consequently, they cannot be considered to have been part of the proceedings relevant to Article 6 § 1 either. It follows that the only period to be examined by the Court ran from 18 January 1991 until 9 November 2000 (proceedings nos. 2 KfH O 62/91, 11 W 17/92 and BvR 574/00), which is nine years, nine months and twenty-two days.
According to the Court’s well-established case-law, the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to certain criteria, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among many other authorities, Zielinski and Pradal & Gonzalez and Others v. France [GC], n° 24846/94 and following, § 65, Reports 1999-VII). Only delays for which the State can be held responsible may justify a finding that a “reasonable time” has been exceeded (see, inter alia, the Monnet v. France judgment of 27 October 1993, Series A no. 273-A, p. 12, § 30).
In this respect, it is to be noted that between February 1995 and March 1999 the applicants made several requests to the Federal Constitutional Court to have the processing of their complaint dated 7 October 1994 suspended. It was not until 22 March 2000 that they formally asked for the suspension to be lifted, after the Presidency of the Federal Constitutional Court had inquired about their intentions in view of their application to the European Court of Human Rights.The German authorities cannot be held responsible for the period of time which had elapsed in the meantime. The remaining period involved before the Federal Constitutional Court cannot be said to be excessive.
As far as the proceedings before the Stuttgart Regional Court and Court of Appeal are concerned, the Court finds that the period to be considered is three years, seven months and eighteen days (from 18 January 1991 until 5 September 1994), insofar as it involves conduct which is imputable to the judicial authorities over two instances. No significant delays in the processing of the application can be detected here, given in particular the complexity of the questions at issue and the fact that the applicants several times requested the courts to defer their decision pending the applicants’ search of new evidence.
Consequently, having regard to all the circumstances of the case and in particular to the conduct of the applicants, the Court does not consider excessive the total length of the proceedings at issue. It follows that this part of the complaint is to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
As to the applicants’ complaint that no proper public hearing was held before the Stuttgart Regional Court (2 KfH 0 62/91), it appears, even if the applicants may be said to have exhausted domestic remedies, to be unfounded, as a public hearing was held by the Stuttgart Regional Court on 4 September 1991. In the absence of detailed submissions by the applicants as to why and to what extent this hearing did not satisfy the requirements of Article 6 § 1, the complaint is not sufficiently substantiated and is therefore to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. Article 1 of Protocol No. 1
The applicants also complain of a breach of Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“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 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 or to secure the payment of taxes or other contributions or penalties.”
In the Government’s opinion, there can be no violation of this provision as, according to the findings of the German courts, the applicants failed to prove that they had ever had any property rights over the shares at issue.
Referring to the Court’s judgment in the case of Beyeler v. Italy (no. 33202/96), the applicants submit that the German courts acted unfairly in that they first asked the applicants to provide more evidence in support of their claims and, after the applicants had done so, dismissed the claims on the ground that they had been submitted by the third applicant, who had failed to prove her former ownership of the shares concerned, whereas the claims filed by the two other applicants were declared belated and therefore inadmissible. In their opinion, this amounted to an expropriation of their shares carried out without any public interest, for the sole benefit of the German Treasury.
The Court recalls that an applicant can allege a violation of Article 1 of Protocol No. 1 only insofar as the impugned decisions related to his or her “possessions” within the meaning of this provision.
According to the established case-law of the Convention organs, “possessions” can be “existing possessions” or assets, including claims, in respect of which the applicant can argue that he/she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. In contrast, the mere hope of recognition of the survival of an old property right, which it has long been impossible to exercise effectively, cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1; nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see, among other authorities, Jan Malhous v. Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII; Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82-83, ECHR 2001).
The issue before the Court is not about the “expropriation” of the shares, as the present application is only directed against Germany, whereas it is undisputed that the shares were seized by the authorities of former Czechoslovakia in 1945, which seizure is outside the Court’s competence ratione personae and ratione temporis. Therefore, the proceedings did not relate to an “existing possession” of the applicants.
Rather, the applicants complain about the failure of the German authorities to provide compensation for the seized shares under the Law on the settlement of stock issues. It therefore remains to be examined whether the applicants had any “legitimate expectation” of realising their claim.
In this respect, it is to be noted that after a thorough examination of all aspects of the case made by the applicants, the Stuttgart Regional Court and Court of Appeal came to the conclusion that in the absence of any official documentary evidence, the applicants had not sufficiently established that they had had property rights over the shares in respect of which they were claiming compensation. As stated above, the evaluation of evidence and the interpretation of national law are necessarily matters for the domestic courts. The Court finds no indication that in the instant case, this conclusion was arbitrary or contrary to the relevant provisions of national law. In fact, the courts only gave effect to the provisions of the Law on the settlement of stock issues according to which the right to compensation was subject to the condition, inter alia, that the property rights in the shares at issue were sufficiently made out, which the applicants failed to do.
This being so, the applicants did not justify that they had any legitimate expectation of realising their claim to compensation. It follows that the German court decisions cannot be considered to have interfered with the applicant’s “possessions” within the meaning of Article 1 of Protocol No. 1.
Consequently, this complaint must be rejected, in accordance with Article 35 §§ 3 and 4, as being incompatible ratione materiae with the provisions of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy