WEBER v. GERMANY

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55878/00
by Susanne WEBER
against Germany

The European Court of Human Rights (Fifth Section), sitting on 23 October 2006 as a Chamber composed of:

MrP. Lorenzen, President,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Registrar,

Having regard to the above application lodged on 11 December 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Susanne Weber, is a German national who was born in 1951 and lives in Barntrup. The respondent Government are represented by their Deputy Agent, Mr H.–J. Behrens, Ministerialrat, of the Federal Ministry of Justice.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant’s late father was the owner of real estate located in Hoyerswerda in Saxony. In 1944 the German Reich seized that plot of land for the purpose of railway construction, but did not expropriate the land.
In 1948 the German State Railways intended to buy that plot of land, but the negotiations between the applicant’s father and the company failed. Following the foundation of the German Democratic Republic (“GDR”)
on 7 October 1949 the German State Railways (Deutsche Reichsbahn) of the GDR continued to use the land. The plot has a size of 3,099 square metres. At an unknown point of time the applicant’s father left Hoyerswerda.

At the time of the German reunification on 3 October 1990 the applicant’s father was listed as the real estate’s owner in the land register (Grundbuch). In 1991 the German State Railways and the applicant’s father again negotiated the purchase of the land and agreed on a purchase price of 247,920 Deutschmarks (DEM) (approximately 126,760 Euros (EUR)). However, the German State Railways of the former GDR withdrew its offer shortly before the signing of the contract.

Subsequently the German State Railways of the former GDR and the German State Railways of the Federal Republic of Germany (Deutsche Bundesbahn) merged to form the German State Railways Corporation (Deutsche Bahn AG), which is a State-owned company. The German State Railways Corporation continues to use the plot of land in question.
The applicant’s father passed away on 13 November 1994 and the applicant inherited the plot of land. A copy of the land register (Grundbuch) dated 3 June 2005 lists the applicant as the current owner.

The applicant does not pay property tax (Grundsteuer), but the German State Railways Corporation does.

1. The decision of the Bautzen Regional Court of 24 March 1995

The applicant brought an action for delivery of possession (Klage auf Herausgabe- rei vindicatio) against the German State Railways Corporation in the Bautzen Regional Court. On 24 March 1995 the Regional Court ordered the German State Railways Corporation to deliver (herausgeben) the real estate. The court held that the applicant’s father had never been expropriated and that the applicant was thus the owner. Furthermore,
it found that the applicant’s claim had not lapsed (ist nicht erloschen) according to the “Act for the General Settlement of Damages Caused by the War and the Collapse of the German Reich” (“Gesetz zur allgemeinen Regelung durch den Krieg und den Zusammenbruch des Deutschen Reichs entstandener Schäden – Allgemeines Kriegsfolgengesetz – hereinafter called the “General Settlement of Damages Act” – see “Relevant domestic law” below). According to section 1 of that act all claims against the German Reich or the German State Railways are excluded, but according to
section 19 claims of delivery of possession (Herausgabeansprüche) are to be satisfied by the successor of the German Reich and the German State Railways.

However, according to the German Unification Treaty of 1990 (Einigungsvertrag) only sections 1 and 2, and not section 19, of the aforementioned act were to apply in the territory of the former GDR
(neue Bundesländer - hereinafter called new Länder). Nevertheless, the Regional Court held that the aforementioned provisions had to be interpreted in conformity with the German Basic Law (Grundgesetz), and accordingly, the applicant’s claim could not be excluded.

2. The decision of the Dresden Court of Appeal of 13 November 1996

The Dresden Court of Appeal confirmed the lower court’s decision.
It held that the applicant was the owner and that the German State Railways Corporation possessed the real estate within the meaning of the General Settlement of Damages Act. The court considered that the pertinent provisions of the Unification Treaty could not be interpreted in accordance with the German Basic Law. However, it found that sections 19 and following of the General Settlement of Damages Act had to be applied by analogy. It pointed out that when deciding on the Unification Treaty the German Parliament had been of the opinion that section 19 was no longer needed as no such claims existed anymore. Therefore, the Parliament had overlooked that there was still a need for regulation of cases such as the present one. Hence sections 19 and following had to be applied by analogy, as there was no objective reason for treating the applicant’s case differently from one in which the real estate in question was located on the territory of the Federal Republic of Germany (“FRG”) prior to the German reunification (alte Bundesländer- hereinafter called old Länder). The court also pointed out that the applicant was not entitled to any compensation under current German Law for her loss of possession, as the regulations which awarded compensation for acts of the Nazi Regime required an act of expropriation.

While the proceedings were pending before the court, the German State Railways Corporation offered the applicant to buy the real estate for
8.00 DEM (approximately 4.09 EUR) per square metre, resulting in a purchase price of about 12,000 EUR. The applicant refused that offer.

3. The decision of the Federal Court of Justice of 3 July 1998

The Federal Court of Justice set aside the judgment of the Court of Appeal. It acknowledged that the applicant was the property’s owner (” die Klägerin ist Eigentümerin eines...Grundstücks”), but rejected her claim for delivery of possession.

The court found that section 19 of the General Settlement of Damages Act could not be applied by analogy as this would be contrary to the legislator’s will. From the pertinent provisions of the Unification Treaty it deduced that the legislator actually intended to treat the owners of real estate located in the old or new Länder differently. It found that, according to the travaux préparatoires, those provisions of the Unification Treaty were meant to be a final settlement of the question of the damages caused by the war and the collapse of the German Reich. The court concluded that the legislator had not wished to include claims such as in the present case, because it considered that there was no further need for regulation. Furthermore, the court found that there was no indication that the legislator might have erroneously overlooked that in some particular cases the need for regulation persisted. On the contrary, the legislator had accepted that in some cases the aim of the General Settlement of Damages Act could not be achieved.

The court held that the rejection of the applicant’s action for delivery of possession did not violate the German Basic Law for the following reasons. The exclusion of claims for delivery of possession did not fall within the ambit of Article 14 of the German Basic Law, which guarantees the right to property (see “Relevant domestic law” below). It doubted that the applicant still had a right protected by that provision. The real estate had been in possession (im Besitz) of the GDR for more than 40 years. Therefore,
it found that the applicant’s property had become an “empty shell”
(bloβe Hülse). In any event, Article 14 of the German Basic Law was not applicable as Article 135 § 2 of the German Basic Law was lex specialis in the present case (see “Relevant domestic law” below). It stipulates that the FRG can determine which liabilities of the GDR are to be satisfied.

The court pointed out that in the context of the German reunification similar questions had arisen as after the end of the Second World War.
In 1957 the Parliament of the FRG had passed the afore-mentioned General Settlement of Damages Act in order to determine the liabilities accumulated by the German Reich. To rectify the de facto bankruptcy of the German Reich, the FRG was in general allowed to repudiate the liabilities of the German Reich.

The Federal Court of Justice held that this reasoning could be applied to the situation subsequent to the German reunification, as far as it concerned the damages caused by the war and the collapse of the German Reich with which the GDR had not dealt. Therefore, the FRG was entitled to choose which liabilities it would fulfil. The court stressed that the legislator,
when assessing the State’s financial capacity in this respect, enjoyed a wide margin of appreciation.

The court furthermore held that the applicant had not been discriminated against contrary to Article 3 of the German Basic Law (see “Relevant domestic law” below). It pointed out that under GDR law the applicant’s right of ownership had already been diminished, as her real estate had been in public use during the entire time. Furthermore, there had been more than 40 years between the end of the war and the German reunification.
It concluded that the German legislator had had a wide margin of appreciation in this respect, in particular regarding the financing of the German reunification.

Lastly it found that even the fact that the applicant permanently lost the possession of her property while remaining proprietor did not make a difference. The court held that this had to be accepted (hinnehmen) by the applicant. It further denied any compensation under civil law for the continued use of the property by the German State Railways Corporation, stating that such claims had lapsed as well according to the General Settlement of Damages Act.

4. The decision of the Federal Constitutional Court of 4 August 1999

On 27 August 1998 the applicant lodged a constitutional complaint solely invoking Article 3 of the Basic Law (prohibition of discrimination).

On 4 August 1999 the Federal Constitutional Court refused to admit the applicant’s complaint against the judgment of the Federal Court of Justice and the above-mentioned provisions of the Unification Treaty.
It acknowledged that the applicant had suffered a disadvantage in comparison to owners whose property, located in the old Länder, had been seized by the German Reich during the war. However, the court found that this disadvantage did not breach Article 3 of the German Basic Law,
as there were objective reasons for it. It found that the Second World War had led to the establishment of two German States with different forms of Government and social orders. Each State had dealt with the damages caused by the war and the collapse of the German Reich in a different way and was responsible for those caused in its territory. Therefore, the FRG was under no obligation to compensate for damages which had not been taken care of by the GDR. Moreover, the court found that the FRG would have been administratively and financially overstrained with that task in any event. It concluded that the disadvantage suffered by the applicant was reasonable (zumutbar), in particular because, more than 40 years after the end of the Second World War, the applicant could not expect to ever resume possession of her property again.

B. Relevant domestic law

1. The Act for the General Settlement of Damages Caused by the War and the Collapse of the German Reich of 5 November 1957

The relevant provisions read as follows:

Section 1

Forfeiture of Claims

“(1) Claims againstthe German Reich, including the separate estates of the German Railways (Deutsche Reichsbahn) and the German Post (Deutsche Reichspost),the former Land of Prussia,the enterprise German Motorways (Reichsautobahnen)

expire, unless this Act provides differently. ...”

Section 2

Claims placed on a footing of equality (gleichgestellte Ansprüche)

“The provisions of this Act are to be applied, as appropriate, to

...

2. Claims against the Federal Government (Bund) or public legal entities (öffentliche Rechtsträger) to delivery (Herausgabe) of property seized by the legal entities listed in section 1 paragraph 1. ...”

Section 19

Claims based on rights in rem (dingliche Ansprüche) and claims based on a violation of such rights

“(1) Claims (section 1) based on property or other rights in rem and aimed at delivery (auf Herausgabe der Sache) shall be honoured.

...”

2. The German Unification Treaty

Appendix I Chapter IV Section A Paragraph 1 No. 12

“Federal Law will enter into force according to Article 8 of the Treaty except for the following:

...

12. Act for the General Settlement of Damages Caused by the War and the Collapse of the German Reich, ... except for sections 1 and 2.”

3. The German Basic Law

The relevant provisions are worded as follows:

Article 3

“(1) All persons shall be equal before the law.

...”

Article 14

“(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the laws.

(2) Property entails obligations. Its use shall also serve the public good.

(3) Expropriation shall only be permissible in the public interest. It may only be ordered by or pursuant to a law that determines the nature and extent of compensation. Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected. In case of dispute respecting the amount of compensation, recourse may be had to the ordinary courts.”

Article 135a

“(1) Federal legislation enacted pursuant to paragraph (4) of Article 134 or paragraph (5) of Article 135 may also provide that the following obligations shall not be performed, or that they shall be performed only in part:

1. obligations of the Reich, of the former Land of Prussia, or of such other corporations and institutions under public law as no longer exist;

2. such obligations of the Federation or of corporations and institutions under public law as are connected with the transfer of assets pursuant to Article 89, 90, 134, or 135, and such obligations of these bodies as arise from measures taken by the bodies designated in subparagraph 1;

...

(2) Paragraph (1) of this Article shall apply mutatis mutandis to obligations of the German Democratic Republic or its institutions as well as to obligations of the Federation or other corporations and institutions under public law that are connected with the transfer of assets of the German Democratic Republic to the Federation, Länder, or municipalities, and to obligations arising from measures taken by the German Democratic Republic or its institutions.”

COMPLAINTS

The applicant complained under Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention about the decisions of the Federal Court of Justice and the Federal Constitutional Court denying her the delivery of her land. Furthermore, she complained under Article 2 of Protocol No. 4 about the fact that her father had been forced by the events of the year 1944 to leave his hometown of Hoyerswerda.

THE LAW

A. Article 1 of Protocol No. 1

The applicant complained that the refusal of delivery of possession of the real estate violated her right of property under Article 1 of Protocol No. 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 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.”

1. Admissibility

(a) Incompatibility ratione temporis

(i) The parties’ submissions

The Government held the opinion that the plot of land had been subject to a de facto expropriation, since the applicant can neither request the delivery of possession nor use the real estate in any sensible way. From the Government’s point of view that de facto expropriation was, however, the result of the seizure of the real estate by the authorities of the German Reich in 1944. Thus, the de facto expropriation had occurred before the Convention entered into force on 3 October 1990 in respect of the new Länder.

The applicant contested this view and held the opinion that the de facto expropriation of her property had been completed by the exclusion of claims for delivery of possession in the Unification Treaty.

(ii) The Court’s assessment

The Court finds that the applicant does not complain about the initial seizure of the plot of land by the authorities of the German Reich in 1944, but challenged the exclusion of claims for delivery of possession by the Unification Treaty. Hence the applicant’s complaints are not incompatible ratione temporis with the provisions of the Convention and the Protocols thereto.

(b) Incompatibility ratione materiae

(i) The parties’ submissions

The Government contended that the applicant had not had a legitimate expectation of delivery of possession at the time of German Unification due to the exclusion of such claims by the Unification Treaty. Therefore, the applicant’s complaints were incompatible ratione materiae with the provisions of the Convention and the Protocols thereto.

The applicant did not share this view and stressed that her father as her legal predecessor had been listed as the land’s owner in the land register before and after German Unification.

(ii) The Court’s assessment

At the outset the Court recalls that an applicant can allege a violation of Article 1 of Protocol No. 1 only insofar as the impugned decisions relate to his or her “possessions” within the meaning of that provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right
(see von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, ECHR 2005-...).

The Court observes, on the one hand, that at the time of German Unification the applicant’s family had been excluded from the property’s actual use for more than forty-five years. The Federal Court of Justice therefore came to the conclusion that the applicant’s property rights had been reduced to an “empty shell”. Furthermore, according to the domestic courts, the Unification Treaty clearly excluded claims for delivery of possession, thus permanently excluding the applicant from the use of the real estate.

Yet, on the other hand, the applicant’s father was listed as the property’s owner in the land register at the time of German Unification. Moreover, the Federal Court of Justice and the Federal Constitutional Court acknowledged the applicant’s formal ownership in their decisions. Lastly, the Court notes that the German Railways Corporation made a purchase offer of about 12,000 EUR to the applicant as the property’s owner in 1995.

Having regard to the above considerations the Court concludes that the applicant’s formal ownership constitutes a “possession” within the meaning of Article 1 of Protocol No. 1. Hence the facts of the case fall within the ambit of that provision.

(c) Exhaustion of domestic remedies

(i) The parties’ submissions

The Government submitted that the applicant had not exhausted domestic remedies, as she had not complained of a violation of her right of property in her constitutional complaint.

The applicant, however, argued that it had been futile to rely on Article 14 of the German Basic Law (right of property) in her constitutional complaint, since according to the case-law of the Federal Constitutional Court the facts of her case did not fall within the scope of that provision.

(ii) The Court’s assessment

The Court recalls that the applicant is only obliged under Article 35 § 1 of the Convention to avail herself of effective remedies (see, among many other authorities, Selmouni v. France [GC] no. 25803/94, § 75, ECHR 1999-V). In particular, the applicant is absolved from employing a particular remedy if it did not offer reasonable prospects of success in the light of settled domestic case-law (see Pressos Compania Naviera S. A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332, pp. 19-20, § 27; Radio France c. France (dec.), no. 53984/00, 23 September 2003).

Turning to the facts of the instant case, the Court notes, on the one hand, that the Federal Court of Justice held that the facts of the present case did not fall within the ambit of Article 14 of the Basic Law according to the case-law of the Federal Constitutional Court. Yet, on the other hand, the Court considers that the present case was of a unique nature and recalls that the first two instances had decided in the applicant’s favour. Therefore, the Federal Constitutional Court would have been the competent court to examine whether the case was distinguishable from its existing case-law. The applicant could have easily included that question in her constitutional complaint.

However, the Court does not consider it necessary in the present case to rule on the Government’s objections since, in any event, it considers that the complaint as a whole is inadmissible as set out below.

2. Merits

(a) The parties’ submissions

The Government contended that even assuming that the exclusion of claims for delivery of possession by the German Unification Treaty constituted an expropriation, that interference with the applicant’s right of property was justified. The Government elaborated that the challenged provisions of the Unification Treaty, which had set down the framework conditions for the GDR’s accession to the FRG, intended to protect the FRG from claims for damages caused by the war and the collapse of the German Reich with which the GDR had not dealt. In this respect the Government pointed out that at the time of German Unification the FRG had to cope with the national bankruptcy of the GDR. Hence the exclusion of claims for delivery of possession served the protection of the FRG’s budget and therefore was in the public interest.

As regards the proportionality of the interference, the Government found that the applicant, due to the long deprivation of the real estate’s actual use, was left with only a formal title of ownership without actual value. Hence the exclusion of claims for delivery of possession had only maintained the status quo, but had not changed the applicant’s situation for the worse. Lastly, the Government found that the applicant could have obtained compensation of some kind by accepting the German Railways Corporation’s offer to buy the real estate. The Government therefore held the opinion that the applicant had not suffered an excessive individual burden.

The applicant contested the Government’s conclusion. At the outset she argued that the FRG was in any event responsible for the settlement of damages caused by the Second World War, because the FRG had been the legal successor of the German Reich. Moreover, the applicant found that the impugned provisions of the Unification Treaty did not aim at protecting the FRG’s budget and were therefore not in the public interest. Furthermore, she disagreed with the Government as to the value of her ownership title. The applicant argued that she had had full ownership rights until the German Unification Treaty excluding claims for delivery of possession had entered into force. Taking into account that no compensation was provided by the legislator, the applicant found that she had suffered an excessive individual burden. As regards the German Railways Corporation’s offer,
the applicant considered it too low to constitute adequate compensation.
The applicant thus came to the conclusion that the interference with her right of property was disproportionate and thus not justified.

(b) The Court’s assessment

(i) Whether there was an interference with the applicant’s right of property

The Court recalls that Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 29-30, § 37). The first rule, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third rule, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule
(see, among other authorities, Iatridis v. Greece [GC], no. 31107/96, § 55, ECHR 1999-II).

In the present case neither the applicant nor her father were formally expropriated. However, the Court recalls that it has to look behind appearances and assess the reality of the situation complained of in order to determine whether there has been a de facto expropriation (see Sporrong and Lönnroth, judgment of 23 September 1982, Series A no. 52,
p. 24, § 63). The Court has already found that the loss of the ability to use, sell, bequeath, mortgage, donate or to otherwise dispose of property are decisive factors when determining whether the interference amounts to a de facto expropriation (see Papamichalopoulos v. Greece, judgment of 24 June 1993, Series A no. 260, pp. 69-70, §§ 42-45).

Turning to the facts of the instant case the Court notes that the applicant and her predecessor have been excluded from the use of the real estate since its seizure in 1944. As the property’s formal owner, however, the applicant is entitled to selling, bequeathing or donating the property to anyone, as it is not necessary to possess real estate to do so. Yet the new owner, unless it was the German Railways Corporation, would also be excluded from the use of the plot of land. As a consequence, the applicant might dispose of the real estate by donating or bequeathing it, but she could not sensibly sell it to anyone but the German Railways Corporation. Having regard to these circumstances the Court concludes that the applicant’s property rights have been diminished to such an extent that the interference amounts to
a de facto expropriation.

(ii) Justification for the interference with the right of property

(α) “provided for by law”

Appendix I Chapter IV Section A Paragraph 1 No. 12 of the German Unification Treaty stipulated that section 19 of the General Settlement of Damages Act did not apply in the territory of the new Länder,
thus excluding claims for delivery of possession.

(β) “in the public interest”

The Court is of the opinion that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities, accordingly, enjoy a certain margin of appreciation (see Jahn and Others v. Germany [GC],
nos. 46720/99, 72203/01 and 72552/01, § 91, ECHR 2005-...).

The Court has stressed that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, unless that judgment be manifestly without reasonable justification
(see James and Others, cited above, p. 32, § 46).

The Court notes that, according to the Federal Constitutional Court,
the FRG would have been financially overstrained with making good damages caused by the war and the collapse of the German Reich, which the GDR had not settled. Furthermore, the Federal Court of Justice stressed that the legislator enjoyed a wide margin of appreciation when assessing the State’s financial capacity in respect of future legislation. The Court is therefore satisfied that the challenged exclusion of claims for delivery of possession aimed at protecting the FRG’s financial capacity and was therefore “in the public interest”.

(γ) Proportionality of the interference

The Court recalls that an interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights (see, among other authorities, Sporrong and Lönnroth, cited above, p. 26, § 69). In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions (see Pressos Compania Naviera S.A. and Others, cited above, p. 23, § 38). Compensation terms under the relevant legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicants (see Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, p. 35, § 71). In this connection the Court has already found that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see, among other authorities, Jahn and Others, cited above, § 94).

The Court must therefore examine whether the special circumstances of the case can be regarded as exceptional circumstances justifying the lack of any compensation.

The Court notes that, according to the Federal Constitutional Court, following the establishment of two German States after the Second World War, each State had been responsible for the settlement of damages caused by the war and the collapse of the German Reich in its territory. Furthermore, the Court recalls that the Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused prior to their ratification of the Convention (see Kopecký
v. Slovakia [GC], no. 44912/98, § 38, ECHR 2004-IX).

It follows that the FRG was in principle under no obligation to settle damages caused by the war and the collapse of the German Reich with which the GDR had not dealt during a period of more than forty years.
In cases in which the FRG, however, decided to provide redress for damages caused by the German Reich which the GDR had not compensated, the FRG enjoyed a wide margin of appreciation when addressing those issues (see, mutatis mutandis, Jantner v. Slovakia [GC], no. 39050/97, § 34, 4 March 2003; and, mutatis mutandis, Kopecký, cited above, §§ 37 and 38).

In this respect the Court observes that, according to the interpretation of the Unification Treaty’s travaux préparatoires by the Federal Court of Justice, the legislator made it clear that the FRG did not wish to honour claims for delivery of possession such as in the present case. The Federal Constitutional Court did not object to that interpretation.

Moreover, the Court observes that since the seizure of the plot of land by the authorities of the German Reich, first the applicant’s father and then the applicant herself have been excluded from its actual use. For more than sixty years the plot of land has been used first by the German State Railways of the German Reich, then by the German State Railways of the GDR and later by the German Railways Corporation, a State-owned company. In the socialist economy of the GDR the title in the land register as such had no actual value. This is evidenced by the fact that the GDR authorities, although they first negotiated the real estate’s purchase with the applicant’s father in 1948, did not formally expropriate the land. Considering the long exclusion of the applicant’s family from the use of the land, the Court holds the opinion that the applicant’s property rights were significantly diminished, resulting in a merely formal title of ownership.
In this connection the Court notes that the applicant does not bear the obligations deriving from property, for she does not pay property tax.

Furthermore, the Court has on many occasions referred to the unique context of the German reunification and the enormous task faced by the German legislator in dealing with complex issues, such as the questions of unresolved property issues (see, among other authorities, von Maltzan and Others, cited above) or the incorporation of pension rights of former GDR citizens into the pension scheme of the FRG (see, among other authorities, Kuna v. Germany (dec.), no. 52449/99, ECHR 2001-V).

Having regard to the above considerations, the Court concludes that the special circumstances of this case can be regarded as exceptional circumstances justifying the lack of compensation. Therefore, there is no appearance of a violation of the applicant’s rights under Article 1 of Protocol No. 1. Hence the applicant’s complaints in this respect are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible in accordance with Article 35 § 4 of the Convention.

B. Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1

The applicant submitted under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 that she had been discriminated against due to the location of her property in one of the new Länder. If her property had been located in one of the old Länder, she would have been able to claim its delivery according to section 19 of the General Settlement of Damages Act.

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in the 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.”

1. The parties’ submissions

The Government contended that Article 14 of the Convention was not applicable, because the applicant’s complaints under Article 1 of Protocol No. 1 were incompatible ratione materiae. However, even assuming the applicability of that provision, the Government argued that in any event there were objective reasons for the different treatment of the applicant’s case. The Government reiterated its arguments already submitted in respect of Article 1 of Protocol No. 1.

The applicant argued that her case was of a unique nature and doubted that the FRG would have faced a considerable financial burden if it had honoured claims for delivery of possession also in respect of property that was situated in the territory of the new Länder. In view of the lack of any compensation, the applicant found that the different treatment was not justified.

2. The Court’s assessment

(a) Applicability of Article 14 of the Convention

The Court reiterates that, according to its established case-law, Article 14 is only applicable if the facts at issue fall within the ambit of one or more of the substantive provisions of the Convention and its Protocols (see, among many other authorities, Petrovic v. Austria, judgment of 27 March 1998, Reports of Judgments and Decisions 1998‑II, § 22; Willis v. the United Kingdom, no. 36042/97, § 29, ECHR 2002-IV).

As the facts at issue fall within the ambit of Article 1 of Protocol No. 1, Article 14 is therefore applicable in the instant case.

(b) Recapitulation of the relevant principles

The Court recalls that Article 14 safeguards persons who are placed in “analogous situations” against discriminatory differences of treatment
(see Lithgow v. the United Kingdom, judgment of 8 July 1986, Series A
no. 102, pp. 66-67, § 177). For the purposes of Article 14, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, among other authorities, Abdulaziz, Cabales and Balkandi v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 35, § 72). The Court recalls that the Contracting States enjoy a certain margin of appreciation when assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see Rasmussen v. Denmark, judgment of 28 November 1984, Series A no. 87, p. 15, § 40).

(c) Application of the relevant principles

The Court notes that under domestic law, owners of property seized during the Second World War by the authorities of the German Reich were treated differently depending on whether the property was located, thereby excluding claims for delivery of possession if the property was situated in the territory of the new Länder.

The Court reiterates that the repudiation of such claims served the legitimate aim of protecting the financial capacity of the FRG. Furthermore, the Court recalls that the FRG was not liable for damages caused by the war and the collapse of the German Reich which the GDR had not settled. Having regard to the legitimate aim pursued in the public interest and having regard to the State’s margin of appreciation in the unique context of German Unification, the exclusion of claims for delivery of possession cannot be considered to have been unreasonable or to have imposed a disproportionate burden on the applicant. In this respect the Court refers to its reasoning under Article 1 of Protocol No. 1. The impugned provision of the Unification Treaty must therefore be regarded as being based on an objective and reasonable justification.

Therefore, the Court finds that there is no appearance of a violation of Article 14 in conjunction with Article 1 of Protocol No. 1. Hence the applicant’s complaints in this respect are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible in accordance with Article 35 § 4 of the Convention.

C. Article 2 of Protocol No. 4

The applicant complained under Article 2 of Protocol No. 4 that her father had been forced by the seizure of his land in 1944 to leave his hometown of Hoyerswerda. That provision reads as follows:

“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”

The Court notes that the events complained of occurred in 1944 and thus before Protocol No. 4 entered into force on 3 October 1990 in respect of the new Länder.

As a consequence, the applicant’s complaint is incompatible ratione temporis with the provisions of the Protocol and must be declared inadmissible in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia WesterdiekPeer Lorenzen
RegistrarPresident

Full & Egal Universal Law Academy