AS TO THE ADMISSIBILITY OF
1) Application No. 19048/91
by Hans-Christoph WEIDLICH and
Bernd-Joachim FULLBRECHT
2) Application No. 19049/91
by Ortwin A. HASENKAMP
3) Application No. 19342/92
by Hartwig GOLF
4) Application No. 19549/92
by Werner KLAUSSER
5) Application No. 18890/91
by Gisela MAYER
against Germany
The European Commission of Human Rights sitting in private on
4 March 1996, the following members being present:
MM. S. TRECHSEL, President
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
Mrs. G.H. THUNE
J. LIDDY
MM. L. LOUCAIDES
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the applications introduced on 1) 16 October
1991, 2) 6 October 1991, 3) 2 January 1992, 4) 7 October 1991 and 5)
14 August 1991 by 1) Hans-Christoph WEIDLICH and Bernd-Joachim
FULLBRECHT, 2) Ortwin A. HASENKAMP, 3) Hartwig GOLF, 4) Werner KLAUSSER
and 5) Gisela MAYER against Germany and registered on 1) 7 November
1991, 2) 7 November 1991, 3) 15 January 1992, 4) 27 February 1992 and
5) 3 October 1991 under files No. 1) 19048/91, 2) 19049/91, 3)
19342/92, 4) 19549/92 and 5) 18890/91, respectively;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to:
- the Commission's decision of 6 January 1993 to join (Rule 35 of
its Rules of Procedure) and communicate the applications Nos.
19048/91, 19049/91, 19342/92 and 19549/92;
- the Commission's decision of 30 August 1994 to join application
No. 18890/91 with the above applications and to communicate it
without requesting further observations;
- the observations submitted by the respondent Government on
23 April 1993 and supplemented on 30 September 1993 and
5 December 1994;
- the observations in reply submitted by the applicants Weidlich
and Fullbrecht on 2 June 1993 and 17 December 1993, the applicant
Hasenkamp on 12 June 1993, 15 December 1993 and 21 February 1995,
the applicant Golf on 13 June and 21 December 1993, 2 February
1994 and 22 March 1995, the applicant Klausser on 16 June 1993
and 10 December 1993;
- the parties' oral submissions at the hearing on 4 March 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, Hans-Christian Weidlich and Bernd Joachim
Fullbrecht (No. 19048/91), are German citizens. Mr. Weidlich was born
in 1930 and is living in Kaiserslautern. Mr. Fullbrecht was born in
1924 and is living in Wachtberg-Niederbachem. Both are represented by
R. Zuck, a lawyer practising in Stuttgart.
The applicant, Ortwin A. Hasenkamp (No. 19049/91), is a German
citizen, born in 1926 and living in Celle. He is represented by
Mr. W. Seiffert, a law professor at the University of Kiel.
The applicant, Hartwig Golf (No. 19342/92), is a German citizen
born in 1913 and living in Limburg. He is represented by Mr. T. Golf,
a lawyer practising in Waldeck-Sachsenhausen.
The applicant, Werner Klausser (No. 19549/92), is a German
citizen born in 1925 and living in Schwanenwede. He is also represented
by Mr. R. Zuck.
The applicant, Gisela Mayer (No. 18890/91), is a German citizen,
born in 1929 and living in London. She is represented by Mr. V.
Nebelsieck.
A. The Particular Circumstances of the Cases
The facts which are undisputed between the parties may be
summarised as follows.
The applicants were real property owners or are the legal
successors of real property owners whose property was expropriated in
connection with the land reform carried out between 1945 and 1949 in
the former Soviet-occupied zone of Germany. The expropriations also
extended to movable property on the premises such as household effects.
All applicants complain about the regulation in the Treaty on
German Unification of 31 August 1990 (BGBl 1990 II, p. 889 et seq., -
Einigungsvertrag, hereinafter referred to as the Unification Treaty)
according to which expropriations carried out on the basis of Soviet
occupational powers between 1945 and 1949 shall not be reversed.
Other expropriations effected in the German Democratic Republic
without compensation subsequent to 1949 fall, according to the
Unification Treaty, under the Act Regulating Unresolved Property
Questions (Gesetz zur Regelung offener Vermögensfragen, BGBl. 1990 II
p. 889, 1159, amended on 3 August 1992, BGBl. I, p. 1446). This Act
provides, in principle, for the return of confiscated property,
including businesses, where this is still possible and does not violate
user rights acquired in good faith. If a return is excluded
compensation has to be paid in accordance with Sec. 6(7) and Secs. 9
et seq. while for certain cases mentioned in Sec.4 (1) and (2) new
legislation was envisaged.
The Unification Treaty was adopted by the parliaments of both
German States and became binding law in the Federal Republic of Germany
on 3 October 1990.
The international matters concerning German unification were
agreed upon in negotiations between the two German States and the four
Allied Powers. In the Treaty of 12 September 1990 on the Final
Settlement with respect to Germany (BGBl 1990 II, p. 1318 et seq.), the
sovereignty of a united Germany was recognised. In connection with the
signing of this treaty the Ministers for Foreign Affairs of the former
German Democratic Republic and of the Federal Republic of Germany
addressed a Joint Letter (Gemeinsamer Brief) to the Foreign Ministers
of the Four Powers confirming the property regulation reached in the
Joint Declaration of 15 June 1990 and aimed at being incorporated in
the Unification Treaty.
By decision of 23 April 1991 the Federal Constitutional Court
(Bundesverfassungsgericht) rejected several constitutional complaints
of persons, among whom three of the applicants in the present case
(Weidlich, Fullbrecht and Hasenkamp), who had their real estate
confiscated between 1945 and 1949 in the Soviet-occupied zone of
Germany. The complainants had alleged that the regulation in the
Unification Treaty excluding the return of property confiscated between
1945 and 1949 under the Soviet occupation regime and providing for
possible compensation payments but not for full reparation violated
several constitutional rights.
The Federal Constitutional Court rejected the complaints as being
unfounded.
The Court found that the expropriations in question, even where
carried out by German authorities, had been effected on behalf of the
Soviet occupation authorities and were consequently based on the
sovereign power of the occupation force (besatzungshoheitliche
Grundlage). The competence of the Federal Government to conclude the
Unification Treaty and to include in it the amendments to the Basic Law
necessitated by the unification followed from the Government's
constitutional obligation to attain German unification. The manner in
which the amendments had been made violated neither formal nor
substantive law.
The Court held that the regulation in question did not violate
any of the complainants' constitutional rights as they no longer had
any legal position that could have been affected by it.
The expropriations had been considered legitimate (rechtmäßig)
by the Soviet and the German Democratic Republic authorities. The
Federal Republic of Germany could not be held responsible for measures
taken at a time when the Basic Law was not even in force. Under the
law then existing in the zones occupied by the Western Allied Powers
the complainants had also lost their legal position with regard to the
confiscated property. According to this law confiscations effected by
a foreign State were to be considered valid (wirksam) if effected
within that State's sovereign powers.
Furthermore, unless damage was caused by its own organs, the
Federal Republic was not bound fully to compensate damage resulting
from World War II. In respect of compensation payments for such damage
the Federal Republic had a wide margin of appreciation and could take
into account other expenditures and budgetary requirements.
The Constitutional Court furthermore found that there was no
violation of the right to equal treatment. It relied on evidence given
by the Federal Minister for Foreign Affairs, Mr. Klaus Kinkel, and
other high-ranking officials, showing in the Court's opinion that the
Soviet Union had agreed to German unification on the condition that the
legality of the confiscations effected between 1945 and 1949 would not
be put in question, which meant that they should not be reversed. It
had also been the object of the German Democratic Republic to ensure
in the Unification Treaty that social peace on its territory was
maintained after unification. This condition therefore had to be
accepted by the Federal Government in order not to endanger the process
of unification. The regulation whereby property owners whose property
had been confiscated between 1945 and 1949 were treated differently
from those whose property had been confiscated thereafter was, in these
circumstances, sufficiently justified.
The Federal Constitutional Court also denied discrimination in
that the complainants would eventually only receive limited
compensation payments but not full reparation. It pointed out that it
would be discriminatory totally to exclude any kind of compensation for
those who lost property between 1945 and 1949. Nevertheless, the fact
that the complainants were treated less favourably than other owners
was justified in view of the economic crisis in the former German
Democratic Republic. In assessing the level of compensation payable,
the legislator had a large discretionary power and could, inter alia,
take into account what funds were available and also the need to cope
with the necessity of fulfilling new tasks arising for example from the
necessity to reconstruct the new Federal States (Länder).
On 27 September 1994 the German Parliament adopted two laws
regulating the legal consequences of expropriations in the territory
of the former German Democratic Republic in respect of which the
restitution of property was excluded. Both laws entered into force on
1 December 1994. They are:
- the Compensation Act (Entschädigungsgesetz, BGBl. 1994 I p.
2624) concerning expropriations effected in the German Democratic
Republic after 1949 in respect of which the 1990 Act Regulating
Unresolved Property Questions had reserved further legislation (see
above);
- the Equalisation Act (Ausgleichsgesetz, BGBl. 1994 I p.
2628) providing for equalisation payments to persons who had been
expropriated between 1945 and 1949. This Act also provides, under
certain circumstances, for the possibility of acquiring agricultural
land at a price below market value and the return of moveable property.
B. The Relevant Legal Texts
In the course of the unification negotiations involving the
former German Democratic Republic, the Federal Republic of Germany, and
the former four occupational powers (France, United Kingdom, U.S.S.R
and U.S.A.), the then existing two German Governments issued a Joint
Declaration on 15 June 1990 with a view to settling unresolved property
questions (Vermögensfragen).
The relevant parts of the Joint Declaration of 15 June 1990 read
as follows:
[Translation]
" In seeking a solution to the property issues to be settled,
both Governments assume that it is necessary to achieve a
socially just balance of conflicting interests. Legal certainty
and legal clarity, as well as the right to possess property are
the principles that guide the Governments of the German
Democratic Republic and the Federal Republic of Germany in
seeking a solution to outstanding property issues. Only in this
way will it be possible to ensure once and for all that there
will be no litigation on these issues in a future united Germany.
The two German Governments agree on the following basic
points:
1. Expropriations carried out on the basis of occupation law
or the authority resulting from the occupational power (1945
until 1949) shall not be reversed. The Governments of the
Soviet Union and the German Democratic Republic see no
possibility of reviewing the measures taken at that time. The
Government of the Federal Republic of Germany takes cognisance
of this in the light of historical developments. It is of the
opinion that a final decision on any indemnification to be paid
by the State must be left to a future all-German Parliament.
2. ..."
[German]
" Bei der Lösung der anstehenden Vermögensfragen gehen beide
Regierungen davon aus, daß ein sozial verträglicher Ausgleich
unterschiedlicher Interessen zu schaffen ist. Rechtssicherheit
und Rechtseindeutigkeit sowie das Recht auf Eigentum sind
Grundsätze, von denen sich die Regierungen der Deutschen
Demokratischen Republik und der Bundesrepublik Deutschland bei
der Lösung der anstehenden Vermögensfragen leiten lassen. Nur
so kann der Rechtsfriede in einem künftigen Deutschland dauerhaft
gesichert werden.
Die beiden deutschen Regierungen sind sich über folgende
Eckwerte einig:
1. Die Enteignungen auf besatzungsrechtlicher bzw.
besatzungshoheitlicher Grundlage (1945 bis 1949) sind nicht mehr
rückgängig zu machen. Die Regierung der Sowjetunion und der
Deutschen Demokratischen Republik sehen keine Möglichkeit, die
damals getroffenen Maßnahmen zu revidieren. Die Regierung der
Bundesrepublik Deutschland nimmt dies im Hinblick auf die
historische Entwicklung zur Kenntnis. Sie ist der Auffassung,
daß einem künftigen gesamtdeutschen Parlament eine abschließende
Entscheidung über etwaige staatliche Ausgleichsleistungen
vorbehalten bleiben muß.
2. ..."
The Joint Declaration became part of the Unification Treaty of
31 August 1990 (BGBl 1990 III, p. 889 et seq.) which contains, inter
alia, the following provisions relating to property questions:
[Translation]
" Article 3
Entry into force of the Basic Law
Provided that there is no provision in this Treaty to the
contrary, when the accession takes effect the Basic Law of the
Federal Republic of Germany.... shall enter into force, together
with the amendments contained in Article 4, in the Länder of
Brandenburg, Mecklenburg-West Pomerania, Saxony, Saxony-Anhalt
and Thuringia, as well as in the part of Berlin to which it has
not applied hitherto."
Article 4
Amendments to the Basic Law
due to the accession
The Basic Law shall be amended as follows:
1. ...
4. The present wording of Article 135 (a) (1) shall become
paragraph 1 of that Article. The following paragraph shall be
inserted after paragraph 1:
_______________
(1) Translation of Article 135 (a)
(1) The legislation reserved to the Federation in paragraph (4)
of Article 134 and in paragraph (5) of Article 135 may also
stipulate that the following liabilities shall not be discharged,
or not to their full extent:
1. liabilities of the Reich or liabilities of the former Land
of Prussia or liabilities of such corporate bodies and
institutions under public law as no longer exist;
2. such liabilities of the Federation or corporate bodies and
institutions under public law as are connected with the
transfer of properties pursuant to Article 89, 90, 134 or
135, and such liabilities of these entities as arise from
measures taken by the entities mentioned under item 1;
3. such liabilities of Leander or communes or associations of
communes as have arisen from measures taken by the entities
before 1 August 1945 within the framework of administrative
functions incumbent upon, or delegated by, the Reich to
comply with regulations of occupying Powers or to remove a
state of emergency due to the war.
_______________
'(2) Paragraph 1 shall apply mutatis mutandis to liabilities of
the German Democratic Republic or its controlling authorities and
liabilities incurred by the Federation..... in connection with
the transfer of assets of the German Democratic Republic to the
Federation... as well as to liabilities resulting from measures
taken by the German Democratic Republic or its controlling
authorities.'
5. The following new Article 143 shall be inserted into the Basic
Law:
(1) The law in the territory mentioned in Article 3 of the
Unification Treaty may only deviate from the provisions of this
Basic Law for as long as it takes, as a result of the differing
conditions in the two countries, to achieve full adaptation to
the legal order enshrined in the Basic Law, but until
31 December 1992 at the latest. Deviations shall not infringe
Article 19 para. 2 and shall be compatible with the principles
enshrined in Article 79 para. 3.
(2) Deviations from Sections II, VIII, VIII a, IX, X and XI
shall be permissible until 31 December 1995 at the latest.
(3) Irrespective of paragraphs 1 and 2, Article 41 of the
Unification Treaty and the provisions enacted for its
implementation shall apply to the extent that they provide that
interference with property in the territory mentioned in Article
3 of that Treaty shall not be reversed.
Article 41
Settlement of property issues
(1) The Joint Declaration on outstanding property issues made
on 15 June 1990 by the Governments of the Federal Republic of
Germany and the German Democratic Republic (annex III) is a
constituent part of this Treaty.
(2)...
(3) Moreover, the Federal Republic of Germany shall not enact any
legal rules that conflict with the Joint Declaration mentioned
in paragraph 1."
[German]
" Artikel 3
Inkrafttreten des Grundgesetzes
Mit dem Wirksamwerden des Beitritts tritt das Grundgesetz
für die Bundesrepublik Deutschland ... in den Ländern
Brandenburg, Mecklenburg-Vorpommern, Sachsen, Sachsen-Anhalt und
Thüringen sowie in dem Teil des Landes Berlin, in dem es bisher
nicht galt, mit den sich aus Artikel 4 ergebenden Änderungen in
Kraft, soweit in diesem Vertrag nichts anderes bestimmt ist.
Artikel 4
Beitrittsbedingte Änderungen des Grundgesetzes
Das Grundgesetz für die Bundesrepublik Deutschland wird wie folgt
geändert:
1. ...
4. Der bisherige Wortlaut des Artikels 135 a (2) wird Absatz 1.
Nach Absatz 1 wird folgender Absatz angefügt:
_______________
(2) Article 135 (a) reads
Durch die in Artikel 134 Abs. 4 and Artikel 135 Abs. 5
vorbehaltene Gesetzgebung des Bundes kann auch bestimmt werden,
dass nicht oder nicht in voller Höhe zu erfüllen sind
1. Verbindlichkeiten des Reiches sowie Verbindlichkeiten des
ehemaligen Landes Preussen und sonstiger nicht mehr
bestehender Körperschaften und Anstalten des öffentlichen
Rechts;
2. Verbundlichkeiten des Bundes oder anderer Körperschaften
und Anstalten des öffentlichen Rechts, welche mit dem
Übergang von Vermögenswerten nach Artikel 89, 90, 134 und
135 im Zusammenhang stehen und Verbindlichkeiten dieser
Rechtsträger, die auf Massnahmen der in Nummer 1
bezeichneten Rechtsträger beruhen;
3. Verbindlichkeiten der Länder und Gemeinden (Gemeinde-
verbände), die aus Massnahmen entstanden sind, welche diese
rechtsträger vor dem 1. August 1945 zur Durchführung von
Anordnungen der Besatzungsmächte oder zur Beseitigung eines
kriegsbedingten Notstandes im Rahmen dem Reich obliegender
oder vom Reich übertragener Verwaltungsaufgaben getroffen
haben.
_______________
`(2) Absatz 1 findet entsprechende Anwendung auf
Verbindlichkeiten der Deutschen Demokratischen Republik oder
ihrer Rechtsträger sowie auf Verbindlichkeiten des Bundes
oder.... die mit dem Übergang von Vermögenswerten der Deutschen
Demokratischen Republik auf Bund, Länder und Gemeinden im
Zusammenhang stehen, und auf Verbindlichkeiten, die auf Maßnahmen
der Deutschen Demokratischen Republik oder ihrer Rechtsträger
beruhen.'
5. In das Grundgesetz wird folgender neuer Artikel 143
eingefügt:
Artikel 143
(1) Recht in dem in Artikel 3 des Einigungsvertrags genannten
Gebiet kann längstens bis zum 31. Dezember 1992 von Bestimmungen
dieses Grundgesetzes abweichen, soweit und solange infolge der
unterschiedlichen Verhältnisse die völlige Anpassung an die
grundgesetzliche Ordnung noch nicht erreicht werden kann.
Abweichungen dürfen nicht gegen Artikel 19 Abs. 2 verstoßen und
müssen mit den in Artikel 79 Abs. 3 genannten Grundsätzen
vereinbar sein.
(2) Abweichungen von den Abschnitten II, VIII, VIII a, IX, X
und XI sind längstens bis zum 31. Dezember 1995 zulässig.
(3) Unabhängig von Absatz 1 und 2 haben Artikel 41 des
Einigungsvertrags und Regelungen zu seiner Durchführung auch
insoweit Bestand, als sie vorsehen, daß Eingriffe in das Eigentum
auf dem in Artikel 3 dieses Vertrags genannten Gebiet nicht mehr
rückgängig gemacht werden.
Artikel 41
Regelung von Vermögensfragen
(1) Die von der Regierung der Bundesrepublik Deutschland und
der Regierung der Deutschen Demokratischen Republik abgegebene
Gemeinsame Erklärung vom 15. Juni 1990 zur Regelung offener
Vermögensfragen (Anlage III) ist Bestandteil dieses Vertrages.
(2)...
(3) Im übrigen wird die Bundesrepublik Deutschland keine
Rechtsvorschriften erlassen, die der in Absatz 1 genannten
Gemeinsamen Erklärung widersprechen."
COMPLAINTS
The applicants invoke Article 1 of Protocol No. 1 to the
Convention read in conjunction with Article 14 of the Convention.
They argue that the expropriations in question were incompatible
with international law and constitute a continuous violation of
property rights. They submit that, unlike the Treaties of Moscow (12
August 1970) and Warsaw (7 December 1970) in which the Federal Republic
of Germany recognised all frontiers in Europe without regulating any
property questions, the Unification Treaty expressly excludes any
restitution rights and thus legalises unlawful confiscations. This
amounts to a violation of their right to the peaceful enjoyment of
their possessions. In this connection they point out that according
to Article 25 of the Basic Law the general rules of public
international law have precedence over domestic law, a principle which
in their opinion has been overlooked by the Federal Constitutional
Court.
They further consider themselves to be victims of discrimination
in comparison with persons whose property was confiscated in the former
German Democratic Republic after 1949 and who can now claim restitution
or reparation.
PROCEEDINGS BEFORE THE COMMISSION
The applications were introduced respectively on 16 October 1991
(No. 19048/91), 6 October 1991 (No. 19049/91), 2 January 1992 (No.
19342/92), 7 October 1991 (No. 19549/92) and 14 August 1991 (No.
18890/91).
They were registered respectively on 7 November 1991 (Nos.
19048/91 and 19049/91), 15 January 1992 (No. 19342/92), 27 February
1992 (No. 19549/92) and 3 October 1991 (No. 18890/91).
On 6 January 1993 the Commission decided to join (Rule 35 of its
Rules of Procedure) and communicate the applications Nos. 19048/91,
19049/91, 19342/92 and 19549/92 to the respondent Government and invite
them to submit observations in writing on the admissibility and merits
of the complaint under Article 1 of Protocol No. 1 read together with
Article 14 of the Convention.
On 30 August 1994 the Commission decided to join application No.
18890/91 and another application, No. 19918/92, with the above
applications and to communicate them to the Government without
requesting further observations. Application No. 19918/92 was
disjoined on 8 December 1995 and its examination adjourned at the
request of the applicants in that case.
The Government's written observations were submitted on
23 April 1993 and supplemented on 30 September 1993 and
5 December 1994. Observations in reply were submitted by the
applicants Weidlich and Fullbrecht on 2 June 1993 and 17 December 1993,
the applicant Hasenkamp on 12 June 1993, 15 December 1993 and 21
February 1995, the applicant Golf on 13 June and 21 December 1993, 2
February 1994 and 22 March 1995, and by the applicant Klausser on 16
June 1993 and 10 December 1993.
On 10 April 1995 the Commission decided to obtain the parties'
oral submissions on the applications. A hearing fixed for 8 September
1995 was adjourned at the Government's request. The hearing took place
on 4 March 1996. The following persons represented the parties at the
hearing:
The Government :
- Mr. J. MEYER-LADEWIG, Agent
Federal Ministry of Justice
- Mr. M. WECKERLING, Regierungsdirektor
- Mr. G. FIEBERG, Ministerialrat
- Mr. H. REICHENBACH, Richter am Bundespatentgericht
- Mr. F. PLESSE, Regierungsdirektor
Foreign Office
- Mr. K. J. BOSCH, Vortragender Legationsrat Erster Klasse
President's Office
- Mr. V. ZILCH, Ministerialrat
Federal Ministry of Finance
- Mr. O. LÖFFLER, Ministerialrat
- Ms. M. KNOLLE, Oberregierungsrätin
Federal Ministry of Agriculture, Food and Forests
- Mr. U. KUHLMANN, Ministerialrat
as advisors.
The applicants:
Application Nos. 19048/91, 19549/92 (Weidlich and Fullbrecht, Klausser)
- Mr. A. WENDENBURG, a lawyer practising in Celle
- Mr. R. ZUCK, a lawyer practising in Stuttgart
- the applicants Messrs. WEIDLICH and FULLBRECHT were also present.
Application No. 18890/91 ((Mayer)
- Mr. V. NEBELSIECK, a lawyer practising in Celle
- Mr. F. ROSENBERGER, a lawyer practising in Cologne
Application No. 19049/91 (Hasenkamp)
- Mr. W. SEIFFERT, professor of law
- the applicant was also present.
Application No. 19342/92 (Golf)
- Mr. T. GOLF, a lawyer practising in Altenburg
THE LAW
1. The applicants allege a violation of their rights under Article
1 of Protocol No. 1 (P1-1) to the Convention. This Article (P1-1)
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."
The applicants argue in essence that the expropriation of their
property between 1945 and 1949 was invalid under public international
law, in particular the Hague Convention on the Laws and Customs of War,
as well as under the law of the Federal Republic of Germany, and that
it resulted in a continuous violation of their property rights.
Therefore the Unification Treaty, by excluding both restitution and
full reparation, amounts in their submission to a violation of Article
1 of Protocol No. 1 (P1-1).
They furthermore deny that in the unification negotiations the
former Soviet Union demanded that property taken between 1945 and 1949
should not be given back to its former owners. They consider that the
only concern of the Soviet Union was that the legality of the
expropriations concerned should not be put into question. Furthermore,
they point out that the Soviet Union had ceased to exist. Consequently
the Federal Republic was no longer bound by any undertaking not to
retransfer properties to their legitimate owners. But even assuming
that the Federal Republic had validly agreed not to return the
properties to their former owners it was obliged to pay compensation
in view of the illegality of the expropriations and the fact that at
least 70% of the properties concerned were now at the disposal of the
authorities of the Federal Republic.
The applicant Hasenkamp submits that at the relevant time he was
a citizen of the Free City of Danzig and not a German citizen.
Therefore the expropriation in his case was not covered by the
expropriation orders of the Soviet occupational authorities.
The respondent Government submit that in the light of the history
of the unification negotiations as a whole there can be no doubt that
the Soviet Union accepted German unification only on the condition that
expropriations carried out between 1945 and 1949 should not be
reversed. Furthermore the respondent Government consider that Germany
also has to respect its obligations under the Unification Treaty vis
à vis the present Russian Federation. In this respect it has been
submitted that from the Russian point of view the expropriations in
question were meant as a punishment for war criminals and Nazis as well
as a measure establishing a new peaceful social order.
As regards the applicants' submission that the expropriations
violated international law, the respondent Government refer to the
findings of the Federal Constitutional Court, according to which, under
German international expropriation law, the taking of property carried
out by another State is always to be considered effective if the State
concerned has remained within its powers, i.e. within its territorial
sovereignty. The Government stress that the Federal Constitutional
Court also denied the incompatibility of the property regulations
contained in the Unification Treaty with the notion of public order,
having regard to the fact that the expropriations were carried out
decades ago by another State.
The respondent Government finally point out that, according to
the newly-enacted Compensation and Equalisation Acts of
27 September 1994, equalisation payments can be claimed by persons
whose property expropriated in the former Soviet occupied zone of
Germany or in the former German Democratic Republic is not returned.
Under certain conditions this new legislation also allows the
acquisition of limited pieces of agricultural or forestry land.
a) The Commission first notes that the original deprivation of the
applicants' property occurred at the instance of the Soviet occupying
forces in Germany, more than forty years ago, at a time when the
Federal Republic of Germany did not even exist. Even if it is true
that, as the Federal Constitutional Court observed in its decision of
23 April 1991, the authorities of both German States subsequently
recognized the validity of the expropriations in question, the German
authorities can in no way be held responsible for the deprivation of
property as such, which is not imputable to them. In this respect the
Commission lacks competence, ratione personae, to examine the
circumstances in which the expropriations were carried out.
b) The Commission further observes that the expropriations took
place before the entry into force of the Convention (3 September 1953)
and before the ratification of Protocol No. 1 (P1) by the Federal
Republic of Germany (13 February 1957). It is true that they continued
to produce effect after the above dates and also after 3 October 1990,
when the Unification Treaty entered into force and when the territory
where the property concerned was situated became part of the Federal
Republic of Germany to which the Convention and its Protocols are
applicable. However, the Commission recalls its constant case-law
according to which a deprivation of ownership or other rights in rem
is in principle an instantaneous act and does not produce a continuing
situation of "deprivation of right" (cf. No 7742/76, Dec. 4.7.78, D.R.
14, p. 146).
c) The applicants claim that the regulations of the Unification
Treaty interfered with their rights under Article 1 of Protocol No. 1
(P1-1) because in their submission they retained an entitlement to the
property in question, the expropriations carried out between 1945 and
1949 having allegedly been effected contrary to the rules of public
international law. In this respect the question arises whether the
international instruments governing the behaviour of belligerent
States, such as the Hague Convention on the Laws and Customs of War,
can be invoked by individuals with reference to acts performed
subsequent to the end of hostilities. Doubts also exist in regard to
the question whether an act allegedly performed in violation of the
Hague Convention must be deemed null and void, or whether it merely
obliges the State responsible to pay compensation where appropriate.
However that may be, in any event the applicants could not claim
to be victims of a violation of their rights under Article 1 of
Protocol No. 1 (P1-1) unless the measure complained of affected their
"possessions" or their "property" within the meaning of this provision.
A person complaining of an interference with his property must show
that such right existed (No. 7694/76, Dec. 14.10.77, D.R. 12, p. 131).
In this respect, the Commission recalls the constant case-law of
the Convention organs according to which "possessions" may be either
"existing possessions" (cf. Eur. Court H.R, Van der Mussele v. Belgium
judgment of 23 November 1983, Series A no. 70, p. 23, para. 48) or
valuable assets, including claims, in respect of which the applicant
can argue that he has at least a "legitimate expectation" that they
will realise (cf. Eur. Court H. R., Pine Valley Developments Ltd and
Others judgment of 29 November 1991, Series A no. 222, p. 23, para. 51,
and Pressos Compania Naviera S.A. and Others judgment of
20 November 1995, Series A no. 332, para. 31).
By contrast, the hope of recognition of the survival of a former
property right which has not been susceptible of effective exercise for
a long period (Nos. 7655-7657/76, Dec. 4.10.77, D.R. 12, p. 111) or a
conditional claim which has lapsed as a result of the non-fulfilment
of the condition (No. 7775/77, Dec. 5.10.78, D.R. 15, p. 143) are not
to be considered as "possessions" within the meaning of Article 1 of
Protocol No 1 (P1-1).
It is clear that the present case does not concern any "existing
possessions" of the applicants. The applicants' properties were
expropriated a long time ago and the applicants have been unable for
decades to exercise any owners' rights in respect of the properties
concerned. Despite the applicants' claim that the expropriations were
contrary to international law and thus unlawful, it appears that in the
German legal order these expropriations were being considered as
legally valid even before the conclusion of the Unification Treaty.
The provisions of the Treaty cannot therefore be seen as legalising the
deprivation of the applicants' property and thereby as being the source
of the deprivation for the purposes of German law.
It remains to be examined whether the applicants could have any
"legitimate expectation" to realise claims, either based on a right
to compensation for the loss of their property which continued to
exist until the entry into force of the Unification Treaty and was
affected thereby, or created by the fact that public-law bodies of the
Federal Republic of Germany acquired part of the expropriated estates
by virtue of the unification.
As regards any possible compensation claim generated by the loss
of the property, the Commission refers to its constant jurisprudence
according to which it is not competent rationae temporis and ratione
materiae to examine complaints relating to the refusal or denial of
compensation claims based on facts that occurred prior to the entry
into force of the Convention with respect to the State concerned (cf.
No. 7694/76, Dec. 14.10.77, D.R. 12, p. 131; No. 7742/76, Dec. 4.7.78,
D.R. 14, p. 146). The Commission would add with regard to the
particular facts of the present case that the Federal Republic of
Germany was not responsible for the expropriations in question and that
therefore any compensation claims which might have existed prior to the
Unification Treaty would not have been directed against that State.
As regards the existence of any claim based on the fact that, in
consequence of the unification, part of the property concerned passed
into the hands of public-law bodies of the Federal Republic of Germany,
the Commission notes the Federal Constitutional Court's finding that
despite this fact there existed no claim under German law for the
restitution of the available properties and that this situation was,
from the viewpoint of constitutional law, unobjectionable. There is
nothing to show that this finding is arbitrary and incompatible with
the applicable provisions. In particular it does not appear that the
Federal Constitutional Court's conclusion was based on the Unification
Treaty itself and that, without the provisions of that Treaty, the
situation under German constitutional law would have been judged
otherwise. Therefore it cannot be said that the Treaty interfered with
any pre-existing legal position of the applicants in this respect
either.
It follows that the applicants had no "existing possessions" nor
any legally recognised compensation claims when the Unification Treaty
came into force. In these circumstances it cannot be found that the
regulation of property questions in the Unification Treaty amounted to
an interference with any rights of the applicants under Article 1 of
Protocol No. 1 (P1-1). The particular arguments advanced by the
applicant Hasenkamp do not justify another conclusion in his case.
This part of the application is therefore incompatible ratione
materiae with the provisions of the Convention and must be rejected
under Article 27 para. 2 (Art. 27-2).
2. The applicants further consider that they have been discriminated
against with regard to the enjoyment of their property rights in that,
unlike owners of property expropriated by the authorities of the German
Democratic Republic after 1949, they cannot claim restitution or
reparation but only limited equalisation payments under the
Equalisation Act of 27 September 1994. They invoke Article 14 of the
Convention in conjunction with Article 1 of Protocol No. 1
(Art. 14+P1-1).
Article 14 (Art. 14) of the Convention reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission recalls that Article 14 (Art. 14) complements the
other substantive provisions of the Convention and its Protocols. It
has no independent existence, since it has effect solely in relation
to the "rights and freedoms" safeguarded by those provisions. Although
the application of Article 14 (Art. 14) does not presuppose a breach
of one or more of those provisions - and to this extent it is
autonomous -, there can be no room for its application unless the facts
at issue fall within the ambit of one or more of the latter (cf. Eur.
Court H.R., Inze judgment of 28 October 1987, Series A no. 126, p. 17,
para. 36).
As the Commission has found above that Article 1 of Protocol No.
1 (P1-1) is not applicable to the facts of which the applicants
complain, they cannot claim to have been discriminated against in the
enjoyment of their property rights within the meaning of this provision
(cf. Eur. Court H.R., Marckx judgment of 13 June 1979, Series A no. 31,
p. 23, para. 50). This part of the application must therefore also be
rejected, according to Article 27 para. 2 (Art. 27-2), as being
incompatible with the provisions of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy