AS TO THE ADMISSIBILITY OF
Application No. 36265/97
by Z.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 April 1997 by
Z. against Germany and registered on 26 May 1997 under file
No. 36265/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an insurance company registered under Swiss law.
In the proceedings before the Commission, the applicant company is
represented by Mr K. Kleinlein, a lawyer practising in Berlin.
The facts of the case, as submitted by the applicant company, may
be summarised as follows.
A. Particular circumstances of the case
Since 1931 the applicant company owned real property in Berlin.
In 1951, the authorities of East Berlin, where the property was
located, placed it under forced State administration as "foreign
property". By order of 3 December 1959 the Municipality of Great
Berlin (Magistrat von Gross-Berlin) expropriated the estate under the
Construction Decree of 18 December 1951 (Aufbauverordnung). On
11 November 1966 the compensation was fixed according to the relevant
provisions of the Compensation Act of 25 April 1960 (Entschädigungsge-
setz) and the implementing regulations thereto of 30 April 1960
(1. Durchführungsbestimmung zum Entschädigungsgesetz). After deduction
of certain debts towards the State, arrears of land tax and an
administrative fee, the remainder to be paid to the applicant company
amounted to 242,721 Marks. In 1970 the applicant company's claim was
set off against property tax arrears owed by the applicant company for
the years 1961 - 1968 (amounting to 244,926 Marks).
On 10 October 1994 the Berlin Regional Office for the Regulation
of Unresolved Property Questions (Landesamt zur Regelung offener
Vermögensfragen Berlin) rejected the applicant company's request for
restitution of the estate. The Office found that the Act Regulating
Unresolved Property Questions (Gesetz zur Regelung offener
Vermögensfragen) did not apply to requests for the restitution of
property expropriated by the authorities of the former German
Democratic Republic under the Construction Decree because these
expropriations had generally been carried out against compensation.
Citizens of the German Democratic Republic, the Federal Republic of
Germany and third States had been treated equally until 1976 when new
legislation in this field had been enacted. The Office did not share
the applicant company's view that the law of the German Democratic
Republic had prohibited the setting off of a compensation claim against
tax arrears not resulting from the same real property.
On 9 November 1995 the Berlin Administrative Court (Verwaltungs-
gericht) dismissed the applicant company's suit against this decision,
confirming the reasoning of the Office.
The Administrative Court regarded as decisive the question
whether the legal system of the former German Democratic Republic had
generally excluded compensation for a given category of expropriations,
or whether in an individual case compensation assessed had not been
paid to the expropriated owner for some reason, e.g. following a set-
off. Only in the first case were the provisions on restitution in S. 1
para. 1 (a) of the Act Regulating Unresolved Property Questions
considered to be applicable, while the applicant company's case was
considered as belonging to the second group. The Court pointed out
that the applicant company had not even claimed that the property tax
arrears had not existed. The mere circumstance that the relevant legal
provisions did not provide for a compensation claim to be set off
against claims not related to the property in question was not
sufficient to consider the expropriation as having occurred without
compensation. In this respect, the expropriation and the reasons for
subsequent non-payment of the compensation, in the Court's view, had
to be considered separately.
Moreover, the Administrative Court did not find any indication
that the applicant company had been discriminated against, compared to
citizens of the former German Democratic Republic in similar cases. The
fact that the latter had been paid interest upon their compensation
claims did not concern the real property in question but only the
compensation. The Court observed that the proceedings brought before
it by the applicant company only regarded the question of restitution
as such. As to the payment of compensation, the suit was dismissed as
being inadmissible for non-exhaustion of administrative proceedings.
Furthermore, the Administrative Court found that the
expropriation had not been brought about by unfair machinations
(unlautere Machenschaften). In particular, there was no obvious breach
of the Construction Decree suggesting that its provisions had only been
used as a pretext for expropriation. The real property had in fact
been expropriated for the intended construction of an office building
for the public administration, and subsequently this building had been
erected.
On 27 August 1996 the Federal Administrative Court (Bundesverwal-
tungsgericht) dismissed the applicant company's request for leave to
appeal on points of law (Nichtzulassungsbeschwerde), in essence
confirming the reasoning of the lower Court. The Federal
Administrative Court also considered that the Administrative Court, on
the basis of the material before it, had not arbitrarily delegated the
case to a single judge.
On 24 October 1996 the Federal Constitutional Court (Bundesver-
fassungsgericht) refused to entertain the applicant company's
constitutional complaint (Verfassungsbeschwerde).
B. Relevant law
The Act Regulating Unresolved Property Questions (Gesetz zur
Regelung offener Vermögensfragen) of 12 September 1990, as amended in
particular in March 1991, December 1994 and August 1997, stipulates the
principle that there should be no restitution of property expropriated
on the basis of occupation law or the authority resulting from the
occupational power in S. 1 para. 8 (a). With regard to other
expropriations effected in the German Democratic Republic without
compensation, this Act provides, in principle, for the return of
confiscated property, including businesses, where this is still
possible and does not violate user rights acquired in good faith. If
a return is excluded compensation has to be paid in accordance with
SS. 6(7) and SS. 9 et seq., while for certain cases mentioned in
S. 4(1) and (2) new legislation was envisaged.
On 27 September 1994 the Federal German Parliament adopted two
laws regulating the legal consequences of expropriations in the
territory of the former German Democratic Republic in respect of which
the restitution of property was excluded. Both laws entered into force
on 1 December 1994. They are the Compensation Act (Entschädigungs-
gesetz) concerning expropriations effected in the German Democratic
Republic after 1949 in respect of which the 1990 Act regulating
unresolved property questions had reserved further legislation; and the
Equalisation Act (Entschädigungs- und Ausgleichsleistungsgesetz)
providing for equalisation payments to natural persons who had been
expropriated on the basis of occupation law or the authority resulting
from occupational power between 1945 and 1949.
The Federal Constitutional Court, in leading decisions of
23 April 1991 and 18 April 1996, respectively, held that the amendments
to the German Basic Law on the basis of the German Unification Treaty,
including the Joint Declaration, excluding restitution of property
expropriated on the basis of occupation law or the authority resulting
from occupational power, were compatible with Article 79 para. 3 of the
Basic Law concerning the limits to permissible amendments to the Basic
Law.
COMPLAINTS
1. The applicant company complains that the refusal of the German
authorities, after German unification, to return the unlawfully
expropriated property amounts to a breach of Article 1 of Protocol
No. 1 to the Convention. According to the company, the expropriation
was contrary to public international law because it was not linked to
prompt and effective payment of compensation. The applicant company
therefore considers that it could legitimately expect restitution or
compensation, already during the existence of the German Democratic
Republic but all the more so after the unification of Germany.
2. The applicant company further complains that the interpretation
of S. 1 para. 1 (a) and (b) of the Act Regulating Unresolved Property
Questions by the German judicial and administrative authorities amounts
to discrimination and thus to a violation of Article 14 of the
Convention. The company explicitly limits its application to the
enactment and application of the said Act, thus excluding the
expropriation itself, carried out by the authorities of the former
German Democratic Republic in 1959, from the scope of the application.
3. Moreover, the applicant company complains under Article 6 para. 1
of the Convention that the Administrative Court delegated the case to
a single judge before the applicant company had submitted reasons for
its action, and that the Federal Administrative Court did not deal with
all of its arguments concerning discrimination and the non-payment of
compensation. Furthermore, the company complains that the Federal
Constitutional Court did not give any reasons for its decision.
THE LAW
1. The applicant company complains that the non-restitution of its
property expropriated by the authorities of the German Democratic
Republic in 1959 violates its right to peaceful enjoyment of its
possessions under Article 1 of Protocol No. 1 (P1-1) to the Convention.
This provision reads as follows:
"1. Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
2. The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest to secure the payment of taxes or other
contributions or penalties."
The applicant company argues in essence that the expropriation
was contrary to public international law because it was not linked to
the prompt and effective payment of compensation. The applicant
company therefore considers that it could legitimately expect
restitution or compensation, already during the regime of the German
Democratic Republic but all the more after the unification of Germany.
The Commission recalls its decisions of 4 March 1996 concerning
Applications Nos. 18890/91, 19048/91, 19049/91, 19342/92 and 19549/92
(Mayer et al. v. Germany, D.R. 85-A, p. 5) and of 24 February 1997
concerning Application No. 19918/92 (Geidel et al. v. Germany,
unpublished). Complaints under Article 1 of Protocol No. 1 (P1-1)
concerning expropriations carried out in 1945 at the instance of the
Soviet occupation authorities in Germany were declared inadmissible as
being incompatible ratione personae, ratione temporis and ratione
materiae with the Convention. The Commission found in particular that
these deprivations of property had occurred at the instance of the
Soviet occupying forces in Germany at a time when the Federal Republic
of Germany had not yet been established and neither the Convention nor
Protocol No. 1 had entered into force. There could not, therefore, have
been any interference with property rights in breach of Article 1 of
Protocol No. 1 (P1-1) which could have entailed the responsibility of
the Federal Republic of Germany. Moreover, in the Commission's view,
the regulation of property questions in the Unification Treaty did not
amount to an interference with any rights of the applicants under
Article 1 of Protocol No. 1 (P1-1) as there were no "existing
possessions" nor any legally recognized compensation claims when the
Unification Treaty came into force.
The Commission notes that the applicant company, in the light of
the Commission's decision of 4 March 1996, explicitly limits its
complaint to the decisions refusing restitution, taken by the
authorities of the Federal Republic of Germany after 1990.
As regards the incompatibility ratione materiae of claims that
the regulations of the Unification Treaty interfered with rights under
Article 1 of Protocol No. 1 (P1-1), the Commission held, in the above-
mentioned decisions (Nos. 18890/91, 19048/91, 19049/91, 19342/92 and
19549/92 and No. 19918/92, op. cit.), as follows:
"..., in any event the applicants could not claim to be
victims of a violation of their rights under Article 1 of
Protocol No. 1 (P1-1) unless the measure complained of affected
their 'possessions' or their 'property' within the meaning of
this provision. A person complaining of an interference with his
property must show that such right existed (No. 7694/76, Dec.
14.10.77, D.R. 12, p. 131).
In this respect, the Commission recalls the constant case-
law of the Convention organs according to which "possessions" may
be either 'existing possessions' (cf. Eur. Court HR, Van der
Mussele v. Belgium judgment of 23 November 1983, Series A no. 70,
p. 23, para. 48) or valuable assets, including claims, in respect
of which the applicant can argue that he has at least a
"legitimate expectation" that they will realise (cf. Eur. Court
HR, Pine Valley Developments Ltd and Others v. Ireland judgment
of 29 November 1991, Series A no. 222, p. 23, para. 51, and
Pressos Compania Naviera S.A. and Others v. Belgium judgment of
20 November 1995, Series A no. 332, p. 21, para. 31). By
contrast, the hope of recognition of the survival of a former
property right which has not been susceptible of effective
exercise for a long period (Nos. 7655-7657/76, Dec. 4.10.77,
D.R. 12, p. 111) or a conditional claim which has lapsed as a
result of the non-fulfilment of the condition (No. 7775/77,
Dec. 5.10.78, D.R. 15, p. 143) are not to be considered as
'possessions' within the meaning of Article 1 of Protocol No. 1
(P1-1).
It is clear that the present case does not concern any
'existing possessions' of the applicants. The applicants'
properties were expropriated a long time ago and the applicants
have been unable for decades to exercise any owners' rights in
respect of the property concerned. Despite the applicants' claim
that the expropriations were contrary to international law and
thus unlawful, it appears that in the German legal order these
expropriations were being considered as legally valid even before
the conclusion of the Unification Treaty. The provisions of the
Treaty cannot therefore be seen as legalising the deprivation of
the applicants' property and thereby as being the source of the
deprivation for the purposes of German law.
It remains to be examined whether the applicants could have
any 'legitimate expectation' to realise claims, either based on
a right to compensation for the loss of their property which
continued to exist until the entry into force of the Unification
Treaty and was affected thereby, or created by the fact that
public-law bodies of the Federal Republic of Germany acquired
part of the expropriated estates by virtue of the unification.
As regards any possible compensation claim generated by the
loss of the property, the Commission refers to its constant
jurisprudence according to which it is not competent ratione
temporis and ratione materiae to examine complaints relating to
the refusal or denial of compensation claims based on facts that
occurred prior to the entry into force of the Convention with
respect to the State concerned (cf. No. 7694/76, Dec. 14.10.77,
D.R. 12, p. 131; No. 7742/76, Dec. 4.7.78, D.R. 14, p. 146). The
Commission would add with regard to the particular facts of the
present case that the Federal Republic of Germany was not
responsible for the expropriations in question and that therefore
any compensation claims which might have existed prior to the
Unification Treaty would not have been directed against that
State.
As regards the existence of any claim based on the fact
that, in consequence of the unification, part of the property
concerned passed into the hands of public-law bodies of the
Federal Republic of Germany, the Commission notes the Federal
Constitutional Court's finding that despite this fact there
existed no claim under German law for the restitution of the
available properties and that this situation was, from the
viewpoint of constitutional law, unobjectionable. There is
nothing to show that this finding is arbitrary and incompatible
with the applicable provisions. In particular it does not appear
that the Federal Constitutional Court's conclusion was based on
the Unification Treaty itself and that, without the provisions
of that Treaty, the situation under German constitutional law
would have been judged otherwise. Therefore it cannot be said
that the Treaty interfered with any pre-existing legal position
of the applicants in this respect either."
The Commission finds that the circumstances of the present case
do not justify any other conclusions.
The Commission considers that the refusal of restitution did not
concern any of the applicant company's "existing possessions", given
that the property had been expropriated by the authorities of the
German Democratic Republic in 1959 and that, for a period of more than
30 years, the applicant company had no factual possibility to exercise
any powers or control regarding the estate. The expropriation in 1959
is not imputable to the Federal Republic of Germany and the question
of its lawfulness is not within the Commission's jurisdiction ratione
personae and temporis. Furthermore, in view of the political situation
until 1990, the applicant company could not have had, at that time, any
"legitimate expectation" of the revival of its former property right.
On this point, the Commission notes that the German
administrative courts, called upon to apply the provisions of the Act
Regulating Unresolved Property Questions, had to interpret the notion
of "expropriations without compensation" in S. 1 para. 1 of that Act.
The courts considered that this notion only covered expropriations for
which the legal system of the former German Democratic Republic had
generally excluded compensation. A situation where, like in the case
of the applicant company, amounts of compensation had not been paid to
the expropriated owner for some reason such as a set-off did not,
according to the Federal Administrative Court, amount to no
"expropriation without compensation" within the meaning of S. 1
para. 1 (b) of the said Act. The Commission finds that these
conclusions do not disclose any arbitrariness.
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 applicant company further complains about discrimination
against it as, unlike citizens of the former German Democratic Republic
expropriated by the authorities of that State after 1949, it did not
receive any interest on the compensation, in particular for the period
between the expropriation in 1959 and the set-off in 1970.
Assuming compliance with Article 26 (Art. 26), the Commission has
examined this complaint under Article 14 of the Convention in
conjunction with Article 1 of Protocol No. 1 (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 (Eur.
Court HR, Inze v. Austria 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 applicant
company complains, it cannot claim to have been discriminated against
in the enjoyment of its property rights within the meaning of this
provision (cf. Eur. Court HR, Marckx v. Belgium judgment of 13 June
1979, Series A no. 31, p. 23, para. 50; Nos. 18890/91, 19048/91,
19049/91, 19342/92, 19549/92 (joined), Dec. 4.3.96, D.R. 85, p. 5; No.
19918/92, Dec. 24.2.97, unpublished).
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.
3. With regard to the applicant company's further complaints about
the court proceedings, the Commission finds no appearance of a breach
of the right to a fair hearing, as guaranteed by Article 6 para. 1
(Art. 6-1) of the Convention. The Federal Administrative Court
confirmed the procedure and its decision not to accept the applicant
company's contention that the legal conditions for delegation had not
been met does not disclose any indication of arbitrariness. On the
whole, there is nothing to suggest that the applicant company,
represented by counsel, could not duly present all arguments regarding
material and procedural issues or that the proceedings were otherwise
unfair. With regard to the proceedings before the Federal
Constitutional Court, the Commission notes that the Federal
Constitutional Court, referring to S. 93b, in conjunction with S. 93a
of the Federal Constitutional Court Act, decided to refuse acceptance
of the applicant company's case. In these circumstances, it was
sufficient to refer to the relevant legal provisions (No. 8769/79, Dec.
16.7.81, D.R. 25, p. 240; No. 29753/96, Dec. 27.11.96, unpublished)
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy