THE FACTS

The facts of the case, as submitted by the applicant, may be summarised

as follows:

1.   The applicant is an Israeli citizen, born in 1926 and residing

in Jerusalem. In the proceedings before the Commission he is

represented by Mr. K., a lawyer practising in Munich and Tel-Aviv and

acting under a power-of-attorney dated 8 March 1972.

The applicant was born in Amsterdam as a Dutch national. From November

1941 to April 1944 he was a victim of Nazi persecution because of his

Jewish origin. At the end of the war he went to Palestine and in 1952

he became an Israeli national.

2.   The applicant filed with the District Indemnification Office

(Bezirksamt für Wiedergutmachung) in Koblenz (Federal Republic of

Germany) a claim asking for compensation, under Article 43 of the

Federal Compensation Act 1953 (Bundesentschädigungsgesetz), for

deprivation of liberty in 1943 and 1944. The Office and, on appeals,

also the Regional Court (Landgericht) and the Court of Appeal

(Oberlandesgericht) in Koblenz, all rejected the claim on the statutory

ground that the applicant had never been stateless before the

acquisition of the Israeli nationality. An appeal on points of law

(Revision) was dismissed by the Federal Court (Bundesgerichtshof) on

.. October 1963.

3.   On .. June 1965 the applicant filed a petition of rehearing

(Restitutionsklage) with the Court of Appeal in Koblenz under Article

580 (7) (b) of the Code of Civil Procedure (Zivilprozeßordnung) and

submitted new evidence concerning his former status as a stateless

person.

On .. November 1966 the Court rejected the petition for rehearing.

Referring to the Federal Court's decision of 15 June 1966 in another

case, the Court of Appeal held that Article 580 of the Code of Civil

Procedure could not be applied in proceedings under the Compensation

Act. It declared, however, that under Article 221 of the Act "an appeal

on points of law is admissible without special permission" ("findet die

Revision ohne Zulassung statt").

On .. April 1967 the applicant appealed to the Federal Court in order

to obtain a rehearing. On .. October 1971 the Federal Court declared

the appeal on points of law inadmissible on the ground that the

conditions set up in Article 221 of the Compensation Act were not

satisfied in the present case : The attacked decision was neither based

on a lack of jurisdiction of the civil courts not did it concern the

inadmissibility of an appeal to the Court of Appeal (Berufung). The

above reference by the Court of Appeal to Article 221 was therefore

erroneous.

It followed in the Federal Court's view that an appeal on points of law

was only admissible in cases where it had either been allowed by the

Court of Appeal under Article 219 of the Compensation Act or by the

Regional Court itself on a complaint against the Court of Appeal's

refusal to allow the appeal (Nichtzulassungsbeschwerde). Since the

Court of Appeal's reference to Article 221 could not be considered as

a special permission to appeal the applicant, according to the Federal

Court, ought to have filed a complaint against the failure to allow the

appeal. The appeal which he had lodged instead could not be interpreted

as such a complaint by reason of the different objectives of these

remedies. Whereas an appeal on points of law (Revision) aimed at a

decision reversing the lower court's main decision, a complaint was

primarily directed against the lower court's refusal to allow the

appeal.

Finally, the Federal Court considered as irrelevant the Court of

Appeal's erroneous statement that an appeal from its decision did not

require special permission. It found that applicant's counsel, despite

this misleading statement, could have chosen the correct remedy by

looking at the language of Article 221 of the Compensation Act and at

two pertinent decisions of the Federal Court published in 1964 and

1965.Complaints

4.   The applicant alleges a violation of Article 6 (1) of the

Convention. He complains that the Federal Court dismissed his appeal

on purely formalistic grounds. The Court's consideration that his

counsel could have chosen the correct remedy, despite the erroneous and

misleading statement of the lower court, made the applicant responsible

for an alleged mistake of high judges. He was furthermore the victim

of a sudden and temporary change in the Federal Court's jurisprudence

on rehearing in compensation proceedings : before and after the Federal

Court's decision of 15 June 1966, which led the lower court to dismiss

the applicant's motion for rehearing, the Federal Court had on various

occasions accepted such motions as admissible.

The applicant concludes that the Federal Court's decision had little

if anything to do with the elementary principles of justice. By

applying restrictive formalism the Court violated his right to have his

civil case tried by a fair and impartial tribunal. In support of this

submission the applicant refers to a statement by the Federal

Constitutional Court (Bundesverfassungsgericht) of 17 December 1969

that in compensation cases preference should be given to justice ("...

das Verlangen nach der Rechtssicherheit der Gerechtigkeit weichen

muß").

5.   The applicant further submits a detailed analysis and criticism

of the Federal Court's jurisprudence on the admissibility of motions

for rehearing in compensation proceedings and on the conditions of

compensation under the Compensation Act. He points out at the same time

that these submissions are obiter dicta, the main issue being the

question of a fair hearing before the Federal Court.

6.   The applicant further submits that, contrary to the jurisprudence

of the Commission (Application No. 4618/70, Collection of Decisions,

Vol. 40, p. 11), proceedings under the Federal Compensation Act involve

the "determination of civil rights and obligations" within the meaning

of Article 6 (1) of the Convention.

The Commission based its negative view on the consideration that the

Federal Republic of Germany as such could not, without specific

provision, be held liable under German law for injuries of the kind

covered by the Act. The Act constituted an undertaking to grant

compensation for injuries for which otherwise damages could not be

recovered under the general principles of tort liability.

The applicant, however, maintains that he has a "proprietary right" to

be indemnified, which has not been created by the Federal Compensation

Act but exists according to the valid stipulations of the law of torts

of the German Civil Code (Bürgerliches Gesetzbuch). It has been

confirmed by treaties with the Allies (26 May 1952; 23 October 1956),

in which the Federal Republic of Germany resumed the legal

responsibility for the debts of the Third Reich. The whole Federal

Compensation legislation was not conceived in order to create a legal

foundation for compensation claims but, on the contrary, for the

explicit purpose to limit, for reasons of the then insufficient

economic capacity of the Federal Republic of Germany, the scope of

those claims as existing in accordance with the valid German

legislation.

In support of this submission the applicant quotes one of the "fathers

and creators" of the Federal Compensation Act, Professor Franz Böhm,

who stated on 2 May 1954 in the German Bundestag: "Indemnification

cannot be considered as a voluntary contribution of the German State

and its citizens, accepted in pursuance of humanitarian and moral

principles to help needy people ... it is indeed a clear cut legal

obligation binding our Sate as successor of the Third Reich, from the

viewpoint of responsibility for illegal acts and crimes committed by

the former State authorities. If that responsibility were not regulated

by a special Federal Law, it would exist according to the binding civil

laws of our country. We would then be obliged to pay the full damages,

and that without regard to our capacity. Would it prove impossible for

us to satisfy those clear and in court proceedings enforceable claims,

bankruptcy proceeding would have to follow. If, instead, a Special

Federal Law regulates the duty to indemnify in a manner deviating from

the binding principles of our own and other civilised States civil

legislation, then it does so not to give the creditors and victims of

the illegal acts committed more than we are obliged to, but on the

contrary:  because it is done with regard for the economical capacity

of our nation, by far not sufficient to materialise the payments due

under the principles of the general laws." (Cited from

"Bundesentschädigungsgesetz" by Becker-Huber-Küster, Vahlen Verlag,

Berlin 1955, p. XXVIII.)

The applicant goes on to say: "The late Dr. Georg Blessin had for long

years been the head of the indemnifications department in the Federal

Ministry of Finance in Bonn. In that capacity he was also responsible

for all Government drafts of the relevant legislation. Understandingly

he is considered to most authoritative commentator of those laws. In

his standard commentary (Blessin-Wilden: Bundesentschädigungsgesetze,

Beck Verlag, München, 1957, p. 128) he declares: 'it cannot, however,

be doubted that, in principle, after the dissolution of the

national-socialist arbitrary State and re-establishment of the rule of

law in the form of the Federal Republic of Germany as the successor of

the preceding State authority, it would be necessary in accordance with

the valid general laws to pay the full indemnity for illegal acts of

the authorities, if those claims would not have been limited by special

legislation'."

7.   Finally, the applicant submits that he has exhausted his domestic

remedies. A constitutional appeal (Verfassungsbeschwerde) against the

Federal Court's decision was not available since no violation of

Articles 33, 38, 101, 103, 104 or any other provision of the Basic Law

(Grundgesetz) could be alleged. All courts in his case had been

competent, they had had proper jurisdiction and had in particular

respected his right to be heard (rechtliches Gehör) under Article 103

(1) of the Basic Law.

THE LAW

1.   The applicant complains that the Federal Court's judgment of ..

October 1971 violated his right, under Article 6 (1) (Art. 6-1) of the

Convention, to a fair hearing in the determination of his claim for

compensation under the Federal Compensation Act. He submits that,

contrary to the Commission's case-law, claims under the said Act

constitute "civil rights" within the meaning of Article 6 (1)

(Art. 6-1) of the Convention.

2.   The Commission notes that the proceedings complained of

(paragraph 3 of the statements of facts) concerned the applicant's

petition for a rehearing of his claim for compensation. That petition

was filed after the applicant's claim had been finally determined in

administrative and court proceedings which were concluded on .. October

1963 (cf. paragraph 2 of the statement of facts). On that day the

Federal Court, dismissing the applicant's appeal on points of law,

confirmed the refusal of his claim for compensation which thus acquired

the force of res judicata.

The Commission further notes that, under Articles 578 et seq. of the

Code of Civil Procedure, a party may apply for the "reopening of

proceedings which have been concluded by a final judgment that has

acquired the force of res judicata" ("Wiederaufnahme eines durch

rechtskräftiges Endurteil geschlossenen Verfahrens"); further, that the

applicant's petition for rehearing under Article 580 of the Code was

refused by the Court of Appeal on the ground that this provision could

not be applied in proceedings under the Federal Compensation Act; and

that the applicant's appeal from this decision was dismissed by the

Federal Court.

3.   However, under Article 25 (1) (Art. 25-1) of the Convention, it

is only the alleged violation of one of the rights and freedoms set out

in the Convention that can be the subject of an application presented

by a person, non-governmental organisation or group of individuals.

With regard to the present complaint, no right to a rehearing in

proceedings under the Federal Compensation Act is as such included

among the rights and freedoms guaranteed by the Convention.

4.   Furthermore, concerning the court proceedings relating to the

applicant's petition for rehearing, the Commission recalls that, in

accordance with its case-law, as confirmed in Application No. 4311/69

(X. v. Denmark, Collection of Decisions, Vol. 37, pp. 82, 97),

proceedings in criminal cases relating to applications for retrial fall

outside the scope of Article 6 (Art. 6) of the Convention, since a

person applying for retrial, having been finally convicted of a

criminal offence, is no longer a person charged with that offence

within the meaning of this Article. In a number of cases concerning

petitions for rehearing in civil proceedings (e.g. Application No.

2889/66 - unpublished) the Commission referring to its jurisprudence

in criminal cases, has equally come to the conclusion that the

proceedings relating to such petitions are not covered by Article 6

(Art. 6). It now confirms this view, which is based on the

consideration that such proceedings do not concern the "determination"

of civil rights or obligations within the meaning of this Article, but

the procedural question whether a determination given in previous

proceedings, which has acquired the force of res judicata, should be

reconsidered.

Furthermore, in the present case, the Federal Court was only faced with

the question of the decision of the applicant's appeal, on points of

law, against the judgment of the Court of Appeal declaring inadmissible

his petition of rehearing. This question was merely a procedural one

and different from the determination of the applicant's claim for

compensation, which had been the subject of the previous proceedings

(paragraph 2 of the statement of facts).

5.   It follows that the application is incompatible ratione materiae

with the provisions of the Convention within the meaning of Article 27,

paragraph (2) (Art. 27-2).

The Commission therefore, does not find it necessary in the present

case to reconsider its case-law (Application No. 4618/70) according to

which proceedings under the Federal Compensation Act generally fall

outside the scope of Article 6 (Art. 6) of the Convention.

For these reasons, the Commission DECLARES THIS APPLICATION

INADMISSIBLE.