THE FACTS

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

as follows:

The applicant is an Australian citizen, born in 1911 in Poland and

resident at N., Victoria, in Australia where he is a minister. He is

represented by Mr. C., an international law consultant practising in

London.

The applicant was a curate in Poland when he, in October 1941, was

arrested by the Gestapo. He was then detained for three and a half

years in the Dachau concentration camp.

In 1950, he received compensation for loss of liberty from the

compensation authorities in Hamburg.

In November 1961, the applicant applied to the Federal Administrative

Office (Bundesverwaltungsamt) in Cologne for compensation for damage

to his health and body, basing his application on the Agreement of 5

October 1960 between the United Nations High Commissioner for Refugees

and the Government of the Federal Republic of Germany. In his

application, the applicant maintained that the principal, though not

exclusive, reason for the persecution suffered at the hands of the

Nazis was his Polish nationality and, accordingly, he was claiming

compensation as a victim of persecution by reason of nationality.

The Office considered that the applicant could only rely on Sec.1 of

the Federal Constitutional Act (Bundesentschädigungsgesetz) but not on

the Agreement, and his claim was first referred to the Compensation

Office in Hamburg which rejected it, on 22 July 1963, as having been

lodged out of time.

On 29 October 1963, the Federal Administrative Office to whom the

matter had been reverted, rejected the applicant's claim on the grounds

that he had suffered persecution, not because of his nationality but

of his Catholic faith.

However, on 16 January 1968, the Regional Court (Landgericht) of

Cologne granted the applicant compensation and this decision was

confirmed by the Court of Appeal (Oberlandesgericht) of Cologne on 11

July 1968. Both courts accepted that the applicant had been persecuted

because of his religion as well as his nationality. Both instances also

held the fact that the applicant had been persecuted because of his

religion, i.e. one of the grounds for compensation mentioned in Sec.

1 of the Federal Constitutional Act, did not exclude the admissibility

of his claim for compensation on grounds of nationality which was based

on Sec. VI of the Second Act to amend the Federal Constitutional Act

(2. Gesetz zur Änderung des Bundesentschädigungsgesetzes - hereinafter

referred to as the Amendment Act).

The Federal Administration Office appealed, however, to the Federal

Court (Bundesgerichtshof). In the course of these proceedings the

applicant challenged Mr. Z., one of the judges of the Federal Court on

the grounds of bias. The applicant stated that there were good reasons

to believe that Mr. Z. might be prejudiced in his capacity as a judge

because of his former activities in the Federal Ministry of Finance for

a period of 15 years. In particular, Mr. Z. had dealt with compensation

questions in an executive function and also, participated in the

drafting of the Amendment Act as well as of the directives for the

application of the provisions of that Act invoked by the applicant. He

had further written an article in a legal journal in which he had dealt

with the question of compensation to Catholic priests, expressing a

view which was unfavourable to the applicant's type of cases. In a

statement submitted to the Court, Mr. Z. stated himself that he was not

biased, and that, to his knowledge, he had not previously dealt with

the applicant's case.

On 10 July 1969, the Federal Court rejected the challenge of Mr. Z. as

not being justified. The Court first stated that the mere fact that an

official had been involved in the drafting of legislation could not

give rise to the fear that, once appointed a judge, he would not apply

that legislation in an unbiased and impartial manner. The Court then

went on to examine the particular reasons given by the applicant but

considered that none of them was sufficient to disqualify Mr. Z. from

taking part in the case.

By judgment of 17 November 1969, the Federal Court set aside the

decisions of the lower courts and dismissed the applicant's

compensation claim. The Court stated that the aim of Sec. VI of the

Amendment Act was to provide compensation for aliens who were otherwise

not entitled to compensation. The prohibited the granting of

compensation of this account to persons who were victims of persecution

for reasons stated in Sec. 1 of the Federal Constitutional Act, but had

failed to lodge a claim within the time-limit prescribed for such

claims. The Court of Appeal had established that the applicant was

persecuted because of his faith within the meaning of Sec. 1 of the Act

and he was therefore precluded from claiming compensation under Sec.

VI of the Amendment Act on grounds of nationality.

The judgment has been served on the applicant's counsel on 6 March

1970.Complaints

The applicant alleges that the Federal Court violated his right under

Article 6 of the Convention to a fair hearing of his case by an

impartial tribunal in that :

(i)  the Court failed to base its conclusions and order on evidence

known to the applicant;

(ii) Mr. Z. participated as one of the judges although his

impartiality had been challenged by the applicant.

The applicant describes the Federal Court's decision as singularly

incomprehensible and violating the human sense of justice. In his

submission, the interpretation adopted by the Court of Sec. VI of the

Amendment Act does not correspond with either the letter or the spirit

of the law and was contrary to the view previously taken by the Court

that, in cases of Nazi persecution, the law should be interpreted as

wide as possible in order to enable the victims to be granted

compensation.

He maintains  that the principle of fair hearing requires that a court

bases its decision on evidence submitted to it by, or at least known

to the parties. The applicant contends that the Federal Court failed

to observe this principle. Thus the Court stated that the regulation

of claims by persons persecuted on grounds of nationality as provided

in Sec. VI of the Amendment Act, went back to the Bonn Settlement

Agreement of 26 May 1952. The Court then said that:  "The Federal

Government took the view, and this was shared by the Allies, that this

category of persons did not come within the ambit of the internal

German compensation law but belonged to the regime of reparations".

The applicant emphasises that the Court, in this context, exclusively

refers to German sources. The applicant could have been expected to be

given evidence by the Court to show that the attitude of the German

Federal Government was actually shared also by the other parties to the

Bonn Settlement Agreement, and that the Allied Powers considered claims

of persons persecuted on account of their nationality to be merely

subsidiary to claims under the Federal Compensation Act. The applicant

argues that there is nothing to support the interpretation of the Court

in this respect.

As regards the question of Mr. Z's participation in the case, the

applicant refers to the grounds for challenging the judge which were

submitted to the Federal Court. In addition, the applicant has now

produced two letters signed by Mr. Z. in 1964 which show that Mr. Z.,

contrary to his own recollection, had in fact dealt with the

applicant's case in the Ministry of Finance. In those letters which

were not known to the Federal Court, Mr. Z. had expressed the view that

the applicant's category, i.e. Catholic priests, had been persecuted

because of their faith and not of their nationality.

THE LAW

The applicant's only complaint before the Commission concerns the court

proceedings relating to his claim for compensation, under the Federal

Compensation Act or the relevant amendment thereto, as being a victim

of Nazi persecution. In this respect he has alleged that, contrary to

the rights guaranteed by Article 6 (1) (Art. 6-1) of the Convention,

the courts denied him a fair hearing of his case and that one of the

judges could not be considered as having been impartial.

Article 6 (1) (Art. 6-1) of the Convention provides:  "In the

determination of his civil rights and obligations ... everyone is

entitled to a fair and public hearing .... by an independent and

impartial tribunal established by law ...". The Commission must

therefore first decide whether the court proceedings relating to the

above claim by the applicant fall within the scope of that provision

to the extent that they involve the determination of his civil rights.

In this connection the Commission refers to its established case-law

to the effect that, on the question whether a right is of a civil

nature, it is not decisive that the right claimed by the applicant

constitutes a "civil right" in the country concerned and that, indeed,

the term "civil rights and obligations" cannot be construed as a mere

reference to the domestic law of the High Contracting Party concerned.

Instead, the concept relates to an autonomous notion which must be

interpreted independently having regard to the nature of the claim and

to the purpose of the complaint. Only in this connection can the

general principles of the domestic law of the High Contracting Parties

be taken into consideration (see decisions on the admissibility of

applications No. 808/60, Yearbook, Vol. 5, pp. 108, 122; No. 1931/63,

Yearbook, Vol. 7, pp. 213, 233; and No. 3959/69, Collection of

Decisions, Vol. 35, pp. 109, 112).

The Commission further refers to its decision of 2 October 1971 on the

admissibility of Application No. 4505/70 (X v. the Federal Republic of

Germany) in which it held that proceedings on a claim for compensation

under the Federal Liability Equalisation Act (Lastenausgleichsgesetz)

did not relate to "civil rights and obligations" within the meaning of

Article 6 (1) (Art. 6-1) of the Convention. The Commission found that

a grant of compensation under that Act was "made by the State in the

execution of its aim to provide for its citizens and to distribute

equally among them the burden of the losses suffered as a result of the

.... war". The relevant court proceedings accordingly concerned "the

exercise of the duties and powers imposed on the Government in the

implementation of the above aim as well as the rights of the individual

arising out of this relationship which is clearly one of public law".

The Commission finds that the above considerations are equally

applicable in respect of proceedings under the Federal Compensation

Act. Without going in detail into questions of State succession or

prescription, the Commission points out that the Federal Republic of

Germany, as such, could not, without specific provision, be held liable

either under German national law or under international law, for

injuries of the kind covered by the Act. However, in the Federal

Compensation Act itself the Government of the Federal Republic of

Germany has undertaken to pay to victims of Nazi persecution

compensation for specified injuries, or to grant such victims other

forms of benefits, within the limits laid down in the Act. This

legislation, like the Federal Liability Equalisation Laws, therefore

constitutes an undertaking on the part of the State to grant

compensation for injuries suffered in the course of special

circumstances for which otherwise damages cannot be recovered under the

general principles of tort liability. Accordingly, the proceedings in

which the eligibility of a particular claim is decided relate, like the

corresponding proceedings on claims under the Federal Liability

Equalisation Act, to rights of the individual vis-à-vis the State which

clearly belong to the domain of public law.

Consequently, the proceedings before the Federal Court in the present

case, were not concerned with the determination of the applicant's

"civil rights and obligations" and therefore fall outside the scope of

Article 6 (Art. 6) of the Convention. It follows that the Commission

has no competence ratione materiae, to examine the application which

must be rejected as being incompatible with the provisions of the

Convention in accordance with Article 27 (2) (Art. 27-2) thereof.

For these reasons, the Commission DECLARES THIS APPLICATION

INADMISSIBLE