AS TO THE ADMISSIBILITY OF

                      Application No. 37255/97

                      by Franz HEUER

                      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 8 July 1997 by

Franz HEUER against Germany and registered on 5 August 1997 under file

No. 37255/97;

     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, born in 1941, is a German national and resident

in Neu-Isenburg. In the proceedings before the Commission, he is

represented by Mr. T. Gertner, a lawyer practising in Koblenz.

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

summarised as follows.

A.   Particular circumstances of the case

     The applicant is the legal successor of a real property owner

whose property was first confiscated, then expropriated by operation

of law in connection with the land reform carried out between 1945 and

1949 in the former Soviet-occupied zone of Germany. The expropriation

also extended to movable property on the premises such as household

effects.

     On 15 December 1993 the Dresden Regional Office for the

Regulation of Unresolved Property Questions (Sächsisches Landesamt zur

Regelung offener Vermögensfragen) rejected the applicant's request for

restitution of the estate.  The decision was based on S. 1 para. 8 (a)

of the Act Regulating Unresolved Property Questions (Gesetz zur

Regelung offener Vermögensfragen), excluding the restitution of

property expropriated under Soviet occupation law or power between 1945

and 1949.

     On 3 December 1996 the Dresden Administrative Court

(Verwaltungsgericht) dismissed the applicant's suit against this

decision, in essence confirming the reasoning of the abovementioned

Office. The Court considered S. 1 para. 8 (a) of the said Act to be

applicable to the real property in question which had been expropriated

by operation of law by Article 2 para. 3 of the 1945 Decree on

Agricultural Land Reform (Verordnung über die landwirtschaftliche

Bodenreform vom 10. September 1945, Amtliche Nachrichten der

Landesverwaltung Sachsen p. 27) which applied to all estates of more

than 100 hectares. The Court pointed out that the real estate was

included in a list published by the Saxony District Land Commission in

1947 which contained all estates of that size which had been

expropriated according to the abovementioned provision. Furthermore,

No. 2 of the Soviet Military Administration Order No. 110 of 22 October

had declared the 1945 land reform decree to be "legally binding", thus

confirming it explicitly. Moreover, in his letter of 9 October 1945 to

the abovementioned commission, the former owner had himself referred

to his "expropriated real estate".

     On 26 March 1997 the Federal Administrative Court

(Bundesverwaltungsgericht) dismissed the applicant's request for leave

to appeal on points of law (Nichtzulassungsbeschwerde). The Court

considered that the question raised by the applicant, namely whether

the expropriation had been null and void, was irrelevant under S. 1

para. 8 (a) of the Act Regulating Unresolved Property Questions.

According to the Court, the notion of "expropriation" used in that Act

did not necessarily mean a "legally valid" (rechtswirksame)

expropriation. Instead it required a complete and final removal of the

former owner from his property caused by State measures aiming at this

result. The Court concluded that such a "de facto-expropriation" had

occurred with respect to the applicant's estate, as established by the

lower instance.

     On 16 June 1997 the Federal Constitutional Court

(Bundesverfassungsgericht) refused to entertain the applicant's

constitutional complaint (Verfassungsbeschwerde).

B.   Relevant law

     According to the Joint Declaration on outstanding property issues

(Gemeinsame Erklärung zur Regelung offener Vermögensfragen) made on

15 June 1990 by the Governments of the Federal Republic of Germany and

the German Democratic Republic, which is a constituent part of the

Treaty on German Unification of 31 August 1990 (Einigungsvertrag),

expropriations carried out on the basis of occupation law or the

authority resulting from occupational power (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).  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.

     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, 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.

     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 (Ausgleichsgesetz) providing for equalisation payments

to persons who had been expropriated 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 complains that the refusal of the German

authorities, after German unification, to return to him the unlawfully

confiscated property which had been expropriated by operation of law

at the instance of the Soviet occupation authorities in 1945 amounts

to a breach of Article 1 of Protocol No. 1 to the Convention.

2.   The applicant further complains about discrimination against him

as expropriations effected after 1949 resulted in restitution or full

compensation.

THE LAW

1.   The applicant complains that the non-restitution of his property

confiscated in connection with the land reform between 1945 and 1949

violates his right to peaceful enjoyment of his 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 Commission first 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), where similar complaints under Article 1 of Protocol

No. 1 (P1-1) were declared inadmissible.

     The relevant passages of the decision of 4 March 1996 in respect

of the incompatibility ratione personae and ratione temporis of these

complaints read as follows:

     "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

     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)."

     The Commission, in the light of the Court's Loizidou v. Turkey

(Merits) judgment of 18 December 1996 (Reports of Judgments and

Decisions 1996, p. 2215, para. 41) which concerned a continuous denial

of access to property in northern Cyprus, further developed this

reasoning in a subsequent case concerning a similar expropriation. The

relevant part of this decision (No. 19918/92, Dec. 24.2.97,

unpublished) reads as follows:

           "In the case of Loizidou v. Turkey, there was, from the

     outset, an interference with property rights in breach of Article

     1 of Protocol No. 1 (P1-1), engaging the responsibility of

     Turkey, which also was held responsible for a continuing

     violation of the said provision on account of the complete

     negation of Mrs Loizidou's property rights in the form of a total

     and continuous denial of access and a purported expropriation

     without compensation (cf. Loizidou (Merits) judgment, op. cit.,

     paras. 48-64).

           In the present case, the deprivation of the applicant's

     property 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 the Convention as well as Protocol No. 1

     had not yet entered into force. Between 1945 and 1949 there could

     not be any interference with property rights in breach of

     Article 1 of Protocol No. 1 (P1-1) which could entail the

     responsibility of the Federal Republic of Germany and give rise

     to a continuing violation."

     As regards the incompatibility ratione materiae of the

above-mentioned complaints, the relevant passages of the decision of

4 March 1996, as confirmed in the decision of 24  February 1997, read

as follows:

     "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 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.

           It follows that the applicants had no 'existing

     possessions' nor any legally recognized 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 Commission finds that the arguments advanced by the applicant

in the present case do not justify any other conclusions.

     The applicant mainly submits that the expropriation carried out

in 1945 by operation of law was unlawful under the then applicable

domestic provisions issued by the Soviet occupation authorities which

allegedly allowed the transfer of property from one private owner to

another but not the mere expropriation of a former owner in favour of

the State. The land reform decree, though, did not designate a new

owner; it only declared certain categories of property (including the

applicant's) to be "expropriated". The applicant therefore considers

that he retained an entitlement to the property in question, namely his

property right. He argues that he was finally deprived of this property

right by the decision of the Federal Administrative Court which defined

the notion of "expropriation" in S. 1 para. 8 (a) of the Act Regulating

Unresolved Property Questions as being based on factual impossibility

to exercise one's property rights regardless of the legal validity of

the expropriation in question.

     The Commission observes that the question of the unlawfulness of

the expropriation measures in 1945 is not within its jurisdiction

ratione temporis.  Having occurred before the entry into force of the

Convention, these measures could not, therefore, give rise to a

continuing breach of the Convention with effect as to the temporal

limitation of the competence of the Convention organs (cf. Eur. Court

HR, Loizidou judgment, op. cit. p. 2230, para. 41; Papamichalopoulos

v. Greece judgment of 24 June 1993, Series A no. 260-B; p. 69,

para. 40).

     As to its competence ratione materiae, the Commission recalls

that the notion of "possessions", pursuant to Article 1 of Protocol

No. 1 (P1-1), refers to "existing possessions" or "legitimate

expectations".

     In the present circumstances, where the Commission is not

competent to examine the lawfulness of the initial expropriation

measures, the fact that, for a period of 45 years, the applicant had

no factual possibility to exercise any powers or control regarding the

estate is decisive for the purposes of Article 1 of Protocol No. 1

(P1-1). In 1990 the expropriated estate did not, therefore, form part

of the applicant's "existing possessions".

     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 carried out on the basis of occupation law or the

authority resulting from the occupational power (1945 until 1949)".

Having considered its own case-law and the relevant decisions of the

Federal Constitutional Court, the Federal Administrative Court

concluded that, taking into account the wording and structure of the

Act, the notion of "expropriation" in S. 1 para. 8 (a) had the same

meaning as in the other provisions of this Act, namely including "de

facto-expropriations". Its conclusions that the property concerned,

which had been included in a list of estates expropriated under the

1945 Decree on Agricultural Land Reform, published by the Saxony

District Land Commission in 1947, had been in fact expropriated do not

disclose any arbitrariness.

     Furthermore, given the facts that the applicant had not been able

to exercise any ownership rights in respect of the property concerned

for more than forty years and did not have any legally recognised

compensation claim at the time of the conlusion of the German

Unification Treaty, he could not have had, at that time, any

"legitimate expectation" of the revival of his former property right.

     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 (P1-1).

2.   The applicant further complains about discrimination against him

as expropriations effected after 1949 resulted in restitution or full

compensation.

     The Commission has examined this complaint under 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 (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

complains, he cannot claim to have been discriminated against in the

enjoyment of his 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

ratione materiae with the provisions 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