FIRMA "BRAUEREI FELDSCHLÖSSCHEN FERDINAND GEIDEL KG", DAVIES, GEIDEL, THE ESTATE OF LOUISE GEIDEL AND LANDGRAF v. GERMANY
Doc ref: 19918/92 • ECHR ID: 001-3483
Document date: February 24, 1997
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AS TO THE ADMISSIBILITY OF
Application No. 19918/92
by 1) Firma "Brauerei Feldschlösschen
Ferdinand Geidel KG"; 2) Charlotte DAVIES;
3) Gerhard GEIDEL; 4) the estate of
Louise GEIDEL; and 5) Margarete LANDGRAF
against Germany
The European Commission of Human Rights sitting in private on
24 February 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 application introduced on 28 March 1992 by
Firma "Brauerei Feldschlösschen Ferdinand Geidel KG", Charlotte Davies,
Gerhard Geidel, the estate of Louise Geidel, and Margarete Landgraf
against Germany and registered on 29 April 1992 under file
No. 19918/92;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
5 December 1994 and the observations in reply submitted by the
applicants on 18 February 1995 and 13 June 1996;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant, a limited partnership, was the owner of a
brewery situated in Werdau/Sachsen (Saxony). The other applicants are
partners of that company, holding the majority of the shares (85.6%).
The fourth applicant is the estate after a partner who died in 1982.
All applicants are represented by the third applicant, formerly a
manager of the applicant company, who resides in Bad Kreuznach.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
A. Particular circumstances of the case
The Geidel family had for many generations been the proprietor
of the first applicant company.
On 15 February 1946 the Werdau District Court convicted the
second applicant and the meanwhile deceased partner of having kept
explosives in their home and sentenced them each to 18 months'
imprisonment. Upon appeal, the Zwickau Regional Court reduced the
sentence on 18 July 1946 to nine months' imprisonment.
Meanwhile, on 30 June 1946 the "Feldschlösschen" brewery was
found to be without owner (herrenlos) and was expropriated without
compensation by the authorities of the then Soviet occupied zone of
Germany.
The applicants' efforts to recuperate their property after German
unification were to no avail.
In order to halt the intended sale of the brewery by the
Fiduciary Office (Treuhandanstalt) the first applicant brought
injunction proceedings against this office before the Berlin Regional
Court (Landgericht). On 17 December 1990 the latter rejected the
action as being inadmissible. The Court considered that the matter
fell within the competence of the Administrative Courts.
Upon appeal the action was dismissed by the Berlin Court of
Appeal (Kammergericht). A subsequent constitutional complaint
(Verfassungsbeschwerde) was rejected by the Federal Constitutional
Court (Bundesverfassungsgericht) on 31 January 1992. The Court
considered that, as reprivatisation had been effected, the previous
decision rejecting the claim for an injunction was justified and did
not violate any constitutional rights.
On 18 August 1993 the Chemnitz Regional Court (Landgericht)
quashed the criminal convictions of 1946 and declared the
rehabilitation of the second applicant and of the meanwhile deceased
partner. The Court considered that the sentences had aimed at the
political persecution of the two persons. Thus, after the war a
communist action group had intended to liberate the brewery from its
"fascist proprietors". The incriminating explosives found had clearly
been foisted (unterschoben) on the two convicted persons. The Court
did not deal with the request for the restitution of the expropriated
property.
The second and fourth applicants filed an objection against this
decision, claiming that the expropriation of the first applicant
amounted to a penal measure which became the object of rehabilitation.
The objection was dismissed by the Regional Court on 19 October 1994
on the ground that the expropriation of the first applicant had not
been caused by a criminal conviction nor any other measure concerning
criminal proceedings.
The further appeal of the second and fourth applicants was
dismissed on 23 January 1995 by the Dresden Court of Appeal
(Oberlandesgericht). The Court found that only criminal judgments or
measures could be the object of a rehabilitation according to the 1992
Criminal Rehabilitation Act (Strafrechtliches Rehabilitierungsgesetz).
However, the expropriation of the first applicant had been a purely
administrative measure.
Before German unification, the third applicant also instituted
proceedings requesting equalisation payments for the expropriated
property. In view of the reduced value calculated, he filed an action
in 1980 with the Frankfurt Administrative Court (Verwaltungsgericht)
which determined certain equalisation payments. Apparently not all
payments were issued, and the applicant introduced a new action on 16
December 1992 with the Frankfurt Administrative Court. These
proceedings are still pending.
B. Relevant Domestic Law and Practice
a) German Unification Treaty
The applicants' complaints relate to the Treaty on German
Unification of 31 August 1990 (Einigungsvertrag, hereinafter referred
to as 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). 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 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, 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
(Entschädigungsgesetz) 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. 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) 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 ..."
[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."
The Joint Declaration became part of the Unification Treaty of
31 August 1990 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: ...
4. The present wording of Article 135 (a) shall become
paragraph 1 of that Article. The following paragraph shall be
inserted after paragraph 1:
'(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 SS. II, VIII, VIDI 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 ...
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: ...
4. Der bisherige Wortlaut des Artikels 135 a wird Absatz 1.
Nach Absatz 1 wird folgender Absatz angefügt:
`(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:
'(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 ...
(3) Im übrigen wird die Bundesrepublik Deutschland keine
Rechtsvorschriften erlassen, die der in Absatz 1 genannten
Gemeinsamen Erklärung widersprechen."
c) Decision of the Federal Constitutional Court of 23 April 1991
On 23 April 1991 the Federal Constitutional Court
(Bundesverfassungsgericht) rejected several constitutional complaints
of persons who had their real estate in the Soviet-occupied zone of
Germany confiscated between 1945 and 1949. 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).
COMPLAINTS
The applicants complain that the refusal of the German
authorities, after German unification, to return to them their
unlawfully confiscated property amounts to a breach of Article 1 of
Protocol No. 1 to the Convention.
The applicants submit that the expropriation in 1946 was
unlawful; for instance, they were never served an expropriation
decision. The expropriation was also invalid under international law
in that it contradicted the Hague Convention on the Laws and Customs
of War.
The applicants point out that restitution should also be granted
as the expropriation in 1946 of the first applicant stood in direct
connection with the criminal convictions of the second and fourth
applicants. However, the latter have meanwhile been rehabilitated.
The applicants contend that in its decision of 31 January 1992
the Federal Constitutional Court relied on its equally incorrect
decision of 23 April 1991.
The applicants further complain that the expropriations effected
after 1949 resulted in full compensation. They submit that there is
no logic in this difference of treatment.
Finally, the third applicant complains under Article 6 para. 1
of the Convention about the length of the proceedings instituted in
1992 before the Frankfurt Administrative Court.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 March 1992 and registered
on 29 April 1992.
On 6 January 1992 the Commission decided to join and communicate
the related Applications Nos. 18890/91, 19048/91, 19049/91, 19342/92
and 19549/92.
The Government's observations were submitted on 23 April 1993 and
supplemented on 30 September 1993.
On 30 August 1994 the Commission decided to join the present
application with Applications Nos. 19048/91, 19049/91, 19342/92 and
19549/92 and to communicate it without requesting further observations
from the Government.
The Government submitted further observations on 5 December 1994.
The applicants submitted observations in reply on 18 February
1995. On 12 May 1995 the applicants requested that the application be
separated from the other applications.
On 8 December 1995 the Commission decided to separate the
application from Applications Nos. 19048/91/ 19049/91, 19342/91 and
19549/92. The latter applications were declared inadmissible on
4 March 1996.
On 13 June 1996 the applicants filed further observations.
THE LAW
1. The applicants complain that the refusal of the German
authorities, after German unification, to return to them their
unlawfully confiscated property amounts to a breach of Article 1 of
Protocol No. 1 (P1-1) to the Convention. This provision states:
"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 contend in essence that the expropriation of their
property resulted in a continuous violation of their property rights
and that the Unification Treaty, by excluding both restitution and full
reparation, violates their rights under Article 1 of Protocol No. 1
(P1-1).
The respondent Government contend that in the light 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. The 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 is 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 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.
The Commission recalls its decision 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), where it dismissed similar
complaints as being inadmissible. It considers that the present case
is not essentially different from the above cases.
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 recognised 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, therefore, the Commission lacks competence
ratione personae to examine the circumstances in which the
expropriation was carried out.
b) The Commission further observes that the expropriation took place
before the entry into force of the Convention, which was on 3 September
1953, and before the ratification of Protocol No. 1 by the Federal
Republic of Germany, which was on 13 February 1957.
It is true that the expropriation continued to produce effects
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.
The Commission has, therefore, considered the notion of a
continuing violation of the Convention and its effects as to temporal
limitations of the competence of Convention organs (cf. Eur. Court HR,
Loizidou v. Turkey (Merits) judgment of 18 December 1996, para. 41, to
be published in Reports of Judgments and Decisions 1996).
The Commission recalls that 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).
In the aforementioned judgment, which concerned a continuous
denial of access to property in Northern Cyprus, the Court rejected the
objection ratione temporis raised by the Turkish Government (Loizidou
v. Turkey (Merits) judgment, op. cit., paras. 42-47). The Court found
that Mrs Loizidou could not be deemed to have lost title to her
property as a consequence of the 1985 Constitution of the "Turkish
Republic of Northern Cyprus" (the "TRNC"), as no legal validity for the
purposes of the Convention could be attributed to any expropriations
under the 1985 Constitution of the "TRNC". In this respect, the Court
noted that the international community did not regard the "TRNC" as a
State under international law and that the Republic of Cyprus had
remained the sole legitimate Government of Cyprus - itself.
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. The
Commission considers that the applicant did not retain any title to his
property.
Accordingly the Commission lacks jurisdiction ratione temporis
regarding the expropriation of the applicant's property in 1945.
c) The applicants may be understood as complaining that they
retained an entitlement to the property in question, the expropriation
carried out between 1945 and 1949 having been unlawfully effected. In
particular, the applicants point out that the expropriation in 1946 of
the first applicant stood in direct connection with the criminal
convictions of the second and fourth applicants. However, the latter
have meanwhile been rehabilitated.
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.
According to the Convention organs' case-law, a person can only
claim to be a victim of a violation of his rights under Article 1 of
Protocol No. 1 (P1-1) if the measure complained of affected his
"possessions" or his "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 that "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. 20,
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).
The present case does not concern any "existing possessions" of
the applicants. Their property was expropriated a long time ago and
they have been unable for decades to exercise any owners' rights in
respect of the property concerned. It appears that in the German legal
order these expropriations were 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 estate 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 (see
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 findings, on the one hand, of the Federal
Constitutional Court in its decision of 23 April 1991 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. On the other hand, the Dresden
Court of Appeal found on 23 January 1995 that only criminal judgments
or measures could become the object of a rehabilitation, and that the
expropriation of the first applicant had been a purely administrative
measure.
There is nothing to show that these findings are arbitrary and
incompatible with the applicable provisions. In particular it does not
appear that the conclusion of the Federal Constitutional Court 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 of the applicants' rights under Article 1 of
Protocol No. 1 (P1-1).
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 may be understood as complaining of discrimination
in respect of the peaceful enjoyment of their possessions in that,
unlike owners of property expropriated by the authorities of the German
Democratic Republic after 1949, they cannot claim restitution or
reparation.
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 (see 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 applicants
complain, they cannot claim to have been discriminated against in the
enjoyment of their property rights within the meaning of this provision
(see Eur. Court HR, Marckx v. Belgium 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.
3. The third applicant complains under Article 6 para. 1 (Art. 6-1)
of the Convention about the length of the proceedings instituted in
1992 before the Frankfurt Administrative Court. However, he has not
shown that in respect of this complaint he obtained a decision of the
Federal Constitutional Court (No. 8499/79, Dec. 7.10.80, D.R. 21, p.
176 with reference to Eur. Court HR, König v. Germany judgment of 28
June 1978, Series A no. 27, p. 22, para. 58). He has not therefore
complied with the requirements under Article 26 (Art. 26) of the
Convention as to the exhaustion of domestic remedies.
The remainder of the application must therefore be rejected
according to Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission