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AS TO THE ADMISSIBILITY OF

Application No. 25045/94

by Inge DOBBERSTEIN

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 10 May 1994 by

Inge DOBBERSTEIN against Germany and registered on 31 August 1994 under

file No. 25045/94;

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 a German citizen born in 1929 and living in

Bochum-Oberdahlhausen. She is represented by Mr. R. Schleifenbaum and

Partners, a law firm in Siegen.

It follows from the applicant's statements and the documents

submitted that the applicant inherited from her late husband, who died

on 12 January 1993, a farm of some 80 hectares situated in

Schlochau/Pommern, formerly German territory but which in consequence

of World War II is now part of Poland.

On 2 January 1990 the applicant's late husband requested the

Federal Republic for diplomatic protection by way of measures

safeguarding his property right and/or his claim for compensation for

the loss of the use of his property.

On 30 January 1990 the German Foreign Office (Auswärtiges Amt)

rejected the request stating that after careful examination of all

aspects of the matter and in particular of the circumstances which in

the present case were beyond the Federal Government's sphere of

influence, the Government did not for the time being consider it

appropriate to raise the alleged claims as suggested by the applicant

by way of diplomatic action on the interstate level.

Subsequently the applicant's late husband brought an action

against the Federal Republic before the Cologne Administrative Court

(Verwaltunggericht) with a view to obtaining a court order obliging the

Government to grant him the diplomatic protection he requested.

On 19 June 1991 the action was dismissed. Recognising that there

existed an obligation on the part of the State to give diplomatic

protection vis-à-vis foreign States to its citizens, the court noted

that in deciding whether or not such protection had to be given and if

so which measures had to be taken, the State enjoyed a wide margin of

appreciation in view of the fact that foreign relations not only

depended on the will of the Federal Republic but also on factors beyond

its influence. The courts therefore only had a limited power of

control and there was nothing to show that the defendant had wrongly

exercised its discretionary power.

The fact that in the Treaty of 17 June 1981 concluded between

Germany and the Polish Republic providing for friendly relations and

collaboration between the two neighbour States did not at all deal with

property questions showed that this matter had been deliberately left

out by the Federal Republic in order to avoid endangering the signing

of the Treaty by both parties. On the other hand the German Government

had made it clear in the Treaty negotiations that it considered the

expulsion of Germans from former German territories to be unlawful.

However, it had been sufficiently shown and explained in the present

proceedings that in view of the attitude of the Polish Government the

German Government had reason to believe that any diplomatic action on

behalf of Germans expelled by Polish authorities was bound to fail and

could only harm interstate relations.

An appeal against the judgment of 19 June 1991 was rejected by

the Administrative Court of Appeal of North Rhine Westphalia

(Oberverwaltungsgericht) on 28 April 1993. This court likewise

considered that the defendant Government's position in the matter in

question was unobjectionable. It considered it to be established that

the Federal Government had made it clear to the Polish authorities that

it considered the expulsion of Germans and the confiscation of their

property to be in violation of international law. In signing the

German/Polish Treaty of 1981 and the Treaty of 14 November 1990,

recognising the existing borders between the two countries, the Federal

Government had succeeded in keeping the property question

(Vermögensfrage) open. The court considered it unobjectionable that

the defendant Government for the time being saw no possibility of

reaching an agreement with the Polish Government on the property issues

but hoped that the treaties agreed upon with Poland opened

possibilities for the future that these matters could be settled in a

satisfactory manner.

Leave to appeal on points of law (Revision) was denied by the

Appellate Court and the applicant's complaint in this respect was

rejected by the Federal Administrative Court (Bundesverwaltungsgericht)

on 11 August 1993.

The applicant then lodged a constitutional complaint which was

rejected by a group of three judges of the Federal Constitutional Court

(Bundesverfassungsgericht) on 29 October 1993.

COMPLAINTS

The applicant maintains that she is entitled to a positive

diplomatic action on the part of the Federal Republic with a view to

securing her property right or her right to compensation. She submits

that the inactivity of the respondent Government amounts to a violation

of Article 1 of Protocol No. 1.

THE LAW

The applicant relies on the right to the peaceful enjoyment of

possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1) and

submits that this provision imposes a positive obligation on the German

Government to take diplomatic action vis-à-vis the Polish Government

in order to see to it that her family's property, confiscated after

World War II by Polish authorities, is either returned or compensation

paid to her.

The Commission first notes that there has been no direct

interference with the applicant's possessions by the German

authorities.

The Commission recalls that the Convention does not contain a

right which requires a High Contracting Party to espouse an applicant's

complaints under international law or otherwise to intervene with the

authorities of another State on his or her behalf (No. 7597/76,

Dec. 2.5.78, D.R. 14 p. 117 at 123, 124; see also No. 12822/87,

Dec. 9.12.87, D.R. 54 p. 201).

The Commission has also held in relation to the German-Polish

Border Treaty of 17 October 1991 that this treaty had neither the

effect of depriving persons definitely of the ownership of property

possessed before 1945 in regions which are now part of Polish territory

nor did it violate any assumed positive obligation on the part of

Germany to give protection to its citizens against violations of

fundamental rights. In the latter respect the Commission had regard

to the discretionary power which the High Contracting Parties to the

Convention enjoy in respect of their diplomatic actions. It concluded

in agreement with the Federal Constitutional Court that the general

interest of establishing normal and friendly relations with a

neighbouring state prevailed over the individual interests of persons

whose properties had been confiscated by Polish authorities (No.

24928/94, Dec. of 30.11.94; see also No. 20931/92, Dec. of 10.2.93, and

No. 21591/93, Dec. of 28.2.96 unpublished).

Likewise in the present case the Commission agrees with the

domestic courts that Germany enjoys large discretionary power and

therefore the denial of a concrete diplomatic action on behalf of the

applicant does not disclose any appearance of a violation of Article

1 of Protocol No. 1 (P1-1).

The application has therefore to be rejected in accordance with

Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly

ill-founded.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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DOBBERSTEIN v. GERMANY

DOBBERSTEIN v. GERMANY

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