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NADLER AND RECKZIEGEL v. GERMANY

Doc ref: 27718/95 • ECHR ID: 001-2869

Document date: April 12, 1996

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Cited paragraphs: 0
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NADLER AND RECKZIEGEL v. GERMANY

Doc ref: 27718/95 • ECHR ID: 001-2869

Document date: April 12, 1996

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 27718/95

by Hermann NADLER and Erich RECKZIEGEL

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. 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 20 February 1992

by Hermann NADLER and Erich RECKZIEGEL against Germany and registered

on 26 June 1995 under file No. 27718/95;

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 facts, as they have been submitted by the applicants, may be

summarised as follows.

The applicants are both German nationals. The first applicant,

born in 1916, is resident in Düsseldorf. The second applicant, born in

1926, is resident at Wachtberg. In the proceedings before the

Commission, the second applicant is represented by the first applicant.

Following World War II, the applicants, Sudeten-Germans, had to

leave the territory of former Czechoslovakia and lost their properties,

which were confiscated by the former authorities of Czechoslovakia.

In 1973 Germany and former Czechoslovakia concluded a treaty on

their mutual relations (Vertrag über die gegenseitigen Beziehungen).

On 27 February 1992 Germany and the former Czech and Slovak Federal

Republic concluded a treaty on good neighbour relations and friendly

cooperation (Vertrag über gute Nachbarschaft und freundschaftliche

Zusammenarbeit).

On 29 September 1994 a panel of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) rejected the

constitutional complaint, lodged by inter alia the applicants against

this Border Treaty as well as the Act of Ratification related to it.

COMPLAINTS

1. The applicants complain that as Sudeten-Germans they had to leave

the territory of former Czechoslovakia and thereby lost their

properties following World War II. They invoke Articles 8, 14 of the

Convention, Article 1 of Protocol No. 1, Articles 3 and 4 of Protocol

No. 4 and Article 1 of Protocol No. 7.

2. The applicants further maintain that the respective treaties of

1973 and 1992 perpetuate this situation. They submit that their

expulsion following World War II and the confiscation of their

properties violated cogent international law. When concluding the

above treaties, the German Government had failed to protect their

interests in returning their former properties.

THE LAW

1. As regards the applicants' complaints about their expulsion from

former Czechoslovakia and the confiscation of their properties, the

Commission observes that the events in question relate to a period

prior to the entry into force of the Convention and its Protocols. It

follows that this part of the application is outside the competence

ratione temporis of the Commission and therefore incompatible with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2).

2. The applicants further maintain that the German Government, when

concluding the respective treaties of 1973 and 1992 with former

Czechoslovakia and the former Czech and Slovak Federal Republic,

perpetuated the above events and failed to protect their interests in

returning to their home regions and having their former properties

restored.

The Commission has examined these complaints under Article 1

para. 1 of Protocol No. 1 (P1-1-1) which reads:

"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 Commission has found in previous cases relating to the Warsaw

Treaty between Poland and Germany or the German-Polish Border Treaty

(No. 7655-57/76, Dec. 4.10.77, D.R. 12 p. 111; No. 24928/94,

Dec. 30.11.94 and No. 22353/93, Dec. 18.10.95, not published) that,

following the confiscation decisions in question, there may have been

some hope of recognition of the survival of property rights. The

conclusion of the respective Treaties by Germany may have made it

harder to use such arguments. However, the existence of any property

right and the ability of the applicants to exercise any such right was

almost as uncertain before the ratification of the treaties as it was

after their ratification. The Commission has noted in the above

mentioned decisions that none of the two treaties with Poland relate

to property question. The same is true for the Treaty of Moscow of

12 September 1990, the so called 2 + 4 Treaty between the Federal

Republic of Germany and the German Democratic Republic on the one side

and the Union of Soviet Socialist Republics, United Kingdom, United

States of America and France on the other side on the final settlement

in relation to Germany (No. 21591/93, Dec. 28.2.96, not published).

The same conclusions must be drawn in respect of the Treaty of

27 February 1992, between Germany and the (former) Czech and Slovak

Federal Republic, which deliberately did not refer to any property

question. Therefore, it cannot be deduced from this treaty that the

Federal Republic of Germany disposed of any property rights of their

citizens, if any such right still existed. The Commission found that

no causal relationship had been demonstrated between the act complained

of (in these cases ratification of the treaties by the Federal Republic

of Germany) and the loss of the right to which claim is laid. Finally,

even assuming that there existed a positive obligation on the part of

a member state to give protection to its citizens against violations

of fundamental rights, the Commission considered that as far as

international treaties are concerned the Contracting Parties enjoy

large discretionary power which is by its nature limited to reaching

results acceptable for the Contracting Parties and that the general

interest of establishing normal and friendly relations with a

neighbouring state prevails over the individual interests at stake in

the present matter. The Commission found that nothing permitted it to

conclude that the German Government used its discretionary power in

weighing general and individual interests in an arbitrary manner.

The Commission has had regard to the arguments submitted in

support of the present application. It finds however no reason to

depart from its earlier jurisprudence.

It follows that this part of the application likewise has to be

rejected as being manifestly ill-founded within the meaning of

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

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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