Lexploria

AS TO THE ADMISSIBILITY OF

1) Application No. 19048/91

by Hans-Christoph WEIDLICH and

Bernd-Joachim FULLBRECHT

2) Application No. 19049/91

by Ortwin A. HASENKAMP

3) Application No. 19342/92

by Hartwig GOLF

4) Application No. 19549/92

by Werner KLAUSSER

5) Application No. 18890/91

by Gisela MAYER

against Germany

The European Commission of Human Rights sitting in private on

4 March 1996, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

Mrs. G.H. THUNE

J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

C. BÎRSAN

P. LORENZEN

K. HERNDL

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 applications introduced on 1) 16 October

1991, 2) 6 October 1991, 3) 2 January 1992, 4) 7 October 1991 and 5)

14 August 1991 by 1) Hans-Christoph WEIDLICH and Bernd-Joachim

FULLBRECHT, 2) Ortwin A. HASENKAMP, 3) Hartwig GOLF, 4) Werner KLAUSSER

and 5) Gisela MAYER against Germany and registered on 1) 7 November

1991, 2) 7 November 1991, 3) 15 January 1992, 4) 27 February 1992 and

5) 3 October 1991 under files No. 1) 19048/91, 2) 19049/91, 3)

19342/92, 4) 19549/92 and 5) 18890/91, respectively;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to:

- the Commission's decision of 6 January 1993 to join (Rule 35 of

its Rules of Procedure) and communicate the applications Nos.

19048/91, 19049/91, 19342/92 and 19549/92;

- the Commission's decision of 30 August 1994 to join application

No. 18890/91 with the above applications and to communicate it

without requesting further observations;

- the observations submitted by the respondent Government on

23 April 1993 and supplemented on 30 September 1993 and

5 December 1994;

- the observations in reply submitted by the applicants Weidlich

and Fullbrecht on 2 June 1993 and 17 December 1993, the applicant

Hasenkamp on 12 June 1993, 15 December 1993 and 21 February 1995,

the applicant Golf on 13 June and 21 December 1993, 2 February

1994 and 22 March 1995, the applicant Klausser on 16 June 1993

and 10 December 1993;

- the parties' oral submissions at the hearing on 4 March 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, Hans-Christian Weidlich and Bernd Joachim

Fullbrecht (No. 19048/91), are German citizens. Mr. Weidlich was born

in 1930 and is living in Kaiserslautern. Mr. Fullbrecht was born in

1924 and is living in Wachtberg-Niederbachem. Both are represented by

R. Zuck, a lawyer practising in Stuttgart.

The applicant, Ortwin A. Hasenkamp (No. 19049/91), is a German

citizen, born in 1926 and living in Celle. He is represented by

Mr. W. Seiffert, a law professor at the University of Kiel.

The applicant, Hartwig Golf (No. 19342/92), is a German citizen

born in 1913 and living in Limburg. He is represented by Mr. T. Golf,

a lawyer practising in Waldeck-Sachsenhausen.

The applicant, Werner Klausser (No. 19549/92), is a German

citizen born in 1925 and living in Schwanenwede. He is also represented

by Mr. R. Zuck.

The applicant, Gisela Mayer (No. 18890/91), is a German citizen,

born in 1929 and living in London. She is represented by Mr. V.

Nebelsieck.

A. The Particular Circumstances of the Cases

The facts which are undisputed between the parties may be

summarised as follows.

The applicants were real property owners or are the legal

successors of real property owners whose property was expropriated in

connection with the land reform carried out between 1945 and 1949 in

the former Soviet-occupied zone of Germany. The expropriations also

extended to movable property on the premises such as household effects.

All applicants complain about the regulation in the Treaty on

German Unification of 31 August 1990 (BGBl 1990 II, p. 889 et seq., -

Einigungsvertrag, hereinafter referred to as the 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, BGBl. 1990 II

p. 889, 1159, amended on 3 August 1992, BGBl. I, p. 1446). 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 Sec. 6(7) and Secs. 9

et seq. while for certain cases mentioned in Sec.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 (BGBl 1990 II, p. 1318 et seq.), 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.

By decision of 23 April 1991 the Federal Constitutional Court

(Bundesverfassungsgericht) rejected several constitutional complaints

of persons, among whom three of the applicants in the present case

(Weidlich, Fullbrecht and Hasenkamp), who had their real estate

confiscated between 1945 and 1949 in the Soviet-occupied zone of

Germany. 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).

On 27 September 1994 the 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, BGBl. 1994 I p.

2624) 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 (see

above);

- the Equalisation Act (Ausgleichsgesetz, BGBl. 1994 I p.

2628) 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. The 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.

2. ..."

[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.

2. ..."

The Joint Declaration became part of the Unification Treaty of

31 August 1990 (BGBl 1990 III, p. 889 et seq.) 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:

1. ...

4. The present wording of Article 135 (a) (1) shall become

paragraph 1 of that Article. The following paragraph shall be

inserted after paragraph 1:

_______________

(1) Translation of Article 135 (a)

(1) The legislation reserved to the Federation in paragraph (4)

of Article 134 and in paragraph (5) of Article 135 may also

stipulate that the following liabilities shall not be discharged,

or not to their full extent:

1. liabilities of the Reich or liabilities of the former Land

of Prussia or liabilities of such corporate bodies and

institutions under public law as no longer exist;

2. such liabilities of the Federation or corporate bodies and

institutions under public law as are connected with the

transfer of properties pursuant to Article 89, 90, 134 or

135, and such liabilities of these entities as arise from

measures taken by the entities mentioned under item 1;

3. such liabilities of Leander or communes or associations of

communes as have arisen from measures taken by the entities

before 1 August 1945 within the framework of administrative

functions incumbent upon, or delegated by, the Reich to

comply with regulations of occupying Powers or to remove a

state of emergency due to the war.

_______________

'(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 Sections II, VIII, VIII 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.

(2)...

(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:

1. ...

4. Der bisherige Wortlaut des Artikels 135 a (2) wird Absatz 1.

Nach Absatz 1 wird folgender Absatz angefügt:

_______________

(2) Article 135 (a) reads

Durch die in Artikel 134 Abs. 4 and Artikel 135 Abs. 5

vorbehaltene Gesetzgebung des Bundes kann auch bestimmt werden,

dass nicht oder nicht in voller Höhe zu erfüllen sind

1. Verbindlichkeiten des Reiches sowie Verbindlichkeiten des

ehemaligen Landes Preussen und sonstiger nicht mehr

bestehender Körperschaften und Anstalten des öffentlichen

Rechts;

2. Verbundlichkeiten des Bundes oder anderer Körperschaften

und Anstalten des öffentlichen Rechts, welche mit dem

Übergang von Vermögenswerten nach Artikel 89, 90, 134 und

135 im Zusammenhang stehen und Verbindlichkeiten dieser

Rechtsträger, die auf Massnahmen der in Nummer 1

bezeichneten Rechtsträger beruhen;

3. Verbindlichkeiten der Länder und Gemeinden (Gemeinde-

verbände), die aus Massnahmen entstanden sind, welche diese

rechtsträger vor dem 1. August 1945 zur Durchführung von

Anordnungen der Besatzungsmächte oder zur Beseitigung eines

kriegsbedingten Notstandes im Rahmen dem Reich obliegender

oder vom Reich übertragener Verwaltungsaufgaben getroffen

haben.

_______________

`(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:

Artikel 143

(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.

(2)...

(3) Im übrigen wird die Bundesrepublik Deutschland keine

Rechtsvorschriften erlassen, die der in Absatz 1 genannten

Gemeinsamen Erklärung widersprechen."

COMPLAINTS

The applicants invoke Article 1 of Protocol No. 1 to the

Convention read in conjunction with Article 14 of the Convention.

They argue that the expropriations in question were incompatible

with international law and constitute a continuous violation of

property rights. They submit that, unlike the Treaties of Moscow (12

August 1970) and Warsaw (7 December 1970) in which the Federal Republic

of Germany recognised all frontiers in Europe without regulating any

property questions, the Unification Treaty expressly excludes any

restitution rights and thus legalises unlawful confiscations. This

amounts to a violation of their right to the peaceful enjoyment of

their possessions. In this connection they point out that according

to Article 25 of the Basic Law the general rules of public

international law have precedence over domestic law, a principle which

in their opinion has been overlooked by the Federal Constitutional

Court.

They further consider themselves to be victims of discrimination

in comparison with persons whose property was confiscated in the former

German Democratic Republic after 1949 and who can now claim restitution

or reparation.

PROCEEDINGS BEFORE THE COMMISSION

The applications were introduced respectively on 16 October 1991

(No. 19048/91), 6 October 1991 (No. 19049/91), 2 January 1992 (No.

19342/92), 7 October 1991 (No. 19549/92) and 14 August 1991 (No.

18890/91).

They were registered respectively on 7 November 1991 (Nos.

19048/91 and 19049/91), 15 January 1992 (No. 19342/92), 27 February

1992 (No. 19549/92) and 3 October 1991 (No. 18890/91).

On 6 January 1993 the Commission decided to join (Rule 35 of its

Rules of Procedure) and communicate the applications Nos. 19048/91,

19049/91, 19342/92 and 19549/92 to the respondent Government and invite

them to submit observations in writing on the admissibility and merits

of the complaint under Article 1 of Protocol No. 1 read together with

Article 14 of the Convention.

On 30 August 1994 the Commission decided to join application No.

18890/91 and another application, No. 19918/92, with the above

applications and to communicate them to the Government without

requesting further observations. Application No. 19918/92 was

disjoined on 8 December 1995 and its examination adjourned at the

request of the applicants in that case.

The Government's written observations were submitted on

23 April 1993 and supplemented on 30 September 1993 and

5 December 1994. Observations in reply were submitted by the

applicants Weidlich and Fullbrecht on 2 June 1993 and 17 December 1993,

the applicant Hasenkamp on 12 June 1993, 15 December 1993 and 21

February 1995, the applicant Golf on 13 June and 21 December 1993, 2

February 1994 and 22 March 1995, and by the applicant Klausser on 16

June 1993 and 10 December 1993.

On 10 April 1995 the Commission decided to obtain the parties'

oral submissions on the applications. A hearing fixed for 8 September

1995 was adjourned at the Government's request. The hearing took place

on 4 March 1996. The following persons represented the parties at the

hearing:

The Government :

- Mr. J. MEYER-LADEWIG, Agent

Federal Ministry of Justice

- Mr. M. WECKERLING, Regierungsdirektor

- Mr. G. FIEBERG, Ministerialrat

- Mr. H. REICHENBACH, Richter am Bundespatentgericht

- Mr. F. PLESSE, Regierungsdirektor

Foreign Office

- Mr. K. J. BOSCH, Vortragender Legationsrat Erster Klasse

President's Office

- Mr. V. ZILCH, Ministerialrat

Federal Ministry of Finance

- Mr. O. LÖFFLER, Ministerialrat

- Ms. M. KNOLLE, Oberregierungsrätin

Federal Ministry of Agriculture, Food and Forests

- Mr. U. KUHLMANN, Ministerialrat

as advisors.

The applicants:

Application Nos. 19048/91, 19549/92 (Weidlich and Fullbrecht, Klausser)

- Mr. A. WENDENBURG, a lawyer practising in Celle

- Mr. R. ZUCK, a lawyer practising in Stuttgart

- the applicants Messrs. WEIDLICH and FULLBRECHT were also present.

Application No. 18890/91 ((Mayer)

- Mr. V. NEBELSIECK, a lawyer practising in Celle

- Mr. F. ROSENBERGER, a lawyer practising in Cologne

Application No. 19049/91 (Hasenkamp)

- Mr. W. SEIFFERT, professor of law

- the applicant was also present.

Application No. 19342/92 (Golf)

- Mr. T. GOLF, a lawyer practising in Altenburg

THE LAW

1. The applicants allege a violation of their rights under Article

1 of Protocol No. 1 (P1-1) to the Convention. This Article (P1-1)

reads as follows:

"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 argue in essence that the expropriation of their

property between 1945 and 1949 was invalid under public international

law, in particular the Hague Convention on the Laws and Customs of War,

as well as under the law of the Federal Republic of Germany, and that

it resulted in a continuous violation of their property rights.

Therefore the Unification Treaty, by excluding both restitution and

full reparation, amounts in their submission to a violation of Article

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

They furthermore deny that in the unification negotiations the

former Soviet Union demanded that property taken between 1945 and 1949

should not be given back to its former owners. They consider that the

only concern of the Soviet Union was that the legality of the

expropriations concerned should not be put into question. Furthermore,

they point out that the Soviet Union had ceased to exist. Consequently

the Federal Republic was no longer bound by any undertaking not to

retransfer properties to their legitimate owners. But even assuming

that the Federal Republic had validly agreed not to return the

properties to their former owners it was obliged to pay compensation

in view of the illegality of the expropriations and the fact that at

least 70% of the properties concerned were now at the disposal of the

authorities of the Federal Republic.

The applicant Hasenkamp submits that at the relevant time he was

a citizen of the Free City of Danzig and not a German citizen.

Therefore the expropriation in his case was not covered by the

expropriation orders of the Soviet occupational authorities.

The respondent Government submit that in the light of the history

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. Furthermore the respondent 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 has been

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 newly-enacted 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.

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 (P1) 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).

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 H.R, 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 H. R., Pine Valley Developments Ltd and

Others judgment of 29 November 1991, Series A no. 222, p. 23, para. 51,

and Pressos Compania Naviera S.A. and Others judgment of

20 November 1995, Series A no. 332, 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 properties

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 rationae 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 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 rights of the applicants under Article 1 of

Protocol No. 1 (P1-1). The particular arguments advanced by the

applicant Hasenkamp do not justify another conclusion in his case.

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 further consider that they have been discriminated

against with regard to the enjoyment of their property rights in that,

unlike owners of property expropriated by the authorities of the German

Democratic Republic after 1949, they cannot claim restitution or

reparation but only limited equalisation payments under the

Equalisation Act of 27 September 1994. They invoke 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 (cf. Eur.

Court H.R., Inze 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

(cf. Eur. Court H.R., Marckx 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.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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WEIDLICH AND OTHERS v. GERMANY

WEIDLICH AND OTHERS v. GERMANY