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AS TO THE ADMISSIBILITY OF

Application No. 22353/93

by Johanna JÜNGLING (née KÜHN),

Beowulf v. PRINCE, Gerda SEBOROWSKI-BALTRUSCHAT,

Wilhelm MARREK, Grete SCHLEMMIGNER (née MOCZEK),

Horst MOCZALL, Gerda MÖßNER (née DUDA),

Heinz PETRUSCHKE, Josef HERDE, Margot DAUBACH,

Liesbet JECKEL (née ACHTERT), Herbert PIETSCH,

Eva JONISCHKEIT (née SCHARLACH),

Gert Adolf Arthur FREIHERR v. BUDDENBROCK,

Christa REMS (née SMOLNIK), Wolfgang MUCHE,

Margot ANSORGE, Günter SPIEKERMANN, Emmi NOLTE,

Hermann OPIOLLA, Wolfgang KÖNIG, Günther ERDMANN,

Brigitte KOSCHANY, Karl NOACK,

Erika GROKE (née KARBE),

Erika HAFEMANN, Margot STOOB (née SCHLÄGER)

Professor Dr. Heinz MARX, Albrecht HAUNSCHILD,

Christine JENTSCH-JOPPEN and Horst STEINER

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, 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

G.B. REFFI

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 3 December 1992

by the above applicants against Germany and registered on 27 July 1993

under file No. 22353/93;

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 thirty-one applicants are all German citizens, living in

Leipzig. They are represented by Mr. Thorsten Golf, a lawyer

practising in Leipzig.

The facts as submitted by the applicants may be summarised as

follows.

The applicants have lost properties in consequence of World

War II. The properties were situated on former German and now Polish

territory. They were confiscated after World War II by the Polish

authorities.

The present border between Germany and Poland was subject to the

German-Polish Border Treaty (Deutsch-Polnischer Grenzvertrag) concluded

on 17 October 1991.

A constitutional complaint, lodged by former property owners

other than the present applicants against this Border Treaty as well

as the Act of Ratification related to it, was rejected by a panel of

three judges of the Federal Constitutional Court (Bundes-

verfassungsgericht) on 5 June 1992 as being inadmissible, there being

no appearance of a violation of constitutional rights.

It is stated in the decision that the border treaty itself does

not contain any regulation on former German property, in particular it

could not be interpreted as a recognition by Germany of prior

expropriation measures effected by Polish authorities. Article 3 of

the treaty only contained a declaration to the effect that the Federal

Republic of Germany did not have any territorial claims vis-à-vis the

Republic of Poland. This declaration did not contain any express or

tacit renouncement with regard to property rights or claims of private

persons.

Nor had the treaty the effect of legalising expropriations

carried out by a foreign state within its own sovereign power.

According to the territorial principle, expropriations are effective

to the extent they are carried out under the territorial sovereignty

of the expropriating state. Foreign expropriations may only be limited

by the notion of "ordre publique" which however only applied to the

extent that there were sufficient links to the domestic territory and

the present time (hinreichende Inlands-und Gegenwartsbeziehung). The

fact that an expropriation was effected without payment of compensation

or in violation of other domestic equity principles (inländische

Gerechtigkeitsvorstellung) did not render foreign expropriations

ineffective. It could be left open whether from the point of view of

German law the expropriations had to be considered as legally binding

even before the coming into force of the border treaty. Even if that

question were to be answered in the negative the conclusion of the

border treaty would not have changed such a legal position because the

treaty did not have retroactive effect on territorial sovereignty. Its

border regulation related to the present and the future. The parties

to the treaty recognise in Article 1 the border line existing between

them in order to define the borders of the united Germany for the

present and the future. By ending the open question of the border 45

years after the end of World War II the parties intended to remove an

obstacle to the development of long lasting peaceful and friendly

relations and to reconciliation between the two peoples. In any event

the validity of the expropriation measures depended on the

circumstances prevailing at the relevant time.

Consequently the proprietorial position of the complainants had

in no way been affected by the border treaty. Their alleged claim for

restitution or compensation had neither before nor after the conclusion

of the border treaty been recognised by the Polish authorities.

Furthermore it was not a matter for the Federal Constitutional Court

to give a legal assessment on the basis of the constitutional law of

the Federal Republic in relation to events that occurred in 1945 and

thereafter under Polish administration.

The Federal Constitutional Court further rejected the applicants'

argument that the Federal Republic had an obligation to see to it that

they reobtained their property, or compensation for its loss. The

court pointed out that the individual citizen in principle had no claim

under constitutional law obliging the legislator to act in his or her

interests. There were also no particular circumstances which could

have created such an obligation from the point of view of

constitutional law. Such an obligation could not be derived from

Article 14 (3) second sentence of the German constitution (providing

the principle of compensation in case of expropriation) because the

expropriations in question had not been effected by the German

legislator. Also the principle of social solidarity (sozialstaatliche

Gründe) could not be invoked by the applicants. This principle

required that burdens imposed on a state community but affecting only

particular groups at random should be spread in an equitable manner.

However, this obligation had been respected by the legislator as all

persons whose property had been expropriated had received financial

compensation under the equalisation legislation (Lastenausgleich). A

claim for full compensation could however, not be derived from the

principle of social solidarity.

Insofar as the complainants had argued that the Federal

Government had violated its obligation to protect their legitimate

interests vis-à-vis foreign states, the Federal Constitutional Court

pointed out that such obligation was principally imposed on German

diplomatic representations abroad which had to protect German nationals

in concrete situations. With regard to the conclusion of international

agreements of a general political nature the Federal Government enjoyed

extensive discretionary power, limited mainly by the necessity to

respect the position of the treaty partner. Therefore a constitutional

complaint aimed at the finding of the unconstitutionality of certain

regulations in international treaties was inadmissible as the interests

of the general public prevailed in such cases over the interests of

individuals or a group of individuals.

Insofar as the applicants had argued that they were being

discriminated against by comparison with citizens whose property had

been expropriated by the authorities of the former GDR and who had now

been granted restitution of their property or compensation the Federal

Constitutional Court considered that the factual situations were not

comparable.

COMPLAINTS

The applicants maintain that the Polish-German Border Treaty and

the Act endorsing it violate their rights under Article 1 of Protocol

No. 1. They submit that the confiscation of their properties as well

as the expulsion of Germans from former German territories violated

cogent international law. Therefore the German Government, by signing

the Treaty in question, also violated international law as it thereby

renounced without the consent of the population concerned to German

territory and the German properties there situated. In their opinion

the international law aspect was overlooked by the Federal

Constitutional Court in its decision of 5 June 1992 and in view of this

decision there was no longer any effective domestic remedy.

THE LAW

The present application concerns the same subject matter as

application no. 24928/94, namely the complaint that the ratification

by the Federal Republic of Germany of the German-Polish Border Treaty

of 17 October 1991 had the effect of depriving the applicants

definitely of the ownership of property they allegedly possessed before

1945 in regions which are now part of Polish territory. They invoke

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 rejected application No. 24928/94 on

30 November 1994. It referred to the reasons stated in a decision of

4 October 1977 rejecting a similar application relating to the Warsaw

Treaty of 7 December 1970 in which the Federal Republic had already

recognised the western frontier of Poland, subject to a general

reservation in Article 4 of that treaty.

Having also regard to the Hague Convention on the laws and

customs of war, the Commission found in its decision of 4 October 1977:

"The property right claimed by the applicants has not been

susceptible of effective exercise for more than thirty years,

following the confiscation announced by the Polish authorities.

Moreover the extent to which the Hague Convention was binding on

the Polish Government before 1970 either directly or by virtue

of general international law is doubtful. Equally doubtful is

the question whether the rules set forth in that Convention,

which govern the behaviour of belligerent states, can be invoked

by individuals with reference to acts performed subsequent to the

end of hostilities. Finally, doubt also surrounds 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 performing it to pay compensation where

appropriate (Article 3 of the Hague Convention 1907).

Following the confiscation decision taken by the Polish

authorities, the applicants may have placed some hope of

recognition of the survival of the property rights in certain

legal arguments including the one discussed above. The

ratification of the Treaties of Moscow and Warsaw by the Federal

Republic has admittedly made it harder to use this latter

argument. In this regard, however, in as far as the effects of

the ratification go, both before and after it, the existence of

the applicants' property right was almost equally uncertain and

the exercise of such right equally impossible.

Further the Commission takes the view that a violation of

Article 1 of Protocol No. 1 (P1-1) can be envisaged only if there

exists a direct and sufficient causal relationship between the

act complained of (in this case ratification of the treaties by

the Federal Republic of Germany) and the loss to the right to

which claim is laid. The Commission considers that in this case

the applicants have not demonstrated the existence of such a

relationship either.

It follows that in this point the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)

of the Convention." (Nos. 7655-57/76, D.R. 12, p. 111 [128])."

The Commission considered in its decision of 30 November 1994

that the same reasons applied to the matter raised in application

no. 24928/94. It pointed out in addition

"even assuming that there exists a positive obligation on the

part of a member state to give protection to its citizens against

violations of fundamental rights, it agrees with the Federal

Constitutional Court 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. The Commission notes that the Federal

Constitutional Court stated that the final recognition of the

border between the two states and of the sovereignty of Poland

in relation to these former German territories did not relate to

property rights or claims of private persons. The Commission

agrees with the Federal Constitutional Court findings 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 had regard to the arguments submitted in support

of the present application. It finds however no reason to divert from

its earlier jurisprudence.

It follows that 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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JÜNGLING AND OTHERS v. GERMANY

JÜNGLING AND OTHERS v. GERMANY

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