AS TO THE ADMISSIBILITY OF

Application No. 24928/94

by Karl LUCK

against Germany

The European Commission of Human Rights (First Chamber) sitting in private on 30 November 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 25 November 1992 by Karl LUCK against Germany and registered on 19 August 1994 under file No. 24928/94;

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 1916 and living in Borgloh .

It follows from his statements and the documents submitted that the applicant and others lodged a constitutional complaint against the German-Polish Border Treaty ( Deutsch-Polnischer Grenzvertrag ) of 17 October 1991 and the Act of Ratification.  The complainants argued that the treaty, by recognising the existing border between the two countries deprived them of the possibility of recuperating their real property situated on former German, and now Polish, territory which had illegally been confiscated after World War II.  On 5 June 1992 a group of three judges of the Federal Constitutional Court ( Bundesverfassungsgericht ) rejected the complaints 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 applicant’s 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 applicant maintains that the Polish-German border treaty and the act endorsing it violate his rights under Article 1 of Protocol No. 1 and Article 3 para . 1 of Protocol No. 4.

THE LAW

1. The applicant mainly complains that ratification by the Federal Republic of Germany of the German-Polish Border Treaty of 17 October 1991 had the effect of depriving him definitively of the ownership ofproperty he allegedly possessed before 1945 in regions which are now part of Polish territory.  He invokes Article 1 para . 1 of Protocol No. 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 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 Commission first points out that it has already dealt with a similar application relating to the Warsaw Treaty dated 7 December 1970 in which the Federal Republic already recognised the western frontier of Poland, subject to a general reservation in Article IV 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 applicant’s 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 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 of the Convention (Nos. 7655-57/76, D.R. 12, p.111 [128])."

The same reasons apply to the present matter.  The Commission points out in addition that 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.

Consequently the present application does not disclose any appearance of a violation of Article 1 of Protocol No. 1 and this part of the application is therefore manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention.

2. The applicant also seems to complain of discrimination in respect of his property right in that in contrast to property owners whose  property has been expropriated by the authorities of the former GDR, no compensation is provided for loss of property that occurred after World War II in Polish occupied territories.  However, even assuming that the right to the peaceful enjoyment of possessions can be invoked in this context, Article 14 of the Convention does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances (see Eur . Court H.R., Belgian linguistic judgment of 23 July 1968, Series A No. 6, p. 44 para . 7).  The Commission considers that the situations referred to are not comparable.  While in consequence of German unification the Federal Government obtained possession of properties expropriated by the former GDR, it has no possibility of disposing of former German properties expropriated by Polish authorities and situated on Polish territory.

It follows that there is no appearance of a violation of Article 1 of Protocol No. 1 read in conjunction with Article 14 of the Convention and to this extent the application is likewise manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention.

3. Finally, insofar as Article 3 para . 1 of Protocol No. 4 is invoked the Federal Republic cannot be held responsible for alleged collective expulsions carried out by or with the consent of foreign authorities at the end of World War II.  To this extent the application has to be rejected in accordance with Article 27 para . 2 of the Convention as being incompatible with the Convention ratione personae.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber        President of the First Chamber

     (M.F. BUQUICCHIO)        (A. WEITZEL)