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AS TO THE ADMISSIBILITY OF

Application No. 20931/92

by H.K.

against the Federal Republic of Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 10 February 1993, the following members being present:

MM. F. ERMACORA, Acting President of the First Chamber

J.A. FROWEIN

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 27 October 1992

by H.K. against the Federal Republic of Germany and registered on 12

November 1992 under file No. 20931/92;

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 1966 and living in

Munich. He is represented by Mr. Peter Kloer, a lawyer practising in

Munich.

The applicant states that he is the heir of Eva Kloer who died

in 1986. He complains of the confiscation of Mrs. Kloer's real

property by Polish authorities. The real property is situated on

former German territories east of the Oder-Neisse Line which were put

under the administration of Poland and the Soviet Union according to

the Potsdam Protocol at the end of World War II in August 1945.

The applicant argues that the above-mentioned treaty does not

contain a definite regulation as to the borders between Germany and her

eastern neighbours. In his opinion a final regulation was left to an

international peace treaty.

Mrs. Kloer received some compensation, under the Equalisation of

Burdens Act (Lastenausgleichsgesetz) which, however, the applicant

considers to be insufficient.

The applicant submits that in consequence of German unification

and the treaties related thereto, in particular the treaty between the

Federal Republic of Germany and the Republic of Poland of 14 November

1990 confirming the existing border, all former property owners whose

property was confiscated by the Polish authorities were deprived of any

means of recuperating this property or of claiming just compensation

for its loss.

This opinion was however not shared by the Federal Constitutional

Court (Bundesverfassungsgericht) which rejected the applicant's

constitutional complaint on 27 August 1991 as being inadmissible,

stating that neither the Unification Treaty nor the Unification Treaty

Act contained regulations relating to private property situated on

territories east of the Oder-Neisse Line. On 5 June 1992 the Federal

Constitutional Court declared inadmissible another constitutional

complaint which had been lodged by the applicant and others concerning

the German-Polish Border Treaty. The Court stated that the treaty did

in no way affect the constitutional rights invoked by the complainants.

The treaty only confirmed the border and thereby a factual situation

which had existed for many years. The property in question had been

seized by the Polish authorities after the end of World War II and the

present treaty was in no way concerned with these confiscations.

Furthermore, it could not be argued that the respect of the

complainants' property rights obliged the Federal Republic of Germany

to see to it that the Polish authorities restituted the property or

paid compensation for the loss of it.

COMPLAINTS

The applicant alleges a violation of Article 1 of Protocol No. 1

to the Convention in that German unification was achieved at the

expense of persons having lost property in the former German

territories. Furthermore he considers his property right to be

violated by the fact that the Federal Republic of Germany surrendered

former German territory to Poland without seeing to it that Poland paid

compensation to all those who lost property. Finally, he alleges

discrimination in comparison to persons whose property was confiscated

by the authorities of the former German Democratic Republic.

THE LAW

1. Real property of the applicant's predecessor in title was

confiscated by Polish authorities in former German territory after it

had come under Polish administration in 1945.

The applicant alleges a violation of his right to the peaceful

enjoyment of possessions as guaranteed by Article 1 of Protocol No. 1

(P1-1) to the Convention because the Federal Republic of Germany

renounced any claim to former German territory in treaties concluded

with Poland without seeing to it that compensation was paid to the

expropriated persons.

a) In this respect the Commission notes that in so far as

confiscation is concerned, it was effected by Polish authorities and

occurred before the entry into force of the Convention (3 September

1953) and Protocol No. 1 (13 February 1957) in respect of the Federal

Republic of Germany.

The Commission has already held in a previous decision that

following the confiscation decision taken by the Polish authorities the

exercise of the property rights concerned had become impossible (cf.

Nos. 7655/76, 7656/76 and 7657/76, Dec. 4.10.77, D.R. 12 p. 111, at

p.119).

Moreover the Commission notes that the German-Polish Border

Treaty does not address the issue of property rights and the Federal

Constitutional Court (Bundesverfassungsgericht) has held that it did

not affect property rights which the applicant claims to have

inherited.

b) It remains to be examined whether a right to compensation

existed until the entry into force of the Treaty concluded between the

Federal Republic of Germany and Poland and whether it was affected

thereby. However, the Commission recalls that the Federal Republic of

Germany is not responsible for the confiscations in question. It

follows that the applicants never had any compensation claims against

this State before the conclusion of the Treaty in question. The Treaty

could not therefore have affected any property rights in the form of

pre-existing claims directed against the Federal Republic of Germany

(cf. No. 7742/76, Dec. 4.7.78, D.R. 14 p. 146, at p. 168 et seq.).

On this point the application therefore does not disclose any

appearance of a violation of Article 1 of Protocol No. 1 (P1-1) and has

to be rejected as being manifestly ill-founded within the meaning of

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

2. The applicant further considers to have been discriminated

against with regard to the enjoyment of his property right in that, as

opposed to owners of property expropriated by the authorities of the

former German Democratic Republic after 1949, he cannot claim

restitution or reparation.

Under Article 14 (Art. 14) of the Convention the enjoyment of the

rights and freedoms set forth in the Convention shall be secured

without discrimination on any of the grounds enumerated in the

provision, inter alia, on the ground of status.

The Commission recalls that Article 14 (Art. 14) complements the

other substantive provisions of the Convention and its Protocols.

Although application of Article 14 (Art. 14) does not presuppose a

breach of those provisions, 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., Abdulaziz, Cabales, and Balkandali

judgment of 28 May 1985, Series A no. 94, p. 35, para. 71).

In the present case the applicant's complaint falls within the

ambit of Article 1 of Protocol No. 1 (P1-1) which, inter alia, relates

to expropriation and compensation for the taking of property (cf. Eur.

Court H.R., Lithgow and Others judgment of 8 July 1986, Series A no.

102, p. 50, para. 120).

Article 14 (Art. 14) safeguards individuals, placed in analogous

situations, from discrimination (cf. Eur. Court H.R., Van der Mussele

judgment of 23 November 1983 Series A No. 70, p. 22, para. 46). Yet the

situation of persons whose real property was confiscated by foreign

powers and persons who were expropriated by German authorities in

regions which were and still are German territory is fundamentally

different and therefore incomparable. In the latter configuration the

real property is available to the German authorities, they are

consequently in a position to return the property to the previous owner

or to keep it and pay compensation. No such possibilities are given

to the German authorities with respect to properties confiscated by

third states.

It follows that there is no appearance of a violation of Article

1 of Protocol No. 1 taken together with Article 14 (P1-1+14) of the

Convention and this part of the application is therefore likewise

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 Acting President of the First Chamber

(M.F. BUQUICCHIO) (F. ERMACORA)

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H.K. v. GERMANY

H.K. v. GERMANY

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