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AS TO THE ADMISSIBILITY OF

Application No. 12624/87

by Wolf-Israel BERLER

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 10 July 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 application introduced on 7 February 1986

by Wolf-Israel Berler against the Federal Republic of Germany and

registered on 29 December 1986 under file No. 12624/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to :

- the Commission's decision of 4 July 1988 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

28 October 1988 and the observations in reply submitted

by the applicant on 4 January 1989 and 12 January 1989;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, an Israeli citizen, was born in 1909 in Putnan,

Romania and has, since 1959, been living in Ramat Gan, Israel.

He is represented by Dr. h.c. O. Küster, a lawyer in

Stuttgart, and Professor Dr. Drs. h.c. F.A. Mann, C.B.E., F.B.A., a

lawyer in London.

It follows from his submissions and the documents submitted

that on 15 September 1960 the applicant applied to the competent

German authorities for compensation under Section 150 of the Federal

Act on Compensation for Victims of Nazi Persecution (Bundesgesetz zur

Entschädigung für Opfer der nationalsozialistischen Verfolgung - BEG -

hereinafter referred to as the Federal Compensation Act) alleging to

have, as a Jew of German origin, suffered persecution during World War

II until his emigration to Israel. He requested leave to bring his

claim out of time, stating that he did not raise it within the

time-limit fixed by the Federal Compensation Act (i.e. 1 April 1958)

because the fact that Romanian Jews could likewise claim compensation

under the Act had come to be known only recently, i.e. in August 1960.

On 26 May 1961 the applicant repeated his request. In January 1966 he

requested financial aid (Beihilfe) under the Final Compensation Act

(Bundesentschädigungs - Schlussgesetz). He alleged that he had been

persecuted in Romania and had to live in the Czernowitz ghetto in the

autumn of 1941. Later he was allegedly deported to Transnistria where

he was liberated in 1944. He received financial aid under the Final

Compensation Act in the total amount of 13,880 DM.

The compensation claim under Section 150 of the Federal

Compensation Act was however rejected by the competent German

authorities in Cologne on 20 December 1977 on the ground that the

applicant had not shown that his emigration from Romania was due to

reasons connected with his adherence to German culture.

The applicant then pursued his compensation claim before the

Cologne Regional Court (Landgericht) alleging that he had been obliged

to leave Romania because of his origin. The Regional Court dismissed

his action on 2 May 1979. The court found that the request for

compensation had been made out of time and that there were no reasons

to grant leave to raise the claim out of time. Reinstatement could

only be granted if the claimant had shown that he was not responsible

for the non-observance of the time-limit.

In this respect the Court considered that the applicant should

have indicated which organisations or lawyers he contacted in Israel

after his immigration in 1959, what information was given to him and

when he learnt that this information was no longer valid, i.e. that

contrary to former practice the German authorities also recognised

compensation claims of Jews having lived in Romania. The applicant

also should have stated when and how he received the new information

and what steps he took thereafter. However, no such information had

been submitted by him with his original request.

The applicant's appeal (Berufung) was rejected by the Cologne

Court of Appeal (Oberlandesgericht) on 28 May 1980. This Court

likewise found that the applicant had failed to substantiate his

request for leave to apply for compensation out of time.

The Court of Appeal refused to grant leave to appeal on points

of law (Revision) to the Federal Court (Bundesgerichtshof). The

applicant's complaint (Beschwerde) against this refusal was rejected

by the Federal Court on 5 November 1981.

The applicant then lodged a constitutional complaint (Ver-

fassungsbeschwerde) which was rejected by a group of three judges of

the Federal Constitutional Court (Bundesverfassungsgericht) on

8 August 1985 as offering no prospect of success.

COMPLAINTS

The applicant complains that the German courts denied him a

fair hearing on the merits of his alleged compensation claim. He

alleges a violation of Article 6 of the Convention and requests the

Commission to revise its case-law according to which this provision

does not apply to proceedings relating to compensation claims under

the Federal Compensation Act (No. 10612/83, Dec. 10.12.84, D.R.40

p. 276 and No. 10865/84, Dec. 12.5.86).

Referring to the judgments given by the European Court of

Human Rights in the cases of Golder (Series A no. 18), Ashingdane

(Series A no. 93), Deumeland (Series A no. 100), Feldbrugge (Series A

no. 99), Pudas and Bodén (both Series A no. 125), Baraona (Series A

no. 122) the applicant is of the opinion that in the light of the

principles developed in these judgments a claim for compensation under

the Federal Compensation Act has to be considered as relating to a

"civil right" within the meaning of Article 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

On 4 July 1988 the Commission decided to communicate the

application to the respondent Government for observations on its

admissibility and merits. The observations were submitted on

28 October 1988. On 4 January 1989 Professor Mann submitted the

applicant's reply. Further supplementary observations were submitted

on behalf of the applicant on 12 January 1989 by Dr. Küster.

THE LAW

The applicant has complained that the German courts dismissed

his claim for compensation under the Federal Compensation Act in an

unfair manner on the ground that the claim had been lodged out of

time. He considers that the courts wrongly refused to consider the

merits of his claim and that he was thereby denied a determination by

the courts of his claim for compensation which in his opinion

concerned his "civil rights and obligations" as referred to in Article

6 para. 1 (Art. 6-1) of the Convention. This provision reads as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law."

1. The Commission first notes that under the applicable German

law the time-limit for submitting claims for compensation for

persecution measures had elapsed and that reinstatement into the

status quo could only be granted on certain conditions. The

preliminary question to be decided by the German courts was therefore

whether the conditions for such reinstatement were fulfilled in the

applicant's case. Since these conditions were considered not to be

fulfilled, it follows that the courts had no reason to consider the

substance of the applicant's claims.

The Commission considers that since the proceedings before the

German courts were in fact limited to a determination of whether the

procedural conditions were fulfilled for a reinstatement into the

status quo, they did not involve a determination of the applicant's

"civil rights and obligations" in the meaning of Article 6 para. 1

(Art. 6-1) of the Convention (see No. 10865/84, Dec. 12.5.86, to be

published in D.R., and earlier case-law referred to in that decision).

It follows that insofar as the applicant complains of

unfairness in the proceedings before the German courts his complaint

is incompatible ratione materiae with the Convention within the

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

2. Insofar as the applicant complains that the German courts, by

refusing reinstatement into status quo, have in fact made it

impossible for him to obtain a court determination of his civil right

to compensation, the Commission first recalls that in a number of

previous cases it has held that proceedings relating to compensation

claims under the Federal Compensation Act do not involve a

determination of civil rights and obligations (see No. 10612/83,

Dec. 10.12.84, D.R. 40 p. 276; No. 10865/84, Dec. 12.5.86

with further references).

The applicant considers that, in view of the interpretation by

the European Court of Human Rights of the notion "civil rights" in the

sense of Article 6 para. 1 (Art. 6-1) of the Convention, this provision is

applicable in his case. He argues that a claim to compensation is, by

its nature, of "civil" character. In any event, so he points out, the

wrong done to him was committed at the instigation of German Nazi

officials. Therefore, he would have had a right to compensation under

German tort law had the Federal Republic not enacted special

legislation to compensate victims of Nazi persecution.

The respondent Government deny that the requirements for

a claim under tort law are given. They argue in support of the

Commission's jurisprudence on the subject matter.

The Commission has considered the applicant's criticism of its

previous jurisprudence. Nevertheless, it finds no reason to depart

from it in the present case.

In any event, the Commission notes that the Federal Republic

of Germany had to decide on the nature and the details of the

compensation scheme it wished to introduce for the benefit of victims

of Nazi persecution. In this context, it was also entitled, when

adopting the Federal Compensation Act, to determine the limits of

the right to compensation under the Act. For example, it was fully

entitled to lay down time-limits for the submission of claims and to

give no rights to persons who, for whatever reason, did not observe

those time-limits. In fact, the system created by the Act implied

that a right to compensation only existed for those who presented

their claims before a certain date, subject, however, to the

possibility of obtaining in special circumstances a reinstatement of

the time-limit.

The Commission notes that in the present case the applicant

did not present his claim within the applicable time-limit and that he

subsequently asked for reinstatement. He obtained a court

determination of whether the conditions for reinstatement existed

under German law, a question which the courts answered in the

negative. The Commission finds no reason to believe that the courts,

in refusing reinstatement, acted in an unfair manner, having regard to

the applicable German law about reinstatement of time-limits.

It follows that this part of the application must be rejected

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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BERLER v. GERMANY

BERLER v. GERMANY

LEXI