Information Note on the Court’s case-law 50

February 2003

Forrer-Niedenthal v. Germany - 47316/99

Judgment 20.2.2003 [Section III]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Absence of restitution or compensation following reunification: no violation

Article 6

Civil proceedings

Article 6-1

Fair hearing

Adoption of retroactive law while court proceedings pend ing: no violation

Facts : The applicant was the legal successor to an undivided succession which owned land in the German Democratic Republic (GDR) on which the premises of a company were situated. In 1959, the company, which was in liquidation, was sold for 180 650 GDR marks to a state-owned institute and the land was registered in the land registry as being "property of the people", even though two members of the undivided succession had not been duly represented at the sale. Following the reunification of Germany, the institute became the property of the Federal Republic of Germany (FRG). In October 1997 the Federal Court of Justice, overturning rulings made by the ordinary courts in 1995 and 1996 on applications brought by the applicant, held that the applicant had not lost his title by usucapio for the benefit of the State. That court added that the procedural defects which had affected the sale carried out at the time of the GDR had been expunged by virtue of the new law introducing the Civil Code of July 1997 on property tran sferred at that time so as to become "property of the people", and hence ruled out any compensation or restitution. The Federal Constitutional Court considered that this did not constitute statutory expropriation such as to warrant compensation.

Law: Arti cle 1 of Protocol N° 1 – The applicant was the legal successor to an undivided succession which owned land in the GDR on which the premises of a company were located. The Federal Court of Justice had held that the applicant had not lost his title by usucap io . Nevertheless, the latter was not entitled to assert a right to restitution or a right to compensation, on the ground that the sale had been expunged of the defects which had affected it at the time of the GDR. There had therefore been an "interference" with the applicant's right to respect for his "property". That interference was held to be consistent with the principle of legality; in particular insofar as the Federal Court of Justice had rejected any claim for restitution or compensation on the groun d that the – purely formal and trivial – defects which had affected the sale at the material time had been expunged by the law introducing the 1997 Civil Code and moreover that the sale had been in accordance with the general legal principles of the GDR, t he Federal Court of Justice had not made an arbitrary interpretation. The law as so applied sought to restore legal certainty and peace in Germany by preserving acquired rights in cases where transfers of property into "property of the people", carried out at the time of the GDR were vitiated only by formal or minor defects, and pursued an aim of public interest. As for the proportionality of the interference, it was appropriate to observe that the Federal Court of Justice had analysed in detail the specifi c evidence before concluding that the defects raised were not such as to render the sales contract concluded at the time of the GDR nugatory, bearing in mind moreover that the sale had respected the general principles of the law of the GDR. Furthermore, th e analysis made by the Federal Constitutional Court to the effect that the law applied was consistent with the Basic Law, having regard to the legitimate aim pursued by the legislature during the period of legal uncertainty connected with reunification, ap peared to be well-founded. Moreover, when the sale had taken place in the GDR, the undivided succession had received a not unreasonable amount. There could therefore be no question of a "disproportionate burden". In view in particular of the exceptional ci rcumstances connected with German reunification, the State had not exceeded its margin of appreciation and had not failed to strike a "fair balance" between the applicant's interests and the general interest of German society.

Conclusion : no violation (u nanimously).

Article 6 § 1 – a. The Government had raised the preliminary objection for the first time after the decision on admissibility had been taken and the Court found that there had been nothing to prevent it from raising it at the stage of admissib ility: estoppel.

b. Fair trial: Although there had been an intervention of the legislature in this case during the currency of the proceedings, the law in question sought in particular to regulate generally the conflicts relating to property which had emerged following the reunification of Germany with regard to property transferred to become "property of the people" in the GDR by virtue of a legal instrument. To that end, the public authorities had made that law retroactive so as to cover all such situations and all pendin g judicial proceedings. However, the law was not directed specifically to these proceedings but pursued a public interest aim, namely that of settling such disputes following German reunification in order to secure lasting legal peace and certainty in Germ any. Moreover, the applicant had been able to challenge adverse decisions and put forward his arguments at all stages of the proceedings. The applicant hadalso had access to independent courts which had ruled in detail on both the circumstances of the case and his arguments, as well as on the conformity of the legal provision at issue with the Basic Law, which was an essential aspect of the dispute in question.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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