Information Note on the Court’s case-law 73

March 2005

Von Maltzan and Others v. Germany (dec.) [GC] - 71916/01, 71917/01 and 10260/02

Decision 2.3.2005 [GC]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Possessions

Compensation conditions of the heirs of persons that were victims of expropriations in the GDR and in the Soviet occupation zone in Germany: inadmissible

Article 6

Civil proceeding s

Article 6-1

Reasonable time

Length of constitutional proceedings related to expropriations during the communist regime: inadmissible

Sixty-five of the applicants are natural persons who are the heirs of the owners of land or buildings that were expropriated under the land reform implemented in the Soviet Occupied Zone of Germany between 1945 and 1949. The two legal entities among the ap plicants also owned land that was expropriated during that period. After the reunification of Germany they unsuccessfully applied to the relevant authority for restitution of their land and/or buildings. Three of these applicants also applied to the admin istrative authorities under the Administrative Rehabilitation Act for the rehabilitation of their ascendants, but were unsuccessful. Five applicants are natural persons who are the heirs of owners of land or buildings that were expropriated after 1949 purs uant to a decision of the GDR authorities. After German reunification they applied for restitution of their land and/or buildings. The relevant authorities rejected the applications on the grounds laid down in the Property Act, namely that the third partie s who had acquired the property in the meantime had done so in good faith or that restitution was impossible in practice. Twenty-one of the applicants applied to the Federal Constitutional Court arguing that the Indemnification and Compensation Act of 1994 was incompatible with the Basic Law ( Grundgesetz ). In a leading judgment of 22 November 2000 the Federal Constitutional Court dismissed their application. The Federal Constitutional Court delivered four leading judgments on the land reform. They concern, in particular, the constitutionality of the various statutes governing property or rehabilitation issues enacted by the legislature after German reunification.

Inadmissible under Article 1 of Protocol No. 1: The case did not concern “existing possessions” of the applicants. Most of them were the heirs of persons whose property had been expropriated a long time ago and had thus not been in a position to exercise their ownership rights over the property concerned for more than half a century in most cases. Th e expropriations had been carried out either between 1945 and 1949 at the instigation of the Soviet occupying forces in Germany or after 1949 in the GDR, which was a separate State distinct from the FRG. The FRG did not have any responsibility for acts com mitted at the instigation of the Soviet occupying forces or for those perpetrated by another State against its own nationals, even though the GDR had subsequently been succeeded by the FRG, for it was “political” obligations that were at issue in the prese nt case. Accordingly, the Court lacked competence ratione temporis and ratione personae to examine the circumstances in which the expropriations had been carried out or the continuing effects produced by them up to the present date.

The applicants claimed that they could legitimately expect to obtain restitution of their property or compensation (for expropriations between 1945 and 1949) or indemnification (for expropriations after 1949) of a particular amount commensurate with the real value of their poss essions. Whether in respect of the expropriations between 1945 and 1949 in the Soviet Occupied Zone in Germany or those carried out after 1949 in the GDR, the Court did not find any domestic legal basis on which to ground a possibility of securing the rest itution of their property or receiving indemnification and compensation of a particular amount commensurate with the real value of their property.

The German legislature had had a wide margin of appreciation in determining the terms of compensation, after reunification, for injustices or damage resulting from acts committed at the instigation of a foreign occupying force or by another sovereign State. It had had to make certain choices in the light of the public interest. Accordingly, legislation enacted a fter German reunification governing issues of property and rehabilitation after reunification had failed to meet the applicants’ expectations of either restitution of their property or compensation or indemnification commensurate with the real value of the ir property, and no legal provision or decision had conferred rights on the applicants that went beyond those conferred by the statutes in question. The applicants’ claims were therefore not based on a legal provision or solid basis in the domestic case-la w. The applicants had not therefore had a “legitimate expectation” of realising a current and enforceable claim by means of obtaining either the restitution of their property or compensation (for the 1945-1949 expropriations) or indemnification (for the po st-1949 expropriations) of a particular amount commensurate with the real value of their possessions. They could not therefore claim to have had “possessions” within the meaning of Article 1 of Protocol No. 1: incompatible ratione materiae .

Complaints under Article 1 of Protocol No. 1 and Article 8 of the Convention taken together with Article 14: incompatible ratione materiae .

Inadmissible under Article 6 § 1: The proceedings before the Federal Constitutional Court had lasted nearly five yea rs and five months. In the unique context of German reunification the case had been one of forty-two applications to the Federal Constitutional Court regarding the Indemnification and Compensation Act, and had raised fundamental questions about the criteri a adopted by the legislature after reunification for compensating the heirs of persons whose property had been expropriated during the Soviet Occupation or in the GDR. The case had therefore been very complex. The Federal Constitutional Court had legitimat ely grouped together all cases on similar issues so as to obtain a comprehensive view of the matter, especially as it had been the only judicial body dealing with the cases. Admittedly, many of the applicants had been very elderly. However, since the payme nts of indemnification and compensation in question had not in any event been scheduled to be made before 2004 (the proceedings had ended in 2000), the stakes had not been so important as to impose on the court concerned a duty to deal with this case as a matter of very great urgency as was the case for certain types of litigation: manifestly ill-founded.

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

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