Information Note on the Court’s case-law 48

December 2002

Wittek v. Germany - 37290/97

Judgment 12.12.2002 [Section III]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Absence of right to restitution of property in the GDR after reopening of the border: no violation

Facts : In 1986 the applicants bought a dwelling house in the German Democratic Republic (GDR); th e house was on land belonging to the State in respect of which they obtained a usufruct. In October 1989, the applicants applied to leave the GDR and were told that to obtain permission to do so they would have to transfer their property by sale or gift. O n 8 December 1989 (after the border between the two German States had been opened and before the date on which reunification became effective), the applicants officially made a gift and received from the donee an unofficial payment of 55,000 Deutsch Mark ( DM). After the reunification of Germany, the applicants attempted to recover their house and their usufruct of the land. The civil courts dismissed their actions. Like the ordinary courts, the Federal Court of Justice held that both the gift and the sale w ere void. However, it stated that in cases such as this, where the applicants had concluded a fictitious gift in order to mitigate the obligation imposed on them to sell their property before leaving the GDR, it was the law of property that was to apply an d the interpretation of that law was a matter for the administrative courts. The applicants lodged an administrative action under the law of property. The administrative court held that they were not entitled to restitution, in the absence of unfair conduc t or fraud within the meaning of the law. After opening of the border on 9 November 1989, any citizen of the GDR had been free to leave the country and under the order of 11 November 1989 on the regulation of property matters citizens were no longer requir ed to transfer their property before leaving the GDR. The applicants had signed the contract of transfer on 8 December 1989.  The actions which the applicants brought before the Federal Administrative Court of Justice and then the Federal Constitutional Co urt were unsuccessful.

Law : Article 1 of Protocol No. 1 – The applicants had a right of ownership in respect of their house, together with a right of personal usufruct over the land on which the house was built and which belonged to the State.  The disput e must therefore be examined from the standpoint of their right to the peaceful enjoyment of their assets.The Federal Court of Justice held that the applicants’ transfer of their property at the time of the GDR was void, but the applicants were subsequentl y unable to rely on a right to restitution before any of the courts seised of the matter. There was therefore an interference with the applicants’ right to the peaceful enjoyment of their property. As to the legality of the interference, the measure in que stion was based on the provisions of the law of property, which are precise and accessible to all. Furthermore, the national courts established the criteria for applying the law to disputes about deprivation of property in the GDR and their interpretation was not arbitrary. As regards the purpose of the interference, the law in question, which was intended to regulate property disputes following German reunification by striking a socially acceptable balance between the conflicting interests, pursued an aim in the general interest. As to the proportionality of the measure, the administrative court’s analysis which led it to conclude, in the absence of either compulsion or fraud, that there had not been any fraudulent manoeuvres within the meaning of the above mentioned law appears well founded, even though one might take the view that the period between opening up the border between the two German States and the entry into force of German reunification was marked by great uncertainty, particularly at the legal level. Independently of that aspect, in law the applicants had only a right of usufruct over their land; even if they had moved elsewhere in the GDR, they would therefore have been unable to keep their property.  Also decisive is the fact that the applican ts had acquired the house in 1986 against payment of the sum of 56,000 GDR Marks; however, when the fictitious gift was made in December 1989, the acquirers paid them a sum which, at the rate then in force for transactions between private persons, was equi valent to 220,000 GDR Marks. Accordingly, even if the value of the asset subsequently appreciated, the applicants did not have to bear a “disproportionate burden”. Having regard in particular to the exceptional circumstances associated with German reunific ation, the State did not exceed its margin of appreciation and did not fail to strike a “just balance” between the applicants’ interests and the general interest of German society.

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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