Information Note on the Court’s case-law 48

December 2002

Islamische Religionsgemeinschaft in Berlin e.V. v. Germany (dec.) - 53871/00

Decision 5.12.2002 [Section III]

Article 1 of Protocol No. 1

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Placement under the administration of a trust, after reunification, of a gift made by a political party in the GDR: inadmissible

Article 9

Article 9-1

Freedom of religion

Placement under the administration of a trust, following the reunification of Germany, of a gift made to a religious association: inadmissible

The applicant is a religious association formed in the German Democratic Republic (GDR) in February 1990. In June 1990, it received a gift of 75 million GDR Marks from the Democratic Socialism Party (DSP).  After reunification, the independent commission for the investigation of the assets of parties and mass organisations in the GDR found th at the gift in question constituted an asset covered by the law on parties in the version of 31 May 1990 and for that reason came under the Trustee Agency (Treuhandanstalt).  In 1992, the Federal Office for Special Tasks connected with German reunification decided that, under that act, the applicant could use the sum in question, which was in its bank account, only with the Agency’s consent.  The applicant brought proceedings against that decision.   The Berlin Administrative Court annulled the contested de cision on the ground that it had no legal basis.  The judgment was upheld by the Berlin Administrative Court of Appeal.  However, the Federal Administrative Court allowed the appeal by the Federal Office and set aside the judgment of the Administrative Cou rt of Appeal, taking the view that the Federal Office’s decision was valid.  The Constitutional Court refused to examine the applicant’s appeal.

Inadmissible under Article 1 of Protocol No. 1: placing under the Trustee Agency the gift which the applicant had received from the SDP constituted an interference in the enjoyment of its right to the peaceful enjoyment of its possessions.  The seizure of the applican t’s assets did indeed entail a deprivation of property, but this deprivation fell within the general regulations introduced in the GDR during the period preceding reunification in order to ascertain the source of assets belonging to political parties and r elated organisations.  The interference in issue may therefore be treated as a measure regulating the use of assets.  The interference was based on the GDR law on parties, which entered into force on 1 June 1990.  The Federal Administrative Court’s interpr etation of that law in the present case was not arbitrary.  The interference pursued an aim in the general interest, namely verification, by the legislature in the GDR after the democratic elections and by the courts of the FGR after reunification, of the origin of political parties’ assets and their placement where appropriate under the Trustee Agency.  As regards proportionality, the Federal Administrative Court’s reasoning concerning the sovereign powers conferred on the Trustee Agency in the light of th e GDR law on parties  appears to be well founded.  The aim of the law was to ensure that political-party assets of questionable origin were not wasted but entrusted to the Agency so that they could be restored to those formerly entitled to them for the pur pose of reparation or – should that prove impossible – to be used for purposes in the public interest.  Having regard, in particular, to the exceptional circumstances associated with German reunification, the State did not exceed its margin of appreciation and did not fail to strike a “fair balance” between the applicants’ interest and the general interest of German society: manifestly ill-founded.

Inadmissible under Article 9: the decision in issue came within the general regulations introduced in the GDR during the period preceding reunification in order to verify the origin of assets belonging to political parties and related organisations, irrespective of who the recipients of those funds might be.  In the absence of a deliberate intention to interfere w ith the applicant’s religious activities, it is doubtful that that decision constitutes an “interference” with the exercise of religion.  In any event, the decision in issue was prescribed by law (the GDR law on parties), it pursued the legitimate aims of protecting public morals and the rights and freedoms of others and it was not disproportionate to the legitimate aims pursued: 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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