Information Note on the Court’s case-law 36

November 2001

Honecker and Others v. Germany (partial decision) - 54999/00 and 53991/00

Decision 15.11.2001 [Section III]

Article 1 of Protocol No. 1

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Confiscation of assets acquired by dignitaries of GDR through abuse of power: inadmissible

The first applicant is the widow of E. Honecker, the fo rmer president of the State Council of the GDR, who died in 1994. The three other applicants are the widow and daughters of H. Axen, a member of the Political Bureau of the Central Committee of the GDR’s Socialist Unity Party (SED), who died in 1992. Betwe en the fall of the Berlin wall on 9 November 1990 and German reunification, which became effective on 3 October 1990, Mr Honecker and Mr Axen had requested the conversion into FRG Deutschmarks (DEM) of credits in GDR marks appearing in their bank accounts. The origin of those amounts was ordinary income. In July 1990 a special committee of the GRD Parliament, set up to examine the origin of assets for conversion into DEM, gave a decision based on a Law of the GDR on convertible assets (a Law which was to be come a federal law after reunification) confiscating the credits belonging to Mr Honecker and Mr Axen on the ground that the credits in question had been acquired by a misuse of power to the detriment of the public interest.

On 17 October 1990 H. Axen’s h eirs, the applicants who lodged the second application, applied to the Administrative Court to challenge the confiscation. Their application was dismissed on the ground that the conditions enacted by the Law on Convertible Assets had been met because H. Ax en’s credits had originated from savings acquired by a misuse of power to the detriment of the public interest. On appeal by the applicants, the Administrative Court of Appeal nonetheless set aside the special committee’s decision and ordered the accounts in question to be unfrozen. The court held that a confiscation measure of that kind could not apply to savings from ordinary income. However, that judgment was quashed by the Federal Administrative Court, with which the State had lodged an application to r eopen the proceedings. The applicants subsequently applied to the Federal Constitutional Court. In July 1999 that court dismissed their appeal, holding that under the Law on Convertible Assets credits originating from ordinary income saved by virtue of adv antages obtained by flagrantly immoral means could be excluded.

As for the first applicant, in a judgment of 14 June 1999 the Administrative Court upheld the main provisions of the special committee’s decision, except for a sum originating from her pension fund. The court upheld the committee’s decision that the remaining credits fell within the scope of the Law on Convertible Assets because they had originated from savings acquired by a misuse of power to the detriment of the public interest. The applicant did not appeal.

Inadmissible under Article 1 of Protocol No. 1: The confiscation of the applicants’ credits amounted to an interference with their right to peaceful enjoyment of property. Although the confiscation resulted in a deprivation of property, i t fell within the scope of the general rules designed to check the origin of assets in GDR marks for conversion into DEM. Accordingly, the interference amounted to a measure controlling the use of property. The measure had been based on the GDR’s Law on co nvertible assets, which had subsequently become federal law in the FRG. The interference in question had pursued an aim that was in the general interest. The legislature and the court had deemed it legitimate to verify the means by which credits in GDR mar ks for conversion into DEM had been obtained and had done so by virtue of public-morality requirements. With regard to the proportionality of the interference, the Administrative Court which heard the applicants’ appeals had examined the applicants’ argume nts in detail and had thoroughly analysed the nature of the allegations against Mr Honecker and Mr Axen, and the origin of the amounts appearing in the applicants’ bank accounts in their capacity as heirs. Evidence of this lay in the fact that the court ha d not upheld the confiscation of the credits belonging to the first applicant in respect of the part which turned out to have originated from a pension fund. Having regard to those factors and, among other things, to the exceptional circumstances linked to German reunification, the respondent State had not exceeded its margin of appreciation and had not failed to strike a fair balance between the interests of the applicants and the general interest. Verification of the origin of the credits in GDR marks to be converted into DEM had been a necessary counterpart to the considerable increase in value of those credits once converted into DEM: 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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