Information Note on the Court’s case-law No. 112

October 2008

Preussische Treuhand GmbH & Co. KG a. A. v. Poland - 47550/06

Decision 7.10.2008 [Section IV]

Article 35

Article 35-3

Ratione temporis

Continuing situation

Expropriation of private property of ethnic Germans, located on territories entrusted to Poland after World War II, and failure to enact rehabilitation or restitution laws: inadmissible

The applicants are, or are successors in title to, persons who, before the end of the Second World War, lived in the provinces which were included in the territory of Poland after the defeat of Germany, when the border between those two States was drawn along the Oder-Neisse line. In the beginning of 1945 the German Nazi authorities, in connection with the Soviet offensive, ordered the evacuation of German civilians, including some of the applicants or their relatives, who had to abandon their homes in those regions and head for the western provinces of the Reich . In 1945-1946 the Polish State enacted a series of laws designed to take over the German state property and to expropriate the private property of all Germans, including the applicants, on the territories east of the Oder-Neisse line. These laws were enacted following the Yalta Conference, the Potsdam Agreement and the Three Powers’ undertakings in respect of war reparations for Poland, which were satisfied from the German-owned assets located on Polish territory. During that period, some of the applicants and their families who had not been evacuated were expelled from their homes by the Polish authorities.

(a) As regards the applicants and their families who fled because of, and in fear of, the victorious Red Army’s imminent approach, the Polish State could not be held responsible for the alleged acts of violence and expulsion, since, at that time, it had had no de iure or de facto control over those still German territories, gradually taken over by the Soviet troops, and had been entrusted with the administration of the regions east of the Oder-Neisse line only under the provisions of the Potsdam Agreement of 1945: incompatible ratione personae .

(b) In so far as the application could be regarded as directed against Poland, the applicants’ complaint was based on specific events, i.e. individual acts of violence, expulsion, dispossession and seizure or confiscation of property which had taken place mostly in 1946 and which, if assessed as a whole, could not be regarded as anything more than instantaneous acts. In the Loizidou case referred to by the applicants, the inherent illegitimacy of measures stripping the applicant of her ownership rights had derived from the fact that the expropriation laws in question could not be attributed legal validity for the purposes of the Convention as they emanated from an entity which was not recognised in international law as a State and whose annexation and administration of the territory concerned had no international law basis. As a result, it could not be said that formal acts of expropriation had been carried out. In the instant case the situation was different. There could be no doubt that the former German territories on which the individual applicants had their property had been lawfully entrusted to the Polish State under the provisions of the Potsdam Agreement and that, subsequently, the Polish-German border as referred to in that Agreement had been confirmed by a sequence of bilateral treaties concluded between Poland and two former separate German States and, finally, between Poland and the reunified Federal Republic of Germany. In consequence, the applicants’ arguments as to the existence of international law violations entailing “inherent unlawfulness” of the expropriation measures adopted by the Polish authorities and the continuing effects produced by them up to the present date had to be rejected. Moreover, after the confiscation of the applicants’ property, the Polish State had not enacted any restitution or compensation laws providing for restoration of German property expropriated under the previous regime that would generate a new property right eligible for protection under Protocol No. 1. In sum, there had been no continuing violation of the Convention which could be imputable to Poland: incompatible ratione temporis.

(c) In so far as the applicants had complained about Poland’s failure to enact laws providing for the rehabilitation or the restitution of confiscated property or compensation for property lost by them, the Polish State had no duty under Article 1 of Protocol No. 1 to provide redress for wrongs or damage caused prior to their ratification of the Convention: incompatible ratione materiae.

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

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