CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 avril 1967

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts presented by the Applicant may be summarised as follows:   The Applicant is a German citizen, born in 1907, now living in Hamburg.   In 1934 the Applicant was charged with the offence of preparing high treason (Vorbereitung zum Hochverrat). He was tried by the Court of Appeal (Oberlandesgericht) Hamm on ... 1934, and acquitted for lack of evidence. In ... 1935 he emigrated to Brazil. On his return to the Federal Republic of Germany in 1951 he started proceedings for compensation for Nazi prosecution.   I. His case was first dealt with by the Local Recognition Board (Kreisanerkennungsausschuss), Lüdenscheid, on ... 1953, then by the Provincial President (Regierungspräsident) Arnsberg, by decisions of ... 1954, ... 1954 and ... 1955.   II. The Applicant then brought an action against the State of North Rhine-Westphalia in the Regional Court (Landgericht) Arnsberg, contesting the decisions of the Provincial President of .. 1954 and .. 1954. On ... 1956 the Compensation Chamber (Entschädigungskammer) of the Regional Court decided that the Applicant fulfilled the requirements of Article 1, paragraph (1), and Article 3, paragraph (1), of the Recognition Law (Anerkennungsgesetz) of 4th March, 1952 and that he was therefore entitled to be recognised as having been injured and prosecuted (geschädigt und verfolgt) by the Nazi regime.   III. Between 1954 and 1958 the Applicant was awarded various sums by the Provincial President, Arnsberg, for medical expenses, diet, emergency aid (Soforthilfe), compensation for damages to his career, and advance payments.   IV. On .. 1958, on the Applicant's claim against North Rhine-Westphalia, contesting two decisions of the Regional President (dated ... 1957 and ... 1957) the Regional Court, Arnsberg, awarded the Applicant a further capital sum of 31,950 DM for damage to his career. A further claim for a loan (Existenzaufbaudarlehen) appears to have been kept pending.   Both parties appealed to the Court of Appeal (13. Zivilsenat des Oberlandesgerichts) Hamm. It appears, that during the proceedings in the Court of Appeal the defendant State invoked Article 7 of the Compensation Law (Bundesentschädigungsgesetz) to refuse the Applicant further payment. The ground for the refusal was that the Applicant had denied being a member of any Nazi organisation but that this denial was untrue as the Applicant had been a member of the National Socialist   Motorists Association (NSKK) in 1934. The Applicant explained to the Court of Appeal that this membership had been fabricated in order to save him from conviction on the treason charge in 1934. The Court of Appeal examined the facts, including the record of the proceedings in 1934 and found that the Applicant had been an effective member of the NSKK. It dismissed his appeal on ... 1959 and refused to allow a further appeal (Revision), stating that the matter was one of fact only.   On .. 1959 the Applicant appealed to the Federal Court (Bundesgerichtshof) Karlsruhe against the refusal to allow a further appeal. He suggested among other grounds that he had not had an opportunity of replying to the allegations made against him in the Court of Appeal. On ... 1960 the Federal Court rejected the appeal.   V. The Applicant then applied to the Court of Appeal, Hamm, for a reopening of the proceedings (Restitutionsklage) covered by the judgment of .. 1959. This application was rejected on .. 1960.   The Applicant appealed to the Federal Court (Bundesgerichtshof) against this decision of ... 1960 of the Court of Appeal (13. Zivilsenat des Oberlandesgerichts), Hamm. He stated that the Court record (Protokoll) of ... 1960 had been issued with the participation of a judge to whose membership of the Court he had previously raised objection. The objection had been made on the ground of apprehension of prejudice (Besorgnis der Befangenheit) because of the alleged activities of the judge (Oberlandesgerichtsrat L) in Nazi Courts. The objection had not been dealt with because it was not certain at the time whether the judge would be required to be a member of the Court in the Applicant's case.   It appears that this appeal to the Federal Court was withdrawn by the Applicant after the Federal Court had pointed out that the name of the judge had appeared on the Court record of ... 1960 in error.   A second application for reopening proceedings was made by the Applicant on ... 1962 and was rejected as inadmissible by the Court of Appeal (13. Zivilsenat des Oberlandesgerichts) Hamm, on ... 1962.   VI. Following the main decision of ... 1959 of the Court of Appeal, Hamm, the Provincial President, Arnsberg, on ... 1959 revoked ten orders for payment that had been made in favour of the Applicant and ordered repayment by the Applicant of this sum of 10,847 DM already paid.   On ... 1960 the Applicant appealed against this decision to the Regional Court, Arnsberg. He maintained his applications for compensation and for a loan (Existenzaufbaudarlehen). On ... 1961 he made a further, apparently supplementary application to the Regional Court, Arnsberg.   By its decision of ... 1962 the Regional Court, Arnsberg, rejected the Applicant's claims, except that it set aside the order requiring repayment of the money he had already received.   On appeal, the Court of Appeal (13. Zivilsenat des Oberlandesgerichts) Hamm, on ... 1962 reimposed the order for repayment of the amount received by the Applicant. The Court of Appeal found no ground for allowing a further appeal (Revision).   The Applicant appealed against the decision to the Federal Court (Karlsruhe). This appeal was rejected on ... 1963.   VII. The Applicant has also sent petitions to the Federal Minister of Justice, and to the Minister of Internal Affairs of North-Rhine-Westphalia.   The Applicant complains of the actions of the compensation authorities (Entschädigungsbehörde) and of the two judgments of the Court of Appeal, Hamm, dated ... 1959 and ... 1962.   He states that in relation to the first judgment of ... 1959, the Court of Appeal (13. Zivilsenat des Oberlandesgerichts) Hamm, was not entirely composed of persons from whom a truly impartial and objective decision could be expected, as Judge L had been a judge in a special court (Sondergericht) in Dortmund under the Nazi regime. In relation to the second judgment, of ... 1962, he states that the Court of Appeal did not proceed impartially and objectively.   He complains that the Court was biased in its assessment of the facts, prejudiced and partial. The two decisions do not properly interpret the intentions of the Compensation Law and violate Article 3, paragraph 1, of the Basic Law (Grundgesetz) and Article 6 of the Convention.   In particular, the Applicant refers to his alleged membership of the NSKK. He states that the evidence proves that he never was an effective member of this body. He was not on the list of members of the Nazi Party, or its organisations. He had no contact with the NSKK. He lived in the town of Lüdenscheid and was under police supervision there, yet his alleged membership was in Halberstadt. On the day that one of the membership documents was made out, he was in detention pending trial on the treason charge.   The Applicant claims that his statements to the compensation authorities denying membership of Nazi organisations correspond to the facts, especially as he was speaking as a layman, not a lawyer. He states that there can be no doubt that he was persecuted by the Nazi regime and that he fulfils the requirements of the Compensation Law as found by the final (rechtskräftig) judgment of the Regional Court (Arnsberg) of ... 1956. The Applicant states that it is harsh and unjustified to apply the punitive sections of that Law. No intentional fault can be imputed to him.   The Applicant has set out at length the arguments and evidence about his alleged membership of the NSKK. He states that the evidence proves that this membership was "constructed" to save him from persecution and punishment. He claims that it is an injustice now to invoke these measures, that were taken at great risk by persons trying to assist him, to deprive him of compensation.   The Applicant asks the Commission to confirm that the facts are as he has stated.   The Applicant alleges violation of Articles 3 and 6 of the Convention.   THE LAW   Whereas certain of the facts alleged relate to a period prior to 3rd September, 1953, the date of the entry into force of the Convention with respect to the Federal Republic of Germany; and whereas, in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with respect to that Party; whereas it follows that the examination of the Application, in so far as it relates to these alleged facts, is outside the competence of the Commission ratione temporis;   Whereas, concerning the Applicant's claim for compensation, it is to be observed that under the terms of Article 1 (Art. 1) the Convention guarantees only the rights and freedoms set forth in Section I of the Convention, and that under Article 25, paragraph (1) (Art. 25-1) only the alleged violation of one of those rights and freedoms by a Contracting Party can be the subject of an application presented by a person, non-governmental organisation or group of individuals; whereas otherwise an examination of the Application is outside the competence of the Commission ratione materiae; whereas in a series of previous cases (for instance, Applications Nos. 1164/61 - S. v. the Federal Republic of Germany - and 1532/62 - H. v. the Netherlands) the Commission has consistently held that the right to obtain compensation for an injury which does not itself constitute a violation of the Convention, for example as in the present case, ratione temporis, is not a right guaranteed by any of the provisions of the Convention; whereas, therefore, this part of the Application is incompatible with the provisions of the Convention and within the meaning of Article 27, paragraph (2) (Art. 27-2) of the Convention;   Whereas, in regard to the Applicant's complaints relating to the proceedings brought to establish his right to compensation in respect of his persecution by the Nazi regime, an examination of the case as it has been submitted, including an examination made ex officio, does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and in particular in Article 6 (Art. 6);   Whereas it follows that this part of the Application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2) of the Convention.   Now therefore the Commission declares this Application inadmissible.