CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 juillet 1971

.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   The facts of the case as submitted by the applicant may be summarised as follows:   The applicant is a German citizen, born in 1894 and resident in I.. In 1924 he took over the family farm from his father, but in 1931 fire was set to the buildings which burnt down completely together with the harvest. As a result of this the applicant became heavily indebted and instituted proceedings in 1934 to obtain freedom from encumbrances under the 1933 Act relating to the regulation of debts concerning agricultural properties (Gesetz zur Regelung landwirtschaftlicher Schuldverhältnisse). However, the applicant's indebtedness increased and it proved impossible to liquidate his debts at that time.   In 1937 the farm was entered in the records as being a hereditary farm (Erbhof) but in 1940 the Regional Hereditary Farm Court (Landeserbhofgericht) decided upon the application of the District Head of the Farmers' Association (Kreisbauernführer) that he should lose his status as being a farmer. Subsequently the proceedings to liquidate the applicant's debts under the above 1933 Act were discontinued and in October 1941 an order was made for the public sale of the farm. However, owing to an intervention by Hitler's Office the public sale did not take place.   In January 1943 the applicant sold his farm and paid his debts from the proceeds. He continued to manage the farm however, but after the buyer's death in 1949 the farm was sold in 1954 to a land-settlement society which in turn sold separate plots to more than 30 farmers including the applicant and his wife who are presently again owners of 66 hectares of the previous family farm.   The applicant considers that the considerable losses suffered by him were the result of Nazi terror and that he is a victim of Nazi persecution owing to the religious and political opinions held by him.   After 1945 he first claimed restitution of his farm but this was refused by the Restitution Division of the Regional Court (Wiedergutmachungskammer des Landgerichts) in Hanover on .. December 1951. The Regional Court's decision was confirmed by the Court of Appeal (Oberlandesgericht) at Celle in ... 1952.   The applicant then lodged with the Compensation Office at Lüneburg a claim for compensation under the Federal Compensation Act (Bundesentschädigungsgesetz). His claim was refused in ... 1956 and this decision was confirmed by the Regional Court of Lüneburg in ... 1956 and, on appeal (Berufung) by the Court of Appeal at Celle on .. September 1957. A further appeal (Revision) was not allowed and the applicant's complaint in this respect to the Federal Court (Bundesgerichtshof) was rejected on .. February 1958. All courts found that although the applicant could be considered as having been an enemy of the Third Reich, the loss of his property was not the result of Nazi terror but solely the consequence of his bad management of the farm.   In 1960 the applicant apparently again seized the Restitution Division of the Hanover Regional Court to obtain a reopening of the restitution proceedings. This action was rejected on .. December 1960 and the applicant then appealed to the Supreme Restitution Court at Herford which dismissed his appeal on .. May 1963. In .. 1964 he addressed a petition to the President of the Supreme Restitution Court requesting a decision by another division of that Court. The President decided on .. February 1965 that he had no competence to make such an order.   On 5 March 1965 the applicant lodged with this Commission an application (No. 2457/65) under Article 25 of the Convention complaining of the refusal by the German courts and by the Supreme Restitution Court of his claims for restitution and compensation and of the court proceedings concerned. He invoked Articles 3, 5 and 6 of the Convention. By decision of 10 July 1967 the Commission declared his application inadmissible finding that it had no competence ratione temporis, ratione materiae and ratione personae to deal with his respective complaints relating to his claims for restitution and compensation or to the proceedings before the Supreme Restitution Court so that in these respects his application was incompatible with the Convention (Article 27, paragraph (2), of the Convention). The Commission further found that the applicant had failed to observe the six months' time-limit (Article 26 of the Convention) with regard to his complaints concerning the proceedings before the German courts so that in this respect the application was out of time (Article 27 (3) of the Convention).   From the statements and from documents submitted in support of his present application it appears that in ... 1969 the applicant made a further application to obtain compensation for his losses allegedly resulting from Nazi persecution. This time he petitioned the Minister of Interior of Lower Saxony invoking Article 171 of the Federal Compensation Act which gives discretionary powers to the authorities to award "compensation for hardship cases" (Härteausgleich). He claimed that the refusal of compensation, based on wrong decision, constituted unbearable injustice and hardship in view of the fact that his opposition to the Nazi Party had been fully established.   By decision of .. May 1969 the said Minister of the Interior refused the petition on the ground that the applicant had not suffered any damages as being a victim of Nazi persecution. On .. June 1969 the applicant brought an action in the Regional Court of Hanover for a judicial decision on the Minister's refusal to allow his claim. This was rejected on .. August 1969 and the applicant appealed (Berufung) to the Court of Appeal at Celle against that decision. On .. March 1970 the Court of Appeal dismissed the appeal. Both courts confirmed the previous findings of the courts and authorities, namely that the applicant was not to be regarded as being a victim of Nazi terror but had suffered the loss of his farm as a result of his bad management. In its decision of .. March 1970 the Court of Appeal examined once more in detail the applicant's allegations and advanced further reasons to show that they were unjustified. It further stated that it had not been necessary to obtain further evidence as the facts had been sufficiently clarified in the various previous proceedings instituted by the applicant and that his request for the examination of further evidence were irrelevant.   Complaints   The applicant now complains that he was wrongly refused compensation for hard cases under Article 171 of the Federal Compensation Act. He alleges that, as in the previous proceedings, the courts relied on the findings of the Hereditary Farm Court in 1940 to the effect that he was incapable as a farmer. This finding, however, had been based on the evidence of the District Head of Farmers' Association who had testified against him owing to his opposition to the Nazi Party. The Hereditary Farm Court had accepted this evidence without having ever examined the true facts of his case, and particularly the effects of the burning of his farm. Thus the Farm Court had committed perversion of justice (Rechtsbeugung) and the files of that Court had been the basis of all later decisions relating to his attempts to obtain restitution of his farm or compensation for its loss.   The applicant invokes Article 6 (1), (2) and (3) (d) of the Convention. He alleges, in particular, that he did not have impartial judges, that the criminal charges against him have not been lawfully determined, that he was not presumed innocent until proved guilty according to law, and that he did not have a fair hearing since two of his most important witnesses had not been examined by the courts.   The applicant finally states that his present application is solely directed against the proceedings relating to his claim for compensation for hardship cases under Article 171 of the Federal Compensation Act. It is therefore substantially different from his previous application No. 2457/65.     THE LAW   1.    The applicant has submitted that he suffered damage as a result of Nazi terror. The events which gave rise to the alleged injury concern a period prior to 3 September 1953 the date of the entry into force of the Convention with respect to the Federal Republic of Germany. However, 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.   It follows that the examination of the application in this respect is outside the competence of the Commission ratione temporis.   2.    The applicant has also complained of the refusal by the German authorities to award him compensation for hardship cases under Article 171 of the Federal Compensation Act for the damage suffered by him as a result of Nazi terror. However, under Article 25 (1) (Art. 25-1) of the Convention, it is only the alleged violation of one of the rights and freedoms set forth in the Convention that can be the subject of an application presented by a person, non-governmental organisation or group of individuals.   In particular, in accordance with the Commission's constant jurisprudence, no right to obtain compensation for an alleged injury, the examination of which is outside the competence of the Commission ratione temporis, is guaranteed by any of the provisions of the Convention (see e.g. decisions on the admissibility of applications No. 899/60, Yearbook, Vol. 5, pp. 136, 142, No. 2457/65, Collection of Decisions, Vol. 24, pp. 43, 45).   In this connection, the Commission has just found that the examination of the applicant's submissions relating to the alleged injury is outside the competence of the Commission ratione temporis.   It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27, paragraph (2) (Art. 27-2).   3.    The applicant has finally complained that Article 6 (1), (2) and (3) (d) (Art. 6-1, 6-2, 6-3-d of the Convention have been violated by reason of the court proceedings relating to his claim for compensation for hardship under Article 171 of the Federal Compensation Act.   The Commission first observes that there is nothing in the applicant's submissions to show that he has ever been charged with any criminal offenses. Consequently, the provisions of Article 6 relating to criminal offenses, in particular, Article 6 (2) and (3) (d) (Art. 6-2, 6-3-d), are not applicable in his case.   On the other hand, Article 6 (1) (Art. 6-1) of the Convention also provides that, in "the determination of his civil rights and obligations .... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". It is clear that this provision is only applicable where the proceedings complained of involve the determination of the applicant's civil rights or obligations.   In this respect the Commission had regard to the judgment of the European Court of Human Rights in the Ringeisen Case, dated 16 July 1971, and to the Commission's own established jurisprudence. The Commission had decided in previous cases that the question whether a right or obligation was of a civil nature did not depend upon the particular procedure prescribed by domestic law for its determination but solely upon an appreciation of the claim itself and of the purpose of the complaint (see, for instance, decision on the admissibility of application No. 808/60, Isop v. Austria, Yearbook, Vol. 5, pp. 108, 122). Indeed, the term "civil rights and obligations" could not be construed as a mere reference to the domestic law of the High Contracting Party concerned but, on the contrary, must be interpreted independently of the rights existing in the law of the High Contracting Parties (see decisions on the admissibility of application No. 1931/63, Yearbook, Vol. 7, pp. 213, 233).   Finally, the European Court of Human Rights held in its above judgment in the Ringeisen Case that, for Article 6 (1) (Art. 6-1) of the Convention to be applicable, it was not necessary that "both parties to the proceedings should be private persons" and that the "character of the legislation which governs how the matter is to be determined (civil, commercial, administrative law, etc.) and that of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, etc.)" was of little consequence. In the Court's finding, the wording of Article 6 (1) (Art. 6-1) both in the French and in the English text, is far wider in that it covers "all proceedings the result of which is decisive for private rights and obligations".   However, the Commission considers that the proceedings in the present case do not even meet this test. Article 171 (1) of the Federal Compensation Act provides that the competent authorities have discretion to grant compensation, out of a public fund, for hardship cases, where the claimant has suffered damage as a result of Nazi persecution within the meaning of Article 1 of the Federal Compensation Act, but does not otherwise qualify for compensation under the provisions of the Act. The proceedings relating to such claims, either before the competent authorities or subsequently before the courts, therefore concern the exercise by the Government of discretionary powers in cases where a claimant has shown that he is a victim of Nazi persecution within the meaning of the Act. The exercise of this discretionary power is to a certain extent subject to revision by the courts.   The present applicant was refused compensation by the competent authorities on the ground that he was not a victim of Nazi persecution within the meaning of the Act and this decision was upheld by the Court of Appeal at Celle. This decision which terminated the proceedings relating to the execution of those discretionary powers, was in no way "decisive for private rights and obligations" within the meaning of Article 6 (1) (Art. 6-1) of the Convention.   In these circumstances the Commission finds that the proceedings concerning the applicant's application for compensation for hardship cases fell outside the scope of Article 6 (Art. 6) of the Convention and this part of the application is therefore also incompatible with the provisions of the Convention within the meaning of Article 27 (2) (Art. 27-2).   For these reasons, the Commission DECLARES THIS APPLICATION INADMISSIBLE