CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mars 1972

.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 an Australian citizen, born in 1911 in Poland and resident at N., Victoria, in Australia where he is a minister. He is represented by Mr. C., an international law consultant practising in London.   The applicant was a curate in Poland when he, in October 1941, was arrested by the Gestapo. He was then detained for three and a half years in the Dachau concentration camp.   In 1950, he received compensation for loss of liberty from the compensation authorities in Hamburg.   In November 1961, the applicant applied to the Federal Administrative Office (Bundesverwaltungsamt) in Cologne for compensation for damage to his health and body, basing his application on the Agreement of 5 October 1960 between the United Nations High Commissioner for Refugees and the Government of the Federal Republic of Germany. In his application, the applicant maintained that the principal, though not exclusive, reason for the persecution suffered at the hands of the Nazis was his Polish nationality and, accordingly, he was claiming compensation as a victim of persecution by reason of nationality.   The Office considered that the applicant could only rely on Sec.1 of the Federal Constitutional Act (Bundesentschädigungsgesetz) but not on the Agreement, and his claim was first referred to the Compensation Office in Hamburg which rejected it, on 22 July 1963, as having been lodged out of time.   On 29 October 1963, the Federal Administrative Office to whom the matter had been reverted, rejected the applicant's claim on the grounds that he had suffered persecution, not because of his nationality but of his Catholic faith.   However, on 16 January 1968, the Regional Court (Landgericht) of Cologne granted the applicant compensation and this decision was confirmed by the Court of Appeal (Oberlandesgericht) of Cologne on 11 July 1968. Both courts accepted that the applicant had been persecuted because of his religion as well as his nationality. Both instances also held the fact that the applicant had been persecuted because of his religion, i.e. one of the grounds for compensation mentioned in Sec. 1 of the Federal Constitutional Act, did not exclude the admissibility of his claim for compensation on grounds of nationality which was based on Sec. VI of the Second Act to amend the Federal Constitutional Act (2. Gesetz zur Änderung des Bundesentschädigungsgesetzes - hereinafter referred to as the Amendment Act).   The Federal Administration Office appealed, however, to the Federal Court (Bundesgerichtshof). In the course of these proceedings the applicant challenged Mr. Z., one of the judges of the Federal Court on the grounds of bias. The applicant stated that there were good reasons to believe that Mr. Z. might be prejudiced in his capacity as a judge because of his former activities in the Federal Ministry of Finance for a period of 15 years. In particular, Mr. Z. had dealt with compensation questions in an executive function and also, participated in the drafting of the Amendment Act as well as of the directives for the application of the provisions of that Act invoked by the applicant. He had further written an article in a legal journal in which he had dealt with the question of compensation to Catholic priests, expressing a view which was unfavourable to the applicant's type of cases. In a statement submitted to the Court, Mr. Z. stated himself that he was not biased, and that, to his knowledge, he had not previously dealt with the applicant's case.   On 10 July 1969, the Federal Court rejected the challenge of Mr. Z. as not being justified. The Court first stated that the mere fact that an official had been involved in the drafting of legislation could not give rise to the fear that, once appointed a judge, he would not apply that legislation in an unbiased and impartial manner. The Court then went on to examine the particular reasons given by the applicant but considered that none of them was sufficient to disqualify Mr. Z. from taking part in the case.   By judgment of 17 November 1969, the Federal Court set aside the decisions of the lower courts and dismissed the applicant's compensation claim. The Court stated that the aim of Sec. VI of the Amendment Act was to provide compensation for aliens who were otherwise not entitled to compensation. The prohibited the granting of compensation of this account to persons who were victims of persecution for reasons stated in Sec. 1 of the Federal Constitutional Act, but had failed to lodge a claim within the time-limit prescribed for such claims. The Court of Appeal had established that the applicant was persecuted because of his faith within the meaning of Sec. 1 of the Act and he was therefore precluded from claiming compensation under Sec. VI of the Amendment Act on grounds of nationality.   The judgment has been served on the applicant's counsel on 6 March 1970.   Complaints   The applicant alleges that the Federal Court violated his right under Article 6 of the Convention to a fair hearing of his case by an impartial tribunal in that :   (i)   the Court failed to base its conclusions and order on evidence known to the applicant;   (ii) Mr. Z. participated as one of the judges although his impartiality had been challenged by the applicant.   The applicant describes the Federal Court's decision as singularly incomprehensible and violating the human sense of justice. In his submission, the interpretation adopted by the Court of Sec. VI of the Amendment Act does not correspond with either the letter or the spirit of the law and was contrary to the view previously taken by the Court that, in cases of Nazi persecution, the law should be interpreted as wide as possible in order to enable the victims to be granted compensation.   He maintains   that the principle of fair hearing requires that a court bases its decision on evidence submitted to it by, or at least known to the parties. The applicant contends that the Federal Court failed to observe this principle. Thus the Court stated that the regulation of claims by persons persecuted on grounds of nationality as provided in Sec. VI of the Amendment Act, went back to the Bonn Settlement Agreement of 26 May 1952. The Court then said that:   "The Federal Government took the view, and this was shared by the Allies, that this category of persons did not come within the ambit of the internal German compensation law but belonged to the regime of reparations".   The applicant emphasises that the Court, in this context, exclusively refers to German sources. The applicant could have been expected to be given evidence by the Court to show that the attitude of the German Federal Government was actually shared also by the other parties to the Bonn Settlement Agreement, and that the Allied Powers considered claims of persons persecuted on account of their nationality to be merely subsidiary to claims under the Federal Compensation Act. The applicant argues that there is nothing to support the interpretation of the Court in this respect.   As regards the question of Mr. Z's participation in the case, the applicant refers to the grounds for challenging the judge which were submitted to the Federal Court. In addition, the applicant has now produced two letters signed by Mr. Z. in 1964 which show that Mr. Z., contrary to his own recollection, had in fact dealt with the applicant's case in the Ministry of Finance. In those letters which were not known to the Federal Court, Mr. Z. had expressed the view that the applicant's category, i.e. Catholic priests, had been persecuted because of their faith and not of their nationality.   THE LAW   The applicant's only complaint before the Commission concerns the court proceedings relating to his claim for compensation, under the Federal Compensation Act or the relevant amendment thereto, as being a victim of Nazi persecution. In this respect he has alleged that, contrary to the rights guaranteed by Article 6 (1) (Art. 6-1) of the Convention, the courts denied him a fair hearing of his case and that one of the judges could not be considered as having been impartial.   Article 6 (1) (Art. 6-1) of the Convention provides:   "In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing .... by an independent and impartial tribunal established by law ...". The Commission must therefore first decide whether the court proceedings relating to the above claim by the applicant fall within the scope of that provision to the extent that they involve the determination of his civil rights.   In this connection the Commission refers to its established case-law to the effect that, on the question whether a right is of a civil nature, it is not decisive that the right claimed by the applicant constitutes a "civil right" in the country concerned and that, indeed, the term "civil rights and obligations" cannot be construed as a mere reference to the domestic law of the High Contracting Party concerned. Instead, the concept relates to an autonomous notion which must be interpreted independently having regard to the nature of the claim and to the purpose of the complaint. Only in this connection can the general principles of the domestic law of the High Contracting Parties be taken into consideration (see decisions on the admissibility of applications No. 808/60, Yearbook, Vol. 5, pp. 108, 122; No. 1931/63, Yearbook, Vol. 7, pp. 213, 233; and No. 3959/69, Collection of Decisions, Vol. 35, pp. 109, 112).   The Commission further refers to its decision of 2 October 1971 on the admissibility of Application No. 4505/70 (X v. the Federal Republic of Germany) in which it held that proceedings on a claim for compensation under the Federal Liability Equalisation Act (Lastenausgleichsgesetz) did not relate to "civil rights and obligations" within the meaning of Article 6 (1) (Art. 6-1) of the Convention. The Commission found that a grant of compensation under that Act was "made by the State in the execution of its aim to provide for its citizens and to distribute equally among them the burden of the losses suffered as a result of the .... war". The relevant court proceedings accordingly concerned "the exercise of the duties and powers imposed on the Government in the implementation of the above aim as well as the rights of the individual arising out of this relationship which is clearly one of public law".   The Commission finds that the above considerations are equally applicable in respect of proceedings under the Federal Compensation Act. Without going in detail into questions of State succession or prescription, the Commission points out that the Federal Republic of Germany, as such, could not, without specific provision, be held liable either under German national law or under international law, for injuries of the kind covered by the Act. However, in the Federal Compensation Act itself the Government of the Federal Republic of Germany has undertaken to pay to victims of Nazi persecution compensation for specified injuries, or to grant such victims other forms of benefits, within the limits laid down in the Act. This legislation, like the Federal Liability Equalisation Laws, therefore constitutes an undertaking on the part of the State to grant compensation for injuries suffered in the course of special circumstances for which otherwise damages cannot be recovered under the general principles of tort liability. Accordingly, the proceedings in which the eligibility of a particular claim is decided relate, like the corresponding proceedings on claims under the Federal Liability Equalisation Act, to rights of the individual vis-à-vis the State which clearly belong to the domain of public law.   Consequently, the proceedings before the Federal Court in the present case, were not concerned with the determination of the applicant's "civil rights and obligations" and therefore fall outside the scope of Article 6 (Art. 6) of the Convention. It follows that the Commission has no competence ratione materiae, to examine the application which must be rejected as being incompatible with the provisions of the Convention in accordance with Article 27 (2) (Art. 27-2) thereof.   For these reasons, the Commission DECLARES THIS APPLICATION INADMISSIBLE