CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 mai 1986

.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 European Commission of Human Rights sitting in private on 12 May 1986, the following members being present:                        MM. C. A. NØRGAARD                          G. SPERDUTI                          J. A. FROWEIN                          F. ERMACORA                          E. BUSUTTIL                          G. JÖRUNDSSON                          G. TENEKIDES                          S. TRECHSEL                          B. KIERNAN                          A. S. GÖZÜBÜYÜK                          J. C. SOYER                          H. G. SCHERMERS                          H. DANELIUS                          G. BATLINER                      Mrs G. H. THUNE                      Sir Basil HALL                        Mr. J. RAYMOND, Deputy Secretary to the Commission   Having regard to Art 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 7 October 1983 by R.B. against the Federal Republic of Germany and registered on 20 February 1984 under file No. 10865/84;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The facts of the case as submitted by the applicant may be summarised as follows:   1.       The applicant is a Canadian citizen of Jewish origin, born in 1906 in Poland and residing in D. (Canada).   In the proceedings before the Commission she is represented by Dr h.c. Otto Küster, a lawyer practising in Stuttgart and Professor Dr. Dr. h.c. F. A. Mann, London.   2.       The applicant lived at the outbreak of the Second World War in S..   In order to avoid Nazi persecution she fled with her family, her husband and two children, to Russia.   After a short time she was deported by the Soviet authorities to Siberia where she had to perform forced labour as a result of which she suffered irreparable damage to her physical and mental health.   In 1942 she was deported to K. from where she returned in 1946 to Poland.   In 1950 she emigrated to Israel and from there in autumn 1951 to Canada.   3.       After 1945 regulations were issued in the Federal Republic of Germany for the redress of wrongs inflicted by the Nazi regime.   Part of these regulations forms the Federal Act on Compensation for Victims of Nazi Persecution (Bundesentschädigungsgesetz), hereinafter referred to as the Federal Compensation Act.   However, the case of the so-called Soviet Union refugees, ie Polish Jews who fled to the Soviet Union to escape from Nazi persecution and thus became the victims of Soviet persecution, was originally believed to be exlcuded from the scope of the compensation legislation, and normally no claims in cases such as that of the applicant were notified.   The Toronto Office of the United Restitution Organisation (URO) informed the applicant accordingly and refused a registration of her compensation claim.   Therefore the applicant did not submit any such claim within the time-limit provided for by the Federal Compensation Act, that is before 1 April 1958.   A change occurred when on 25 October 1961 and 18 April 1962 the Federal Court of Justice (Bundesgerichtshof) decided that persecution by the Soviets of refugees who had fled to escape Nazi persecution was a natural consequence of that persecution and losses suffered in the Soviet Union thus came within the scope of the German compensation law (RzW - Rechtsprechung zum Wiedergutmachungsrecht - 1962, p 116, Nr 9, p 449).   At the end of the year 1963 this new development became known to the applicant who since 1951 was dispensed medical treatment in the psychiatric ward of a Canadian hospital.   Thereafter she addresssed herself again to the Toronto Office of the URO.   She was then informed that a compensation claim had prospects of success and on 24 March 1964 the Berlin Office of the URO submitted her claim under the Federal Compensation Act to the Compensation Office for the Land Rheinland-Pfalz in Berlin.   Her claim was accompanied by an application for reinstatement in the form of an affidavit dated 13 February 1964 in which she declared that she had missed the time-limit for application because she was told that she would not be entitled to compensation.   In fact section 189 (3) of the Federal Compensation Act provides as follows:   "If, through no fault of his own, the applicant was prevented from observing the time-limit for the application, he is, upon his application, to be granted reinstatement into the status quo.   If the Compensation Office expressly or impliedly has granted reinstatement into the status quo, the compensation courts are bound by this decision."   In the course of the following years the applicant submitted further material to the Compensation Office.   4.       On 7 February 1973 the then competent Compensation Office at Mainz rejected the claim on the ground that it was lodged out of time and refused reinstatement into the status quo on the ground that the application for reinstatement had not been sufficiently particularised.   The applicant had failed to submit reliable particulars on the question when and where she had obtained knowledge of the opportunity which the compensation law offered.   5.       Thereupon, the applicant, represented by lawyers, on 7 July 1973 instituted proceedings before the Mainz Regional Court (Landgericht) against the Land Rheinland-Pfalz, and requested that the decision of 7 February 1973 be set aside, that reinstatement be granted and that she be given compensation.   On 30 May 1974 the Mainz Regional Court dismissed the action. The basic reason once again was that the applicant had failed to particularise in time and precisely under what conditions she had learned of her right to compensation.   The Regional Court referred in this respect to the jurisprudence of the Federal Court of Justice (RzW 1971, p 180 and 510; 1973 p 96).   On 16 December 1976 the Koblenz Court of Appeal (Oberlandesgericht) dismissed an appeal lodged by the applicant against the above judgment.   A further appeal to the Federal Court of Justice was disallowed.   7.       Thereafter the applicant appealed to the Federal Court of Justice against the refusal of leave to appeal.   On 29 March 1983 the appeal was dismissed on the ground that the applicant's case was decided in accordance with the constant jurisprudence of the Federal Court of Justice relating to Section 189 (3), first sentence of the Federal Compensation Act (RzW 1971, p 510; 1975, pp 314, 315).   The Federal Court of Justice furthermore referred to a decision of the Federal Constitutional Court (Bundesverfassungsgericht) dated 15 December 1982 - 2 BvR 893/79 - by which in a similar case a constitutional appeal had been dismissed on the ground that it did not offer sufficient prospects of success.   The case in question was also submitted to the Commission and was on 10 December 1984 rejected as being incompatible with the provisions of the Convention (Application No. 10612/83).   In view of the Federal Constitutional Court's decision of 15 December 1982 the applicant did not lodge a constitutional complaint as such a complaint offered no prospects of success.   COMPLAINTS   The applicant complains that she was denied a fair hearing and that the courts have not decided on the merits of her compensation claim. She invokes Arts 6 (1) and 14 (Art. 6-1, art. 14) of the Convention. The applicant criticises the Commission's case law according to which Art 6 (1) (Art. 6-1) of the Convention is not applicable to the proceedings in question.   She refers, inter alia, to the judgment by the European Court of Human Rights in the Golder case and argues that there is no distinction between a right to damages for libel, considered to be a "civil right" in the Golder case, and a right to an annuity against a State for injuries to health and personal freedom. Her status as a victim of Nazi persecution could not deprive her of the protection of Art 6 (1) (Art. 6-1). She argues that the case law in question is based on a misunderstanding, namely, that she claimed a payment in respect of injuries "for which otherwise damages cannot be recovered under the general principles of tort liability".   From that the Commission wrongly drew the conclusion that "accordingly the proceedings relate to rights of individuals vis-à-vis the State which clearly belong to the domain of public law".   However, if there had been no compensation law she would have had rights against the Federal Republic of Germany under Sections 823, 826 and 839 of the Civil Code (BGB), as had been acknowledged repeatedly in the case law of the Federal Court of Justice.   All that the special compensation law did was to standardise damages caused by Nazi persecution in order to expedite the completion of cases and of payment.   The victims' claims did not therefore become a matter of public law, as was, for instance, evidenced by the fact that such claims are being dealt with by the ordinary civil courts.   The "specific" character of the legislation in question was in no way of relevance.   The tortious liability of the railways, the airlines and motorists was likewise dealt with by specific legislation, while claims under such legislation did not lose their character as civil rights.   Her case could furthermore not be compared to cases where the applicant's claim was rejected in a decision on the merits which for procedural reasons could not be attacked or was such as to put an end to the proceedings.   Contrary to such cases a hearing of her case was from the outset blocked and she was denied a fair and substantive hearing by procedural, unfair measures.   There was no reason to limit the application of Art 6 (Art. 6) to procedural unfairness of a purely technical nature.   The right to a fair hearing included the right to be protected against decisions which are so grossly unjust, so plainly unfair, so manifestly inequitable as to render the proceedings as a whole unfair.   In this context she stresses that the decision requiring her fully to particularise the circumstances of the acquisition of knowledge was rendered by the Federal Court of Justice on 1 April 1971 (RzW 1971, p 510), that is a long time after the date of her application.   Consequently this decision had retroactive effect and deprived her of her rights at a time when a great number of others had obtained the compensation she was denied.   At the time when she submitted her application in March 1964, her legal representatives could not foresee the course which the jurisprudence would take.   Furthermore the new development justifying reinstatement occurred three years after the expiration of the statutory time-limit for lodging claims.   That it took a long time for the news to spread to Canada and to become known to simple people out of touch with Germany was obvious.   It could have been expected from the Compensation Office to assume that the applicant in her situation had acted without fault when submitting her compensation claim. Section 189 (3) of the Federal Compensation Act only required her to prove the absence of fault; therefore the condition of a fully particularised "when and how" as laid down in the decision of 1 April 1971 of the Federal Court of Justice was arbitrary in character. Furthermore it was unfair to interpret Section 189 (3) second sentence of the Federal Compensation Act to the effect that an implied reinstatement by the Compensation Office occurred only when a decision granting or rejecting compensation was made, but could not be inferred from the fact that an applicant's case had already been under active consideration.   It was furthermore unfair to reject her case without giving her the opportunity of explaining and qualifying her original application.   A final ground of unfairness arose from the fact that she was the victim of discrimination on account of her age.   The practice was and is that applications for compensation are dealt with in the order determined by the age of the applicant.   In 1964 she was 58, i.e. relatively young, and according to the prevailing practice her application had no chance of being attended to within the near future. The result was that by 1971, when the new practice of the Federal Court of Justice became known, her case had not been dealt with.   It followed that it was surely on account of her relative youth that she did not obtain the compensation which thousands of others had received between 1964 and 1971.   The discriminatory unfairness arose from the decision of 1971 and the retrospective character which was attributed to it.   The applicant finally argues that there is a relevant disproportion between the wrong suffered by her at the hands of Nazi and Soviet persecutors, and the pettiness of the ground which deprived her of her undoubted right to compensation.   THE LAW   1.       The applicant, invoking Art 6 (1) (Art. 6-1) of the Convention, also in connection with Art 14 (Art. 14), complains that in the proceedings under the Federal Compensation Act she was denied a fair hearing.   Art 6 (1) (Art. 6-1), first sentence, provides as follows:   "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."   The Commission notes that in the present case the applicant was refused reinstatement into the status quo and that therefore the courts did not examine the merits of her compensation claim. The examination of her case was limited to the question whether her claim had been filed within the time-limit fixed by Section 189 of the Federal Compensation Act.   The Commission observes that only a procedure which "determines" civil rights and obligations enjoys the guarantees of the above-mentioned provision of the Convention.   It has decided on several occasions that proceedings for re-opening a trial or, in some cases, for leave to appeal are not within the scope of Art 6 (1) (Art. 6-1) of the Convention (see eg N° 7761/77, Dec. 8.5.78, DR 14, p 171). Similarly, it has decided that this provision is inapplicable in a case where a procedural obstacle does not allow an examination of the merits of the matter (N° 8000/77, Dec. 9.5.78, DR 13 p 81).   Art 6 (1) (Art. 6-1) is further inapplicable to proceedings by which preliminary measures are taken which do not affect the merits of the case (N° 7990/77, Dec. 11.5.81, DR 24 p 57; N° 8988/80, Dec. 10.3.81, DR 24 p 198; N° 5263/71, Dec. 14.12.72 Collection 42 p 97).   By an analogous reasoning the Commission concluded in a matter similar to the present case (No. 10612/83, Dec. 10.12.84) that Art 6(1) (Art. 6-1) of the Convention is likewise inapplicable in a case where the applicant's claim was in fact rejected on procedural grounds.   The Commission finds in the present case no reason to depart from this case law.   The court decisions of which the applicant complains cannot therefore be considered as "determining" civil rights and obligations within the meaning of Art 6 (1) (Art. 6-1) of the Convention.   2.       The applicant submits furthermore that the German authorities and courts acted unfairly when refusing her request for reinstatement into the status quo.   This constituted a grave injustice with regard in particular to the development of the cases of the so-called Soviet Union refugees and to the difficulties which these people encountered abroad in obtaining information concerning their right to compensation.   The restrictive interpretation of Section 189(3), second sentence, of the Federal Compensation Act, as applied by the German courts was unfair and arbitrary.   An even graver unfairness is seen in the fact that the German courts rejected her case without giving her the opportunity of explaining and amplifying her original application.   That in effect amounted, in her view, to a refusal to hear her case.   The Commission interprets the applicant's complaint in this regard as meaning that she has been denied a fair hearing by a court in the determination of her civil rights and obligations as provided for in Art 6 (1) (Art. 6-1) of the Convention.   3.       In this respect, it has to be taken into account, as the applicant also pointed out, that the concept of "civil rights and obligations" in Art 6 (1) (Art. 6-1) of the Convention cannot be interpreted solely by reference to the domestic law of the respondent State, but must be given an autonomous interpretation in the light of the object and purpose of the Convention (e.g. Eur. Court H.R., König judgment of 28 June 1978, Series A, no. 27, para. 88).   Consequently, it is not decisive for the application of Art 6 (1) (Art. 6-1) in the present case whether claims under the Federal Compensation Act are regarded in German law as being of private law or of public law.   As regards the interpretation of the term "civil rights and obligations" in Art 6 (1) (Art. 6-1), the European Court of Human Rights has repeatedly stated that this term covers all proceedings the result of which is decisive for private rights and obligations (e.g. Eur. Court H.R., Ringeisen judgment of 16 July 1971, Series A, no. 13, para. 94). The Court has added, however, that a tenuous connection or remote consequences do not suffice for Art 6 (1) (Art. 6-1), that civil rights and obligations must be the object - or one of the objects - of the "contestation" (dispute), and that the result of the proceedings must be directly decisive for such a right (Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A, no. 43, para. 47).   4.       The present case concerns the right to receive compensation for specified injuries under the Federal Compensation Act.   In its previous case law the Commission pointed out that, "without going in detail into questions of State succession or of prescription, the Federal Republic of Germany has undertaken in the Federal Compensation Act 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 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 to rights of the individual vis-à-vis the State which clearly belong to the domain of public law." (see e.g. N° 4523/70, Dec. 23.7.1971, Collection 38 p. 115; N° 4505/70, Dec. 2.10.1971, Collection 39 p. 51; N° 4618/70, Dec. 21.3.1972, Collection 40 p. 11; N° 7014/75, Dec. 21.5.1976, D.R. 5, 134).   In its decision of 16 October 1980 on the admissibility of Application N° 8646/79 (not published) the Commission confirmed the above jurisprudence and added that reinstatement proceedings with a view to obtaining compensation under the Federal Compensation Act fall even more clearly outside the scope of Art 6 (1) (Art. 6-1).   In a further above cited decision of 10 December 1984 concerning an analogous case (N° 10612/83) the Commission confirmed the opinion which it had formulated in the case law referred to. Considering the nature, purpose and objectives of the Federal Compensation Act as outlined in decisions of the Federal Constitutional Court (BVerfGE 13 p. 39 <42, 42> and p. 46 <49>) it noted that the legislation on compensation for wrongs inflicted by the Nazi regime did by its specific nature not constitute liability for damages according to civil law but was founded upon the reasoning that national socialist persecutions were illegal acts and that persons who were persecuted on grounds of their convictions or religious belief or conscience deserved to be granted a public law compensation.   The Commission therefore found that the notion of civil rights and obligations could not be extended to a situation where, as in the case at issue, a specific legislation had been passed in the implementation of the State's aim to redress injuries which had been caused by acts committed on a large scale and under general cover of State authority. Civil rights within the meaning of Art 6 (1) (Art. 6-1) of the Convention were mainly all those rights, be they constituted by private or public law, which the citizen had towards other citizens or towards state organs without any specific institutional or status requirements arising. However, where the State had established very specific regulations based on the idea of resolving by State authority the problems resulting in the past from crimes of State and their consequences, civil rights were no longer at issue.   This area had to be distinguished from civil rights in general by which a satisfactory solution of the question of Nazi persecution would not have been reached.   5.       The Commission has considered the applicant's criticism of its decision of 10 December 1984 but again sees no reason to depart from its case law.   It maintains the opinion that the legislation in question created special rights which have to be distinguished from private law claims.   It concludes that the proceedings before the courts in the present case did not concern the determination of the applicant's "civil rights and obligations" and therefore fall outside the scope of Art 6 (Art. 6) of the Convention.   It follows that the Commission has no competence ratione materiae to examine the application which must be rejected in accordance with Art 27 (2) (Art. 27-2) as being incompatible with the provisions of the Convention.   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE.   Deputy Secretary to the Commission      President of the Commission            (J. RAYMOND)                          (C.A. NØRGAARD)