CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 février 1993

.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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 20931/92                       by H.K.                       against the Federal Republic of Germany           The European Commission of Human Rights (First Chamber) sitting in private on 10 February 1993, the following members being present:              MM.    F. ERMACORA, Acting President of the First Chamber                  J.A. FROWEIN                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  B. MARXER                  G.B. REFFI              Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 27 October 1992 by H.K. against the Federal Republic of Germany and registered on 12 November 1992 under file No. 20931/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:         THE FACTS         The applicant is a German citizen born in 1966 and living in Munich.   He is represented by Mr. Peter Kloer, a lawyer practising in Munich.         The applicant states that he is the heir of Eva Kloer who died in 1986.   He complains of the confiscation of Mrs. Kloer's real property by Polish authorities.   The real property is situated on former German territories east of the Oder-Neisse Line which were put under the administration of Poland and the Soviet Union according to the Potsdam Protocol at the end of World War II in August 1945.         The applicant argues that the above-mentioned treaty does not contain a definite regulation as to the borders between Germany and her eastern neighbours.   In his opinion a final regulation was left to an international peace treaty.         Mrs. Kloer received some compensation, under the Equalisation of Burdens Act (Lastenausgleichsgesetz) which, however, the applicant considers to be insufficient.         The applicant submits that in consequence of German unification and the treaties related thereto, in particular the treaty between the Federal Republic of Germany and the Republic of Poland of 14 November 1990 confirming the existing border, all former property owners whose property was confiscated by the Polish authorities were deprived of any means of recuperating this property or of claiming just compensation for its loss.         This opinion was however not shared by the Federal Constitutional Court (Bundesverfassungsgericht) which rejected the applicant's constitutional complaint on 27 August 1991 as being inadmissible, stating that neither the Unification Treaty nor the Unification Treaty Act contained regulations relating to private property situated on territories east of the Oder-Neisse Line.   On 5 June 1992 the Federal Constitutional Court declared inadmissible another constitutional complaint which had been lodged by the applicant and others   concerning the German-Polish Border Treaty.   The Court stated that the treaty did in no way affect the constitutional rights invoked by the complainants. The treaty only confirmed the border and thereby a factual situation which had existed for many years.   The property in question had been seized by the Polish authorities after the end of World War II and the present treaty was in no way concerned with these confiscations. Furthermore, it could not be argued that the respect of the complainants' property rights obliged the Federal Republic of Germany to see to it that the Polish authorities restituted the property or paid compensation for the loss of it.   COMPLAINTS         The applicant alleges a violation of Article 1 of Protocol No. 1 to the Convention in that German unification was achieved at the expense of persons having lost property in the former German territories.   Furthermore he considers his property right to be violated by the fact that the Federal Republic of Germany surrendered former German territory to Poland without seeing to it that Poland paid compensation to all those who lost property.   Finally, he alleges discrimination in comparison to persons whose property was confiscated by the authorities of the former German Democratic Republic.   THE LAW   1.     Real property of the applicant's predecessor in title was confiscated by Polish authorities in former German territory after it had come under Polish administration in 1945.         The applicant alleges a violation of his right to the peaceful enjoyment of possessions as guaranteed by Article 1 of Protocol No. 1 (P1-1) to the Convention because the Federal Republic of Germany renounced any claim to former German territory in treaties concluded with Poland without seeing to it that compensation was paid to the expropriated persons.     a)   In this respect the Commission notes that in so far as confiscation is concerned, it was effected by Polish authorities and occurred before the entry into force of the Convention (3 September 1953) and Protocol No. 1 (13 February 1957) in respect of the Federal Republic of Germany.         The Commission has already held in a previous decision that following the confiscation decision taken by the Polish authorities the exercise of the property rights concerned had become impossible (cf. Nos. 7655/76, 7656/76 and 7657/76, Dec. 4.10.77, D.R. 12 p. 111, at p.119).          Moreover the Commission notes that the German-Polish Border Treaty does not address the issue of property rights and the Federal Constitutional Court (Bundesverfassungsgericht) has held that it did not affect property rights which the applicant claims to have inherited.     b)   It remains to be examined whether a right to compensation existed until the entry into force of the Treaty concluded between the Federal Republic of Germany and Poland and whether it was affected thereby.   However, the Commission recalls that the Federal Republic of Germany is not responsible for the confiscations in question.   It follows that the applicants never had any compensation claims against this State before the conclusion of the Treaty in question.   The Treaty could not therefore have affected any property rights in the form of pre-existing claims directed against the Federal Republic of Germany (cf. No. 7742/76, Dec. 4.7.78, D.R. 14 p. 146, at p. 168 et seq.).         On this point the application therefore does not disclose any appearance of a violation of Article 1 of Protocol No. 1 (P1-1) and has to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant further considers to have been discriminated against with regard to the enjoyment of his property right in that, as opposed to owners of property expropriated by the authorities of the former German Democratic Republic after 1949, he cannot claim restitution or reparation.         Under Article 14 (Art. 14) of the Convention the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any of the grounds enumerated in the provision, inter alia, on the ground of status.         The Commission recalls that Article 14 (Art. 14) complements the other substantive provisions of the Convention and its Protocols. Although application of Article 14 (Art. 14) does not presuppose a breach of those provisions, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (cf. Eur. Court H.R., Abdulaziz, Cabales, and Balkandali judgment of 28 May 1985, Series A no. 94, p. 35, para. 71).         In the present case the applicant's complaint falls within the ambit of Article 1 of Protocol No. 1 (P1-1) which, inter alia, relates to expropriation and compensation for the taking of property (cf. Eur. Court H.R., Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 50, para. 120).         Article 14 (Art. 14) safeguards individuals, placed in analogous situations, from discrimination (cf. Eur. Court H.R., Van der Mussele judgment of 23 November 1983 Series A No. 70, p. 22, para. 46). Yet the situation of persons whose real property was confiscated by foreign powers and persons who were expropriated by German authorities in regions which were and still are German territory is fundamentally different and therefore incomparable.   In the latter configuration the real property is available to the German authorities, they are consequently in a position to return the property to the previous owner or to keep it and pay compensation.   No such possibilities are given to the German authorities with respect to properties confiscated by third states.         It follows that there is no appearance of a violation of Article 1 of Protocol No. 1 taken together with Article 14 (P1-1+14) of the Convention and this part of the application is therefore likewise manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons the Commission unanimously,         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber    Acting President of the First Chamber            (M.F. BUQUICCHIO)                (F. ERMACORA)