CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1995

.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. 22353/93                  by Johanna JÜNGLING (née KÜHN),                  Beowulf v. PRINCE, Gerda SEBOROWSKI-BALTRUSCHAT,                  Wilhelm MARREK, Grete SCHLEMMIGNER (née MOCZEK),                  Horst MOCZALL, Gerda MÖßNER (née DUDA),                  Heinz PETRUSCHKE, Josef HERDE, Margot DAUBACH,                  Liesbet JECKEL (née ACHTERT), Herbert PIETSCH,                  Eva JONISCHKEIT (née SCHARLACH),                  Gert Adolf Arthur FREIHERR v. BUDDENBROCK,                  Christa REMS (née SMOLNIK), Wolfgang MUCHE,                  Margot ANSORGE, Günter SPIEKERMANN, Emmi NOLTE,                  Hermann OPIOLLA, Wolfgang KÖNIG, Günther ERDMANN,                  Brigitte KOSCHANY, Karl NOACK,                  Erika GROKE (née KARBE),                  Erika HAFEMANN, Margot STOOB (née SCHLÄGER)                  Professor Dr. Heinz MARX, Albrecht HAUNSCHILD,                  Christine JENTSCH-JOPPEN and Horst STEINER                  against Germany        The European Commission of Human Rights (First Chamber) sitting in private on 18 October 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the 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 3 December 1992 by the above applicants against Germany and registered on 27 July 1993 under file No. 22353/93;        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 thirty-one applicants are all German citizens, living in Leipzig.   They are represented by Mr. Thorsten Golf, a lawyer practising in Leipzig.        The facts as submitted by the applicants may be summarised as follows.        The applicants have lost properties in consequence of World War II.   The properties were situated on former German and now Polish territory.   They were confiscated after World War II by the Polish authorities.        The present border between Germany and Poland was subject to the German-Polish Border Treaty (Deutsch-Polnischer Grenzvertrag) concluded on 17 October 1991.        A constitutional complaint, lodged by former property owners other than the present applicants against this Border Treaty as well as the Act of Ratification related to it, was rejected by a panel of three judges of the Federal Constitutional Court (Bundes- verfassungsgericht) on 5 June 1992 as being inadmissible, there being no appearance of a violation of constitutional rights.        It is stated in the decision that the border treaty itself does not contain any regulation on former German property, in particular it could not be interpreted as a recognition by Germany of prior expropriation measures effected by Polish authorities.   Article 3 of the treaty only contained a declaration to the effect that the Federal Republic of Germany did not have any territorial claims vis-à-vis the Republic of Poland.   This declaration did not contain any express or tacit renouncement with regard to property rights or claims of private persons.        Nor had the treaty the effect of legalising expropriations carried out by a foreign state within its own sovereign power. According to the territorial principle, expropriations are effective to the extent they are carried out under the territorial sovereignty of the expropriating state.   Foreign expropriations may only be limited by the notion of "ordre publique" which however only applied to the extent that there were sufficient links to the domestic territory and the present time (hinreichende Inlands-und Gegenwartsbeziehung).   The fact that an expropriation was effected without payment of compensation or in violation of other domestic equity principles (inländische Gerechtigkeitsvorstellung) did not render foreign expropriations ineffective.   It could be left open whether from the point of view of German law the expropriations had to be considered as legally binding even before the coming into force of the border treaty.   Even if that question were to be answered in the negative the conclusion of the border treaty would not have changed such a legal position because the treaty did not have retroactive effect on territorial sovereignty.   Its border regulation related to the present and the future.   The parties to the treaty recognise in Article 1 the border line existing between them in order to define the borders of the united Germany for the present and the future.   By ending the open question of the border 45 years after the end of World War II the parties intended to remove an obstacle to the development of long lasting peaceful and friendly relations and to reconciliation between the two peoples.   In any event the validity of the expropriation measures depended on the circumstances prevailing at the relevant time.        Consequently the proprietorial position of the complainants had in no way been affected by the border treaty.   Their alleged claim for restitution or compensation had neither before nor after the conclusion of the border treaty been recognised by the Polish authorities. Furthermore it was not a matter for the Federal Constitutional Court to give a legal assessment on the basis of the constitutional law of the Federal Republic in relation to events that occurred in 1945 and thereafter under Polish administration.        The Federal Constitutional Court further rejected the applicants' argument that the Federal Republic had an obligation to see to it that they reobtained their property, or compensation for its loss.   The court pointed out that the individual citizen in principle had no claim under constitutional law obliging the legislator to act in his or her interests.   There were also no particular circumstances which could have created such an obligation from the point of view of constitutional law.   Such an obligation could not be derived from Article 14 (3) second sentence of the German constitution (providing the principle of compensation in case of expropriation) because the expropriations in question had not been effected by the German legislator.   Also the principle of social solidarity (sozialstaatliche Gründe) could not be invoked by the applicants.   This principle required that burdens imposed on a state community but affecting only particular groups at random should be spread in an equitable manner. However, this obligation had been respected by the legislator as all persons whose property had been expropriated had received financial compensation under the equalisation legislation (Lastenausgleich).   A claim for full compensation could however, not be derived from the principle of social solidarity.        Insofar as the complainants had argued that the Federal Government had violated its obligation to protect their legitimate interests vis-à-vis foreign states, the Federal Constitutional Court pointed out that such obligation was principally imposed on German diplomatic representations abroad which had to protect German nationals in concrete situations.   With regard to the conclusion of international agreements of a general political nature the Federal Government enjoyed extensive discretionary power, limited mainly by the necessity to respect the position of the treaty partner.   Therefore a constitutional complaint aimed at the finding of the unconstitutionality of certain regulations in international treaties was inadmissible as the interests of the general public prevailed in such cases over the interests of individuals or a group of individuals.        Insofar as the applicants had argued that they were being discriminated against by comparison with citizens whose property had been expropriated by the authorities of the former GDR and who had now been granted restitution of their property or compensation the Federal Constitutional Court considered that the factual situations were not comparable.   COMPLAINTS        The applicants maintain that the Polish-German Border Treaty and the Act endorsing it violate their rights under Article 1 of Protocol No. 1.   They submit that the confiscation of their properties as well as the expulsion of Germans from former German territories violated cogent international law.   Therefore the German Government, by signing the Treaty in question, also violated international law as it thereby renounced without the consent of the population concerned to German territory and the German properties there situated.   In their opinion the international law aspect was overlooked by the Federal Constitutional Court in its decision of 5 June 1992 and in view of this decision there was no longer any effective domestic remedy.   THE LAW        The present application concerns the same subject matter as application no. 24928/94, namely the complaint that the ratification by the Federal Republic of Germany of the German-Polish Border Treaty of 17 October 1991 had the effect of depriving the applicants definitely of the ownership of property they allegedly possessed before 1945 in regions which are now part of Polish territory.   They invoke Article 1 para. 1 of Protocol No. 1 (P1-1-1) which reads:        "Every natural or legal person is entitled to the peaceful      enjoyment of his possessions.   No one shall be deprived of      his possessions except in the public interest and subject      to the conditions provided for by law and by the general      principles of international law."        The Commission rejected application No. 24928/94 on 30 November 1994.   It referred to the reasons stated in a decision of 4 October 1977 rejecting a similar application relating to the Warsaw Treaty of 7 December 1970 in which the Federal Republic had already recognised the western frontier of Poland, subject to a general reservation in Article 4 of that treaty.        Having also regard to the Hague Convention on the laws and customs of war, the Commission found in its decision of 4 October 1977:        "The property right claimed by the applicants has not been      susceptible of effective exercise for more than thirty years,      following the confiscation announced by the Polish authorities.      Moreover the extent to which the Hague Convention was binding on      the Polish Government before 1970 either directly or by virtue      of general international law is doubtful.   Equally doubtful is      the question whether the rules set forth in that Convention,      which govern the behaviour of belligerent states, can be invoked      by individuals with reference to acts performed subsequent to the      end of hostilities.   Finally, doubt also surrounds the question      whether an act allegedly performed in violation of the Hague      Convention must be deemed null and void, or whether it merely      obliges the state performing it to pay compensation where      appropriate (Article 3 of the Hague Convention 1907).              Following the confiscation decision taken by the Polish      authorities, the applicants may have placed some hope of      recognition of the survival of the property rights in certain      legal arguments including the one discussed above.   The      ratification of the Treaties of Moscow and Warsaw by the Federal      Republic has admittedly made it harder to use this latter      argument.   In this regard, however, in as far as the effects of      the ratification go, both before and after it, the existence of      the applicants' property right was almost equally uncertain and      the exercise of such right equally impossible.              Further the Commission takes the view that a violation of      Article 1 of Protocol No. 1 (P1-1) can be envisaged only if there      exists a direct and sufficient causal relationship between the      act complained of (in this case ratification of the treaties by      the Federal Republic of Germany) and the loss to the right to      which claim is laid.   The Commission considers that in this case      the applicants have not demonstrated the existence of such a      relationship either.              It follows that in this point the application is manifestly      ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)      of the Convention." (Nos. 7655-57/76, D.R. 12, p. 111 [128])."        The Commission considered in its decision of 30 November 1994 that the same reasons applied to the matter raised in application no. 24928/94.   It pointed out in addition        "even assuming that there exists a positive obligation on the      part of a member state to give protection to its citizens against      violations of fundamental rights, it agrees with the Federal      Constitutional Court that as far as international treaties are      concerned the contracting parties enjoy large discretionary power      which is by its nature limited to reaching results acceptable for      the contracting parties.   The Commission notes that the Federal      Constitutional Court stated that the final recognition of the      border between the two states and of the sovereignty of Poland      in relation to these former German territories did not relate to      property rights or claims of private persons.   The Commission      agrees with the Federal Constitutional Court findings that the      general interest of establishing normal and friendly relations      with a neighbouring state prevails over the individual interests      at stake in the present matter."        The Commission had regard to the arguments submitted in support of the present application.   It finds however no reason to divert from its earlier jurisprudence.        It follows that the application likewise has to be rejected as being 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         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)