CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 avril 1996

.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. 27718/95                       by Hermann NADLER and Erich RECKZIEGEL                       against Germany        The European Commission of Human Rights (First Chamber) sitting in private on 12 April 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  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 20 February 1992 by Hermann NADLER and Erich RECKZIEGEL against Germany and registered on 26 June 1995 under file No. 27718/95;        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 facts, as they have been submitted by the applicants, may be summarised as follows.        The applicants are both German nationals.   The first applicant, born in 1916, is resident in Düsseldorf. The second applicant, born in 1926, is resident at Wachtberg.   In the proceedings before the Commission, the second applicant is represented by the first applicant.        Following World War II, the applicants, Sudeten-Germans, had to leave the territory of former Czechoslovakia and lost their properties, which were confiscated by the former authorities of Czechoslovakia.        In 1973 Germany and former Czechoslovakia concluded a treaty on their mutual relations (Vertrag über die gegenseitigen Beziehungen). On 27 February 1992 Germany and the former Czech and Slovak Federal Republic concluded a treaty on good neighbour relations and friendly cooperation (Vertrag über gute Nachbarschaft und freundschaftliche Zusammenarbeit).        On 29 September 1994 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) rejected the constitutional complaint, lodged by inter alia the applicants against this Border Treaty as well as the Act of Ratification related to it.   COMPLAINTS   1.    The applicants complain that as Sudeten-Germans they had to leave the territory of former Czechoslovakia and thereby lost their properties following World War II.   They invoke Articles 8, 14 of the Convention, Article 1 of Protocol No. 1, Articles 3 and 4 of Protocol No. 4 and Article 1 of Protocol No. 7.   2.    The applicants further maintain that the respective treaties of 1973 and 1992 perpetuate this situation.   They submit that their expulsion following World War II and the confiscation of their properties violated cogent international law.   When concluding the above treaties, the German Government had failed to protect their interests in returning their former properties.   THE LAW   1.     As regards the applicants' complaints about their expulsion from former Czechoslovakia and the confiscation of their properties, the Commission observes that the events in question relate to a period prior to the entry into force of the Convention and its Protocols. It follows that this part of the application is outside the competence ratione temporis of the Commission and therefore incompatible with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   2.    The applicants further maintain that the German Government, when concluding the respective treaties of 1973 and 1992 with former Czechoslovakia and the former Czech and Slovak Federal Republic, perpetuated the above events and failed to protect their interests in returning to their home regions and having their former properties restored.        The Commission has examined these complaints under 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 has found in previous cases relating to the Warsaw Treaty between Poland and Germany or the German-Polish Border Treaty (No. 7655-57/76, Dec. 4.10.77, D.R. 12 p. 111; No. 24928/94, Dec. 30.11.94 and No. 22353/93, Dec. 18.10.95, not published) that, following the confiscation decisions in question, there may have been some hope of recognition of the survival of property rights. The conclusion of the respective Treaties by Germany may have made it harder to use such arguments.   However, the existence of any property right and the ability of the applicants to exercise any such right was almost as uncertain before the ratification of the treaties as it was after their ratification.   The Commission has noted in the above mentioned decisions that none of the two treaties with Poland relate to property question. The same is true for the Treaty of Moscow of 12 September 1990, the so called 2 + 4 Treaty between the Federal Republic of Germany and the German Democratic Republic on the one side and the Union of Soviet Socialist Republics, United Kingdom, United States of America and France on the other side on the final settlement in relation to Germany (No. 21591/93, Dec. 28.2.96, not published). The same conclusions must be drawn in respect of the Treaty of 27 February 1992, between Germany and the (former) Czech and Slovak Federal Republic, which deliberately did not refer to any property question.   Therefore, it cannot be deduced from this treaty that the Federal Republic of Germany disposed of any property rights of their citizens, if any such right still existed.    The Commission found that no causal relationship had been demonstrated between the act complained of (in these cases ratification of the treaties by the Federal Republic of Germany) and the loss of the right to which claim is laid.   Finally, even assuming that there existed a positive obligation on the part of a member state to give protection to its citizens against violations of fundamental rights, the Commission considered 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 and 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 found that nothing permitted it to conclude that the German Government used its discretionary power in weighing general and individual interests in an arbitrary manner.        The Commission has had regard to the arguments submitted in support of the present application.   It finds however no reason to depart from its earlier jurisprudence.        It follows that this part of 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)