CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1997

.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. 29554/95                       by Hannelore FRANK                       against Germany        The European Commission of Human Rights (First Chamber) sitting in private on 21 May 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              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 24 October 1995 by Hannelore FRANK against Germany and registered on 18 December 1995 under file No. 29554/95;        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 applicant, born in 1945, is a German national, residing in Wesenberg. In the proceedings before the Commission, she is represented by Mr. P. Kloer, a lawyer practising in Munich.        The facts, as submitted by the applicant, may be summarised as follows.        In March 1946 a plot of land situated in Zartwitz in the former German Democratic Republic, was assigned to the applicant's father as land reform property (Bodenreformeigentum). The entry into the land register together with several restrictions was made on 20 May 1946.        After the death of her father in 1963 the applicant and her mother moved to Wesenberg. Subsequently, in 1967, one part of her father's land reform property was nationalised and transferred to the state-owned farming estate "Walter Ulbricht" and the other part was transferred to the state-owned enterprise "Inland Fishery". The applicant's mother died in 1987. The applicant is the heir of her parents.        On 10 October 1990 the applicant filed a request with the Mecklenburg-Vorpommern Office for the Settlement of Unresolved Property Questions (Landesamt zur Regelung offener Vermögensfragen - hereinafter the "Mecklenburg-Vorpommern Office") for restitution of her father's land reform property.        The applicant submitted in particular that she and her mother had been put under pressure and had been forced to move to Wesenberg after her father's death.   Moreover, she claimed that her mother and herself would have fulfilled the requirements for taking over the land reform property. Finally, she pointed out that the house situated on the plot in question had been reconstructed by her parents, and that she and her mother had not received any compensation. On 7 June 1993 the applicant made further submissions, relating in particular to the legal qualification of land reform property and the question whether or not it was inheritable. In these and the following proceedings, the applicant was represented by counsel.        On 4 October 1993 the Mecklenburg-Vorpommern Office   rejected the applicant's request. It found that the loss of land reform property due to a waiver, return or withdrawal of the right in accordance with the legal provisions relating to such property did not fall within the scope of S. 1 of the Act Regulating Unresolved Property Questions (Gesetz zur Regelung offener Vermögensfragen). In particular, such measures following from the special limitations attached to land reform property, did not constitute an expropriation without compensation within the meaning of the said Act.        The Mecklenburg-Vorpommern Office stated that the land reform property assigned to the applicant's father was subject to various restrictions in relation to its transfer. According to the 1951 Regulation on the Transfer of Property (Besitzwechselverordnung) it was not automatically devolved on the heir, but required an assignment by the County Council (Rat des Kreises). The County Council had the right to seize the land, a right of which it had made use when nationalising the land reform property at issue. Since the land had not been assigned to the applicant, the applicant had never become its owner. As regards the applicant's argument that the division of the land in 1967 had been unlawful, the Mecklenburg Vorpommern Office noted that quite apart from the fact that she had already lost any right to the land reform property at the relevant time, the division was lawful as any restrictions had only been imposed on the owner of land reform property, but not on the authorities. Further, the applicant could not rely on the 1990 Act on the Rights of Owners of Land Reform Property (Gesetz über die Rechte von Eigentümern von Grundstücken aus der Bodenreform) which placed land reform property on an equal footing with "full property" within the meaning of the German Civil Code (Bürgerliches Gesetzbuch), because the applicant was at that time not the owner of the land reform property.        Further, the Mecklenburg-Vorpommern Office examined whether the nationalisation constituted a deprivation of the applicant's right to succeed. However, according to the Regulations on the Transfer of Property in force at the material time, the heir did not have a right to the assignment of land reform property. Thus, an assignment was in the absolute discretion of the authorities.        The Mecklenburg Vorpommern Office found that the fact that the applicant and her mother had not received any compensation for the house which her father had reconstructed did not lead to the conclusion that they had been expropriated. The Regulations on the Transfer of Ownership only provided for compensation under certain conditions and it was not for the proceedings under the Act Regulating Unresolved Property Questions to establish whether these conditions had been fulfilled. Finally, in respect of the forced moving away, there was no causal link between the loss of the property and the alleged threats, because neither the applicant nor her mother had a right to the assignment of the land reform property.         On 20 October 1993 the applicant filed an administrative action against this decision with the Greifswald Administrative Court (Verwaltungsgericht). She requested that a number of witnesses be heard in order to prove, inter alia, that she and her mother had fulfilled the requirements for assignment of land reform property and had intended to continue farming the land, which they had only left under pressure of the authorities. Further, she requested that the files concerning her father's land reform property be taken as documentary evidence to show, in particular, that she and her mother had not received any compensation for the reconstruction of the house and that the division and nationalisation of the property had violated the laws of the German Democratic Republic.        On 10 January 1995 the Greifswald Administrative Court, after having held an oral hearing, dismissed the action, finding that the applicant did not have a right to the restitution of her father's property under the Act Regulating Unresolved Property Questions.        The Court stated that land reform property did not constitute "full property", but was a right in rem (dingliches Recht) which, according to the 1945 Regulation on the Land Reform of Mecklenburg- Vorpommern (Verordnung über die Bodenreform), was subject to massive restrictions. In particular, it could not be sold, leased or divided and was only assigned to the assignee for agricultural exploitation. Subsequent Regulations on the Transfer of Ownership explicitly provided that the property be withdrawn if it was not used in accordance with its special purpose. Moreover, according to the practice of the authorities of the German Democratic Republic, land reform property was not inheritable. The 1951 Regulation on the Transfer of Ownership already provided that the death of the assignee was a reason for the retransfer of land reform property to the State. Though subsequent Regulations did not state explicitly that land reform property was not inheritable, they usually required that the said property be transferred to the heirs by the competent authority. In conclusion, the Court found that the withdrawal of land reform property in accordance with the relevant legal provisions was an inherent part of that particular right and did not constitute a deprivation of property within the meaning of the Act Regulating Unresolved Property Questions.        However, land reform property constituted an asset within the meaning of the Act Regulating Unresolved Property Questions. However, assets could only be restored to the former owner but not to the heirs. As in 1963, when the applicant's father died, the land reform property was not inheritable, the applicant did not become his successor and was thus, neither entitled to restitution nor to compensation.        The Court also found that there was no indication that the applicant or her mother had been prevented by unfair machinations (unlautere Machenschaften) within the meaning of the Act Regulating Unresolved Property Questions from filing a request for compensation as regards her father's investments in the house.        Finally, the Court stated that due to the legal situation it was not necessary to take the evidence proposed by the applicant.        On 21 August 1995 the Federal Administrative Court (Bundes- verwaltungsgericht) refused to grant the applicant leave to appeal. The Court stated that the question as to whether the heir of the owner of land reform property had acquired a legal position constituting an asset which could have been expropriated within the meaning of the Act Regulating Unresolved Property Questions, had already been answered to the negative in its decision of 25 February 1994.   According to that decision, it followed from the inherent limitations of land reform property that this was true even if the heir fulfilled the requirements for a transfer of the land. Consequently, the legal position of the applicant was not one which could be subject to unfair machinations within the meaning of the Act Regulating Unresolved Property Questions. Given this legal situation the first instance court had rightly refused to take the evidence proposed by the applicant.        On 4 October 1995 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's complaint.     COMPLAINTS   1.    The applicant complains under Article 1 of Protocol No. 1 that she had, in violation of the respective laws of the German Democratic Republic, been forced to give up her father's land reform property in the German Democratic Republic in 1963. She further complains that the courts of the Federal Republic of Germany, in the proceedings under the Act Regulating Unresolved Property Questions, interfered with her claim to the restitution of her father's property and her claim for compensation as regards the reconstruction of the house situated on the property, which in her view have to be considered as "possessions" within the meaning of this Article. She submits in particular that the courts wrongly interpreted the laws of the German Democratic Republic as regards the legal qualification of land reform property and the question whether or not it was inheritable as well as the question of compensation for the reconstruction of the house.     2.    The applicant further complains under Article 14 of the Convention that she was discriminated against in relation to other owners of land reform parcels, whose property has been acknowledged as "full property" within the meaning of the German Civil Code by the 1990 Act on the Rights of Owners of Land Reform Property, and had been restituted to them.     3.    The applicant complains under Article 6 of the Convention that the Greifswald Administrative Court, in the proceedings under the Act Regulating Unresolved Property Questions, failed to take the evidence adduced by her and, therefore, wrongly assessed the relevant facts.     THE LAW   1.    The applicant alleges a violation of Article 1 of Protocol No. 1, (P1-1) which reads as follows:        "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 preceding provisions shall not, however, in any way impair      the right of a State to enforce such laws as it deems necessary      to control the use of property in accordance with the general      interest or to secure the payment of taxes or other contributions      or penalties."        The Commission observes that the applicant is the heir of her father, to whom a plot of land situated in the German Democratic Republic had been assigned as so-called land reform property.   After his death in 1963 this land reform property was partly transferred to a state-owned farming estate and partly to another state-owned enterprise. According to the opinion of the German courts dealing with the applicant's request for restitution of this property, land reform property was not inheritable under the law of the German Democratic Republic, consequently the applicant had never acquired the position of an owner and the land had not been expropriated.        The Commission notes that the present case differs from previous German cases, in which it was uncontested that an expropriation had taken place between 1945 and 1949 by the Soviet occupational powers, and the question arose whether the expropriation resulted in a continuous situation and whether the responsibility of the Federal Republic of Germany could be engaged by the fact that the Unification Treaty excluded restitution as well as full compensation in respect of such properties (cf. Nos. 18890/91, 19048/91, 19049/91, 19342/92 and 19549/92 Mayer and Others v. Germany, Dec. 4.3.96, D.R. 85, p. 5; No. 25043/94, Krug von Nidda und von Falkenstein v. Germany, Dec. 24.2.97, unpublished).   a.    The applicant complains that the nationalisation of her father's land reform property was contrary to the laws of the German Democratic Republic and amounted to an expropriation for which she was not compensated.        The Commission notes that the alleged expropriation occurred in 1963 in the German Democratic Republic, that is before the entry into force of the Unification Treaty in October 1990 and before the territory of the German Democratic Republic, where the land in question was situated, became part of the Federal Republic of Germany to which the Convention and its Protocols are applicable. The German authorities can, thus, not be held responsible for the alleged expropriation as such.        In this respect, therefore, the Commission lacks competence ratione personae and ratione temporis to examine the circumstances in which the alleged expropriation took place.   b.    The applicant further complains that the courts of the Federal Republic of Germany, in the proceedings under the Act Regulating Unresolved Property Questions, interfered with her claim to the restitution of her father's property and her claim for compensation as regards the reconstruction of the house situated on the property, which in her view have to be considered as "possessions" within the meaning of Article 1 of Protocol No. 1 (P1-1).        The Commission recalls that "possessions" within the meaning of Article 1 of Protocol No. 1 (P1-1) may be either "existing possessions" (Eur. Court HR, Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 23, para. 48) or valuable assets, including claims, in respect of which the applicant can argue that he had at least a "legitimate expectation" that they will realise (Eur. Court HR, Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 23, para. 51; Pressos Compania Naviera S.A. and Others v. Belgium judgment of 20 November 1995, Series A no. 332, p. 20, para. 31).        The present case does not concern any "existing possessions" of the applicant, since the alleged expropriation took place in 1963, following her father's death.        As regards the applicant's hopes to realise claims relating to her father's property, the Commission recalls that the Convention does not guarantee a right to become the owner of property (cf. No. 11628/85, Dec. 9.5.86, D.R. 47, p. 270).        The Commission finds that it follows from the carefully reasoned decisions of the German courts that land reform property was not inheritable at the material time and that the heir of the owner of land reform property was not entitled to the land even if he or she fulfilled the requirements for an assignment. The applicant, thus, never had any "legitimate expectation" to acquire her father's land reform property.        It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant complains under Article 14 (Art. 14) of the Convention that she is a victim of discrimination compared with other owners of land reform property, to whom the property was restituted.        The Commission recalls that Article 14   (Art. 14) complements the other substantive provisions of the Convention and its Protocols.   It has no independent existence, since it has effect solely in relation to the "rights and freedoms" safeguarded by those provisions.   Although the application of Article 14 (Art. 14) does not presuppose a breach of one or more of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (Eur. Court HR, Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, para. 36).        As the Commission has found above that Article 1 of the First Protocol (P1-1) is not applicable to the facts of which the applicant complains, she cannot claim to have been discriminated against in the enjoyment of her property rights within the meaning of this provision (Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 23, para. 50).     This part of the application must therefore also be rejected under Article 27 para. 2 (Art. 27-2), as being incompatible with the provisions of the Convention.   3.    Finally, the applicant complains under Article 6 (Art. 6) of   the Convention that the Greifswald Administrative Court, in the proceedings under the Act Regulating Unresolved Property Questions, failed to take the evidence adduced by her and, therefore, wrongly assessed the relevant facts.        Article 6 para. 1 (Art. 6-1) of the Convention, as far as relevant, provides as follows:        "In the determination of his civil rights and obligations ...,      everyone is entitled to a fair ... hearing ... by [a] ...      tribunal ..."        The Commission, assuming that Article 6 (Art. 6) is   applicable to the proceedings at issue, recalls that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule, it is for the national courts to assess the evidence before them, whereas it is for the Convention organs to ascertain, whether the proceedings as a whole were fair (Eur. Court HR, Doorson v. the Netherlands judgment of 26 March 1996, to be published in Reports of Judgments and Decisions 1996, para. 67).        In the present case, the Greifswald Administrative Court refused to hear the evidence proposed by the applicant on the basis of its legal evaluation that land reform property was not inheritable and that the heirs of the owner of such property did not have a right to have it transferred to them even if they fulfilled the requirements for assignment. The Commission finds that the Court could reasonably consider that the proposed evidence was irrelevant. There is no indication in the file that the applicant, represented by counsel, could not duly forward her arguments or that the proceedings were otherwise unfair.        In these circumstances, the Commission finds that there is no appearance that the proceedings did not comply with Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this part of the application is 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.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber