CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1998

.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. 36265/97                       by Z.                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 21 May 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  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 23 April 1997 by Z. against Germany and registered on 26 May 1997 under file No. 36265/97;        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 an insurance company registered under Swiss law. In the proceedings before the Commission, the applicant company is represented by Mr K. Kleinlein, a lawyer practising in Berlin.        The facts of the case, as submitted by the applicant company, may be summarised as follows.   A.    Particular circumstances of the case        Since 1931 the applicant company owned real property in Berlin. In 1951, the authorities of East Berlin, where the property was located, placed it under forced State administration as "foreign property".   By order of 3 December 1959 the Municipality of Great Berlin (Magistrat von Gross-Berlin) expropriated the estate under the Construction Decree of 18 December 1951 (Aufbauverordnung).   On 11 November 1966 the compensation was fixed according to the relevant provisions of the Compensation Act of 25 April 1960 (Entschädigungsge- setz) and the implementing regulations thereto of 30 April 1960 (1. Durchführungsbestimmung zum Entschädigungsgesetz).   After deduction of certain debts towards the State, arrears of land tax and an administrative fee, the remainder to be paid to the applicant company amounted to 242,721 Marks.   In 1970 the applicant company's claim was set off against property tax arrears owed by the applicant company for the years 1961 - 1968 (amounting to 244,926 Marks).        On 10 October 1994 the Berlin Regional Office for the Regulation of Unresolved Property Questions (Landesamt zur Regelung offener Vermögensfragen Berlin) rejected the applicant company's request for restitution of the estate.   The Office found that the Act Regulating Unresolved Property Questions (Gesetz zur Regelung offener Vermögensfragen) did not apply to requests for the restitution of property expropriated by the authorities of the former German Democratic Republic under the Construction Decree because these expropriations had generally been carried out against compensation. Citizens of the German Democratic Republic, the Federal Republic of Germany and third States had been treated equally until 1976 when new legislation in this field had been enacted.   The Office did not share the applicant company's view that the law of the German Democratic Republic had prohibited the setting off of a compensation claim against tax arrears not resulting from the same real property.        On 9 November 1995 the Berlin Administrative Court (Verwaltungs- gericht) dismissed the applicant company's suit against this decision, confirming the reasoning of the Office.        The Administrative Court regarded as decisive the question whether the legal system of the former German Democratic Republic had generally excluded compensation for a given category of expropriations, or whether in an individual case compensation assessed had not been paid to the expropriated owner for some reason, e.g. following a set- off.   Only in the first case were the provisions on restitution in S. 1 para. 1 (a) of the Act Regulating Unresolved Property Questions considered to be applicable, while the applicant company's case was considered as belonging to the second group.   The Court pointed out that the applicant company had not even claimed that the property tax arrears had not existed.   The mere circumstance that the relevant legal provisions did not provide for a compensation claim to be set off against claims not related to the property in question was not sufficient to consider the expropriation as having occurred without compensation.   In this respect, the expropriation and the reasons for subsequent non-payment of the compensation, in the Court's view, had to be considered separately.        Moreover, the Administrative Court did not find any indication that the applicant company had been discriminated against, compared to citizens of the former German Democratic Republic in similar cases. The fact that the latter had been paid interest upon their compensation claims did not concern the real property in question but only the compensation. The Court observed that the proceedings brought before it by the applicant company only regarded the question of restitution as such.   As to the payment of compensation, the suit was dismissed as being inadmissible for non-exhaustion of administrative proceedings.        Furthermore, the Administrative Court found that the expropriation had not been brought about by unfair machinations (unlautere Machenschaften).   In particular, there was no obvious breach of the Construction Decree suggesting that its provisions had only been used as a pretext for expropriation.   The real property had in fact been expropriated for the intended construction of an office building for the public administration, and subsequently this building had been erected.        On 27 August 1996 the Federal Administrative Court (Bundesverwal- tungsgericht) dismissed the applicant company's request for leave to appeal on points of law (Nichtzulassungsbeschwerde), in essence confirming the reasoning of the lower Court.   The Federal Administrative Court also considered that the Administrative Court, on the basis of the material before it, had not arbitrarily delegated the case to a single judge.        On 24 October 1996 the Federal Constitutional Court (Bundesver- fassungsgericht) refused to entertain the applicant company's constitutional complaint (Verfassungsbeschwerde).   B.    Relevant law        The Act Regulating Unresolved Property Questions (Gesetz zur Regelung offener Vermögensfragen) of 12 September 1990, as amended in particular in March 1991, December 1994 and August 1997, stipulates the principle that there should be no restitution of property expropriated on the basis of occupation law or the authority resulting from the occupational power in S. 1 para. 8 (a).   With regard to other expropriations effected in the German Democratic Republic without compensation, this Act provides, in principle, for the return of confiscated property, including businesses, where this is still possible and does not violate user rights acquired in good faith.   If a return is excluded compensation has to be paid in accordance with SS. 6(7) and SS. 9 et seq., while for certain cases mentioned in S. 4(1) and (2) new legislation was envisaged.        On 27 September 1994 the Federal German Parliament adopted two laws regulating the legal consequences of expropriations in the territory of the former German Democratic Republic in respect of which the restitution of property was excluded.   Both laws entered into force on 1 December 1994.   They are the Compensation Act (Entschädigungs- gesetz) concerning expropriations effected in the German Democratic Republic after 1949 in respect of which the 1990 Act regulating unresolved property questions had reserved further legislation; and the Equalisation Act (Entschädigungs- und Ausgleichsleistungsgesetz) providing for equalisation payments to natural persons who had been expropriated on the basis of occupation law or the authority resulting from occupational power between 1945 and 1949.        The Federal Constitutional Court, in leading decisions of 23 April 1991 and 18 April 1996, respectively, held that the amendments to the German Basic Law on the basis of the German Unification Treaty, including the Joint Declaration, excluding restitution of property expropriated on the basis of occupation law or the authority resulting from occupational power, were compatible with Article 79 para. 3 of the Basic Law concerning the limits to permissible amendments to the Basic Law.     COMPLAINTS   1.    The applicant company complains that the refusal of the German authorities, after German unification, to return the unlawfully expropriated property amounts to a breach of Article 1 of Protocol No. 1 to the Convention. According to the company, the expropriation was contrary to public international law because it was not linked to prompt and effective payment of compensation. The applicant company therefore considers that it could legitimately expect restitution or compensation, already during the existence of the German Democratic Republic but all the more so after the unification of Germany.   2.    The applicant company further complains that the interpretation of S. 1 para. 1 (a) and (b) of the Act Regulating Unresolved Property Questions by the German judicial and administrative authorities amounts to discrimination and thus to a violation of Article 14 of the Convention. The company explicitly limits its application to the enactment and application of the said Act, thus excluding the expropriation itself, carried out by the authorities of the former German Democratic Republic in 1959, from the scope of the application.   3.    Moreover, the applicant company complains under Article 6 para. 1 of the Convention that the Administrative Court delegated the case to a single judge before the applicant company had submitted reasons for its action, and that the Federal Administrative Court did not deal with all of its arguments concerning discrimination and the non-payment of compensation. Furthermore, the company complains that the Federal Constitutional Court did not give any reasons for its decision.     THE LAW   1.    The applicant company complains that the non-restitution of its property expropriated by the authorities of the German Democratic Republic in 1959 violates its right to peaceful enjoyment of its possessions under Article 1 of Protocol No. 1 (P1-1) to the Convention.        This provision reads as follows:        "1.    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.        2.     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 to secure the payment of taxes or other      contributions or penalties."        The applicant company argues in essence that the expropriation was contrary to public international law because it was not linked to the prompt and effective payment of compensation.   The applicant company therefore considers that it could legitimately expect restitution or compensation, already during the regime of the German Democratic Republic but all the more after the unification of Germany.        The Commission recalls its decisions of 4 March 1996 concerning Applications Nos. 18890/91, 19048/91, 19049/91, 19342/92 and 19549/92 (Mayer et al. v. Germany, D.R. 85-A, p. 5) and of 24 February 1997 concerning Application No. 19918/92 (Geidel et al. v. Germany, unpublished). Complaints under Article 1 of Protocol No. 1 (P1-1) concerning expropriations carried out in 1945 at the instance of the Soviet occupation authorities in Germany were declared inadmissible as being incompatible ratione personae, ratione temporis and ratione materiae with the Convention. The Commission found in particular that these deprivations of property had occurred at the instance of the Soviet occupying forces in Germany at a time when the Federal Republic of Germany had not yet been established and neither the Convention nor Protocol No. 1 had entered into force. There could not, therefore, have been any interference with property rights in breach of Article 1 of Protocol No. 1 (P1-1) which could have entailed the responsibility of the Federal Republic of Germany.   Moreover, in the Commission's view, the regulation of property questions in the Unification Treaty did not amount to an interference with any rights of the applicants under Article 1 of Protocol No. 1 (P1-1) as there were no "existing possessions" nor any legally recognized compensation claims when the Unification Treaty came into force.        The Commission notes that the applicant company, in the light of the Commission's decision of 4 March 1996, explicitly limits its complaint to the decisions refusing restitution, taken by the authorities of the Federal Republic of Germany after 1990.        As regards the incompatibility ratione materiae of claims that the regulations of the Unification Treaty interfered with rights under Article 1 of Protocol No. 1 (P1-1), the Commission held, in the above- mentioned decisions (Nos. 18890/91, 19048/91, 19049/91, 19342/92 and 19549/92 and No. 19918/92, op. cit.), as follows:              "..., in any event the applicants could not claim to be      victims of a violation of their rights under Article 1 of      Protocol No. 1 (P1-1) unless the measure complained of affected      their 'possessions' or their 'property' within the meaning of      this provision. A person complaining of an interference with his      property must show that such right existed (No. 7694/76, Dec.      14.10.77, D.R. 12, p. 131).              In this respect, the Commission recalls the constant case-      law of the Convention organs according to which "possessions" may      be either 'existing possessions' (cf. 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 has at least a      "legitimate expectation" that they will realise (cf. Eur. Court      HR, Pine Valley Developments Ltd and Others v. Ireland judgment      of 29 November 1991, Series A no. 222, p. 23, para. 51, and      Pressos Compania Naviera S.A. and Others v. Belgium judgment of      20 November 1995, Series A no. 332, p. 21, para. 31). By      contrast, the hope of recognition of the survival of a former      property right which has not been susceptible of effective      exercise for a long period (Nos. 7655-7657/76, Dec. 4.10.77,      D.R. 12, p. 111) or a conditional claim which has lapsed as a      result of the non-fulfilment of the condition (No. 7775/77,      Dec. 5.10.78, D.R. 15, p. 143) are not to be considered as      'possessions' within the meaning of Article 1 of Protocol No. 1      (P1-1).              It is clear that the present case does not concern any      'existing possessions' of the applicants. The applicants'      properties were expropriated a long time ago and the applicants      have been unable for decades to exercise any owners' rights in      respect of the property concerned. Despite the applicants' claim      that the expropriations were contrary to international law and      thus unlawful, it appears that in the German legal order these      expropriations were being considered as legally valid even before      the conclusion of the Unification Treaty. The provisions of the      Treaty cannot therefore be seen as legalising the deprivation of      the applicants' property and thereby as being the source of the      deprivation for the purposes of German law.              It remains to be examined whether the applicants could have      any 'legitimate expectation' to realise claims, either based on      a right to compensation for the loss of their property which      continued to exist until the entry into force of the Unification      Treaty and was affected thereby, or created by the fact that      public-law bodies of the Federal Republic of Germany acquired      part of the expropriated estates by virtue of the unification.              As regards any possible compensation claim generated by the      loss of the property, the Commission refers to its constant      jurisprudence according to which it is not competent ratione      temporis and ratione materiae to examine complaints relating to      the refusal or denial of compensation claims based on facts that      occurred prior to the entry into force of the Convention with      respect to the State concerned (cf. No. 7694/76, Dec. 14.10.77,      D.R. 12, p. 131; No. 7742/76, Dec. 4.7.78, D.R. 14, p. 146). The      Commission would add with regard to the particular facts of the      present case that the Federal Republic of Germany was not      responsible for the expropriations in question and that therefore      any compensation claims which might have existed prior to the      Unification Treaty would not have been directed against that      State.              As regards the existence of any claim based on the fact      that, in consequence of the unification, part of the property      concerned passed into the hands of public-law bodies of the      Federal Republic of Germany, the Commission notes the Federal      Constitutional Court's finding that despite this fact there      existed no claim under German law for the restitution of the      available properties and that this situation was, from the      viewpoint of constitutional law, unobjectionable. There is      nothing to show that this finding is arbitrary and incompatible      with the applicable provisions. In particular it does not appear      that the Federal Constitutional Court's conclusion was based on      the Unification Treaty itself and that, without the provisions      of that Treaty, the situation under German constitutional law      would have been judged otherwise. Therefore it cannot be said      that the Treaty interfered with any pre-existing legal position      of the applicants in this respect either."        The Commission finds that the circumstances of the present case do not justify any other conclusions.        The Commission considers that the refusal of restitution did not concern any of the applicant company's "existing possessions", given that the property had been expropriated by the authorities of the German Democratic Republic in 1959 and that, for a period of more than 30 years, the applicant company had no factual possibility to exercise any powers or control regarding the estate.   The expropriation in 1959 is not imputable to the Federal Republic of Germany and the question of its lawfulness is not within the Commission's jurisdiction ratione personae and temporis.   Furthermore, in view of the political situation until 1990, the applicant company could not have had, at that time, any "legitimate expectation" of the revival of its former property right.        On this point, the Commission notes that the German administrative courts, called upon to apply the provisions of the Act Regulating Unresolved Property Questions, had to interpret the notion of "expropriations without compensation" in S. 1 para. 1 of that Act. The courts considered that this notion only covered expropriations for which the legal system of the former German Democratic Republic had generally excluded compensation. A situation where, like in the case of the applicant company, amounts of compensation had not been paid to the expropriated owner for some reason such as a set-off did not, according to the Federal Administrative Court, amount to no "expropriation without compensation" within the meaning of S. 1 para. 1 (b) of the said Act. The Commission finds that these conclusions do not disclose any arbitrariness.        This part of the application is therefore incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 27 para. 2 (Art. 27-2).   2.    The applicant company further complains about discrimination against it as, unlike citizens of the former German Democratic Republic expropriated by the authorities of that State after 1949, it did not receive any interest on the compensation, in particular for the period between the expropriation in 1959 and the set-off in 1970.        Assuming compliance with Article 26 (Art. 26), the Commission has examined this complaint under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 (P1-1). Article 14 (Art. 14) of the Convention reads as follows:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."        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 Protocol No. 1 (P1-1) is not applicable to the facts of which the applicant company complains, it cannot claim to have been discriminated against in the enjoyment of its property rights within the meaning of this provision (cf. Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 23, para. 50; Nos. 18890/91, 19048/91, 19049/91, 19342/92, 19549/92 (joined), Dec. 4.3.96, D.R. 85, p. 5; No. 19918/92, Dec. 24.2.97, unpublished).        This part of the application must therefore also be rejected, according to Article 27 para. 2 (Art. 27-2), as being incompatible with the provisions of the Convention.   3.    With regard to the applicant company's further complaints about the court proceedings, the Commission finds no appearance of a breach of the right to a fair hearing, as guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention.   The Federal Administrative Court confirmed the procedure and its decision not to accept the applicant company's contention that the legal conditions for delegation had not been met does not disclose any indication of arbitrariness.   On the whole, there is nothing to suggest that the applicant company, represented by counsel, could not duly present all arguments regarding material and procedural issues or that the proceedings were otherwise unfair.   With regard to the proceedings before the Federal Constitutional Court, the Commission notes that the Federal Constitutional Court, referring to S. 93b, in conjunction with S. 93a of the Federal Constitutional Court Act, decided to refuse acceptance of the applicant company's case.   In these circumstances, it was sufficient to refer to the relevant legal provisions (No. 8769/79, Dec. 16.7.81, D.R. 25, p. 240; No. 29753/96, Dec. 27.11.96, unpublished)        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, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.          M.F. BUQUICCHIO                             M.P. PELLONPÄÄ         Secretary                                  President    to the First Chamber                       of the First Chamber