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. 37696/97                       by Krafft Paridam Heinz Robert                       von RIGAL-von KRIEGSHEIM                       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 4 August 1997 by Krafft Paridam Heinz Robert von RIGAL-von KRIEGSHEIM against Germany and registered on 8 September 1997 under file No. 37696/97;        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, born in 1939, is a German national and resident in Voerde-Löhnen. In the proceedings before the Commission, he is represented by Mr T. Gertner, a lawyer practising in Koblenz.        The facts of the case, as submitted by the applicant, may be summarised as follows.   A.    Particular circumstances of the case        The applicant is the legal successor of a real property owner whose property was first confiscated, then expropriated by operation of law in connection with the land reform carried out between 1945 and 1949 in the former Soviet-occupied zone of Germany. The expropriation also extended to movable property on the premises such as household effects.        On 16 June 1997 the Cottbus Office of the Regional Office for the Regulation of Unresolved Property Questions (Landesamt zur Regelung offener Vermögensfragen Brandenburg) rejected the applicant's request for restitution of the estate.        The decision was based on S. 1 para. 8 (a) of the Act Regulating Unresolved Property Questions (Gesetz zur Regelung offener Vermögensfragen), excluding the restitution of property expropriated on the basis of occupation law or the authority resulting from occupational power between 1945 and 1949.        The Office found that S. 1 para. 8 (a) of the said Act was applicable to the real property in question as it had been expropriated by operation of law by Article 2 para. 3 of the 1945 Decree on Land Reform (Verordnung über die Bodenreform in der Provinz Mark Brandenburg vom 6.9.1945, Verordnungsblatt der Provinzialverwaltung Mark Brandenburg Nr. 1 vom 11.9.1945) which covered all estates of more than 100 hectares. The Office pointed out that the real estate was included in a list published pursuant to the Decree which contained all estates that had been expropriated according to its provisions. Subsequently, the estate had been divided and distributed to farmers previously owing little or no land. The authority referred to the decisions of the Federal Constitutional Court (Bundesverfassungsgericht) of 23 April 1991 and 18 April 1996 according to which expropriations of the estates in question by the land reform decrees were imputable to the Soviet Military Administration.        In a decision of 26 March 1997 in a similar case, the Federal Administrative Court (Bundesverwaltungsgericht) held that the notion of "expropriation" used in the Act Regulating Unresolved Property Questions did not necessarily mean a "legally valid" (rechtswirksame) expropriation.   Instead it required a complete and final removal of the former owner from his property caused by State measures aiming at this result.   In that case, the Federal Constitutional Court refused acceptance of a constitutional complaint.   B.    Relevant law        According to the Joint Declaration on outstanding property issues (Gemeinsame Erklärung zur Regelung offener Vermögensfragen) made on 15 June 1990 by the Governments of the Federal Republic of Germany and the German Democratic Republic, which is a constituent part of the Treaty on German Unification of 31 August 1990 (Einigungsvertrag), "expropriations carried out on the basis of occupation law or the authority resulting from occupational power (1945 and 1949)" ("Enteignungen auf besatzungsrechtlicher bzw. besatzungshoheitlicher Grundlage (1945-1949)") shall not be reversed.        The international matters concerning German unification were agreed upon in negotiations between the two German States and the four Allied Powers.    In the Treaty of 12 September 1990 on the Final Settlement with respect to Germany, the sovereignty of a united Germany was recognised.   In connection with the signing of this Treaty the Ministers for Foreign Affairs of the former German Democratic Republic and of the Federal Republic of Germany addressed a Joint Letter (Gemeinsamer Brief) to the Foreign Ministers of the Four Powers confirming the property regulation reached in the Joint Declaration of 15 June 1990 and aimed at being incorporated in the Unification Treaty.        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, reaffirms the principle that there should be no restitution of property expropriated on the basis of occupation law or the authority resulting from 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 complains that the refusal of the German authorities, after German unification, to return to him the unlawfully confiscated property which had been expropriated by operation of law at the instance of the Soviet occupation authorities in 1945 amounts to a breach of Article 1 of Protocol No. 1 to the Convention.        As regards Article 26 of the Convention, he claims that there is no prospect of success of domestic remedies, taking into account the decisions rendered by the German courts in a similar parallel case (Application No. 37255/97).   2.    The applicant further complains about discrimination against him as expropriations effected after 1949 resulted in restitution or full compensation.     THE LAW   1.    The applicant complains that the non-restitution of his property confiscated in connection with the land reform between 1945 and 1949 violates his right to peaceful enjoyment of his 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 Commission first 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), where similar complaints under Article 1 of Protocol No. 1 (P1-1) were declared inadmissible.        The relevant passages of the decision of 4 March 1996 in respect of the incompatibility ratione personae and ratione temporis of these complaints read as follows:        "a)    The Commission first notes that the original deprivation of      the applicants' property occurred at the instance of the Soviet      occupying forces in Germany, more than forty years ago, at a time      when the Federal Republic of Germany did not even exist. Even if      it is true that, as the Federal Constitutional Court observed in      its decision of 23 April 1991, the authorities of both German      States subsequently recognized the validity of the expropriations      in question, the German authorities can in no way be held      responsible for the deprivation of property as such, which is not      imputable to them. In this respect the Commission lacks      competence, ratione personae, to examine the circumstances in      which the expropriations were carried out.        b)     The Commission further observes that the expropriations      took place before the entry into force of the Convention      (3 September 1953) and before the ratification of Protocol No. 1      by the Federal Republic of Germany (13 February 1957). It is true      that they continued to produce effect after the above dates and      also after 3 October 1990, when the Unification Treaty entered      into force and when the territory where the property concerned      was situated became part of the Federal Republic of Germany to      which the Convention and its Protocols are applicable. However,      the Commission recalls its constant case-law according to which      a deprivation of ownership or other rights in rem is in principle      an instantaneous act and does not produce a continuing situation      of 'deprivation of right' (cf. No. 7742/76, Dec. 4.7.78, D.R. 14,      p. 146)."        The Commission, in the light of the Court's Loizidou v. Turkey (Merits) judgment of 18 December 1996 (Reports of Judgments and Decisions 1996, p. 2215, para. 41) which concerned a continuous denial of access to property in northern Cyprus, further developed this reasoning in a subsequent case concerning a similar expropriation.        The relevant part of this decision (No. 19918/92, Dec. 24.2.97, unpublished) reads as follows:              "In the case of Loizidou v. Turkey, there was, from the      outset, an interference with property rights in breach of      Article 1 of Protocol No. 1 (P1-1), engaging the responsibility      of Turkey, which also was held responsible for a continuing      violation of the said provision on account of the complete      negation of Mrs Loizidou's property rights in the form of a total      and continuous denial of access and a purported expropriation      without compensation (cf. Loizidou (Merits) judgment, op. cit.,      paras. 48-64).              In the present case, the deprivation of the applicant's      property 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 the Convention as well as Protocol No. 1      had not yet entered into force. Between 1945 and 1949 there could      not be any interference with property rights in breach of      Article 1 of Protocol No. 1 (P1-1) which could entail the      responsibility of the Federal Republic of Germany and give rise      to a continuing violation."        As regards the incompatibility ratione materiae of the above-mentioned complaints, the relevant passages of the decision of 4 March 1996, as confirmed in the decision of 24 February 1997, read as follows:        "c)    The applicants claim that the regulations of the      Unification Treaty interfered with their rights under Article 1      of Protocol No. 1 (P1-1) because in their submission they      retained an entitlement to the property in question, the      expropriations carried out between 1945 and 1949 having allegedly      been effected contrary to the rules of public international law.      In this respect the question arises whether the international      instruments governing the behaviour of belligerent States, such      as the Hague Convention on the Laws and Customs of War, can be      invoked by individuals with reference to acts performed      subsequent to the end of hostilities. Doubts also exist in regard      to 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 responsible to pay compensation where      appropriate.              However that may be, 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.              It follows that the applicants had no 'existing      possessions' nor any legally recognized compensation claims when      the Unification Treaty came into force. In these circumstances      it cannot be found that the regulation of property questions in      the Unification Treaty amounted to an interference with any      rights of the applicants under Article 1 of Protocol No. 1      (P1-1)."        The Commission finds that the arguments advanced by the applicant in the present case do not justify any other conclusions.        The applicant mainly submits that the expropriation carried out in 1945 by operation of law was unlawful under the then applicable domestic provisions issued by the Soviet occupation authorities which allegedly allowed the transfer of property from one private owner to another but not the mere expropriation of a former owner in favour of the State. The land reform decree, though, did not designate a new owner; it only declared certain categories of property (including the applicant's) to be "expropriated". The applicant therefore considers that he retained an entitlement to the property in question, namely his property right. He argues that he was finally deprived of this property right by the German authorities, in particular the case-law of the Federal Administrative Court which defined the notion of "expropriation" in S. 1 para. 8 (a) of the Act Regulating Unresolved Property Questions as being based on factual impossibility to exercise one's property rights regardless of the legal validity of the expropriation in question.        The Commission observes that the question of the unlawfulness of the expropriation measures in 1945 is not within its jurisdiction ratione temporis.   Having occurred before the entry into force of the Convention, these measures could not, therefore, give rise to a continuing breach of the Convention with effect as to the temporal limitation of the competence of the Convention organs (cf. Eur. Court HR, Loizidou judgment, op. cit., p. 2230, para. 41; Papamichalopoulos v. Greece judgment of 24 June 1993, Series A no. 260-B, p. 69, para. 40).        As to its competence ratione materiae, the Commission recalls that the notion of "possessions", pursuant to Article 1 of Protocol No. 1 (P1-1), refers to "existing possessions" or "legitimate expectations".      In the present circumstances, where the Commission is not competent to examine the lawfulness of the initial expropriation measures, the fact that, for a period of 45 years, the applicant had no factual possibility to exercise any powers or control regarding the estate is decisive for the purposes of Article 1 of Protocol No. 1 (P1-1). In 1990 the expropriated estate did not, therefore, form part of the applicant's "existing possessions".        On this point, the Commission notes that the German authorities, called upon to apply the provisions of the Act Regulating Unresolved Property Questions, had to interpret the notion of "expropriations carried out on the basis of occupation law or the authority resulting from the occupational power (1945 until 1949)". In a similar case, the Federal Administrative Court, having considered its own case-law and the relevant decisions of the Federal Constitutional Court, concluded that, taking into account the wording and structure of the Act, the notion of "expropriation" in S. 1 para. 8 (a) had the same meaning as in the other provisions of this Act, namely including "de facto- expropriations".    Its conclusion that, in the case at issue, the property, which had been included in a list of estates expropriated under the 1945 Saxony Decree on Agricultural Land Reform, had been in fact expropriated does not disclose any arbitrariness.   In the present case, the Cottbus Office of the Brandenburg Office for the Regulation of Unresolved Property Questions based its conclusion that the property had been in fact expropriated on the same considerations, noting that the estate had been included in a list published pursuant to the 1945 Brandenburg Decree on Land Reform.        Furthermore, given the facts that the applicant had not been able to exercise any ownership rights in respect of the property concerned for more than forty years and did not have any legally recognised compensation claim at the time of the conlusion of the German Unification Treaty, he could not have had, at that time, any "legitimate expectation" of the revival of his former property right.        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 further complains about discrimination against him as expropriations effected 1949 resulted in restitution or full compensation.        The Commission has examined this complaint under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 (Art. 14+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 complains, he cannot claim to have been discriminated against in the enjoyment of his 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.        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