CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 4 septembre 2006

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Lorenzen, President,   Mrs   S. Botoucharova,   Mr   K. Jungwiert,   Mr   V. Butkevych,   Mrs   M. Tsatsa-Nikolovska,   Mr   J. Borrego Borrego,   Mr   M. Villiger, judges, and Mrs C. Westerdiek , Section Registrar , Having regard to the above application lodged on 6 September 2002, Having deliberated, decides as follows: THE FACTS The applicant, Mrs Olga Ziegner-Koppaney, is a German national who lives in Ratingen. She was represented before the Court by Mr J. Wolfering, a lawyer practising in Düsseldorf. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background to the case The application concerns a real estate in Parchim which is located in the State ( Land ) Mecklenburg-Western Pomerania. The estate had been owned since 1937 by Mrs von Graevenitz, an Austrian citizen who, after having married a German national, temporarily lost her Austrian citizenship until 1948. Mrs von Graevenitz was succeeded in 1955 by Mr Weinbacher, an Austrian bishop who died in 1985 and who was succeeded on his part by Mrs Kaufmann, who was also an Austrian citizen. The applicant inherited upon Mrs Kaufmann’s death in 1998. After the foundation of the German Democratic Republic (GDR), foreign assets were in general put under public administration, and the owners’ powers of disposal were considerably restricted. As a consequence, the GDR went into bilateral negotiations with several Western European States (among them Austria) over financial and property issues. In the 1970s and 1980s, the GDR concluded several Lump Sum Agreements ( Globalentschädigungsabkommen ). A Lump Sum Agreement with Austria was concluded on 21 August 1987 according to which the parties agreed that the GDR would pay to Austria a certain lump sum in order to settle property claims of Austria as well as of Austrian citizens and legal persons. The last rate of the lump sum was paid in 1993 by the Federal Republic of Germany (FRG) as the legal successor of the GDR. The lump sum was distributed by the Federal Distribution Commission ( Bundesverteilungskommission ) in the Austrian Ministry of Finance on the basis of Austrian law, in particular the so-called GDR Distribution Act ( Verteilungsgesetz DDR ). In 1974, Mr Weinbacher applied to the Austrian Government for consideration of the Parchim estate, which had been put under GDR administration in 1952, in the negotiations for the Lump Sum Agreement. Mr Weinbacher was informed by the Austrian Government on two occasions in 1981 and 1983 that the Parchim estate was part of the negotiations to the Lump Sum Agreement. In 1996, Mrs Kaufmann (who had inherited from Mr Weinbacher and whom the applicant succeeded in 1998) applied to the Federal Distribution Commission for compensation from the lump sum. Her application was dismissed on 7 May 1998. The Federal Distribution Commission found that Mr Weinbacher and Mrs Kaufmann fulfilled the conditions of Austrian nationality under the GDR Distribution Act. However, Mrs von Graevenitz, who had been the owner of the Parchim estate when it was put under GDR administration in 1952, did not have Austrian citizenship on 8 May 1945, one of the relevant dates. The Commission reasoned that Austrian nationality of Mrs von Graevenitz as the injured person was a necessary requirement under the said legislation. The applicant, who pursued the application after Mrs Kaufmann’s death in 1998, filed a constitutional complaint with the Austrian Constitutional Court ( Verfassungsgerichtshof ) against the decision of the Federal Distribution Commission. The Austrian Constitutional Court dismissed the application on 30 November 1998. It observed inter alia that there should be congruency between the Lump Sum Agreement and the national legislation governing the distribution. In its view, the Distribution Act met that requirement. 2.     Proceedings before the German courts after German reunification On 28 September 1998, upon application by the Federal Office for the Regulation of Outstanding Property Issues ( Bundesamt zur Regelung offener Vermögensfragen ), the real estate in Parchim was allocated to the FRG in accordance with Section 1 (b) § 1 of the Assets Allocation Act ( Vermögenszuordnungsgesetz ) by order of the Rostock Regional Finance Office ( Oberfinanzdirektion ). Section 1 (b) § 1 of the Assets Allocation Act provides that assets for which compensation was provided for in bilateral treaties between the GDR and third states should be allocated to the FRG. The provision refers to Section 1 § 8 (b) of the Resolution of Outstanding Property Issues Act ( Vermögensgesetz , hereinafter the “Property Act”), which excludes restitution for property losses which are covered by bilateral treaties between the GDR and third states. The applicant who had been participating in the allocation process subsequently brought an action for annulment of the allocation order. On 7 February 2001, the Schwerin Administrative Court dismissed the applicant’s claim and refused to grant leave to appeal on points of law. Referring to the established case law of the Federal Administrative Court, it found that, since the purpose of Section 1 § 8 (b) of the Property Act was to avoid that Germany had to pay double compensation where damages imputable to the GDR had already been compensated. Accordingly, the only prerequisite for of Section 1 § 8 (b) of the Property Act was the asset in question had been covered by the Lump Sum Agreement. As it was based on the payment of a lump sum, it did not matter whether the individual had actually received compensation, a matter which was anyway within the sphere of the State party to the agreement with the GDR. The State party to the lump sum agreement with the GDR had protected the interests of their nationals on the international level and the international agreement, once full payment was made, finally solved all property issues covered by that agreement. The Schwerin Administrative Court, having regard to the material before it, established that the Parchim estate had been covered by the Lump Sum Agreement between Austria and the GDR. In this respect, the court noted that, in the appendix to the Agreement, the Austrian delegation had registered the estate as a subject matter during the negotiations. It further found that the estate had been validly included, with the consent of its then owner. In this respect, the Schwerin Administrative Court referred to the Federal Administrative Court which interpreted the relevant provisions of the Lump Sum Agreement to the effect that it applied to individuals of Austrian citizenship on 8 May 1945 and on 21   August   1987, the date of signature, but did not require that the owner at the time when the estate was placed under public administration held Austrian citizenship on 8 May 1945. The refusal of compensation from the lump sum was a matter of Austrian law and the legal opinion of the Austrian Constitutional Court could not be decisive for the allocation of the assets under German law. On 14 December 2001, the Federal Administrative Court dismissed the applicant’s motion against the Schwerin Administrative Court’s refusal to grant leave to appeal on points of law. The Federal Administrative Court, referring to its earlier case law, confirmed that Section 1 § 8 (b) of the Property Act merely required that the asset in question was covered by the Lump Sum Agreement. The actual compensation on an individual basis, which in any event was subject to the domestic law of the third State which had received and distributed the lump sum, was not required. The purpose of Section 1 § 8 (b) of the Property Act was to avoid double compensation of financial and property losses which were attributable to the GDR but which had already been compensated by the payment of a lump sum to a third State. The Federal Administrative Court took note of the fact that the applicant had neither been compensated by the Austrian Government nor had he received any restitution by the Federal Republic. However, the Federal Administrative Court stressed that the German side had paid a lump sum to the Austrian government for all assets which were covered by the Agreement (including the estate in Parchim) in order to compensate individuals who had suffered material losses. The German side however had no influence on whether these individuals participated in the distribution of the lump sum. The applicability of an exclusion clause such as Section 1 § 8 (b) of the Property Act could not depend on whether or not the Austrian Government had in fact made payments to all individuals whose claims had been taken into account when calculating the lump sum. It could therefore not be regarded as unfair if German law would deny restitution to such individuals. On 1 March 2002, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint, finding that the impugned decisions did not violate the applicant’s right to property as guaranteed by Article 14 of the Basic Law ( Grundgesetz ). B.     Relevant domestic law 1.     Relevant Austrian law (a)     The Lump Sum Agreement of 21 August 1987 between the GDR and Austria According to its Articles 1 and 2, the Lump Sum Agreement covers property and financial claims of Austria as well as of Austrian citizens and legal persons with regard to property which was under GDR administration. Article 4 § 1 provides that “Austrian nationals” within the meaning of Article 1 are those who had Austrian citizenship on 8 May 1945 and on the date of the signing of the Agreement, i.e. on 21 August 1987. Article 4 § 2 provides that, if the property claimant died before 21 August 1987 and held Austrian citizenship upon his or her death, the successor is entitled under the condition that he or she held Austrian citizenship on 21 August 1987. According to Article 7 of the Agreement, all property and financial issues covered by the Agreement were to be settled exhaustively and definitely with the payment of the lump sum. (b)     The Austrian Distribution Act ( Verteilungsgesetz DDR ) The Austrian Distribution Act is the domestic law which corresponds to the Lump Sum Agreement. According to this Act, the term “Austrian nationals” was defined as persons who had Austrian citizenship both on 8   May 1945 and on the date of the signing of the Agreement, i.e. on 21   August 1987. If the owner died before 21 August 1987 and held Austrian citizenship upon his or her death, the successor is entitled under the condition that he or she held Austrian citizenship on 21 August 1987. 2.     Relevant German law (a)     The Resolution of Outstanding Property Issues Act/ Property Act ( Vermögensgesetz ) The Resolution of Outstanding Property Issues Act of 23   September   1990, also known as the Property Act, entered into force on 29 September 1990 and was a part of the German Unification Treaty. Under the terms of the Treaty, the Property Act was to continue to subsist in the reunified Germany after the reunification of the two German States on 3   October 1990. The aim of the Act was to resolve disputes over property in the territory of the GDR in a way that was socially acceptable, in order to achieve permanent legal order in Germany. Section 1 § 8 (b) of the Act holds: “This Act shall, subject to its provisions on competences and procedure, not apply to: (...) (b) property claims which were covered by bilateral treaties between the German Democratic Republic and third states (...)”. (b)     The Assets Allocation Act (Vermögenszuordnungsgesetz) The first sentence of Section 1 (b) § 1 of the Act provides: “Any assets which were subject to the agreements referred to in Section 1 § 8 (b) of Resolution of Outstanding Property Issues Act/ Property Act, shall be (...) allocated to the Federal Republic once the payments provided for in the agreements have been made.” COMPLAINT The applicant complained under Article 1 of Protocol No. 1 of the Convention about the allocation order by the Rostock Regional Finance Office of 28 September 1998 and the subsequent decisions of the Schwerin Administrative Court, the Federal Administrative Court and the Federal Constitutional Court which confirmed that order. THE LAW The applicant complained that the order of the Rostock Regional Finance Directory of 28 September 1998 and the subsequent decisions by the German courts infringed her right of property, as guaranteed by Article 1 of Protocol No. 1, which provides: “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 applicant stressed that she had unsuccessfully pursued her claim both before the Austrian and the German courts. The German administrative courts had interpreted Section 1 § 8 (b) of the Property Act too widely by also applying the provision to cases in which the person concerned had in fact not obtained any compensation from a lump sum agreement. If the purpose of the provision was to avoid the repeated compensation for the loss of property, it should not have been applied to the applicant’s case because her request for compensation from the Lump Sum Agreement had already been dismissed by the Austrian Federal Distribution Commission. That decision had also been confirmed by the Austrian Constitutional Court. The applicant complained that, as a consequence, she lost her property because of its allocation to the Federal Republic without any compensation in return. Thereby her right of property was infringed in a disproportionate manner. In this connection, the applicant referred to the ruling in the case of Jahn and Others v. Germany (judgment of 22 January 2004, nos. 46720/99, 72203/01 and 72552/01) which in her opinion should also be applied to her case. Furthermore, the applicant maintained that both the applicable Austrian and German law generally provided for some kind of compensation in comparable situations. The Court recalls that Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules (see James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98, pp. 29-30, § 37). The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see, among other authorities, Iatridis v. Greece [GC], no. 31107/96, § 55, ECHR 1999-II). As to whether or not there was interference, the Court notes that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1 (see von Maltzan and Others v. Germany , (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 74, ECHR 2005, Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82 and 83, ECHR 2001-VIII, and Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, ECHR 2002 ‑ VII, § 69). In the instant case the Court must therefore first consider the applicability of Article 1 of Protocol No. 1. To that end it must examine whether the applicant had a “possession” within the meaning of Article 1 of Protocol No.   1. The Lump Sum Agreement between the GDR and Austria of 1987 became after German reunification legally binding for the FRG according to Article 12 of the German Unification Treaty ( Einigungsvertrag ) in conjunction with the proclamation on the expiration of international Agreements between the GDR and Austria of 15   October 1992 ( Bekanntmachung über das Erlöschen völkerrechtlicher Übereinkünfte der DDR mit Oesterreich , see Melchior v. Germany , no. 66783/01, decision of 2   February 2006, concerning the Lump Sum Agreement between the GDR and Denmark). In its judgment of 7 February 2001, the Schwerin Administrative Court found that the order of the Rostock Regional Finance Office to allocate the real estate in Parchim to the FRG had been lawfully based on Section 1 (b) § 1 of the Assets Allocation Act in conjunction with Section 1 § 8 (b) of the Property Act. The Schwerin Administrative Court held that the latter provision applied once the lump sum had been fully paid by the FRG in 1993, regardless of whether the applicant had participated in the distribution of the lump sum which was subject to Austrian law. After having regard to the materials from the negotiations to the Agreement, the Schwerin Administrative Court confirmed that the real estate in Parchim had been covered by the Lump Sum Agreement between Austria and the GDR with the consent of its then Austrian owner. The judgment was confirmed by the Federal Administrative Court. In that respect, the Court recalls the fundamental principle, established by its case-law on the interpretation and application of domestic law, that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many other authorities, Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96/01, 35532/97 and 44801/98, Reports of Judgments and Decisions 2001-II, § 49, and Schenk v. Switzerland , judgment of 12   July 1988, Series A no. 140, p. 29, §   45). It is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, mutatis mutandis , Kopp v. Switzerland , judgment of 25 March 1998, Reports of Judgments and Decisions 1998-II, p. 541, § 59). The Court notes that the German courts in the present case considered that any claims in respect of the Parchim estate were extinguished once the FRG had paid the remainder of the lump sum in 1993. The German courts, applying Section 1 § 8 (b) of the Property Act and Section 1 (b) § 1 of the Assets Allocation Act, considered that any property claims relating to the Parchim estate were extinguished once the FRG had paid the remainder of the lump sum in 1993 and that accordingly the estate was to be allocated to the Federal Republic. The Schwerin Administrative Court, as confirmed by the Federal Administrative Court, interpreted Section 1 § 8 (b) of the Property Act as applying to all estates validly covered by a Lump Sum Agreement, regardless of whether or not compensation had been distributed from the lump sum on an individual basis. In their view, the question of the distribution of the lump sum obtained by the third State to its nationals was a matter of that State’s internal legal order. Since this interpretation matches the exact wording of the provision and its purpose which was to avoid double compensation paid by the German Government, the decisions were comprehensible and cannot be considered as either manifestly erroneous or arbitrary (see, mutatis mutandis , Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000 ‑ XII). The Court therefore concludes that the applicant has not demonstrated that she had a legitimate expectation under German law to regain possession of her property within the meaning of Article 1 of Protocol No. 1. Neither the respective provisions in the Property Act and the Assets Allocation Act, nor the decisions of the German courts did amount to an interference with the peaceful enjoyment of the applicant’s possessions. Consequently, the facts of the case do not fall within the ambit of Article 1 of Protocol No. 1. It follows that the applicant’s complaint under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4. For these reasons, the Court unanimously Declares the application inadmissible.   Claudia Westerdiek   Peer LORENZEN   Registrar   President