CEDH · PRESS;GCJUDGMENTS;ENG — 30 juin 2005

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GERMANY   The European Court of Human Rights has today delivered at a public hearing a Grand Chamber judgment [1] in the case of Jahn and Others v. Germany (applications nos. 46720/99 , 72203/01 and 72552/01).   The Court held: by eleven votes to six that there had been no violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights; by fifteen votes to two that there had been no violation of Article 14 (prohibition of discrimination) of the Convention taken together with Article 1 of Protocol No. 1 to the Convention.   (The judgment is available in French and in English.)   1.     Principal facts   The five applicants are all German nationals living in Germany: Heidi Jahn and her brother Albert Thurm, were born in 1947 and live in Sangerhausen; Erika Rissmann and her sister Ilse Höller were born in 1942 and 1944 respectively and live in Erfstadt and Stotzheim; and Edith Loth was born in 1940 and lives in Frankfurt an der Oder.   The applicants all inherited land that had been allocated to their ascendants, subject to certain restrictions on disposal, following the land reform (Bodenreformgrundstücke) implemented in the Soviet Occupied Zone of Germany in 1945. The owners of the land redistributed under the land reform were called new farmers ( Neubauern ) at the time.   On 16 March 1990 the Modrow Law ( Gesetz über die Rechte der Eigentümer von Grundstücken aus der Bodenreform ) came into force in the German Democratic Republic (GDR). That Law lifted the restrictions on the disposal of land that had been applicable until then, whereupon those in possession of the land acquired full title to it.   After German reunification, however, some heirs – including the applicants – of persons who had acquired land under the land reform were compelled to reassign their property to the tax authorities of their respective Land without compensation in accordance with the second Property Rights Amendment Act ( zweites Vermögensrechtsänderungsgesetz ) passed on 14   July 1992 by the German federal parliament. That Law provided that the heirs of owners of land that had been acquired under the land reform had to reassign it to the tax authorities if, on 15   March   1990, they were not carrying on an activity in the agriculture, forestry or food-industry sectors in the GDR, had not carried on an activity in one of those sectors during the previous ten years or were not members of an agricultural cooperative ( Landwirtschaftliche Produktionsgenossenschaft ) in the GDR.   2.     Procedure and composition of the Court   The first application was lodged with the European Commission of Human Rights on 2   September 1996 and transmitted to the Court on 1 November 1998. It was declared admissible on 25   April 2002. The second and third applications were lodged on 23 April 2001 and declared partly admissible on 15 May 2003. A Chamber hearing was held at the Human Rights Building in Strasbourg on 18 September 2003.   In its Chamber judgment of 22 January 2004 a Chamber of the Court had found that even if the circumstances pertaining to German reunification had to be regarded as exceptional, the lack of any compensation for the State’s taking of the applicants’ property had upset, to the applicants’ detriment, the fair balance which had to be struck between the protection of the right of property and the requirements of the general interest. Accordingly, the Chamber had concluded, unanimously, that there had been a violation of Article 1 of Protocol No. 1 to the Convention and that it was therefore not necessary to examine the allegation of a breach of Article 14 of the Convention taken together with Article 1 of Protocol No. 1.   On 14 June 2004 the panel of the Grand Chamber accepted a request by the federal Government for the case to be referred to the Grand Chamber [2] . A Grand Chamber hearing was held at the Human Rights Building in Strasbourg on 26 January 2005.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Luzius Wildhaber (Swiss), President , Christos Rozakis (Greek), Jean-Paul Costa (French), Georg Ress (German), Nicolas Bratza (British), Ireneu Cabral Barreto (Portuguese), Corneliu Bîrsan (Romanian) Volodymyr Butkevych (Ukrainian), Nina Vajić (Croatian), Matti Pellonpää (Finnish), Snejana Botoucharova (Bulgarian), Elisabeth Steiner (Austrian), Stanislav Pavlovschi (Moldovan), Lech Garlicki (Polish), Javier Borrego Borrego (Spanish), Khanlar Hajiyev (Azerbaijani), Ljiljana Mijović (Citizen of Bosnia and Herzegovina), judges ,   and also Erik Fribergh , Deputy Registrar .   3.     Summary of the judgment [3]   Complaints   In the applicants’ submission, the obligation on them to reassign their land without compensation in accordance with the second Property Rights Amendment Act of 14 July 1992 had infringed their right to the peaceful enjoyment of their possessions guaranteed by Article 1 of Protocol No. 1. They also alleged that they had been the victims of discrimination contrary to Article   14 of the Convention taken together with Article 1 of Protocol No. 1.   Decision of the Court   Article 1 of Protocol No. 1 to the Convention   The Grand Chamber, like the Chamber, found that the interference in question had to be regarded as a deprivation of property and that it had been “provided for by law” in accordance with Article 1 of Protocol No. 1. It also agreed with the Chamber’s opinion that the impugned measures had been “in the public interest”, namely, to correct the – in the view of the German authorities unfair – effects of the Modrow Law.   The question for the Court was whether a “fair balance” had been struck between the demands of the general interest of the community and the requirements of the protection of the individual’s property rights. In that connection the Court reiterated that the taking of property without any compensation whatsoever could be considered justifiable under Article 1 of Protocol No.   1 only in exceptional circumstances. It therefore had to examine, in the light of the unique context of German reunification, whether the special circumstances of the present case could be regarded as exceptional circumstances justifying the lack of any compensation.   In the first place the Court took account of the circumstances of the enactment of the Modrow Law, which had been passed by a parliament that had not been democratically elected, during a transitional period between two regimes that had inevitably been marked by upheavals and uncertainties. In those conditions, even if the applicants had acquired a formal property title, they could not be sure that their legal position would be maintained.   The Court also took into consideration the fairly short period of time that had elapsed between German reunification and the enactment of the second Property Rights Amendment Act. Having regard to the huge task facing the German legislature when dealing with, among other things, all the complex issues relating to property rights during the transition to a democratic, market-economy regime, including those relating to the liquidation of the land reform, the German parliament could be deemed to have intervened within a reasonable time to correct the – in its view unjust – effects of the Modrow Law.   Lastly, the Court held that the reasons for passing the second Property Rights Amendment Act were also a decisive factor to be taken into consideration. The FRG parliament could not be deemed to have been unreasonable in considering that it had a duty to correct the effects of the Modrow Law for reasons of social justice so that the acquisition of full ownership by the heirs of land acquired under the land reform did not depend on the action or non-action of the GDR authorities at the time. Given the “windfall” from which the applicants had undeniably benefited as a result of the Modrow Law under the rules applicable in the GDR to the heirs to land acquired under the land reform, the fact that this had been done without paying any compensation had not been disproportionate.   In those circumstances and having regard, in particular, to the uncertainty of the legal position of heirs and the grounds of social justice relied on by the German authorities, the Court concluded that in the unique context of German reunification, the lack of any compensation did not upset the “fair balance” which had to be struck between the protection of property and the requirements of the general interest.   There had therefore been no violation of Article 1 of Protocol No. 1.   Article 14 of the Convention taken together with Article 1 of Protocol No. 1   The Court noted that the purpose of the second Property Rights Amendment Act of 14 July 1992 had been to correct the effects of the Modrow Law in order to ensure equality of treatment between heirs to land acquired under the land reform, that is, those whose land had been allocated to third parties or returned to the pool of state-owned land in the GDR before the Modrow Law came into force and those who did not satisfy the conditions for allocation, but in respect of whom the GDR authorities had at the relevant time omitted to effect the transfers and enter them in the land register.   As the provisions of the Law of 1992 had been based on an objective and reasonable justification, the Court concluded that there had not been a breach of Article 14 taken together with Article 1 of Protocol No. 1.     Judges Cabral Barreto and Pavlovschi each expressed a partly dissenting opinion. Judges Costa and Borrego Borrego expressed a joint dissenting opinion joined by Judges Ress and Botoucharova. Judge Ress expressed a dissenting opinion. The opinions are annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Grand Chamber judgments are final (Article 44 of the Convention). [2] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [3] This summary by the Registry does not bind the Court.