European Court of Human Rights

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28742/08
by Heinrich FENSKE
against Poland

The European Court of Human Rights (Fourth Section), sitting on 9 December 2008 as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 29 May 2008,

Having regard to its decision in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (no. 47550/06) of 7 October 2008,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Heinrich Fenske, is a German national who was born in 1929 and lives in Langwedel. He is represented before the Court by Mr T.  Gertner, a lawyer practising in Bad Ems.

A.  Historical background

A summary account of historical events in which the present application originated can be found in the Court’s decision on admissibility in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (see Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (dec.), no. 47550/06, 7 October 2008, §§ 3-5.

B.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In January 1945 the applicant and his family left their then place of residence, at present Dominikowo in Poland, to escape the advancing Red Army. They succeeded in reaching the British occupation zone in Germany. The region in which they lived before and during the Second World War belonged to the German Reich. After the defeat of Germany at the end of the war, when the border between Germany and Poland was drawn along the Oder-Neisse line, it was included in the territory of Poland (see Preussische Treuhand GmbH & CO. Kg A. A., cited above, § 3).

They applicant submits that he and his family have still not been allowed to return to their home and have been refused restitution of their property

C.  Relevant international and domestic law

A detailed description of the relevant international and domestic law is set out in the above-mentioned case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (ibid. §§ 31-41).

COMPLAINTS

The applicant in essence complained that he and his predecessors in title were forced by the Polish authorities to leave their home and property, which are at present situated within Poland’s borders, in circumstances which amounted to ethnic cleansing – if not genocide – and also to collective extra-judicial punishment, inhuman treatment and, in consequence, a crime against humanity. This made the actions complained of inherently unlawful and produced a continuing violation of Article 1 of Protocol No. 1 to the Convention.

The applicant further complained that although his and his family’s human rights were seriously violated, the Polish Parliament refuses to pass a rehabilitation law, rescinding the confiscation of their property and a restitution law to correct the effects of this confiscation in the sphere of their ownership rights.

In support of both complaints, the applicant relied on the same arguments as those put forward by the applicants in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (ibid. §§ 42-44).

THE LAW

A.  Facts surrounding the leaving of property

As regards the facts surrounding the applicant’s leaving of his family home, which fall to be examined under Articles 2 and 3 of the Convention, the Court notes that, as the applicant himself submitted, he and his family fled in January 1945 because of, and in fear of the Red Army’s imminent approach. However, as already established in the above-mentioned case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland, at the relevant time the Polish State had no de iure or de facto control over those still German territories on which the applicant lived, territories which were gradually taken over by the Soviet troops and whose administration was entrusted to Poland only under the provisions of the Potsdam Agreement. Accordingly, the respondent State could not be held responsible for the alleged acts of violence and expulsion relied on the applicant (ibid. §§ 51 52).

It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

B.  Expropriation of property by Poland

As regards the expropriation of the applicant’s family’s property by Poland, the applicant argued that the situation complained of, although it originated before the entry into force of Protocol No. 1 in respect of Poland, produced continuing effects.

However, the Court has already dealt at length with the same arguments as to the alleged existence of a continuing violation of property rights, put forward by the applicants in the case of Preussische Treuhand GmbH & CO. Kg A.A. v. Poland, and rejected them. It held that the purported individual acts of violence, expulsion, dispossession and seizure or confiscation were instantaneous acts which occurred before the ratification of Protocol No. 1 by Poland and which did not produce any continuing effects that could have consequences for its jurisdiction ratione temporis (ibid. 55-62). Having regard to the facts before it, the Court sees no reason to hold otherwise in the present case.

It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

However, as the Court has already held on many occasions, Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to return property which was transferred to them before they ratified the Convention. Nor does this provision impose any restrictions on the Contracting States’ freedom to determine the scope of property restitution or rehabilitation laws. The Convention imposes no specific obligation on them to provide redress for wrongs or damage caused prior to their ratification of the Convention (see Preussische Treuhand GmbH & CO. Kg A. A. cited above, §§ 63-64, with further references).

Accordingly, the Polish State has no duty under Article 1 of Protocol No. 1 to enact laws providing for rehabilitation, restitution of confiscated property or compensation for property lost by the applicant’s family.

It follows that the remainder of the application is incompatible ratione materiae with the provisions of the Convention and the Protocols thereto within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Nicolas Bratza
Registrar President