AS TO THE ADMISSIBILITY OF
by Christa HENNE
European Court of Human Rights (Fifth Section), sitting on
8 December 2009 as a Chamber composed of:
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 20 June 2007,
Having deliberated, decides as follows:
The applicant, Ms Christa Henne, is a German national and lives in Köln. She was represented before the Court by Mr T. Purps, a lawyer practising in Potsdam.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1992 the applicant inherited a 2,490 square-metre plot of land in Neugattersleben on the territory of the former German Democratic Republic (GDR) (“the property”) and was registered in the land register as owner of the property. Some 400 square meters of the property had been used, at least since 1979 or 1980, as a road and were recorded as such in the registers of public roads in 1984 and 1989. The applicant disputed that the relevant authorities of the GDR had designated the property as a public road as required by the laws of the GDR.
December 2003, and amended on 28 July 2005, the municipality made a
written offer to the applicant, certified by a notary public, to buy
the property for 8,964 euros pursuant to the Act on the Allocation of
Legal Positions on Traffic Space and Other Publicly Used Private
“the Traffic Space Allocation Act” (Gesetz zur Bereinigung der Rechtsverhältnisse an Verkehrsflächen und anderen öffentlich genutzten privaten Grundstücken/ Verkehrsflächenbereinigungsgesetz) (see “Relevant domestic law” below).
The applicant declined the offer.
September 2005 the Dessau Regional Court ordered the applicant to
accept the offer. The Regional Court held that the property was
“traffic space” within the meaning of Section 1(1) No. 1 of the Traffic Space Allocation Act (see “Relevant domestic law” below); that the municipality had proved that the relevant authorities of the GDR had considered the road as a public road prior to 1984 and that it was therefore “traffic space” within the meaning of Section 2(2) No. 1 of that Act
(see “Relevant domestic law” below), since the laws of the GDR did not necessarily require the proper designation of property as a public road;
that all other requirements for the sale as required by the Traffic Space Allocation Act had been met; and that the calculation of the purchase price was in accordance with the statutory requirements.
May 2006 the Naumburg Court of Appeal informed counsel for the
applicant of its intention to dismiss the applicant’s appeal as
ill-founded because the Regional Court’s judgment, in particular concerning the qualification of the property as “traffic space”, had been free of error.
June 2006 the Court of Appeal dismissed the applicant’s appeal.
It held that it could not consider the applicant’s claim that only part of the property was used as a road whereas the whole property was to be taken on the following grounds: the municipality had stated before the Regional Court that it had made an offer for the whole property because the remainder of the property could not be sufficiently used; the applicant had not disputed this assertion in the proceedings before the Regional Court;
his new submission that the taking of the whole property would be contrary to Sections 4(1) No. 2 and 4(2) of the Traffic Space Allocation Act
(see “Relevant domestic law and practice” below) was procedurally barred pursuant to Section 531(2) of the Code of Civil Procedure
(see “Relevant domestic law and practice” below).
On 26 March 2007 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication without giving further reasons (no. 1 BvR 2119/06).
B. Relevant domestic law and practice
Traffic Space Allocation Act
In the GDR private property was often used for public purposes without the property being transferred into public ownership. Following German reunification the public use of private property was initially allowed to continue without any revision until 30 September 2001 and the owners of such property were, under certain conditions, entitled to rent from the public authority pursuant to Section 233(2a)(9) of the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche).
Under the Property Law Reform Act (Sachenrechtsbereinigungsgesetz), owners were in principle entitled to 50 % of the value of the land as compensation for the loss of the land (Section 68(1) of the Property Law Reform Act, is, as far as relevant here, inapplicable in cases concerning the use of private property for public purposes (Section 2(1) No. 4 of the Property Law Reform Act)).
effect from 1 October 2001 the continued use of private property on
the territory of the former GDR is governed by the Traffic Space
Allocation Act. That Act is, inter alia, applicable if private
property that was used as a public road by the authorities of the GDR
continues to be used as a public road (Section 1(1) of the Traffic
Space Allocation Act). “Traffic space” is defined as
roads, alleys and squares that are either designated as public roads
or treated as if they were by law (Section 2(2) No. 1 of that Act).
The public authority using private property for a public road may request that the property be sold to it by making a written offer, certified by a notary public (Section 3(1) of that Act). The public authority may only request the sale of the property directly used for a public road (Section 4(1) No. 2 of that Act); it has to purchase the remainder the property only if it cannot be sufficiently used (Section 4(2) of that Act). The purchase price is 20 % of the value of the land (Section 5 of that Act). Until 30 June 2007 only the public authority could request the sale; since that date, only the private owner can do so (Section 8(1) of that Act). Until the sale has been concluded, the owner can request that the public authority pay him 8 % of the statutory purchase price as annual rent and bear the public expenses of the property; the public authority has the right to continue using the property pending the transfer of ownership (Section 9(1) of that Act). If the sold property is no longer used as a public road, the former owner can request that the property be sold to him for a certain purchase price
(Section 9(2) of that Act).
Relevant domestic case-law
former owner can request the restitution of property irrespective of
a public authority’s continuing use of it pursuant to the
Traffic Space Allocation Act. The public authority continues to enjoy
a right to use the property following the return of the property to
the former owner
(Federal Administrative Court, judgment of 14 April 2005,
no. BVerwG 7 C 10.04).
In cases in which the public authority’s right to use the private property derived from Section 9(1) of the Traffic Space Allocation Act, the right to use prior to that Act’s coming into force derived from Section 233(2a)(9) of the Introductory Act to the Civil Code (Federal Court of Justice, judgment of 18 January 2002, V ZR 104/01).
The Federal Court of Justice held in a leading judgment of 20 June 2008 (no. V ZR 149/07) that the purchase price of 20 % of the value of the land pursuant to Section 5 of the Allocation of Traffic Space Act was constitutional on the grounds that the property had been used as a public road in the GDR and could not have been sold or used by the private owner prior to German reunification; that the value of the property was diminished by the public use; that the legislator had taken into account that not the owner but upon request the public authority had to bear expenses related to the property; and that the public authority’s right to use was considerably more limited than that of a user who acquired the property under the terms of the Property Law Reform Act: whereas the latter could stop using the property and nevertheless remain the owner, the public authority was bound to sell the property to the former owner for a certain purchase price on request once it had stopped using the property as “traffic space”. Furthermore the Federal Court of Justice held that the contested provisions of the Traffic Space Allocation Act did not violate the owner’s rights under Article 1 of Protocol No. 1 read alone or in conjunction with Article 14. Although the sale amounted to a de facto expropriation within the meaning of Article 1 of Protocol No. 1, it had a basis in domestic law, was in the general interest and not disproportionate. In particular, the legislator had acted within the wide margin of appreciation to be accorded to him in the unique context of the German reunification.
As regards the scope of appeal proceedings
Pursuant to Section 529 of the Code of Civil Procedure the Court of Appeal shall base its decision on the facts established by the first instance court, unless there are concrete indications that raise doubts as to the correctness or completeness of the establishment of the relevant facts by the first instance court, and on new facts, as long as it is admissible to consider these.
Court of Appeal may not consider submissions that the trial court has
correctly excluded (Section 531(1) of the Code of Civil Procedure).
It may, as far as relevant here, admit new submissions on appeal only if the party did not introduce them at trial through no fault of its own
(Section 532(2) No. 3 of the Code of Civil Procedure).
“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.”
Whether there was an interference with the applicant’s right of property
In the present case, the applicant was the owner of the property and the dispute therefore falls to be examined under the first sentence of Article 1 of Protocol No. 1, that is, in terms of the principle of peaceful enjoyment of property (compare Wittek v. Germany, no. 37290/97, § 44, ECHR 2002 X). The applicant was obliged to accept an offer for the sale and transfer of her property to a public authority. Her property was not formally expropriated.
the Court reiterates that it has to look behind appearances and
assess the reality of the situation complained of in order to
determine whether there has been a de facto expropriation
(compare Sporrong and Lönnroth, judgment of 23 September
1982A, § A 63, Series A no. 52).
In this context, the Court reiterates that the loss of the ability to use, sell, bequeath, mortgage, donate or to otherwise dispose of property are decisive factors when determining whether an interference amounts to a de facto expropriation (see Papamichalopoulos v. Greece, judgment of
24 June 1993A, §A 42 et seq., Series A no. 260).
The Court notes that the applicant could not freely dispose of her property because she was obliged to accept an offer for the sale of her property to the public authority under terms that were stipulated by the Traffic Space Allocation Act. Furthermore, the Federal Court of Justice qualified a comparable sale as a de facto expropriation within the meaning of Article 1 of Protocol No. 1.
The Court concurs with that assessment and concludes that the sale of the property amounted to a taking of the applicant’s property by a public authority and was thus the accomplishment of a de facto expropriation of property, part of which had already been subjected to public use under the legal regime of the former GDR.
Justification for the interference with the right of property
“provided for by law”
applicant contested that the interference could be based on the
Traffic Space Allocation Act because the property had not been
properly designated as a public road by the GDR authorities. In this
regard, the Court reiterates that it is primarily for the domestic
authorities, namely the courts, to apply and interpret the domestic
law; the Court’s task is to verify whether the results of the
interpretation and application of the domestic law are compatible
with the Convention (see Bock and Palade v. Romania,
no. 21740/02, § 59, 15 February 2007).
The Court notes that both the Regional Court and the Court of Appeal held that the property in question qualified as “traffic space” within the meaning of Section 2(2) No. 1 of the Traffic Space Allocation Act on the grounds that it had been used as a public road in the GDR. The domestic courts reached this conclusion on the basis of a thorough examination of the relevant facts as well as the law and practice of the GDR. The decisions do not disclose arbitrariness. The Court therefore accepts the domestic courts’ interpretation and application of the domestic law. It follows that the interference was “prescribed by law”.
“in the public interest”
notion of “public interest” is necessarily extensive. In
particular, the decision to enact laws expropriating property will
commonly involve consideration of political, economic and social
issues. The Court finds it natural that the margin of appreciation
available to the legislature in implementing social and economic
policies should be a wide one and will respect the legislature’s
judgment as to what is “in the public interest” unless
that judgment is manifestly without reasonable foundation.
This necessarily applies, and perhaps to a greater extent, in the event of changes to a country’s political system (see Urbárska Obec Trenčianske Biskupice v. Slovakia, no. 74258/01, § 113, ECHR 2007 XIII (extracts)), such as the change from a communist regime to a democratic
market-economy system following German reunification (see von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 75 et seq., ECHR 2005 V, and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 91, ECHR 2005 VI).
In that connection the Court has no reason to doubt that the German legislature’s determination to settle the property matters arising from the continuing public use of private property following German reunification was “in the public interest”.
Proportionality of the interference
interference with the right to the peaceful enjoyment of possessions
must achieve a “fair balance” between the demands of the
general interest of the community and the protection of the
individual’s fundamental rights.
In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measures applied by the State, including measures depriving a person of his of her possessions. Compensation terms under the relevant domestic legislation are material to the assessment of whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicant. In this connection, the Court has previously held that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference. Article 1 of Protocol No. 1 does not, however, guarantee a right to full compensation in all circumstances. Legitimate objectives of “public interest” may call for less than reimbursement of the full market value of the expropriated property (see, among other authorities,
Kozacıoğlu v. Turkey [GC], no. 2334/03, § 63 et seq., ECHR 2009 ...).
Nevertheless, these legitimate objectives, however considerable, are not unlimited, and the exercise of the State’s discretion, even in the context of the most complex reform of the State, cannot entail consequences at variance with Convention standards (see Broniowski v. Poland [GC],
no. 31443/96, § 182, ECHR 2004 V).
The Court must therefore examine whether the sale of the property constituted a disproportionate interference, especially in view of the purchase price of 20 % of the value of the land. In this respect the Court considers five factors to be decisive.
the Court notes that the applicant had to tolerate public use of the
property prior to the sale by virtue of Section 233(2a)(9) of the
Introductory Act to the Civil Code and Section 9(1) of the Traffic
Space Allocation Act. Although the public use prior to the sale is
not the subject matter of the applicant’s complaint, the Court
nevertheless takes into account that the applicant’s ability to
use the property had already been substantially diminished by the
public authority’s right of use, and that although the
applicant was in principle able to dispose of the property, she could
sensibly only sell it to the public authority (compare, mutatis
Weber v. Germany (dec.), no. 55878/00, 23 October 2006).
Secondly, the Court notes that the public authority had to bear upon request the expenses related to the property’s public use and that the applicant would be entitled to purchase the property for a certain purchase price if the public use of the property ended.
Thirdly, the Court has on many occasions referred to the unique context of German reunification and the enormous task faced by the German legislators in dealing with complex issues such as unresolved property issues (see, among other authorities, von Maltzan and Others, cited above, § 75 et seq., and Jahn and Others., cited above, § 112).
Fourthly, the Court notes that the Traffic Space Allocation Act allowed for a de facto expropriation of the part of the property that was used as traffic space and, exceptionally, for the de facto expropriation of the remainder of the property if it could not be sufficiently used.
the Court notes that the Court of Appeal, relying on the pertinent
provisions of the Code of Civil Procedure, held that the applicant’s
submission that only the some 400 square-meters of the property which
were used as a road should be de facto expropriated was
procedurally barred pursuant to the pertinent provisions of the Code
of Civil Procedure.
The Court reiterates in this regard that it is in the first place for the national authorities, and notably the courts, to interpret domestic law and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness (see Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997 VIII). This applies in particular to the interpretation by courts of rules of a procedural nature
(see Christodoulou v. Greece, no. 514/07, § 20, 16 July 2009). The Court does not detect arbitrariness in the Court of Appeal’s application of the domestic procedural law. Therefore, it cannot consider whether the remainder of the property could be sufficiently used and whether the taking of the whole property was excessive as such.
Having regard to the above considerations, the Court concludes that compensation of 20 % of the value of the land cannot be considered as a disproportionate interference with the applicant’s rights under Article 1 of Protocol No. 1. Hence the applicant’s complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible in accordance with Article 35 § 4 of the Convention.
Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] 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 Court notes that the case falls within the scope of Article 1 of Protocol No. 1 and that Article 14 is therefore applicable.
According to the Court’s settled case-law, discrimination means treating differently, without an objective and reasonable justification, persons in similar situations. “No objective and reasonable justification” means that the distinction in issue does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and its background (see Andrejeva v. Latvia [GC], no. 55707/00, § 82 et seq., ECHR 2009 ...).
The Court further notes that the applicant was treated differently from owners whose property had been de facto expropriated under the Property Law Reform Act in that she was entitled to considerably less compensation. However, owners whose property had been expropriated under the Property Law Reform Act were not entitled to purchase the property if it was no longer used for public purposes.
In view of these considerations the Court is of the opinion that the German legislator did not overstep its margin of appreciation. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
However, in the light of all the material in its possession, the Court finds that it does not disclose any appearance of a violation of Article 6 and that this complaint is accordingly manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen