AS TO THE ADMISSIBILITY OF
by Bernd SCHAEDEL
European Court of Human Rights (Fifth Section), sitting on
3 February 2009 as a Chamber composed of:
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 7 July 2005,
Having deliberated, decides as follows:
applicant, Mr Bernd Schaedel, is a German national who was born in
1941 and lives in Berlin. He was represented before the Court by
Ms M. Biedermann-Weist, a lawyer practising in Berlin.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was a citizen of the former German Democratic Republic
(GDR) who absconded to West Berlin in May 1988. His real property was
subsequently placed under GDR State guardianship and sold to members
of the GDR nomenclature (hereinafter the “occupiers”) in
The occupiers were registered as owners of the property on 2 January 1989 and lived in the house built on the property.
On 13 August 1990 the applicant applied for the restitution of the property. On 25 July 1996 the Hellersdorf-Hohenschönhausen-Marzahn Office for the Regulation of Outstanding Property Issues (Amt zur Regelung offener Vermögensfragen) decided, inter alia, that the occupiers had not acquired the property in good faith and ordered that the property be returned. The occupiers appealed against that decision. On 7 March 2002 the Berlin Administrative Court ordered the return of the property to the applicant, and from that date the applicant was the owner of the property. The occupiers withdrew their application for leave to appeal on points of law on an unspecified date and subsequently vacated the property in September 2002.
December 2003 the Berlin Regional Court refused to grant the
applicant legal aid for a claim against the occupiers to obtain
compensation for use of the property as regards the period from 1990
to September 2002 on the ground that his application had no prospect
of success. As to the period from 1990 to 7 March 2002, and relying
on a leading judgment of the Federal Court of Justice of 23 April
1999 (see “Relevant domestic law and practice” below),
the court noted that section 7(7) of the Act on the Regulation
of Outstanding Property Issues / Property Act
(Gesetz zur Regelung offener Vermögensfragen/ Vermögensgesetz – hereinafter the “Property Act”, see “Relevant domestic law and practice” below) excluded compensation for the remaining period when the occupiers were registered as owners and had used the property solely as a dwelling. Any claim for compensation for use of property for the period between March 2002 and September 2002 could only be raised before a district court in view of the value of the claim.
On 10 February 2004 the Berlin Court of Appeal upheld that decision.
On 27 September 2004 the Berlin Constitutional Court refused to accept the applicant’s complaint for examination.
January 2005 the Federal Constitutional Court refused to accept the
applicant’s constitutional complaint for examination
(no. 1 BvR 2852/04).
B. Relevant domestic law and practice
Under section 7(7) of the Property Act, an owner is not entitled to claim compensation for use of property from the tenants unless otherwise agreed or in respect of rent obtained after 1 July 1994.
On 23 April 1999 the Federal Court of Justice held in a leading judgment (published in that court’s official reports [BGHZ] volume 141, pp. 232 et seq.) that there were no lacunae in section 7(7) of the Property Act and hence no justification for its analogous application to claims for compensation for use of property other than those concerning rent obtained by the tenant after 1 July 1994. The court noted that the tenant was fully entitled to enjoy the property and its fruits prior to restitution. Citing the relevant legislative materials, the court further noted that the legislature had provided for the exception only to urge occupiers to use the rent to maintain the property prior to restitution.
Article 1 of Protocol 1 reads as follows:
“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 submitted that he had been prevented from obtaining compensation for use of the property for a period of twelve years by the relevant provisions of the Property Act as applied by the domestic courts and that his property rights under Article 1 of Protocol No. 1 had thus been violated.
The Court first notes that the domestic courts did not deal with the substance of the applicant’s claim for compensation for the occupation of the property between 1990 to March 2002 as his application for legal aid was refused, and he did not pursue the proceedings.
assuming that in refusing legal aid on the grounds of lack of
prospects of success the German courts dealt with the matter in
sufficient detail to exempt the applicant from the requirement
properly to exhaust domestic remedies, the Court reiterates 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 or her
“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 (see Maltzan
and Others v. Germany (dec.) [GC],
nos. 71916/01, 71917/01 and 10260/02, § 74(c), ECHR 2005-V, and Kopecký v. Slovakia [GC], no. 44912/98, § 35(c), ECHR 2004-IX).
A proprietary interest may only be regarded as an asset and thus give rise to a “legitimate expectation” protected by Article 1 of Protocol No. 1 if it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it (see Kopecký, cited above, § 52). However, no “legitimate expectation” within the meaning of Article 1 of Protocol No. 1 can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts
(see Kopecký, cited above, § 50; Anheuser-Busch Inc. v. Portugal [GC],
no. 73049/01, § 65, ECHR 2007 ...).
Court notes that under the domestic law the applicant was entitled to
compensation for the use of the property only for the period from the
date when the restitution order became final under the conditions set
forth in section 7(7) of the Property Act. The Court observes
that section 7(7) of the Property Act, as construed by the Federal
Court of Justice, did not provide for an entitlement to compensation
for use if the occupiers who were registered as owners used the
property solely as a dwelling. The leading judgment of the Federal
Court of Justice and the impugned decisions were carefully reasoned
and do not disclose any appearance of arbitrariness. Hence, the
applicant cannot claim that he had a “legitimate expectation”
within the meaning of Article 1 of Protocol No. 1 to receive
compensation for use of the property for the period between 1990 and
It follows that this complaint 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.
As regards the period between the March and September 2002, the Court observes that the applicant applied for legal aid before the Berlin Regional Court, which found that it was not competent to hear the case in view of the value of the claim. The applicant did not establish that he had subsequently applied for legal aid or sued the occupiers for compensation for use of the property before a competent German court. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Court points out at the outset that there is no obligation under the Convention to make legal aid available for all disputes (contestations) in civil proceedings, as there is a clear distinction between the wording of Article 6 § 3 (c), which guarantees the right to free legal assistance on certain conditions in criminal proceedings, and of Article 6 § 1, which makes no reference to legal assistance. The right of access to a court guaranteed by Article 6 § 1 is “practical and effective”, not “theoretical or illusory”. However, it is for the Contracting States to decide how they should comply with the obligations arising under the Convention. The Court must satisfy itself that the method chosen by the domestic authorities in a particular case is compatible with the Convention (see Del Sol v. France, no. 46800/99, § 21, ECHR 2002 II). The Court notes that a judge of the Berlin Regional Court ruled on the question whether the applicant’s application for legal aid showed a reasonable prospect of success and the applicant had a right of appeal against that decision. The legal aid scheme set up by the German legislature offered the applicant substantial guarantees to protect him from arbitrariness and was accordingly compatible with the Convention.
It follows that this part of the application 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 ... hearing within a reasonable time by [a] ... tribunal ...”
The Court notes that the impugned proceedings came to an end with the occupiers’ withdrawal of their application for leave to appeal on points of law on an unspecified date between 7 March 2002, the date on which the judgment of the Berlin Administrative Court was delivered, and September 2002. The present complaint was lodged on 7 July 2005. It follows that this complaint has been introduced outside the six-month time-limit and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen