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Cite as: [2010] ECHR 479
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FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
37142/07
by Gesine MIELKE
against Germany
The European Court of Human Rights (Fifth Section), sitting on 9 March 2010 as a Chamber composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having regard to the above application lodged on 23 August 2007,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Gesine Mielke, is a German national who was born in 1958 and lives in Hamburg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Background to the case
In 1940 the applicant’s predecessor (“the predecessor”) acquired a plot of land with a five-storey building situated in the centre of Berlin (“the property”), later in East Berlin, on the territory of the German Democratic Republic (GDR).
From 1963 onwards, the property was subjected to public administration by the GDR authorities but was not formally transferred into public property.
The predecessor died in 1973 in West Berlin, in the Federal Republic of Germany (FRG); the land register was not rectified. In 1994 and 1996 his heir (“the heir”) relinquished her rights as regards restitution of the property to the applicant before a notary public.
The expropriation by GDR authorities in 1989/1990
On 8 August 1989 the East Berlin City Council (Magistrat von Ostberlin) allowed the refurbishment of the building subject to expropriation of the property from its owner.
On 14 September 1989 the State Planning Commission of the GDR cabinet (Ministerrat der DDR) approved the refurbishment plans.
On 20 September 1989 the Central Office responsible for the International Trade in Licences requested that the property be expropriated; the compensation was set at 111,800 marks.
On 25 January 1990 the Inner Berlin Borough Council (Rat des Stadtbezirks Mitte) expropriated the property from its owner with effect from 1 March 1990 and transferred the property to the Ministry of Foreign Trade. The undated decision to expropriate the property was signed and sealed. The applicant contested that the expropriation had taken place on that date.
On 9 March 1990 the Ministry of Foreign Trade sold the building built on the property to a public holding (“the holding”) for 245,443.60 marks. On 13 March 1990 the ownership of the property was transferred to the holding. The holding had been founded on 26 January 1990 and had been registered in the register of public enterprises (Register der volkseigenen Wirtschaft) on 9 February 1990. On 28 June 1990 the holding requested to be registered as a limited company in the course of incorporation; the company was dissolved with effect from 31 December 1992.
As regards the peaceful revolution in the GDR 1989/1990
The Court has summarised the political background to the dissolution of the GDR in the case of Streletz, Kessler and Krenz v. Germany ([GC], nos. 34044/96, 35532/97 and 44801/98, § 17, ECHR 2001 II) as follows:
“In autumn 1989 the flight of thousands of citizens of the GDR to the FRG’s embassies in Prague and Warsaw, and to Hungary, which had opened its border with Austria on 11 September 1989, demonstrations by tens of thousands of people in the streets of Dresden, Leipzig, East Berlin and other cities, and the restructuring and openness campaign conducted in the Soviet Union by Mikhail Gorbachev (perestroika and glasnost) precipitated the fall of the Berlin Wall on 9 November 1989, the collapse of the system in the GDR and the process that was to lead to the reunification of Germany on 3 October 1990.”
On 18 October 1989 the Secretary-General of the Socialist Unity Party’s Central Committee, Mr E. Honecker, stepped down and was replaced by Mr E. Krenz. Especially after the fall of the Berlin Wall on 9 November 1989 the GDR was in an ever-increasing state of dissolution.
On 26 January 1990 the Under-Secretary of State in the GDR’s Ministry of Finance and Prices wrote to the First Deputies to the Borough Councils and admonished them to comply with the rules of regulations governing expropriations from owners living outside the GDR, namely, that the latter should be kept correctly informed of and allowed to participate in proceedings concerning their property. On 3 October 1990, the date of the German reunification, the Convention entered into force on the territory of the new Länder.
Proceedings concerning ownership of the property after 1990
Administrative proceedings concerning the allocation of the property
On 20 September 1990 the heir applied for rights under 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). On 4 September 1992 the Office for the Resolution of Outstanding Property Issues ordered that the public administration of the property be lifted.
On 22 December 1992 the property rights were administratively allocated to the holding pursuant to the Act on the Allocation of Former Public Property (see “Relevant domestic law and practice” below); this decision became final on 16 December 1994 after the Berlin Administrative Court had dismissed the heir’s claim.
On 21 January 1993 the heir was listed as owner in the land register on the basis of the heir’s certificate. The registration had no effect on the ongoing proceedings.
On 11 January 1994 the order that the public administration be lifted was revoked following an administrative appeal by the holding in dissolution; on 5 September 1996 the Federal Administrative Court upheld the decision.
On 4 December 1995 the property was administratively allocated to the Fiduciary Office’s property holding (Treuhandliegenschaftsgesellschaft) as successor to the holding.
On 14 February 1996 the holding in dissolution was registered as its owner in the land register.
Civil proceedings concerning registration of ownership in the land register
On 29 December 1992 the Berlin Mitte District Court granted the holding’s request for an interim objection to the predecessor’s listing as owner of the property in the land register.
On 5 November 1993 the Berlin Court of Appeal, 15th Civil Senate, quashed the decision of the District Court and refused the request on the ground that the holding had not established that it had become the owner of the property. The Court of Appeal noted that the expropriation by the GDR authorities had clearly been carried out in complete administrative disarray, likely caused by the then imminent German reunification. The decision to expropriate the property from the predecessor had been undated, the form had not been properly filled out and the note that the decision had become final had not been in conformity with standard practice. The expropriation procedure had furthermore violated theprovisions for the basic legal protection of property owners under GDR law, for the GDR authorities had not contacted the heir, as the owner, and had not ascertained whether the predecessor had died, although this would have been possible after the fall of the Berlin Wall. The Court of Appeal concluded that the GDR authorities had deliberately excluded the heir from the proceedings in order to finalise the expropriation before the German reunification on 3 October 1990.
On 30 November 1994 the holding handed the property over to the heir without prejudice to the ownership of the property.
The heir then requested in the main proceedings that she be declared theowner of the property. The holding brought a counter-claim for it to be declared the owner. The Berlin Regional Court dismissed the heir’s request and granted the counter-claim on the grounds that the holding had become the owner by virtue of the decision that had administratively assigned the property to it and which had become final on 16 December 1994 (see above).
On 21 February 1997 the Berlin Court of Appeal, 21st civil senate, dismissed the heir’s appeal and ordered her to return the property in exchange for the return of a bond of 1.3 million German marks she had deposited with the respondent. The Court of Appeal held that the expropriation by the GDR authorities had been lawful. In particular, the public administrator had been informed of the expropriation.
On 29 January 1998 the Federal Court of Justice dismissed the heir’s appeal on points of law.
The proceedings at issue
On 11 June 1998 the Office for the Resolution of Outstanding Property Issues ordered that the property be returned to the applicant against the payment of compensation on the grounds that the applicant’s predecessor had suffered a property loss within the meaning of section 1(1) (b) of the Property Act (see “Relevant domestic law and practice” below).
On 10 April 2000 the Office for the Resolution of Outstanding Property Issues dismissed the Fiduciary Office’s administrative appeal.
On 15 December 2005 the Berlin Administrative Court set aside the restitution order on the grounds that the heir had not been entitled to restitution of the property. The property had not been expropriated without compensation (section 1(1) (a) of the Property Act (see “Relevant domestic law and practice” below)) because in principle the owner could have been compensated under the laws and the state practice of the GDR. Furthermore, the property had not been expropriated for less compensation than citizens of the GDR would have been entitled to (section 1(1) (b) of the Property Act (see “Relevant domestic law and practice” below)). According to the case law of the Federal Administrative Court this provision was only applicable to expropriations for which the former owner had deliberately been granted less than a citizen of the GDR would have had; following the entering into force of the decree on prices no. 3/87 in 1987, which had been applicable in the present case, owners living in West Germany were no longer systematically discriminated against in calculating the compensation due. Lastly, the property had not been taken by unfair means (section (1)(3) of the Property Act (see “Relevant domestic law and practice” below)); in particular, expressly relying on the case-law of the Federal Administrative Court, the Berlin Administrative Court held that the property had not been taken for a purpose other than the one stated, that its transfer into public property before transferring it to the holding had not been unfair, that the fact that the owner that was listed in the land register had already died had no bearing on the fairness of the expropriation proceedings, and that the property had been expropriated before 26 January 1990. As regards the specific circumstances of the case, the Berlin Administrative Court observed that the GDR authorities had been of the opinion that the owner of the property did not have to be informed about the expropriation according to the GDR law as practised by its authorities, since the property had been subjected to public administration.
On 21 September 2006 the Federal Administrative Court refused leave to appeal on points of law and noted, inter alia, that it was not decisive that the Federal Court of Justice had previously held that the deliberate exclusion of the owner living in the FRG from the expropriation proceedings by the GDR authorities after 18 November 1989 had resulted in the expropriation being void. The Federal Administrative Court noted that any difference in opinion between the two federal courts had no bearing on the applicant’s case because the Berlin Administrative Court had conclusively established that the GDR authorities had been of the opinion that they had not needed to inform the owner of the expropriation proceedings; the GDR authorities had accordingly not deliberately excluded the owner from them.
On 14 February 2007 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication (no. 1 BvR 2899/06).
B. Relevant domestic law and practice
Article 19 of the Reunification Treaty
Pursuant to Article 19 of the Treaty between the Federal Republic of Germany and the German Democratic Republic concerning the German Reunification - Reunification Treaty (Vertrag zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik über die Herstellung der Einheit Deutschlands – Einigungsvertrag), administrative acts by the authorities of the GDR prior to reunification remain in force. Such acts may be repealed if they are incompatible with the principles of the rule of law or the Reunification Treaty.
The Property Act
A former owner may request restitution of property (section 3 of the Property Act) that was expropriated in the GDR if the property was expropriated without compensation (section 1(1) (a) of the Property Act), with less compensation than a GDR citizen would have been entitled to (section 1(1) (b) of the Property Act), if the state administrator sold the property or if the nationalised property was sold to third persons (section 1(1) (c) of the Property Act), or if the property was taken by unfair means, such as the misuse of power, corruption, coercion or deceit (section (1)(3) of the Property Act).
Article 237(1) of the Introductory Act to the Civil Code
According to this provision, the validity of expropriations that lead to the transfer of property into public property shall be determined in view of the law in force at the time of the expropriation. Expropriations are invalid if the property could not have been transferred into public property or if the transfer was plainly irreconcilable with the rule of law (mit rechtsstaatlichen Grundsätzen schlechthin unvereinbar) because of serious violations of the rule of law or of the principle of proportionality or because the expropriation had been arbitrary.
Act on the Allocation of Former Public Property
The relevant authority may decide to allocate former public property following a procedure in which all interested parties have had the right to participate. Property rights of third persons such as ownership and specifically named rights of interested parties are not affected by this decision (section 2(1) of the Act on the Allocation of Former Public Property – Gesetz über die Feststellung der Zuordnung von ehemals volkseigenem Vermögen).
The case-law of the Federal Administrative Court
In a judgment of 28 April 1999 (no. 8 C 5/98, published in BVerwGE, vol. 109, p. 81 et seq.), the Federal Administrative Court held that expropriations by the GDR authorities in flagrant violation of the pertinent provisions of the GDR law amounted to a taking by unfair means (section (1)(3) of the Property Act) if the expropriation took place after 26 January 1990, the date of the letter of the Under-Secretary of State in the GDR’s Ministry of Finance and Prices to the First Deputies to the Borough Councils.
In a judgment of 12 December 2001 (no. 8 C 10/01), the Federal Administrative Court held that the assessment whether the GDR authorities expropriated using unfair means within the meaning of section 1(3) of the Property Act was to be conducted on a case by case basis if the expropriation took place between 18 October 1989 – the date Mr Honecker stepped down – and 26 January 1990, the date of the aforementioned letter of the Under-Secretary of State in the GDR’s Ministry of Finance and Prices. Only after 26 January 1990 the GDR administrative practice could be assumed to comply with the relevant procedural requirements of GDR law, and thus flagrant procedural shortcomings could result in a taking using unfair means.
The case-law of the Federal Court of Justice
In a judgment of 12 May 2000 (no. V ZR 47/99) the Federal Court of Justice held that as a general rule, expropriations by the GDR authorities after 18 October 1989 had used unfair means within the meaning of section 1(3) of the Property Act if the owner living in the FRG had been deliberately excluded from the expropriation proceedings; in such a case the owner had not lost the property and was entitled to be registered as owner in the land register.
In a judgment of 25 July 2003 (no. V ZR 362/02) the Federal Court of Justice held that an owner could pursue a claim to be reinstated as owner in the land register if the GDR authorities’ expropriation order had not become effective, regardless of whether the taking had been accomplished by using unfair means within the meaning of section 1(3) of the Property Act. The Federal Court of Justice noted that it did not depart from the jurisprudence of the Federal Administrative Court in a decisive manner and therefore did not need to refer the question as to the date on which expropriations by the GDR authorities became plainly irreconcilable with the rule of law.
The “Common Senate of the Federal Courts”
Pursuant to Article 95(3) of the Basic Law a Common Senate (Gemeinsamer Senat der obersten Gerichtshöfe) of the Federal Court of Justice, the Federal Administrative Court, the Federal Social Court, the Federal Labour Court and the Federal Tax Court shall be established to preserve the uniformity of decisions. The Common Senate decides the legal question that is disputed between senates of different federal courts if they cannot agree on a common interpretation following a procedure laid down in the Act on the Preservation of the Unity of the Federal Courts’ Jurisprudence (Gesetz zur Wahrung der Einheitlichkeit der Rechtsprechung der oberten Gerichtshöfe des Bundes). Proceedings before the Common Senate with regard to an individual appeal on points of law pending before a federal court are interlocutory.
COMPLAINTS
THE LAW
Article 1 of Protocol No. 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.”
As regards the expropriation and compensation by GDR authorities
The Court reiterates that the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention with respect to that Party; this is an established principle in the Court’s case-law based on the general rule of international law (see, among other authorities, Šilih v. Slovenia [GC], no. 71463/01, § 140, 9 April 2009).
The Court further reiterates that expropriation after 1949 in the GDR cannot be attributed to the FRG. The GDR was a separate State, distinct from the FRG, and widely recognised by the international community towards the end of its existence (see von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 80(b), ECHR 2005 V).
The Court lastly reiterates that deprivation of ownership or of another right in rem is in principle an instantaneous act and does not produce a continuing situation of “deprivation of a right” (see Kopecký v. Slovakia [GC], no. 44912/98, § 35(a), ECHR 2004 IX).
Applying these principles to the present case, the Court notes that the specific acts complained of took place before the Convention entered into force on the territory of the former GDR. It follows that this part of the complaint is incompatible ratione temporis 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 refusal to return the property
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 von Maltzan, cited above, § 74(c), and Kopecký, cited above, § 35(c)). 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 Anheuser Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007 I).
The Court further reiterates that Article 1 of Protocol No. 1 applies only to a person’s existing possessions (see Marckx v. Belgium, 13 June 1979, § 50, Series A no. 31). It does not guarantee the right to acquire property (see Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002-II).
The Court lastly reiterates that a person who complains of a violation of his or her right to property must first show that such a right existed (see Des Fours Walderode v. the Czech Republic (dec.), no. 40057/98, ECHR 2004-V).
Turning to the circumstances of the present case, the Court observes that at the time the proceedings at issue started in 1998 neither the applicant nor the heir was registered as owner in the land register. At that time the holding in dissolution had been registered as owner of the property in the land register and the property had been administratively assigned to the Fiduciary Office’s property holding.
It remains to be determined whether the applicant had at least a “legitimate expectation” under German law, in particular the Property Act, that the property would be returned to her.
The Court observes that the Berlin Administrative Court, in conformity with the case-law of the Federal Administrative Court, had reasoned that the conditions of the relevant grounds for restitution had not been met.
The Court further observes that the Berlin Administrative Court held that the expropriation order had been issued on 25 January 1990, and that the validity of such an expropriation that had been ordered before 26 January 1990 had to be decided on a case by case basis. Although the expropriation order had not been dated, the Court accepts the Berlin Administrative Court’s finding as to the date of the expropriation order, since the national judge is in a far better position to assess such questions of fact.
The Court lastly observes that both the Federal Administrative Court and the Federal Court of Justice agreed that no divergence in their respective jurisprudence existed. Furthermore, the Federal Court of Justice had dismissed the claim that the heir had remained owner of the property on 29 January 1998. Therefore, the case-law of the Federal Court of Justice has no bearing on the applicant’s or the heir’s entitlement to restitution.
It follows that the applicant cannot claim that she had a “legitimate expectation” under German law that the property would be returned to her. This complaint is accordingly 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.
Article 6, as far as relevant, reads as follows:
“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, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
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.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President