CASE OF ALTHOFF AND OTHERS v. GERMANY
Violation of P1-1;Just satisfaction reserved
André Potocki;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Klaus Köpp;Mark Villiger;Renate Jaeger
7. The facts of the case, as set out by the parties, can be summarised as follows. 8. The present dispute is between Germany, which succeeded to the rights of the heirs of the original Jewish owners of the disputed property (the initial injured party – “Erstgeschädigte”) under the German-US Agreement of 13 May 1992, and the applicants, who are the heirs of a shopkeeper who had acquired the disputed property in 1939 (the initial sale having taken place in 1938). The property was subsequently expropriated at the time of the former German Democratic Republic (GDR). The applicants are thus the heirs of the subsequent injured party – “Zweitgeschädigte”. 9. The disputed plots of land, having respective surface areas of 1000 sq.m, 990 sq.m and 1030 sq.m, are located at Babelsberg-Potsdam, near Berlin, on the territory of the former GDR. 10. By a notarially-registered contract of 23 April 1938, Mr A. and Mrs B., who were Jewish and partners in the limited partnership “Mitteldeutsche Gamaschenfabrik E.B. und A.”, the owner of the disputed plots of land, sold them for 66,000 reichsmarks (RM) to the Berlin company A. Wülfing. Having been the victims of persecution under the NationalSocialist regime, Mr A. died in 1940 and Mrs B. in 1945. Mrs E.F., daughter of Mrs B., emigrated to the United States of America in 1939 and became a US citizen in 1951. 11. By a notarially-registered contract of 28 July 1939, the disputed plots of land were then sold for RM 61,000 to Mr G. Althoff, a shopkeeper, who was registered as the owner at the land registry, and the applicants are his heirs. 12. On 27 January 1953, in the former GDR, the land was expropriated and became “people’s property” (Volkseigentum) under the control of a State-owned film company. 13. Mrs E.F. subsequently brought proceedings in the USA for the loss of the disputed property, in accordance with the US law of 18 October 1976 on claims against the GDR, which entitled US citizens whose property in the former GDR had been expropriated before that date or which had been sold under duress in the National-Socialist period to file claims for compensation. 14. In a final decision of 27 August 1980, the US Foreign Claims Settlement Commission acknowledged that Mrs E.F. was entitled to 5,500 US dollars (USD) in compensation, plus interest at 6% from September 1951. 15. After German reunification the property was transferred to the company “dok Filmstudio GmbH”, whose sole shareholder was the Office for special reunification-related questions (Bundesanstalt für vereinigungsbedingte Sonderaufgaben). 16. In a decision of 17 October 1997, that Office observed that the disputed property had been sold for 1,300,000 deutschmarks (DM) for investment purposes to the company Weiland GbR, in accordance with the Investment Priority Act (Investitionsvorrangsgesetz) of 14 July 1992 (see relevant domestic law and practice, paragraph 32 below). 17. On 10 October 1990 the applicants filed a claim for the restitution of the property with the Office for the Resolution of Outstanding Property Issues for the Land of Brandebourg – (Landesamt für die Regelung offener Vermögensfragen – “Office of the Land”), in accordance with the relevant provisions of the Law on the resolution of outstanding property issues – “the Property Act” (Gesetz zur Regelung offener Vermögensfragen – Vermögensgesetz) of 23 September 1990 (see relevant domestic law and practice, paragraph 31 below). 18. On 13 May 1992 the Federal Republic of Germany (FRG) and the United States of America signed the German-US Agreement on the settlement of certain property claims – “the German-US Agreement” (Abkommen zwischen den Regierungen der Bundesrepublik Deutschland und der Vereinigten Staaten von Amerika über die Regelung bestimmter Vermögensansprüche), which provided for a global settlement of compensation claims by US citizens resulting from the US law of 18 October 1976 on claims against the GDR. By a law of 21 December 1992 the German-US Agreement became an integral part of domestic law; it entered into force on 28 December 1992 (see relevant domestic law and practice, paragraph 34 below). On 29 April 1997, the FRG paid a total sum of over 102 million US dollars in compensation. 19. On 20 October 1998 the Property Rights Clarification Act (Vermögensrechtsbereinigungsgesetz) retrospectively amended section 30a(1) of the Property Act, providing that the time-limit for the filing of restitution claims, initially set at 31 December 1992, did not apply to the rights of the FRG under the German-US Agreement (see relevant domestic law and practice, paragraph 33 below). 20. In a letter of 27 April 1999 the FRG indicated to the Office of the Land that in accordance with Article 3 § 9, second sentence, of the GermanUS Agreement, it had taken over Mrs E.F.’s title to the disputed property. 21. In a decision of 12 July 2001 the Office of the Land dismissed the applicants’ restitution claim and indicated that the proceeds from the sale of the disputed property in 1997 was indeed to be paid to the FRG. It first noted that the initial sale of the disputed plots of land in 1938 had been obtained under duress, within the meaning of section 1(6) of the Property Act. Consequently, the rights pertaining to the property fell within the scope of the German-US Agreement. In accordance with sections 2(1) and 6(6a) of the Property Act, read together with Article 3 § 9, second sentence, of the German-US Agreement, the FRG had become the legal successor to Mrs E.F. She had opted for the payment of compensation and had thus renounced her claims against the FRG. 22. The applicants brought proceedings before the Potsdam Administrative Court, on the ground that they had a lawful entitlement to restitution, having regard to the fact that Mrs E.F. had not lodged any application to that effect before the time-limit of 31 December 1992, as provided for by section 30a(1), first sentence, of the Property Act, notwithstanding the subsequent amendment of that provision by the Property Rights Clarification Act of 20 October 1998. 23. In a judgment of 28 November 2002, the Potsdam Administrative Court upheld the Office’s decision on all points. In the court’s view, even if the FRG’s right to restitution had lapsed, because no application had been lodged to that effect before the time-limit of 31 December 1992 fixed by section 30a(1), first sentence, of the Property Act, its right had subsequently been revived following the amendment of that section in 1998. Moreover, the applicants had not acquired an irrevocable (unabänderlich) right under section 14 (right to property) of the Basic Law (Grundgesetz), because at the time of the FRG’s claim in 1999, the Office of the Land had not yet given its decision. 24. In a judgment of 21 January 2004 the Federal Administrative Court dismissed the applicants’ request for judicial review. It first noted that, under the relevant provisions of the German-US Agreement, the property rights of Mrs E.F. had been transferred to the FRG. Given that Mrs E.F had been compensated in 1976, the JCC (Jewish Claims Conference), which had also filed a restitution claim, could not claim property rights. The Administrative Court then confirmed that the FRG had not filed a valid restitution claim before the time-limit of 31 December 1992 as provided for by section 30a(1), first sentence, of the Property Act. The law on the Agreement of 21 December 1992 had not provided for any specific provisions in that connection and the letter of 1 October 1992 from the Federal Office for the Resolution of Outstanding Property Issues (Bundesamt für die Regelung offener Vermögensfragen – “the Federal Office”) to the authorities of the Länder could not be regarded as a valid claim because it was not sufficiently specific. Referring to its settled case-law, the Administrative Court added that the fixing of this time-limit corresponded to a provision of substantive law, which meant that the rights of the FRG had lapsed with the expiry of the statutory time-limit. However, by amending section 30a(1) of the Property Act in 1998, the legislature had “remedied” the failure to file a claim within that time-limit. It was only from that date onwards that the property rights of Mrs E.F. could be considered to have been effectively transferred to the FRG, and not at the time of the complete payment of compensation as provided for in Article 3 § 9 of the German-US Agreement (see relevant domestic law and practice, paragraph 34 below). The aim of that legislative amendment had been to ensure the survival of the former property rights and to rectify that omission. In addition, again with reference to its settled case-law, the Administrative Court took the view that the applicants’ rights to restitution under the Property Act did not benefit from the protection of Article 14 § 1 of the Basic Law, because those rights did not correspond to existing property rights but stemmed from the State’s wish to provide redress for past injustice. Lastly, in accordance with the settled case-law of the Federal Constitutional Court, it was in this case a question of “quasi-retrospective” effect (unechte Rückwirkung); having regard to the confused and uncertain legal situation existing at the time, the applicants had not acquired any “confidence warranting protection” (schutzwürdiges Vertrauen) or any legal certainty that their position as “subsequent” injured party afforded them an entitlement to the restitution of the disputed property. Moreover, the JCC had also filed a restitution claim within the statutory time-limit, and its rights would have prevailed over those of the applicants if it had been successful. 25. In a decision of 14 August 2004 the Federal Constitutional Court, sitting in a committee of three members, refused to allow a constitutional complaint by the applicants. It observed in particular that section 30a(1), fourth sentence, of the Property Act was compatible with Article 14 § 1 of the Basic Law, even if it were presumed in the applicants’ favour that their entitlement to restitution under the Property Act, or to the payment of the proceeds of the sale under section 16(1), first sentence, of the Investment Priority Act, enjoyed the protection of Article 14 § 1. In the Constitutional Court’s view, section 30a (1), fourth sentence, of the Property Act had to be understood as a provision defining the content and limits (Inhalts- und Schrankenbestimmung) of the right to property within the meaning of Article 14 § 1, second sentence, of the Basic Law, and struck a fair balance between the interests at stake. Under section 3 (2) of the Property Act, taken together with section 1(2), first sentence, of the Law of 27 September 1994 on compensation in accordance with the Property Act – “the Compensation Act” (Gesetz über die Entschädigung nach dem Gesetz zur Regelung offener Vermögensfragen – Entschädigungsgesetz – see domestic law and practice, paragraph 31 in fine, below), the applicants, being regarded as the “subsequent” injured party, were, from the outset, simply entitled to compensation. Under Article 3 § 9, second sentence, of the German-US Agreement, the FRG had succeeded to the rights of the “initial” injured parties, who, having regard to the compensation that they had already received, could no longer claim any rights based on the Property Act. In filing a claim concerning property rights based on the German-US Agreement, the FRG had thus sought to secure a property right equivalent to that of an “initial” injured party that had already materially been “claimed” and compensated for. The legislature had thus wished to clarify the situation for that kind of right. 26. The Constitutional Court added that even if a different position were adopted, namely, as the Federal Administrative Court had found, that the rights under section 1(6) of the Property Act had lapsed on 31 December 1992 and had then been revived following the amendment of section 30a(1) of the Property Act, the new version of that section had struck a fair balance between the interests at stake. The property rights under the German-US Agreement had originally been provided for by the US law of 1976 and had already been compensated for in 1980 as regards the disputed property. At the time of the ratification of the German-US Agreement it had been presumed that the total amount to be paid in compensation could reach USD 190 million. The FRG could not have been expected ultimately to renounce its property rights for which it had had to pay compensation in such a high amount – even though the transfer had not become effective until the determination of the final transfer payment (nach Feststellung des endgültigen Überweisungsbetrags). For this reason, the German State had in particular sent the Länder authorities the lists of the rights covered by the Agreement, in a letter of 2 October 1992 from the Federal Office. In addition, the law of 20 December 1993 on the acceleration of registration procedures (“Register-Beschleunigungs-Gesetz”) extended the possibility for the competent authorities to enter reservations in the land register (stipulating that the property could be sold only with the State’s approval) in respect of the rights arising from the German-US Agreement. Under those circumstances, there could not have been any “confidence warranting protection” as to the maintaining of the statutory situation as it had first existed according to the initial version of section 30a(1). 27. On 12 January 2005 the applicants filed a request for compensation for the loss of the disputed property with the Office of the Land of Brandebourg, in accordance with the relevant provisions of the Compensation Act. 28. In a decision of 20 March 2007 the Office of the Land dismissed the applicants’ request on the ground that they had not filed it within a period of six months after the final rejection of the restitution claim, as provided for by section 7a(3c) of the Property Act. 29. The applicants then appealed to the Potsdam Administrative Court, which stayed the proceedings pending the judgment of the European Court of Human Rights (“the Court”) in the present case. 30. Article 14 § 1 of the Basic Law reads as follows: “Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by statute.” 31. On 29 September 1990 the Property Act of 23 September 1990, which was also to be part of the Unification Treaty (Einigungsvertrag), came into force. Under the Treaty the Property Act would remain in force in Germany after the reunification of the two German States on 3 October 1990. The Act’s purpose was, in particular, to settle any conflicts relating to property on the territory of the GDR in a manner that was socially acceptable, in order to ensure long-term legal security in Germany. Section 1(1) of the Property Act provides that it is applicable to rights in respect of property that was expropriated at the time of the GDR and section 1(6) provides that it also applicable to persons against whom proceedings were brought in Germany between 30 January 1933 and 8 May 1945 on racist, political, religious or ideological grounds (weltanschauliche Gründe) and who had consequently lost their property “by forced sale, expropriation or other means”. Sections 2 and 3 of the Act complement section 1. Section 3(1) of the Property Act provides that any property that became “people’s property” will be returned on request unless excluded by the law. Section 3(2) provides that if a number of parties make a request for restitution concerning the same property, it is the party that was “first” injured which is thus entitled. That means that, as in the present case, when property was sold under duress during the National-Socialist period, then subsequently expropriated in the former GDR, the heirs of the original Jewish owners have a priority right to restitution. In such a case where restitution of the property is excluded (section 4(1) of the Property Act), the heirs of the purchasers of the property during the National-Socialist period are entitled to the payment of compensation provided for by the law of 27 September 1994 on compensation according to the Property Act. 32. Section 16 § 1, first sentence, of the Investment Priority Act provides that if restitution of property is impossible because the property has been sold, the person entitled may request payment of a sum equivalent to the value of his property rights. 33. Section 30a(1), first sentence, of the Property Act stipulates that restitution claims had to be filed no later than 31 December 1992. The Property Rights Clarification Act of 20 October 1998 amended the section in question by introducing a fourth sentence according to which that timelimit does not apply to rights held by the FRG under the Agreement of 13 May 1992 between the FRG and US Governments on the settlement of certain property claims. 34. Article 3 § 1 of the German-US Agreement provides that US citizens have to choose between receiving compensation or bringing proceedings before the German courts to obtain reparation in accordance with the US law of 18 October 1976 on claims against the GDR. If they opt for the first solution, they forfeit any right of action against the FRG, under Article 3 § 6, second sentence, of the Agreement. Under Article 3 § 9, second sentence, their property rights are then transferred to the FRG at the time of the complete payment of compensation. That statutory succession also applies to rights arising from any harmful measures taken under the National-Socialist regime. By a law of 21 December 1992 the German-US Agreement became part of domestic law. It entered into force on 28 December 1992. 35. In a judgment of 26 May 1999 the Federal Administrative Court indicated that section 30a(1), fourth sentence, of the Property Act (which, in its new version, provides that the time-limit initially set for restitution claims does not apply to rights stemming from the German-US Agreement) did not apply if the legislative amendment had taken place after the issuance of a restitution notice by the competent authority and the transfer of the property to an entitled party other than the German Government. In that judgment it further held that, having regard to its wording, meaning and aim, section 30a(1), first sentence, of the Property Act applied at the outset to all property claims. In order to ensure legal certainty, the time-limit initially fixed also had to apply to the “derived” claims (abgeleitete Ansprüche) arising from the German-US Agreement.