SCHAEDEL v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The 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. 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 December 1988. 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. On 29 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. On 12 January 2005 the Federal Constitutional Court refused to accept the applicant’s constitutional complaint for examination (no. 1 BvR 2852/04). 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.