CASE OF GÖBEL v. GERMANY
No violation of P1-1
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 disputed land, having a surface area of 759 sq.m., including a dwelling house and business premises, is situated in Erfurt, on the territory of the former German Democratic Republic (GDR). 9. Under a notarially-registered agreement of 4 October 1938, the S. brothers, who were Jewish, sold this land for 256.000 reichsmarks (RM) to an industrialist, M. D. The S. brothers subsequently National-Socialist Germany and took refuge in Australia. 10. After 1945, the land, which was situated in the Soviet-occupied zone, was temporarily requisitioned by the State. 11. On 28 February 1946 the President of the Land of Thuringia (GDR) appointed an administrator and indicated that the land, which had been sold under duress, fell within the scope of the Reparations Act (Wiedergutmachungsgesetz) of 14 September 1945. It was thus supposed to be returned to the former owners or to their heirs. 12. Subsequently the restitution procedure was suspended, with a view to the amendment of the Reparations Act and to the systematic expropriation of the plots of land concerned. 13. On 18 October 1948 the administrator of the disputed property entered into a friendly settlement on behalf of the S. brothers with the widow and heir of M. D., under which the latter would remain the owner of two thirds of the land and the S. brothers would obtain the remaining one third, whilst in return waiving any claims against Mrs D. 14. Subsequently the S. brothers challenged this friendly settlement, arguing that they had not been consulted. 15. After the death of Mrs D., the two thirds of the property still owned by her was left to a community of heirs. 16. Under a notarially-registered agreement of 11 April 1992, one of Mrs D.’s heirs sold an initial share in the joint property (Anteil an der Miterbengemeinschaft) to the applicant for 90,000 deutschmarks (DM) and a second share to another purchaser, M. P., for the same amount. The agreement indicated that the applicant had been provided with a description of the events leading to the current property regime of the property in question (“wie es zu den momentanen Eigentumsverhältnissen gekommen ist”) and that this description covered the period from 22 April 1904 to 25 September 1987. 17. On 30 October 1992 the applicant was registered in the land register as a member of the community of joint owners. 18. In two letters, of 8 September and 17 December 1992, the heirs of the S. brothers sought the restitution of the remaining two thirds of the land in accordance with section 1(6) of the law on the resolution of outstanding property issues – the Property Act (Gesetz über die Regelung offener Vermögensfragen - Vermögensgesetz) of 23 September 1990 (see relevant domestic law and practice, paragraph 30 below). 19. In a notarially-registered agreement of 15 March 1993 the heirs of the S. brothers sold one third of the disputed land for DM 3,700,000 to Mrs T. The same agreement contained a clause indicating that the heirs of the S. brothers were also selling the remaining two thirds of the land for DM 6,800,000 under the condition precedent that they obtained its restitution (the procedure was pending before the domestic authorities and courts – see paragraphs 23 et seq. below). 20. On 31 January 1997 the applicant acquired a second share in joint ownership from M. P., which was also registered in the land register on 4 May 1998. The Government pointed out that the applicant had not provided evidence that he had paid for that acquisition, whereas the applicant indicated that the value of that second share had also amounted to DM 90,000 as stipulated in the initial agreement of 11 April 1992, and that he had acquired that share from M. P. in exchange for debts owed to him by the latter. 21. On 17 June 1997, the applicant entered into a notarially-registered sales agreement for his two shares for a total sum of DM 600,000 to the company Global Pacific Investment Trust, having its registered office in Vaduz (Liechtenstein). This agreement indicated that the parties had released the notary from his obligation to inspect the land register, in spite of his warning that the existence of third-party rights could not entirely be ruled out. 22. The applicant alleged that, on account of the restitution of the disputed property, he had been unable to fulfil his undertakings under that agreement. 23. In a decision of 8 November 1995 the Office for the Resolution of Outstanding Property Issues (Amt für die Regelung offener Vermögensfragen) of the town of Erfurt initially rejected the request by the heirs of the S. brothers, on the ground that the friendly settlement reached on 18 October 1948 had ruled out any request for restitution. The heirs of the S. brothers challenged that decision. 24. In a decision of 13 October 1997 the Office for the Resolution of Outstanding Property Issues for the Land of Thuringia (“Office for the Land of Thuringia”) upheld their request and ordered the restitution of the remaining two thirds of the land. The Office took the view that there was a presumption that the disputed land had been sold under duress in 1938, because the sale price had not been appropriate and it had not been established that the sale would have taken place without the NationalSocialist Party’s “rule”. Moreover, restitution could not be ruled out, whether because of the friendly settlement reached in the former GDR under the pressure of forthcoming expropriations without the agreement of those concerned, or for any of the other reasons given in section 4 of the Property Act, namely an acquisition in good faith at the time of the former GDR (see relevant domestic law and practice, paragraph 30 below). Under section 7a(2) of the Property Act, the applicant was entitled to the payment of consideration (Gegenleistung) for a sum equivalent to the sale price of his shares in 1938 at the conversion rate of DM 1 for RM 20, thus DM 1,250. 25. The applicant then took the matter to the Gera administrative court, complaining that the current purchasers were not responsible for the situation under the National-Socialist regime, that the friendly settlement had been valid and that the Office’s decision infringed his right to the enjoyment of his possessions under Article 1 of Protocol No. 1. 26. In a judgment of 17 April 2003 the Gera Administrative Court upheld the decision of the Office of the Land of Thuringia, in all its aspects, relying on sections 2(1) and 3(1) taken together with 1(6) of the Property Act (see relevant domestic law and practice, § 30 below). It explained that the Property Act had to be regarded as a law controlling the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1, having the legitimate aim of ensuring reparation for the injustice committed against Jewish citizens. Even supposing that the applicant had a possession within the meaning of that Article, the relevant provisions of the Property Act had validly defined the scope of his property right (zulässige Inhaltsbestimmung des Eigentumsrechts). He therefore had only a restricted right (eingeschränkte Rechtsposition). The Administrative Court concluded that restitution was not ruled out under section 4(2) of the Property Act, because the applicant had not acquired title to its pecuniary value (kein Eigentum an dem Vermögenswert) and had acquired his share after the entry into force of the Property Act. Nor had he been able to dispose of (verfügen) his property, and for that reason was simply registered in the land register as a member of the community of joint owners of the inherited estate. The Administrative Court did not give the applicant leave to appeal against that judgment or to lodge an application for review with the Federal Administrative Court. 27. In a decision of 29 January 2004, the Federal Administrative Court dismissed the applicant’s appeal against the Administrative Court’s decision not to give him leave to lodge an application for review. 28. In a decision of 31 March 2004 the Federal Constitutional Court, ruling in a committee of three, rejected the applicant’s constitutional appeal. 29. On 26 July 2004 the applicant filed a request for compensation under the Law of 27 September 1994 on compensation in accordance with the Property Act – the Compensation Act (Gesetz über die Entschädigung nach dem Vermögensgesetz – Entschädigungsgesetz – see relevant domestic law and practice, paragraph 31 below) and that procedure is still pending. 30. 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. Restitution is ruled out if it proves impossible in practice (section 4 (1) of the Act) or if the purchasers acquired the property in good faith between 8 May 1945 and 18 October 1989 (section 4 (2) of the Act). However, it is not excluded if, as in the present case, the acquisition took place after that date. Section 30a(1), first sentence, of the Property Act provides that applications for restitution had to be lodged no later than 31 December 1992. 31. In the event of the property’s restitution, section 7a(2) of the Property Act provides that consideration equivalent to the original sale price must be paid to the new purchasers. The conversion rate is DM 1 for RM 20. In this connection, no distinction is made between the heirs of the initial purchaser in the National-Socialist era and a new purchaser, who, as in the present case, has more recently acquired joint-ownership shares from the community of heirs of the initial purchaser. Section 7a(3b) provides that the heirs of the initial purchaser or the new purchaser may also opt for the payment of compensation in accordance with the Compensation Act of 27 September 1994 if the original sale price had been paid in reichsmarks (RM) in the National-Socialist era. The objective of this provision was to alleviate the effect of the devaluations resulting from two changes of currency since that time. Only those persons who had acted in a manner contrary to the principles of humanity or who had abused their position in the National-Socialist era were to be excluded from the possibility of obtaining such compensation.