ISLAMISCHE RELIGIONSGEMEINSCHAFT E.V. v. GERMANY
Inadmissible
The applicant, Islamische Religionsgemeinschaft e.V., is a religious association based in Berlin. It was represented before the Court by Mr H. Reckschmidt and Mr J.M. Schödler, both of the Berlin Bar. The applicant association was formed in the German Democratic Republic (GDR) in February 1990 by citizens of the Muslim faith. On 1 March 1990 it obtained State approval as a religious association with legal personality (rechtsfähig). On 25 May 1990 the Presidium of the Executive Committee (Präsidium des Parteivorstands) of the Party of Democratic Socialism (Partei des demokratischen Sozialismus – PDS) decided to make a donation (Spende) of 75,000,000 GDR marks to the applicant association, following a request to that effect from the association. On 31 May 1990 the president of the applicant association received a cheque for that amount. On 6 June 1990 he handed the cheque to the applicant association’s bank, which credited the sum to its account on the same day. In a letter of 17 April 1991 the Independent Commission for the Investigation of the Assets of Parties and Mass Organisations in the GDR (Unabhängige Kommission zur Prüfung des Vermögens der Parteien und Massenorganisationen in der DDR) stated that the donation in question constituted an asset covered by section 20a(2) of the Law of 21 February 1990 on parties and other political associations, also known as the Political Parties Act (Gesetz über Parteien und andere politische Vereinigungen (Parteiengesetz)), as amended by the Political Parties (Amendment) Act of 31 May 1990 (Gesetz zur Änderung des Parteiengesetzes) (see “Relevant domestic law and practice” below). The asset was therefore subject to the administration of the Trust Agency (Treuhandanstalt). The commission also considered that this unlawful disposal by the PDS of its assets without the Trust Agency’s consent, in breach of section 20b(1) of the Political Parties Act, had in fact amounted to a fictitious transaction (Scheingeschäft) designed to enable the applicant association’s president, who had close links with the PDS, to retain possession of the sum in question. In a decision of 14 January 1992 the Federal Office for Special Tasks relating to German Reunification (Bundesanstalt für vereinigungsbedingte Sonderaufgaben – “the Federal Office”) ruled that the sum of money – converted into 37,500,000 German marks (DEM), together with the accrued interest – in the applicant association’s bank account constituted an asset subject to the administration of the Trust Agency and could not be disposed of without the Agency’s consent, by virtue of section 20b(1) of the Political Parties Act. The Federal Office considered that the sum in question had been part of the PDS’s assets, which had been placed under the administration of the Trust Agency from 1 June 1990 onwards, pursuant to section 20(2) of the Political Parties Act. As the applicant association’s bank account had not been credited with the sum until after 1 June 1990, authorisation for that change in assets should have been sought from the Trust Agency, in accordance with section 20b(1) of the Political Parties Act, but that had not been the case. On 5 February 1992 the applicant association lodged an objection against that decision, arguing, in particular, that, in accordance with Article 76 § 1 of the GDR Civil Code (Zivilgesetzbuch DDR), payment of the donation had taken effect when the cheque had been handed over on 31 May 1990 and that the value of its assets had therefore increased on that date. In a decision of 13 April 1992 the Federal Office dismissed the objection. The applicant association subsequently applied to the Berlin Administrative Court (Verwaltungsgericht) to have the Federal Office’s decisions set aside on the ground, inter alia, that it was not an organisation related to the PDS but a religious association entitled to protection under the Basic Law (Grundgesetz). In a judgment of 9 May 1994 the Berlin Administrative Court granted the application in its entirety. The Administrative Court held that the conditions for applying section 20b of the Political Parties Act were not satisfied. The applicant association was neither a juristic person nor an organisation related to the PDS, and the Trust Agency was not responsible for the administration of assets which had been transferred in accordance with the power of third parties to dispose of property (Verfügungsgewalt), even if the relevant contractual agreements had been invalid (unwirksam). In addition, it had not been established that the applicant association had been formed to pursue any aims other than those set out in its articles of association. The Federal Office appealed against that judgment to the Berlin Administrative Court of Appeal (Oberverwaltungsgericht). In a judgment of 22 November 1996 the Berlin Administrative Court of Appeal dismissed the appeal and upheld the Berlin Administrative Court’s judgment. The Administrative Court of Appeal held that the Federal Office’s decision had had no basis in law as the applicant association was neither a juristic person nor an organisation related to the PDS. Even though the circumstances surrounding its formation and the payment of the donation in issue remained questionable in certain respects, there was insufficient evidence of any link between the applicant association and the PDS. The Administrative Court of Appeal added that, in accordance with Article 76 § 2 of the GDR Civil Code, the power to dispose of the sum in question had not become effective until the money had been credited to the applicant association’s bank account. Admittedly, when the Political Parties Act had come into force on 1 June 1990, the money had still been part of the PDS’s assets. However, that did not justify the Federal Office’s actions, since it was required to institute civil proceedings if it wished to seek damages from third parties. It was unable to take any administrative measures by virtue of its powers as a public authority save in respect of the types of juristic person listed in section 20b of the Political Parties Act. The Federal Office subsequently appealed on points of law to the Federal Administrative Court (Bundesverwaltungsgericht). In a judgment of 10 December 1998 the Federal Administrative Court allowed the Federal Office’s appeal and set aside the judgment of the Administrative Court of Appeal on the ground that it had contravened federal law (Bundesrecht). The Federal Administrative Court held that the Federal Office had been entitled to consider that, pursuant to section 20b(2) of the Political Parties Act, the donation paid into the applicant association’s bank account was placed under the administration of the Trust Agency. It considered, firstly, that the sum of money in question had indeed been part of the PDS’s assets on the key date of 7 October 1989 and that, secondly, administration by the Trust Agency under section 20b(2) of the Political Parties Act could extend to third parties other than those specifically referred to in that provision. With regard to the first point, the Federal Administrative Court referred to its own decision of 7 November 1997 and reiterated that a change in assets did not take effect on the date on which the cheque was handed over but only on the date on which the sum appearing on the cheque was credited to the relevant bank account. In the instant case, that had not occurred until 6 June 1990 – in other words, after 1 June 1990, the date on which the Political Parties (Amendment) Act had come into force, placing the sum in issue under the administration of the Trust Agency. The Federal Administrative Court subsequently held that the fact that, as a result of the transfer, the PDS’s right to payment from its bank had been transformed into a right enjoyed by the applicant association to payment from its own bank did not mean that that the money in question was no longer part of the PDS’s assets; furthermore, the money had been paid into an account that already contained assets belonging to the applicant association. In that connection, it pointed out that the purpose of section 20b(2) of the Political Parties Act was, as it had previously held, to secure political-party assets acquired in breach of the rule of law (rechtsstaatswidrig), with a view to returning them to their former owners or using them in the public interest. Section 20b(2) of the Political Parties Act should therefore be construed according to economic criteria (wirtschaftliche Kriterien) and, accordingly, the Trust Agency’s administration of cash assets or money held in a bank account did not cease to be effective as a result of ordinary private-law transactions but continued as long as the sum in question was still sufficiently identifiable as the property of the party concerned, as had been the case in this instance. With regard to the second point, the Federal Administrative Court considered that the Federal Office’s power of administration did not entail administration as a trustee in the ordinary sense but entitled it to exercise its sovereign powers to administer and dispose of assets (hoheitliche Verwaltungs- und Verfügungsbefugnisse) vis-à-vis third parties by means of a declaratory administrative measure (feststellender Verwaltungsakt). Under section 20b(2) of the Political Parties Act, the Trust Agency’s activities were not designed to protect the best interests of the political party or related organisation. On the contrary, its task was to ensure, once the assets in question had been secured, that they were returned to their former owners by way of reparation (Wiedergutmachung) or, if that proved impossible, that they were used in the public interest. Only where the assets had been acquired in accordance with the rule of law were they to be returned to the party or related organisation. The sovereign powers conferred on the Federal Office accordingly included the right to use those powers against third parties by means of an administrative measure. The applicant association subsequently lodged a constitutional appeal with the Federal Constitutional Court (Bundesverfassungsgericht). In a decision of 21 April 1999 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the appeal. The Political Parties (Amendment) Act of 31 May 1990 (Gesetz zur Änderung des Parteiengesetzes), which amended the GDR’s Law of 21 February 1990 on parties and other political associations, also known as the Political Parties Act (Gesetz über Parteien und andere politische Vereinigungen (Parteiengesetz)), came into force on 1 June 1990. Section 20a(1) of the Act provides that the Prime Minister (Ministerpräsident) is to appoint an independent commission to draw up a report on the assets (Vermögenswerte) of all the GDR’s political parties and related organisations, juristic persons and mass organisations, both within and outside the territory of the GDR. By section 20a(2), all political parties and related organisations, juristic persons and mass organisations must, inter alia, provide the commission with a statement of all their assets as at 7 October 1989 and of any subsequent changes. Section 20b(1) provides that as soon as the Act comes into force, no changes in the assets of such entities may be effected without the consent of the chairman of the independent commission. Section 20b(2) provides: “In order to secure the assets of political parties or related organisations, juristic persons and mass organisations, all assets which belonged to political parties and related organisations, juristic persons and mass organisations on 7 October 1989, or which have subsequently replaced those assets, shall be placed under the administration of a trustee.” (“Zur Sicherung von Vermögenswerten von Parteien oder ihnen verbundenen Organisationen, juristischen Personen und Massenorganisationen wird das Vermögen der Parteien und der ihnen verbundenen Organisationen, juristischen Personen und Massenorganisationen, das am 7. Oktober 1989 bestanden oder seither an die Stelle dieses Vermögens getreten ist, unter treuhänderische Verwaltung gestellt.”)