CASE OF MADAUS v. GERMANY
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Public hearing)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Nicolas Bratza;Yonko Grozev
5. The applicant was born in 1924 and lives in Cologne. His father was a pharmaceutical entrepreneur who had owned property in the Soviet Occupied Zone of Germany which was subject to expropriation measures in 1946 and 1947, after an administrative body classified him as a “Nazi activist”, “Nazi criminal” and “person profiting from the war”. After Germany’s reunification, the applicant’s application for restitution of the property under the Property Act (Vermögensgesetz) proved unsuccessful. 6. In 2006 the applicant initiated proceedings under the Criminal Rehabilitation Act (Strafrechtliches Rehabilitierungsgesetz) on behalf of his late father. He claimed that the expropriation and other measures had a penal character, although his father’s guilt had been determined not by a court but by an administrative body. He submitted a vast number of documents, claiming that the historical background of the measures taken under the Soviet occupation command had to be evaluated anew. In particular, the 1946 and 1947 provisions on which the measures against his father had been taken could now be qualified as criminal prosecution. New research had shown that their objective was to punish individual Germans for alleged wrongdoing. The applicant requested, inter alia, that the 1946 decisions to find his father guilty of being a Nazi and the subsequent decisions to expropriate him and confiscate his personal property and the property belonging to his company be declared contrary to the rule of law and hence void. According to the applicant, the value of his restitution claims amounted to about ninety million euros. 7. On 26 June 2008 the Dresden Regional Court fixed a public hearing for 19 August 2008, as requested by the applicant. 8. On 21 July 2008 the applicant’s lawyers published a press release under the following title: “Turnaround in the assessment of the Communist industrial reform? For the first time the Dresden Regional Court discusses a criminal rehabilitation application at an oral hearing.” In the press release the lawyers explained, in particular, that until that time the domestic courts had seen the objective of the measures in question as motivated by economic policy, that is, having the purpose of modifying the prevailing ownership structure. They presented the fact that the Regional Court had fixed an oral hearing as a potential turning point in domestic case-law and announced that they would explain orally and in detail at the hearing what the so-called “economic reform” had really been about. At the same time they communicated the date, time and place of the hearing. 9. On 8 August 2008 the Regional Court cancelled the hearing foreseen for 19 August and set a time-limit for written procedure ending on 15 September 2008. It found that, according to section 11 § 3, first sentence, of the Criminal Rehabilitation Act, a decision should generally be taken without holding an oral discussion. The date for a hearing, according to section 11 § 3, second sentence, of the Criminal Rehabilitation Act (see paragraph 13 below) had been set to give the applicant the opportunity to illustrate (erläutern) his legal opinion, which conflicted with that of the Regional Court and the Dresden Court of Appeal and was supported by particularly extensive factual submissions. Making use of its margin of appreciation, the Regional Court refrained from holding a hearing since, contrary to its prior opinion, there was no longer any additional benefit to be gained for dealing with the case. In fact, the scheduling of the hearing had been used to create the impression in a press release, also published on the internet, that by calling a hearing the Regional Court had indicated that it was abandoning its settled case-law. Furthermore, the press release had announced that the applicant would use the hearing to “reveal an important part of contemporary history”. This indicated that the hearing was to be used as a public forum. Against this background, the court refrained from holding a hearing. 10. On 24 August 2009, following unsuccessful claims by the applicant that the judges were biased, the Regional Court rejected the applicant’s request. It held that the measures taken against the applicant’s father were not of a penal character. The expropriation measures did not result in further consequences to his detriment. Contrary to the applicant’s submission, nothing indicated that an arrest warrant had been issued in 1947. The applicant’s father’s loss of his electoral rights, his business licence and his personal assets had been a necessary consequence of the expropriation. 11. On 26 November 2010 the Dresden Court of Appeal, without holding an oral hearing, dismissed the applicant’s appeal, fully endorsing the Regional Court’s reasons. It added that the documents submitted proved neither the penal character of the measures in question nor that there had been an arrest warrant. An oral hearing was not necessary as the documents presented were sufficient for the case to be assessed. 12. By decision of 19 November 2013 the Federal Constitutional Court, without providing reasons, declined to consider the applicant’s constitutional complaint, in which he had alleged violations of his right to an effective remedy, his right to be heard and his personality rights (file no. 2 BvR 1511/11).