Krug Von Nidda Und Von Falkenstein v. Germany



AS TO THE ADMISSIBILITY OF

Application No. 25043/94

by Friedrich-Carl KRUG VON NIDDA UND VON FALKENSTEIN

against Germany

The European Commission of Human Rights sitting in private on

24 February 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 May 1994 by

Friedrich-Carl Krug von Nidda und von Falkenstein against Germany and

registered on 31 August 1994 under file No. 25043/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a German citizen born in 1935. is a businessman

residing in London. Before the Commission he is represented by Mr Th.

Huth, a lawyer practising in Königstein in Germany.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

A. Particular circumstances of the Case

The applicant's parents owned a manor situated at Frohburg in the

Geithain district. The applicant's family left Germany in 1939 in view

of Nazi persecution.

After German unification (see below, Relevant domestic law and

practice), the applicant, as the only heir, requested the return of the

manor, including a castle, some 982 hectares of real property,

livestock and movable property such as furniture and paintings.

The request was rejected by the Geithain Regional Office

(Landratsamt) on 26 May 1992 on the ground that the property had been

expropriated in accordance with the decree of 10 September 1945 on

agrarian land reform. This expropriation had been carried out on the

basis of Soviet occupational powers, and a restitution was therefore

excluded in accordance with the undertakings accepted by Germany in the

Treaty on German Unification. Therefore the Act regulating unresolved

property questions (Gesetz zur Regelung offener Vermögensfragen),

providing, in principle, for the return of confiscated property, did

not apply since S. 1 para. 8 (a) of the Act expressly excluded land

expropriated between 1945 and 1949.

The applicant unsuccessfully filed an appeal (Widerspruch)

against this decision with the Saxony Regional Council (Landesamt).

On 8 December 1993 the applicant lodged an action against Saxony

(Sachsen) before the Leipzig Administrative Court (Verwaltungsgericht)

claiming the return of his property. However, he did not pursue his

action as it offered no prospects of success in view of the decision

of the Federal Constitutional Court (Bundesverfassungsgericht) of

23 April 1991. This decision confirmed the constitutionality of the

property regulation in question (see below, Relevant domestic law and

practice).

B. Relevant Domestic Law and Practice

a) German Unification Treaty

The applicant's complaints relate to the Treaty on German

Unification of 31 August 1990 (Einigungsvertrag, hereinafter referred

to as Unification Treaty) according to which expropriations carried out

on the basis of Soviet occupational powers between 1945 and 1949 shall

not be reversed.

Other expropriations effected in the German Democratic Republic

without compensation subsequent to 1949 fall, according to the

Unification Treaty, under the Act Regulating Unresolved Property

Questions (Gesetz zur Regelung offener Vermögensfragen). This Act

provides, in principle, for the return of confiscated property,

including businesses, where this is still possible and does not violate

user rights acquired in good faith. If a return is excluded

compensation has to be paid in accordance with Sec. 6(7) and Secs. 9

et seq. while for certain cases mentioned in Sec.4 (1) and (2) new

legislation was envisaged.

The Unification Treaty was adopted by the parliaments of both

German States and became binding law in the Federal Republic of Germany

on 3 October 1990.

The international matters concerning German unification were

agreed upon in negotiations between the two German States and the four

Allied Powers. In the Treaty of 12 September 1990 on the Final

Settlement with respect to Germany, the sovereignty of a united Germany

was recognised. In connection with the signing of this treaty the

Ministers for Foreign Affairs of the former German Democratic Republic

and of the Federal Republic of Germany addressed a Joint Letter

(Gemeinsamer Brief) to the Foreign Ministers of the Four Powers

confirming the property regulation reached in the Joint Declaration of

15 June 1990 and aimed at being incorporated in the Unification Treaty.

On 27 September 1994 the Federal German Parliament adopted two

laws regulating the legal consequences of expropriations in the

territory of the former German Democratic Republic in respect of which

the restitution of property was excluded. Both laws entered into force

on 1 December 1994. They are the Compensation Act

(Entschädigungsgesetz) concerning expropriations effected in the German

Democratic Republic after 1949 in respect of which the 1990 Act

regulating unresolved property questions had reserved further

legislation; and the Equalisation Act (Ausgleichsgesetz) providing for

equalisation payments to persons who had been expropriated between 1945

and 1949. This Act also provides, under certain circumstances, for the

possibility of acquiring agricultural land at a price below market

value and the return of moveable property.

b) Relevant Legal Texts

In the course of the unification negotiations involving the

former German Democratic Republic, the Federal Republic of Germany, and

the former four occupational powers (France, United Kingdom, U.S.S.R.

and U.S.A.), the then existing two German Governments issued a Joint

Declaration on 15 June 1990 with a view to settling unresolved property

questions (Vermögensfragen).

The relevant parts of the Joint Declaration of 15 June 1990 read

as follows:

[Translation]

"In seeking a solution to the property issues to be settled, both

Governments assume that it is necessary to achieve a socially

just balance of conflicting interests. Legal certainty and legal

clarity, as well as the right to possess property are the

principles that guide the Governments of the German Democratic

Republic and the Federal Republic of Germany in seeking a

solution to outstanding property issues. Only in this way will

it be possible to ensure once and for all that there will be no

litigation on these issues in a future united Germany.

The two German Governments agree on the following basic points:

1 Expropriations carried out on the basis of occupation law

or the authority resulting from the occupational power (1945

until 1949) shall not be reversed. The Governments of the

Soviet Union and the German Democratic Republic see no

possibility of reviewing the measures taken at that time. The

Government of the Federal Republic of Germany takes cognisance

of this in the light of historical developments. It is of the

opinion that a final decision on any indemnification to be paid

by the State must be left to a future all-German Parliament ..."

[German]

"Bei der Lösung der anstehenden Vermögensfragen gehen beide

Regierungen davon aus, daß ein sozial verträglicher Ausgleich

unterschiedlicher Interessen zu schaffen ist. Rechtssicherheit

und Rechtseindeutigkeit sowie das Recht auf Eigentum sind

Grundsätze, von denen sich die Regierungen der Deutschen

Demokratischen Republik und der Bundesrepublik Deutschland bei

der Lösung der anstehenden Vermögensfragen leiten lassen. Nur

so kann der Rechtsfriede in einem künftigen Deutschland dauerhaft

gesichert werden.

Die beiden deutschen Regierungen sind sich über folgende Eckwerte

einig:

1 Die Enteignungen auf besatzungsrechtlicher bzw.

besatzungshoheitlicher Grundlage (1945 bis 1949) sind nicht mehr

rückgängig zu machen. Die Regierung der Sowjetunion und der

Deutschen Demokratischen Republik sehen keine Möglichkeit, die

damals getroffenen Maßnahmen zu revidieren. Die Regierung der

Bundesrepublik Deutschland nimmt dies im Hinblick auf die

historische Entwicklung zur Kenntnis. Sie ist der Auffassung,

daß einem künftigen gesamtdeutschen Parlament eine abschließende

Entscheidung über etwaige staatliche Ausgleichsleistungen

vorbehalten bleiben muß."

The Joint Declaration became part of the Unification Treaty of

31 August 1990 which contains, inter alia, the following provisions

relating to property questions:

[Translation]

"Article 3 - Entry into force of the Basic Law

Provided that there is no provision in this Treaty to the

contrary, when the accession takes effect the Basic Law of the

Federal Republic of Germany ... shall enter into force, together

with the amendments contained in Article 4, in the Länder of

Brandenburg, Mecklenburg-West Pomerania, Saxony, Saxony-Anhalt

and Thuringia, as well as in the part of Berlin to which it has

not applied hitherto.

Article 4 - Amendments to the Basic Law due to the accession

The Basic Law shall be amended as follows: ...

4 The present wording of Article 135 (a) shall become

paragraph 1 of that Article. The following paragraph shall be

inserted after paragraph 1:

'(2) Paragraph 1 shall apply mutatis mutandis to liabilities of

the German Democratic Republic or its controlling authorities and

liabilities incurred by the Federation..... in connection with

the transfer of assets of the German Democratic Republic to the

Federation... as well as to liabilities resulting from measures

taken by the German Democratic Republic or its controlling

authorities.'

5 The following new Article 143 shall be inserted into the

Basic Law:

'(1) The law in the territory mentioned in Article 3 of the

Unification Treaty may only deviate from the provisions of this

Basic Law for as long as it takes, as a result of the differing

conditions in the two countries, to achieve full adaptation to

the legal order enshrined in the Basic Law, but until 31 December

1992 at the latest. Deviations shall not infringe Article 19

para. 2 and shall be compatible with the principles enshrined in

Article 79 para. 3.

(2) Deviations from Sections II, VIII, VIII a, IX, X and XI

shall be permissible until 31 December 1995 at the latest.

(3) Irrespective of paragraphs 1 and 2, Article 41 of the

Unification Treaty and the provisions enacted for its

implementation shall apply to the extent that they provide that

interference with property in the territory mentioned in

Article 3 of that Treaty shall not be reversed.'

Article 41 - Settlement of property issues

1 The Joint Declaration on outstanding property issues made

on 15 June 1990 by the Governments of the Federal Republic of

Germany and the German Democratic Republic (annex III) is a

constituent part of this Treaty ...

3 Moreover, the Federal Republic of Germany shall not enact

any legal rules that conflict with the Joint Declaration

mentioned in paragraph 1."

[German]

"Artikel 3 - Inkrafttreten des Grundgesetzes

Mit dem Wirksamwerden des Beitritts tritt das Grundgesetz für die

Bundesrepublik Deutschland ... in den Ländern Brandenburg,

Mecklenburg-Vorpommern, Sachsen, Sachsen-Anhalt und Thüringen

sowie in dem Teil des Landes Berlin, in dem es bisher nicht galt,

mit den sich aus Artikel 4 ergebenden Änderungen in Kraft, soweit

in diesem Vertrag nichts anderes bestimmt ist.

Artikel 4 - Beitrittsbedingte Änderungen des Grundgesetzes

Das Grundgesetz für die Bundesrepublik Deutschland wird wie folgt

geändert: ...

4 Der bisherige Wortlaut des Artikels 135 a wird Absatz 1.

Nach Absatz 1 wird folgender Absatz angefügt:

`(2) Absatz 1 findet entsprechende Anwendung auf

Verbindlichkeiten der Deutschen Demokratischen Republik oder

ihrer Rechtsträger sowie auf Verbindlichkeiten des Bundes

oder.... die mit dem Übergang von Vermögenswerten der Deutschen

Demokratischen Republik auf Bund, Länder und Gemeinden im

Zusammenhang stehen, und auf Verbindlichkeiten, die auf Maßnahmen

der Deutschen Demokratischen Republik oder ihrer Rechtsträger

beruhen.'

5 In das Grundgesetz wird folgender neuer Artikel 143

eingefügt:

'(1) Recht in dem in Artikel 3 des Einigungsvertrags genannten

Gebiet kann längstens bis zum 31. Dezember 1992 von Bestimmungen

dieses Grundgesetzes abweichen, soweit und solange infolge der

unterschiedlichen Verhältnisse die völlige Anpassung an die

grundgesetzliche Ordnung noch nicht erreicht werden kann.

Abweichungen dürfen nicht gegen Artikel 19 Abs. 2 verstoßen und

müssen mit den in Artikel 79 Abs. 3 genannten Grundsätzen

vereinbar sein.

(2) Abweichungen von den Abschnitten II, VIII, VIII a, IX, X

und XI sind längstens bis zum 31. Dezember 1995 zulässig.

(3) Unabhängig von Absatz 1 und 2 haben Artikel 41 des

Einigungsvertrags und Regelungen zu seiner Durchführung auch

insoweit Bestand, als sie vorsehen, daß Eingriffe in das Eigentum

auf dem in Artikel 3 dieses Vertrags genannten Gebiet nicht mehr

rückgängig gemacht werden.'

Artikel 41 - Regelung von Vermögensfragen

(1) Die von der Regierung der Bundesrepublik Deutschland und

der Regierung der Deutschen Demokratischen Republik abgegebene

Gemeinsame Erklärung vom 15. Juni 1990 zur Regelung offener

Vermögensfragen (Anlage III) ist Bestandteil dieses Vertrages ...

(3) Im übrigen wird die Bundesrepublik Deutschland keine

Rechtsvorschriften erlassen, die der in Absatz 1 genannten

Gemeinsamen Erklärung widersprechen."

c) Decision of the Federal Constitutional Court of 23 April 1991

On 23 April 1991 the Federal Constitutional Court

(Bundesverfassungsgericht) rejected several constitutional complaints

of persons who had their real estate confiscated in the Soviet-occupied

zone of Germany between 1945 and 1949. The complainants had alleged

that the regulation in the Unification Treaty excluding the return of

property confiscated between 1945 and 1949 under the Soviet occupation

regime and providing for possible compensation payments but not for

full reparation violated several constitutional rights.

The Federal Constitutional Court rejected the complaints as being

unfounded.

The Court found that the expropriations in question, even where

carried out by German authorities, had been effected on behalf of the

Soviet occupation authorities and were consequently based on the

sovereign power of the occupation force (besatzungshoheitliche

Grundlage). The competence of the Federal Government to conclude the

Unification Treaty and to include in it the amendments to the Basic Law

necessitated by the unification followed from the Government's

constitutional obligation to attain German unification. The manner in

which the amendments had been made violated neither formal nor

substantive law.

The Court held that the regulation in question did not violate

any of the complainants' constitutional rights as they no longer had

any legal position that could have been affected by it.

The expropriations had been considered legitimate (rechtmäßig)

by the Soviet and the German Democratic Republic authorities. The

Federal Republic of Germany could not be held responsible for measures

taken at a time when the Basic Law was not even in force. Under the

law then existing in the zones occupied by the Western Allied Powers

the complainants had also lost their legal position with regard to the

confiscated property. According to this law confiscations effected by

a foreign State were to be considered valid (wirksam) if effected

within that State's sovereign powers.

Furthermore, unless damage was caused by its own organs, the

Federal Republic was not bound fully to compensate damage resulting

from World War II. In respect of compensation payments for such damage

the Federal Republic had a wide margin of appreciation and could take

into account other expenditures and budgetary requirements.

The Constitutional Court furthermore found that there was no

violation of the right to equal treatment. It relied on evidence given

by the Federal Minister for Foreign Affairs, Mr. Klaus Kinkel, and

other high-ranking officials, showing in the Court's opinion that the

Soviet Union had agreed to German unification on the condition that the

legality of the confiscations effected between 1945 and 1949 would not

be put in question, which meant that they should not be reversed. It

had also been the object of the German Democratic Republic to ensure

in the Unification Treaty that social peace on its territory was

maintained after unification. This condition therefore had to be

accepted by the Federal Government in order not to endanger the process

of unification. The regulation whereby property owners whose property

had been confiscated between 1945 and 1949 were treated differently

from those whose property had been confiscated thereafter was, in these

circumstances, sufficiently justified.

The Federal Constitutional Court also denied discrimination in

that the complainants would eventually only receive limited

compensation payments but not full reparation. It pointed out that it

would be discriminatory totally to exclude any kind of compensation for

those who lost property between 1945 and 1949. Nevertheless, the fact

that the complainants were treated less favourably than other owners

was justified in view of the economic crisis in the former German

Democratic Republic. In assessing the level of compensation payable,

the legislator had a large discretionary power and could, inter alia,

take into account what funds were available and also the need to cope

with the necessity of fulfilling new tasks arising for example from the

necessity to reconstruct the new Federal States (Länder).

COMPLAINTS

The applicant complains of a violation of Article 1 of Protocol

No. 1 read in conjunction with Article 14 of the Convention. He

alleges discrimination in respect of the peaceful enjoyment of his

possessions. He submits that he was refused restitution of his

family's land and property on the ground that it had been expropriated

by the Soviet occupational powers between 1945 and 1949. However,

under the relevant legislation only owners of property expropriated

after 1949 by the authorities of the former German Democratic Republic

are entitled to such restitution.

THE LAW

1 The applicant alleges a violation of his rights under Article 1

of Protocol No. 1 (P1-1) to the Convention which states:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it deems

necessary to control the use of property in accordance with the

general interest or to secure the payment of taxes or other

contributions or penalties."

The applicant contends in essence that the expropriation of his

property resulted in a continuous violation of his property rights and

that the Unification Treaty, by excluding both restitution and full

reparation, amounts to a violation of Article 1 of Protocol No. 1

(P1-1).

The Commission recalls its decision of 4 March 1996 concerning

Applications Nos. 18890/91, 19048/91, 19049/91, 19342/92 and 19549/92

(Mayer et al. v. Germany, D.R. 85-A, p. 5), where it dismissed similar

complaints as being inadmissible. It considers that the present case

is not essentially different from the above cases.

a) The Commission first notes that the original deprivation of the

applicants' property occurred at the instance of the Soviet occupying

forces in Germany, more than forty years ago, at a time when the

Federal Republic of Germany did not even exist.

Even if it is true that, as the Federal Constitutional Court

observed in its decision of 23 April 1991, the authorities of both

German States subsequently recognised the validity of the

expropriations in question, the German authorities can in no way be

held responsible for the deprivation of property as such, which is not

imputable to them.

In this respect, therefore, the Commission lacks competence

ratione personae to examine the circumstances in which the

expropriations were carried out.

b) The Commission further observes that the expropriation took place

before the entry into force of the Convention, which was on 3 September

1953, and before the ratification of Protocol No. 1 by the Federal

Republic of Germany, which was on 13 February 1957.

It is true that the expropriation continued to produce effects

after the above dates and also after 3 October 1990, when the

Unification Treaty entered into force and when the territory where the

property concerned was situated became part of the Federal Republic of

Germany to which the Convention and its Protocols are applicable.

The Commission has, therefore, considered the notion of a

continuing violation of the Convention and its effects as to temporal

limitations of the competence of Convention organs (cf. Eur. Court HR,

Loizidou v. Turkey (Merits) judgment of 18 December 1996, para. 41, to

be published in Reports of Judgments and Decisions 1996).

The Commission recalls that a deprivation of ownership or other

rights in rem is in principle an instantaneous act and does not produce

a continuing situation of "deprivation of right" (cf. No 7742/76,

Dec. 4.7.78, D.R. 14, p. 146).

In the aforementioned judgment, which concerned a continuous

denial of access to property in Northern Cyprus, the Court rejected the

objection ratione temporis raised by the Turkish Government (Loizidou

v. Turkey (Merits) judgment, op. cit., paras. 42-47). The Court found

that Mrs Loizidou could not be deemed to have lost title to her

property as a consequence of the 1985 Constitution of the "Turkish

Republic of Northern Cyprus" (the "TRNC"), as no legal validity for the

purposes of the Convention could be attributed to any expropriations

under the 1985 Constitution of the "TRNC". In this respect, the Court

noted that the international community did not regard the "TRNC" as a

State under international law and that the Republic of Cyprus had

remained the sole legitimate Government of Cyprus - itself.

In the case of Loizidou v. Turkey, there was, from the outset,

an interference with property rights in breach of Article 1 of Protocol

No. 1 (P1-1), engaging the responsibility of Turkey, which also was

held responsible for a continuing violation of the said provision on

account of the complete negation of Mrs Loizidou's property rights in

the form of a total and continuous denial of access and a purported

expropriation without compensation (cf. Loizidou (Merits) judgment, op.

cit., paras. 48-64).

In the present case, the deprivation of the applicant's property

occurred at the instance of the Soviet occupying forces in Germany at

a time when the Federal Republic of Germany had not yet been

established and the Convention as well as Protocol No. 1 had not yet

entered into force. Between 1945 and 1949 there could not be any

interference with property rights in breach of Article 1 of Protocol

No. 1 (P1-1) which could entail the responsibility of the Federal

Republic of Germany and give rise to a continuing violation. The

Commission considers that the applicant did not retain any title to his

property.

Accordingly the Commission lacks jurisdiction ratione temporis

regarding the expropriation of the applicant's property in 1945.

c) The applicant may be understood as complaining that he retained

an entitlement to the property in question, the expropriation carried

out between 1945 and 1949 having been unlawfully effected.

According to the Convention organs' case-law, a person can only

claim to be victim of a violation of his rights under Article 1 of

Protocol No. 1 (P1-1) if the measure complained of affected his

"possessions" or his "property" within the meaning of this provision.

A person complaining of an interference with his property must show

that such right existed (No. 7694/76, Dec. 14.10.77, D.R. 12, p. 131).

In this respect, the Commission recalls that "possessions" may

be either "existing possessions" (cf. Eur. Court HR, Van der Mussele

v. Belgium judgment of 23 November 1983, Series A no. 70, p. 23,

para. 48) or valuable assets, including claims, in respect of which the

applicant can argue that he has at least a "legitimate expectation"

that they will realise (cf. Eur. Court HR, Pine Valley Developments Ltd

and Others v. Ireland judgment of 29 November 1991, Series A no. 222,

p. 23, para. 51, and Pressos Compania Naviera S.A. and Others v.

Belgium judgment of 20 November 1995, Series A no. 332, p. 20,

para. 31).

By contrast, the hope of recognition of the survival of a former

property right which has not been susceptible of effective exercise for

a long period (Nos. 7655-7657/76, Dec. 4.10.77, D.R. 12, p. 111) or a

conditional claim which has lapsed as a result of the non-fulfilment

of the condition (No. 7775/77, Dec. 5.10.78, D.R. 15, p. 143) are not

to be considered as "possessions" within the meaning of Article 1 of

Protocol No 1 (P1-1).

The present case does not concern any "existing possessions" of

the applicant. His properties were expropriated a long time ago and

he has been unable for decades to exercise any owner's rights in

respect of the properties concerned. It appears that in the German

legal order these expropriations were considered as legally valid even

before the conclusion of the Unification Treaty. The provisions of the

Treaty cannot therefore be seen as legalising the deprivation of the

applicant's property and thereby as being the source of the deprivation

for the purposes of German law.

It remains to be examined whether the applicant could have any

"legitimate expectation" to realise claims, either based on a right

to compensation for the loss of his property which continued to exist

until the entry into force of the Unification Treaty and was affected

thereby, or created by the fact that public-law bodies of the Federal

Republic of Germany acquired part of the expropriated estates by virtue

of the unification.

As regards any possible compensation claim generated by the loss

of the property, the Commission refers to its constant jurisprudence

according to which it is not competent ratione temporis and ratione

materiae to examine complaints relating to the refusal or denial of

compensation claims based on facts that occurred prior to the entry

into force of the Convention with respect to the State concerned (see

No. 7694/76, Dec. 14.10.77, D.R. 12, p. 131; No. 7742/76, Dec. 4.7.78,

D.R. 14, p. 146). The Commission would add with regard to the

particular facts of the present case that the Federal Republic of

Germany was not responsible for the expropriations in question and that

therefore any compensation claims which might have existed prior to the

Unification Treaty would not have been directed against that State.

As regards the existence of any claim based on the fact that, in

consequence of the unification, part of the property concerned passed

into the hands of public-law bodies of the Federal Republic of Germany,

the Commission notes the finding of the Federal Constitutional Court

that despite this fact there existed no claim under German law for the

restitution of the available properties and that this situation was,

from the viewpoint of constitutional law, unobjectionable. There is

nothing to show that this finding is arbitrary and incompatible with

the applicable provisions. In particular it does not appear that the

conclusion of the Federal Constitutional Court was based on the

Unification Treaty itself and that, without the provisions of that

Treaty, the situation under German constitutional law would have been

judged otherwise. Therefore it cannot be said that the Treaty

interfered with any pre-existing legal position of the applicant in

this respect either.

It follows that the applicant had no "existing possessions" nor

any legally recognised compensation claims when the Unification Treaty

came into force. In these circumstances it cannot be found that the

regulation of property questions in the Unification Treaty amounted to

an interference with any of the applicant's rights under Article 1 of

Protocol No. 1 (P1-1).

This part of the application is therefore incompatible ratione

materiae with the provisions of the Convention and must be rejected

under Article 27 para. 2 (Art. 27-2).

2 The applicant alleges discrimination in respect of the peaceful

enjoyment of his possessions in that, unlike owners of property

expropriated by the authorities of the German Democratic Republic after

1949, he cannot claim restitution or reparation. He invokes Article

14 of the Convention in conjunction with Article 1 of Protocol No. 1

(Art. 14+P1-1).

Article 14 (Art. 14) of the Convention reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Commission recalls that Article 14 (Art. 14) complements the

other substantive provisions of the Convention and its Protocols. It

has no independent existence, since it has effect solely in relation

to the "rights and freedoms" safeguarded by those provisions. Although

the application of Article 14 (Art. 14) does not presuppose a breach

of one or more of those provisions - and to this extent it is

autonomous -, there can be no room for its application unless the facts

at issue fall within the ambit of one or more of the latter (see Eur.

Court HR, Inze v. Austria judgment of 28 October 1987, Series A no.

126, p. 17, para. 36).

As the Commission has found above that Article 1 of Protocol

No. 1 (P1-1) is not applicable to the facts of which the applicant

complains, he cannot claim to have been discriminated against in the

enjoyment of his property rights within the meaning of this provision

(see Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series

A no. 31, p. 23, para. 50).

The remainder of the application must therefore also be rejected,

according to Article 27 para. 2 (Art. 27-2), as being incompatible with

the provisions of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission