FIFTH SECTION
CASE OF ALTHOFF
AND OTHERS v. GERMANY
(Application no.
5631/05)
JUDGMENT
(Just
satisfaction – striking out)
STRASBOURG
27 September 2012
This judgment will become
final in the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Althoff and Others v. Germany,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Dean Spielmann, President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Ann Power-Forde,
Julia Laffranque, judges,
Klaus Köpp, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 4 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
5631/05) against the Federal Republic of Germany lodged on 11 February 2005
with the Court under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by nine German nationals,
Mrs Edith Althoff and eight others (see full list in annex) (“the
applicants”).
The applicants were represented by Professor O.
Depenheuer of Cologne University and Mr A. Birkmann, a lawyer practising in Erfurt. The German Government (“the Government”) were represented by their Agent, Mrs K.
Behr, Regierungsdirektorin, of the Federal Ministry of Justice.
The applicants alleged in particular that the new
version of section 30a(1) of the Property Act and its application by the
domestic courts had breached their right to the peaceful enjoyment of their
possessions under Article 1 of Protocol No. 1. They
further relied on Article 14 of the Convention. Under Article 41 of the Convention
they claimed a lump sum of 1,208,740 euros (EUR) in respect of pecuniary damage
and EUR 82,727.80 for costs and expenses.
Renate
Jaeger, the judge elected in respect of Germany who was in office at the time
of the application, decided to withdraw from the case (Rule 28 of the Rules of
Court). The Government accordingly appointed Mr Klaus Köpp, a lawyer
practising in Bonn, to sit as ad hoc judge (Article 27 § 2 of the
Convention and Rule 29 § 1 as then in force).
In a judgment of 8 December 2011 (the “judgment
on the merits”), the Court found that there had been a violation of Article 1
of Protocol No. 1 (see Althoff and Others v. Germany, no. 5631/05, 8 December 2011).
As the question of the application of Article 41
of the Convention was not ready for decision, the Court reserved it and invited
the Government and the applicants to submit, within three months from the date
on which the judgment became final, their written observations on the matter
and, in particular, to notify the Court of any agreement that they might reach
(ibid., see point 3 of the operative provisions).
In the following, the composition of the Fifth
Section sitting on 4 September 2012 was modified in accordance with Rule 25 § 4
of the Rules of Court.
THE FACTS
On the merits, the present dispute was between
Germany, which succeeded to the rights of the heirs of the original Jewish
owners of the disputed property (the initial injured party in the National-Socialist
era – “Erstgeschädigte”) under an agreement of 13 May 1992 between
Germany and the United States of America on the settlement of certain property claims
(the “German-US Agreement”), and the applicants, who are the heirs of a
shopkeeper who had acquired the disputed property in 1939. The property was
subsequently expropriated at the time of the former German Democratic Republic
(GDR). The applicants are thus the heirs of the subsequent injured party – “Zweitgeschädigte”.
After German reunification, the applicants filed
a claim for the restitution of the property in accordance with the relevant
provisions of the Law of 23 September 1990 on the resolution of outstanding
property issues (the “Property Act”), within the statutory time-limit,
initially set at 31 December 1992.
On 20 October 1998 the Property Rights
Clarification Act retrospectively amended section 30a(1) of the Property Act,
providing that the time-limit for the filing of restitution claims did not
apply to the rights of the Federal Republic of Germany (FRG) under the
German-US Agreement.
As a result of the above, the applicants were
not able to assert their restitution claims before the domestic courts, on the
ground that, as they were the “subsequent” injured party, they were entitled
only to compensation under the law of 27 September 1994 on compensation in
accordance with the Property Act (the “Compensation Act”).
In a judgment of 8 December 2011 the Court found
that there had been a violation of Article 1 of Protocol No. 1, because the
legislative amendment in question had upset the “fair balance” that had to be
struck between the protection of property and the requirements of the general
interest. In view of that finding, it observed that it was not necessary to
examine the complaint under Article 14 of the Convention taken in conjunction
with Article 1 of Protocol No. 1.
THE LAW
In a letter of 2 March 2012 the Government
informed the Court that negotiations with the applicants with a view to
reaching a friendly settlement had failed and they filed a unilateral
declaration for the purpose of resolving the question of just satisfaction.
The Government acknowledged that, in the present case, there had
been a violation of Article 1 of Protocol No. 1, having regard to the very
specific circumstances of the case. For that reason they have accepted the
judgment of 8 December 2011 in this specific case and have not requested
referral to the Grand Chamber.
In their declaration the Government indicated in particular
that they were willing:
“to award compensation in the amount of [EUR] 210,000 to
the Applicants if the Court strikes the Application out of the list, on the
condition of payment of the amount, pursuant to Article 37 (1) c) of the
Convention. This would be deemed to settle all of the Applicants’ claims in
connection with the [present] Application against the Federal Republic of
Germany and the Land of Brandenburg, including, in particular,
compensation for the Applicants’ damage (including non-pecuniary damage [auch für Nicht-Vermögensschäden])
as well as costs and expenses. This amount shall be set off [angerechnet] in the
case that any compensation is awarded to the Applicants pursuant to section 7a
(3c), first sentence, section 3 (2) [and] section 1(6) of the Property Act
in conjunction with section 1 (1) and (2) of the Compensation Act in the
currently pending proceedings before Potsdam Administrative Court under file
no. 1 K 821/07.
The amount is payable within three months of notification of
the Court’s decision to strike the case out of its list.”
In their observations, the Government indicated in particular that
this amount represented fair compensation, having regard to the fact that the
impugned interference in this case had been provided for by law, had not been
the result of arbitrary expropriation and had taken place in the exceptional
context of German reunification. In addition, the measure had served a “public
interest”, namely to provide reparation to the heirs of the original Jewish
owners, who had been deprived of their property under the National-Socialist
regime. In order to ensure that those heirs received rapid compensation, the
FRG had signed the “German-US Agreement’ and had paid compensation in the
amount of 102 million United States dollars (USD) for that purpose. Moreover,
the injustice sustained by those original owners had been much greater than
that of the applicants, who were the heirs of owners who had acquired the
property under advantageous conditions in the National-Socialist era. Lastly,
the severity of the impugned interference had been minor, because the
applicants had benefitted from legislation in favour of reparations after
German reunification and their claim based on property rights, as subsequent
injured parties, was relatively uncertain.
The Government indicated that the proposed sum of EUR 210,000, being
substantially larger than the compensation that the applicants could have
expected under the Compensation Act, which would have totalled a maximum of EUR
50,000, was divided up as follows:
- EUR 130,000 representing about one fifth (20%) of the sale
proceeds for the property in 1997;
- EUR 80,000 for costs and expenses.
This amount covers also all claims for moral damages which the
applicants might have had.
In a letter of 16 April 2012, the applicants
expressed the view that the compensation proposed in the Government’s
declaration was far too low because it represented less than 10 per cent of the
total damage actually suffered.
They challenged all the Government’s arguments by referring to
the grounds set out by the Court in its judgment on the merits and in
particular its finding that the impugned legislative amendment had failed to
strike a “fair balance” between the protection of property and the requirements
of the general interest (see judgment on the merits, § 74). In addition, the
objective of that legislative amendment had not been to provide compensation to
the heirs of the original Jewish owners – such compensation had been paid long
before – but to correct the mistake, retrospectively and at the applicants’
expense, that had been made by the FRG in failing to file a restitution claim
within the requisite statutory time‑limit. Lastly, regardless of the type
of legislation adopted after German reunification, all that mattered was that
the applicants had a possession within the meaning of Article 1 of Protocol No.
1 and that there had been a violation of that Article.
Consequently, all the Government’s arguments as to why the
amount of compensation to be paid to the applicants should be limited were
unjustified. Solely the value of the property and the damage incurred by the
applicants since its sale in 1997 could therefore serve as the basis for
determining the amount of compensation.
The applicants thus claimed just satisfaction for an amount of EUR 1,593,799.13,
broken down as follows:
- EUR 1,332,571.33 in respect of pecuniary damage, comprising EUR 664,680
(value of property) and interest accrued for EUR 667,891.33 (5 % above the
relevant base interest rate up to 31 March 2012);
- EUR 261,227.80 for costs and expenses.
The applicants indicated that their lawyers’ fees in respect of
the proceedings before the Court had risen from EUR 15,000 to EUR 165,000 and
they submitted in this connection a Fee Agreement dated 16 April 2012.
In a letter of 26 April 2012, the Government
emphasised that the Fee Agreement of 16 April 2012, which provided for a
contingency fee, with reference to a previous Fee Agreement of 2005, had been
reached after the Court’s judgment on the merits had become binding. The
Government doubted that this agreement had any effect under domestic law and argued
that the fee in question was not part of the costs of the proceedings to be
taken into account for the purposes of Article 41 of the Convention. In
addition, the 2005 agreement had concerned representation before the Court, thus
including any submissions made in connection with Article 41. Lastly, the
Government found the amounts claimed to be excessive and unsubstantiated.
The Court reiterates that under Article 37 of
the Convention, at any stage of the proceedings it may decide to strike an
application out of its list of cases where the circumstances lead to one of the
conclusions listed in sub-paragraphs (a), (b) or (c) of paragraph 1 of that Article.
Article 37 § 1 (c), in particular, allows the Court to strike out a
case where:
“for any other reason established by the Court, it is no longer
justified to continue the examination of the application”.
The Court further reiterates that, in certain
circumstances, an application may be struck out of the list under Article 37 §
1 (c) on the basis of a unilateral declaration by the respondent Government, even
if the applicant wishes the examination of the application to be continued. Moreover,
there is nothing to prevent a respondent Government from filing a unilateral
declaration, as in the present case, at the stage of the proceedings concerning
Article 41 of the Convention (see, among other authorities, Racu v. Moldova (just satisfaction – striking out), no. 13136/07, 20 April 2010, and Megadat.com SRL v. Moldova (just satisfaction – striking out), no. 21151/04, ECHR 2011). For that purpose, the
Court must examine the declaration closely in the light of the general
principles applicable in the context of Article 41 of the Convention (see, inter
alia, Former King of Greece and Others v. Greece [GC] (just
satisfaction), no. 25701/94, § 73, 28 November 2002; Wolkenberg and
Others v. Poland (dec.), no. 50003/99, §§ 60-61, 4 December 2007;
and Megadat.com SRL, cited above, § 10).
The Court notes that in its judgment on the
merits it found that, in the present case, the impugned statutory amendment had
been provided for by law and served a “public interest”, namely to clarify a
legal situation that was uncertain in the eyes of the German legislature and to
secure the State’s property rights under the German-US Agreement. The aim of
that agreement had been to provide for a global settlement of compensation
claims by US citizens and in particular by heirs of the original Jewish owners
of property expropriated in the National-Socialist era. The finding of a
violation of Article 1 of Protocol No. 1 was not based on the existence of an
unlawful deprivation of property, but essentially on the fact that the
compensation provided for in the Compensation Act had not been proportionate,
having regard to the severity of the impugned interference.
In calculating the value of compensation to be
awarded to applicants, the Court has previously taken into account the fact
that the impugned interference had satisfied the condition of lawfulness and
was not arbitrary, but had resulted from a failure to pay an appropriate amount
(see, among other authorities, mutatis mutandis, Former King of
Greece and Others, cited above, §§ 74, 77 and 78).
Moreover, the Court has held that legitimate
“public interest” aims may justify restricting reimbursement to a level below
the market value (see, among many other authorities, Broniowski v. Poland (Merits)
[GC], no. 31443/96, § 182, ECHR 2004-V, and Wolkenberg and Others,
cited above, § 60).
Lastly, the impugned legislative amendment took
place in the exceptional context of German reunification, and, as the Court has
indicated on various occasions, the State has a broader margin of appreciation
as regards the enactment of laws in a context of transition to a new political
and economic regime (see, inter alia, Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, §§ 74, 77 and 110,
ECHR 2005‑V; Jahn and Others v. Germany [GC], nos. 46720/99,
72203/01 and 72552/01, § 113, ECHR 2005‑VI. Thus, in a case concerning property that had been abandoned on
the other side of the Bug River when Poland’s eastern border had been redrawn
after the end of the Second World War, the Court found that the Polish Act of July 2005, which had limited the amount of
compensation available to the applicants to 20% of the current value of the
original property, had “struck a fair balance” between the protection of their
right of property and the general interest, in a manner compatible with the
requirements of Article 1 of Protocol No. 1 (see Wolkenberg and Others,
cited above, § 66).
As regards costs and expenses, the Court notes
that the lawyers’ fees claimed for the proceedings before the Court have
increased from EUR 15,000 to EUR 165,000. Like the Government, it
considers these amounts excessive and finds that it has not been established
that these expenses were necessarily incurred, as required by the Court’s
case-law concerning Article 41 of the Convention (see, among many other
authorities, Sanoma Uitgevers B.V. v.
the Netherlands [GC], no.
38224/03, § 109, 14 September 2010).
Having regard to
the foregoing and to the amount of compensation proposed by the Government,
which seems fair in the present case, the Court finds that it is no longer
justified to continue the examination of the remainder of the application (Article
37 § 1 (c) – see the Racu and Megadat.com judgments cited above,
§§ 18 and 14 respectively).
In addition, in the light of the above
considerations, the Court finds that the respect for human rights guaranteed in
the Convention and its Protocols does not require it to continue that
examination (Article 37 § 1 in fine).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Takes note of the terms of the respondent
Government’s declaration and of the modalities for
ensuring compliance with the undertakings referred to therein;
2. Decides to strike the remainder of the
application out of its list of cases, in accordance with Article 37
§ 1 (c) of the Convention.
Done in French and English, and notified in writing on 27 September
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
Application no. 5631/05
Althoff and Others ./. Germany
List of applicants
|
Surname
|
Forename
|
Date of birth
|
Place of birth
|
|
ALTHOFF
|
Edith
|
28.11.1929
|
Düsseldorf – Germany
|
|
OTLEWSKI
|
Ingrid H.
|
11.11.1935
|
Krefeld- Germany
|
|
SCHMITZ
|
Heinz Ludwig Max
|
08.05.1942
|
Goa – India
|
|
MIASTKOWSKI
|
Miriam Helene
|
27.05.1921
|
Fairfield – USA
|
|
BROICH
|
Hubert Max
|
06.12.1922
|
Merced – USA
|
|
FISCHER
|
Gertrud Franziska
|
25.11.1911
|
Nuremberg – Germany
|
|
DIETZ
|
Josefine Irmgard
|
31.08.1923
|
Dormagen-Gohr – Germany
|
|
BÖCKER
|
Hans
|
26.03.1910
|
Minden – Germany
|
|
HOLZHAUSEN-SPENCER
|
Louise
|
30.06.1930
|
Palm Springs – USA
|
