FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25101/05 
by Mordechai POZNANSKI and Others 
against Germany

The European Court of Human Rights (Fifth Section), sitting on 3 July 2007 as a Chamber composed of:

Mr P. Lorenzen, President, 
 Mrs S. Botoucharova, 
 Mr K. Jungwiert, 
 Mr R. Maruste, 
 Mr J. Borrego Borrego, 
 Mrs R. Jaeger, 
 Mr M. Villiger, judges, 
and Mrs C. Westerdiek, Section Registrar,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The application was lodged with the Court by Mr Mordechai Poznanski, Mr Jakob Silberstein, Mrs Erna Stasiak and in the name of Mr David Handwohl. Mr Poznanski and Mr Silberstein, born in 1925 and 1924 respectively, are Israeli nationals and reside in Israel. Mr Handwohl, who was born in 1923 and died on 29 May 2005, was a U.S. national. Mrs Stasiak is a Polish national and resides in Poland. They are represented before the Court by Ms S. Reppenhagen, a lawyer practising in Berlin.

The respondent Government are represented by their agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

A.      The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  Background to the case

During the Second World War Mr Poznanski, Mr Silberstein, Mr Handwohl and Mrs Stasiak’s late husband Leon Stasiak, then Polish nationals, were subjected to forced labour in the Auschwitz-Monowitz concentration camp which was operated by the I.G. Farbenindustrie Corporation (I.G. Farbenindustrie AG). The forced labourers had to carry out physically hard work for 84 hours a week without receiving adequate nutrition. Once they were no longer physically capable of working, the forced labourers were sent to the Auschwitz-Birkenau extermination camp to be killed.

Mr Poznanski, Mr Silberstein and Mr Handwohl, who are of Jewish faith, and Mrs Stasiak’s late husband had been arrested by the German army following the occupation of Poland. Having been detained in several concentration camps, they were finally transferred to the Auschwitz-Monowitz concentration camp, where they remained until their liberation by the Red Army in January 1945.

Following the end of the Second World War, the allied forces split up the I.G. Farbenindustrie Corporation inter alia into the companies Bayer, Hoechst and BASF. Legal successor to the corporation was the  
I.G. Farbenindustrie Corporation in liquidation (I.G. Farbenindustrie AG in Abwicklung, “IG Farben”).

The Federal Republic of Germany, after its foundation on 23 May 1949, did not establish any compensation schemes for forced labourers.

Under the London Agreement on Germany’s External Debts (London Debt Agreement) of 27 February 1953, the regulation of compensation claims was deferred until the final settlement of reparation.

Subsequently many actions brought by former forced labourers against German companies were rejected with reference to the London Debt Agreement. Nevertheless, the Federal Republic of Germany paid compensation to victims of the Nazi regime, mostly to those who were living in Israel, the Federal Republic of Germany and other Western European States, in particular pursuant to the provisions of the Federal Act on Compensation for Victims of Nazi Persecution (Bundesentschädigungs-gesetz), which entered into force on 1 October 1953. It provides inter alia compensation for the detention in a concentration camp and the resulting damage to the health of the former detainees. Forced labour as such was not covered by the existing legislation.

Mr Poznanski received payments of 8,100 Deutschmarks (DEM) in 1957 and 21,705 DEM in 1964, as well as a monthly pension of 136 DEM as of 1 June 1964. In 1989 he received additional payments of 3,271 and 10,365 DEM and his monthly pension was increased from 580 to 723 DEM. As of August 2004 the applicant has been in receipt of a monthly pension of 526 euros (EUR).

Mr Silberstein received a payment of 10,050 DEM in 1959.

On 6 February 1957 IG Farben and the Conference on Jewish Material Claims against Germany (“Jewish Claims Conference”) entered into a friendly settlement during the course of a lawsuit brought by a former forced labourer (the so-called Wollheim case). Pursuant to that settlement I.G. Farben undertook to pay 30 million DEM to its former forced labourers. Mr Poznanski and Mr Silberstein received 5,000 DEM each under that settlement. Although the settlement stipulated that the recipients were to waive all further claims against I.G. Farben, it is not clear whether the applicants signed such a waiver.

After 1990 the Federal Republic of Germany paid lump sums to several Eastern European States, which then created funds for victims of the Nazi regime. The Federal Republic of Germany paid 500 million DEM to a Polish foundation, which then granted compensation to former detainees of concentration camps.

That Polish foundation granted Mrs Stasiak’s late husband benefits amounting to 3,780 new Polish zlotys (PLN) on 19 March 1993 and 4,301 PLN on 9 June 1997.

However, individual compensation for forced labour as such was still not provided by the Federal Republic of Germany. Many of those former forced labourers brought actions against German companies, in particular class action suits in the United States of America. Against that background the Government of the Federal Republic of Germany and the Government of the United States of America concluded a treaty that envisaged the creation of the foundation “Remembrance, Responsibility and Future”  
(Stiftung “Erinnerung, Verantwortung und Zukunft” - hereinafter called “Foundation”) which would provide individual compensation for former forced labourers.

Russia, Poland, the Czech Republic, Ukraine, Byelorussia, the Jewish Claims Conference, legal representatives of former forced labourers and representatives of German industry had participated in those negotiations.

2.  The proceedings before the domestic courts

In 1999 Mr Poznanski, Mr Silberstein, Mr Handwohl and Mrs Stasiak’s late husband brought actions for compensation for non-pecuniary damages and actions for restitution of the unjustified enrichment (Klage auf Herausgabe der ungerechtfertigten Bereicherung) against the I.G. Farben requesting between 40,000 DEM (20,452 EUR) and 70,000 DEM (35,790 EUR) each.

On 12 August 2000 the “Law on the Creation of the Foundation “Remembrance, Responsibility and Future” (Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft” – hereinafter called “Foundation Law”) entered into force (see “Relevant domestic law and practice” below). The Foundation was subsequently set up and both the Government of the Federal Republic of Germany and the German companies provided for the Foundation’s funding. I.G. Farben did not make any contributions.

(a)  The judgment of the Frankfurt Regional Court of 30 July 2001

The Frankfurt Regional Court rejected the actions stating that claims against I.G. Farben were excluded by the Foundation Law.

(b)  The judgment of the Frankfurt Court of Appeal of 25 September 2002

Rejecting the claimants’ appeal the court held that their claims were excluded by the Foundation Law. Nevertheless, the court came to the conclusion that some of their claims had not been time-barred when the Foundation Law entered into force. At the outset the court recalled that the statute of limitations (Verjährung) for claims relating to forced labour during the Second World War had been suspended (gehemmt) by the London Debt Agreement. That suspension had been lifted with the conclusion of the Treaty on the Final Settlement with respect to Germany of 12 September 1990 (the so-called Two-Plus-Four Treaty).

As regards the claims for compensation for non-pecuniary damages the court applied a prescription period of three years, holding that the claims had become time-barred in the end of 1993. In respect of their claims of restitution of the unjustified enrichment (Anspruch auf Herausgabe der ungerechtfertigten Bereicherung) the court found that, contrary to the case-law of the Federal Court of Justice (see “Relevant domestic law and practice” below), those claims were not time-barred. Instead of applying a prescription period of two or four years as the Federal Court of Justice had done, the Court of Appeal applied a prescription period of thirty years.

In its reasoning the court stressed that before the Foundation Law had entered into force the question whether claims for forced labour were time-barred had not been finally settled. Leave to appeal on points of law was refused.

(c)  The decision of the Federal Court of Justice of 27 May 2003

The Federal Court of Justice rejected the complaint against the refusal of leave to appeal on points of law. The court stated that the Court of Appeal’s holding that claims of restitution of the unjustified enrichment were not time-barred deviated from the existing case-law of the Federal Court of Justice. However, the court found it unnecessary to rule on that issue because the claims were excluded by the Foundation Law in any event.

(d)  The decision of the Federal Constitutional Court of 7 December 2004

During the proceedings before the Federal Constitutional Court Mr Stasiak died and his widow pursued the proceedings. The Federal Constitutional Court refused to admit the constitutional complaint against the aforementioned decisions and section 16 of the Foundation Law, holding that they did not violate the complainants’ rights under Article 14 of the German Basic Law (right of property). The court found that Article 14 was applicable, because the complainants had had claims for restitution of the unjustified enrichment prior to the Foundation Law’s entry into force, as held by the Court of Appeal; the findings of which were binding as a starting point for the constitutional review insofar the question of prescription was concerned. The Federal Constitutional Court went on to say that although there had been an interference with the complainants’ right of property, it did not constitute an expropriation. It found that the exclusion of claims under the Foundation Law was not undertaken for public purposes (zur Erfüllung öffentlicher Aufgaben). On the contrary, the exclusion of claims was meant to balance the purely private interests of the former forced labourers on the one hand and German industry on the other hand. Therefore, section 16 of the Foundation Law determined the extent of the right of property and its limitations (Inhalts- und Schrankenbestimmung). The court concluded that the Foundation Law was an overall settlement (Gesamtregelung) which had struck a fair balance between those competing interests. The court held that both the creation of a compensation scheme on the one hand and the achievement of legal certainty for German companies and the State on the other hand pursued legitimate interests. The court acknowledged that the amount of compensation under the Foundation’s scheme was in some cases inferior to the claims the former forced labourers had had under German civil law. However, the court pointed out that the overall settlement as set up by the Foundation Law had several advantages that balanced its shortcomings. First, the court noted that the Foundation Law created legal certainty for former forced labourers by replacing their claims against companies which were bankrupt or no longer existed with claims against a foundation endowed with sufficient funds. Moreover, the Federal Constitutional Court highlighted that, before the Foundation Law had entered into force, it had been open whether the Federal Court of Justice would change its case-law regarding the prescription of claims for forced labour. Hence the former forced labourers did not have to bring proceedings before the German courts, which would have entailed considerable financial risks and would have been time-consuming. In this respect the court stressed that all former forced labourers were well advanced in years and that only the Foundation’s compensation scheme guaranteed that they would receive compensation within their lifetime.

The decision was served on 4 January 2005.

(e)  Subsequent developments

On an unknown date Mr Poznanski, Mr Silberstein, Mr Handwohl and Mrs Stasiak, as her late husband’s heir, were granted payments under the Foundation Law amounting to the equivalent of 7,669 EUR each.

On 29 May 2005 Mr Handwohl died.

According to the preliminary sixth report of the Federal Ministry of Finances on the activities of the Foundation, which covers its activities until 31 March 2006, about 2,330,000 applications for compensation had been lodged with the Foundation’s partner organisations. In approximately 1,650,000 cases the partner organisations rendered positive decisions, while about 678,000 requests were denied. Approximately six thousand cases were still pending before the partner organisations’ appeals boards.  
All partner organisations combined had awarded payments amounting to about 4.3 billion EUR. In about 22,400 cases the partner organisations were still in the process of making the payments.

B.  Relevant domestic law

1.  The case-law of the civil Courts

According to the judgment of the Federal Court of Justice of 22 June 1967, claims against a company for the restitution of the unjustified enrichment or claims for compensation for non-pecuniary damages for forced labour carried out during the Second World War were time-barred. The court found that tort claims were prescribed after three years, while claims for restitution of the unjustified enrichment became time-barred after either two or four years (no. VII ZR 181/65, Decisions of the Federal Court of Justice in Civil Matters (BGHZ) vol. 48, pp. 125 et seq.).

In decisions rendered after the year 2000 several Courts of Appeal held that the statute of limitations for claims relating to forced labour during the Second World War had been suspended (gehemmt) by the London Debt Agreement. That suspension had been lifted with the conclusion of the Treaty on the Final Settlement with respect to Germany of 12 September 1990 (the so-called Two-Plus-Four Treaty) because that treaty was considered a final settlement of reparation. However, applying the prescription periods (Verjährungsfristen) as determined by the Federal Court of Justice in its aforementioned judgment, the courts concluded that the claims against the respondent companies had become time-barred before the actions were brought (see the judgment of the Stuttgart Court of Appeal of 20 June 2000, no. 12 U 37/00; the decision of the Court of Appeal of Schleswig-Holstein of 19 January 2001, no. 4 W 47/99; the decision of the Koblenz Court of Appeal of 30 October 2000, no. 10 W 542/00; decision of the Bamberg Court of Appeal of 17 October 2000, no. 3 W 86/00).

There has never been a final judgment confirming the existence of claims arising from forced labour carried out during the Second World War.

2.  The Foundation Law

The Foundation Law stipulates that the Foundation should be endowed with 10 billion DEM (5.11 billion EUR), to be provided equally by the Government of the Federal Republic of Germany and German companies. The sum of 8.1 billion DEM was intended for the compensation of forced labour. The remaining funds inter alia aimed at compensating the loss of property or were granted as humanitarian aid to the Jewish Claims Conference and the International Commission on Holocaust Era Insurance Claims which finance social programmes for Holocaust survivors.

All German companies which exploited forced labourers during the Second World War are protected by the Foundation Law, regardless of whether they actually contributed to the Foundation.

Requests for compensation are not processed by the Foundation itself, but by its regional partner organisations in several European countries.  
The highest amount of compensation - for forced labour in a concentration camp - is 15,000 DEM (7,669 EUR). That amount can be reduced if the funds do not suffice to fully compensate all individuals entitled under the Foundation Law. The compensation is made in two instalments. First, 35 % or 50 % of the total sum is paid out, while the second instalment is made after all requests have been processed, provided that the funds suffice. As a matter of principle, only the forced labourers themselves are entitled to compensation. Heirs are only eligible if the forced labourer died after 15 February 1999.

According to section 16 of the Foundation Law all further claims against the German State or German companies are excluded. That provision reads as follows:

“Exclusions from Claims

(1) Payments from public funds, including social security, and from German business enterprises for injustice suffered under National Socialism as defined in Section 11 may be claimed only under the terms of this Law. Any further claims in connection with National Socialist injustices are excluded. This applies also to cases in which claims have been transferred to third persons by operation of law, transition, or a legal transaction.

(2) On receipt of a payment under this Law, each claimant shall provide a statement ... irrevocably renouncing, without prejudice to Sentences 3 to 5, after receipt of a payment under this Law any further claim against the authorities for forced labour and property damage, all claims against German enterprises in connection with National Socialist injustice, and forced-labour claims against the Republic of Austria or Austrian enterprises. The renunciation becomes effective upon receipt of a payment under this Law. ...”

COMPLAINTS

The applicants complained under Article 1 of Protocol No. 1 about section 16 §§ 1 and 2 of the Foundation Law as well as the impugned decisions of the domestic courts. They submitted that the Foundation had not been established in the public interest, but solely in the interest of the German industry. Furthermore, they complained that the Foundation did not provide adequate compensation for former forced labourers, since claims under the Foundation Law were much lower than their claims under German civil law. Moreover, they held the opinion that claims against  
I.G. Farben could not be excluded by the Foundation Law, since that company had not contributed to the Foundation.

THE PROCEDURE BEFORE THE COURT

On 4 July 2005 the application was lodged in the name of Mr Poznanski, Mr Silberstein, Mr Handwohl and Mrs Stasiak. By letter dated 1 September 2005 the applicants’ counsel submitted an authority form dated 15 August 2005 which was signed “David Handwohl”.

In their observations to the Court the Government pointed out that Mr Handwohl had died on 29 May 2005. In her reply the applicants’ legal counsel confirmed his death and announced that his widow intended to pursue her late husband’s application.

By letter of 23 March 2007 addressed to the applicants’ legal counsel, the Registry pointed out that Mr Handwohl had died prior to the lodging of the application and asked whether the application lodged in his name would be withdrawn.

By letter dated 23 April 2007 the applicants’ legal counsel informed the Court that Mrs Handwohl wished the Court to determine the question.

THE LAW

A.  The application lodged in the name of Mr David Handwohl

The Court reiterates that the existence of a victim of a violation, that is to say, an individual who is personally affected by an alleged violation of a Convention right, is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings  
(see Karner v. Austria, 40016/98, § 25, ECHR 2003-IX). In the present case, Mr Handwohl died before the application was introduced, and the case is therefore to be distinguished from cases in which an applicant’s heirs were permitted to pursue an application which had already been introduced (see Fairfield and others v. the United Kingdom, (decision), no. 24790/04, 8 March 2005, with reference back to Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999-VI).

While it is also true that individuals, who are the next-of-kin of persons who have died in circumstances giving rise to issues under Article 2 of the Convention, may apply as applicants in their own right, this is a particular situation governed by the nature of the violation alleged and considerations of the effective implementation of one of the most fundamental provisions in the Convention system. Mrs Handwohl, as an original applicant, therefore lacks the requisite standing under Article 34 of the Convention (see the case of Fairfield and others v. the United Kingdom, referred to above).

As to the authority form signed “David Handwohl”, dated 15 August 2005 and submitted to the Court on 1 September 2005, the Court notes that Mr Handwohl had died before that authority form was signed. The Court concludes that this authority form must be a falsification. However, it is unclear who falsified the signature.

As regards the consequences of such conduct, the Court recalls that an application may be rejected as abusive under Article 35 § 3 of the Convention if it was knowingly based on untrue facts (see, among others, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1206, §§ 53-54; Kérétchachvili v. Georgia (dec.), no. 5667/02, 2 May 2006) or if incomplete and therefore misleading information was submitted to the Court (see Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006).

Turning to the instant case, the Court notes that a falsified authority form was submitted in order to pretend that the application had been lodged in a legally effective manner. Although it is unclear who falsified the signature and even though there is no indication that the legal counsel was aware that she submitted a falsification, the Court was nonetheless deceived by that authority form.

Having regard to the Court’s case-law in respect of the abuse of the right of application and the specific circumstances of the present case, the Court considers that the submission of a falsified authority form is contrary to the purpose of the right of an individual application. The Court therefore finds that this conduct also constitutes an abuse of the right of application within the meaning of Article 35 § 3 of the Convention.

Hence the application lodged in the name of Mr Handwohl must be rejected as inadmissible pursuant to Article 35 § 4 of the Convention.

B.  The applications lodged by Mr Poznanski, Mr Silberstein and Mrs Stasiak

The applicants complained that the exclusion of their civil law claims by the Foundation Law violated their right of property under Article 1 of Protocol No. 1, which reads:

“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.”

1.  The Government’s submissions

At the outset the Government acknowledged that there had been no compensation scheme for forced labour as such until the Foundation Law entered into force. All previous payments received by the applicants had not been made in respect of the forced labour, but solely with regard to detention in a concentration camp and the resulting damage to forced labourers’ health. The only exception had been the aforementioned Wollheim settlement pursuant to which the I.G. Farben had paid 30 million DEM to former forced labourers, which had also been the reason for  
I.G. Farben not to contribute to the Foundation.

From the Government’s point of view, even assuming that the applicants had had claims for compensation pursuant to German civil law and assuming that the applicants had been deprived of their “possessions” by the Foundation Law, this was justified for the following reasons.

The Government contended that claims for compensation under domestic civil law had been uncertain. They stressed that apart from the courts in the present case, no domestic court had ever confirmed claims for compensation against companies which had exploited forced labourers. Furthermore, the Government argued that most of those companies no longer existed, rendering it impossible for former forced labourers to sue for damages.  
In respect of the present case the Government submitted that I.G. Farben was a mere shadow company with no important assets and that insolvency proceedings had been opened.

Moreover, all former forced labourers were now well advanced in years and the Foundation Law had spared them long and costly law suits with an uncertain outcome. The Foundation Law offered a swift award of compensation and thus clearly improved the legal position of former forced labourers. The Government drew attention to the fact that almost  
1.65 million individuals had already received compensation from the Foundation’s partner organisations. Although the amounts of compensation granted per individual did not appear to be high, the Government pointed out that most of the recipients were residing in Eastern European States, where those sums had a different value compared to Germany.

Lastly, the Government contended that the creation of legal certainty and legal peace for German companies had certainly been in the public interest. The Government therefore held the opinion that the legislator had struck a fair balance between the interests of the former forced labourers on the one hand and the interests of the Federal Republic of Germany and German companies on the other hand.

2.  The applicants’ submissions

The applicants stressed that the payments which they had received so far, with the exception of the payments made pursuant to the Foundation Law, were irrelevant for the present case, since they had not been made in respect of the forced labour. The applicants went on to say that the payments under the Foundation Law could not be considered reasonable compensation for the loss of their claims under domestic law. From their point of view the amount was purely symbolic, taking into account the extent of suffering on the one hand and the value of the work for the German industry during the Second World War on the other hand. The mere fact that the Foundation Law provided for a swift award of payments was not sufficient to make up for the loss of their claims, which would have been considerably higher. Moreover, the applicants disputed the Government’s evaluation of their claims under civil law as uncertain. In this respect they argued that most of the companies which had exploited forced labourers still existed.  
I.G. Farben, for example, was not a mere shadow company as suggested by the Government, but was in fact listed on the stock exchange and paid a dividend to its shareholders. The applicants also submitted that the company had publicly announced in 1999 that it would create its own compensation scheme for former forced labourers, which, however, had been abandoned for unknown reasons. Lastly, the applicants maintained that the Foundation had first of all served the protection of the legal interests of the German industry and had aimed only secondly at the compensation of former forced labourers.

The applicants therefore concluded that the legislator had failed to strike a fair balance when passing the Foundation Law and had been clearly outside its margin of appreciation.

3.  The Court’s assessment

The applicants brought their civil actions, under the ordinary rules of tort law, in 1999. Each action was extinguished by the operation of section 16 of the Foundation Law. The question is whether the extinguishment of the actions was compatible with Article 1 of Protocol no. 1.

The Court recalls that Article 1 comprises three rules. The first rule, set out in the first sentence of its first paragraph, is of a general nature.  
It establishes the principle of peaceful enjoyment of property.

The second rule, set out in the second sentence of the first paragraph, covers deprivation of possessions and its conditions.

The third rule, contained in the second paragraph, recognises that States are entitled to control the use of property in accordance with the general interest. Before considering whether the first rule was complied with, it has to be examined whether the last two rules are applicable (see Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982 Series A no. 52, p. 24, § 61).

(a)  Whether there was an interference with the right of property

The Federal Constitutional Court held that the exclusion of claims in the present case interfered with the applicants’ rights of property, but constituted a determination of the scope of the applicants’ property rights rather than a deprivation of possessions. According to the Court of Appeal, the applicants had been entitled to restitution of the unjustified enrichment of an undetermined amount. Those claims, however, became extinct with the entry into force of the Foundation Law and were replaced with an award of compensation under the Foundation Law.

The Court recalls that “possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see, Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX). Actions which were pending, in the sense that no or no final judgment had been given, have been found to constitute “possessions” for the purposes of the Article 1 of the Convention  
(Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, p. 84, §§ 58-62; Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332, p. 20, §§ 29-32; National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v.  
The United Kingdom
, judgment of 23 October 1997, Reports of Judgments and Decisions 1997-VII, pp. 2350-2351, § 70).

The Court has no reason to doubt that the applicants’ claims against  
IG Farben before the domestic courts, under the specific circumstances of the case, also constituted “possessions” in this sense, and indeed the Government do not suggest otherwise.

As a result of the Foundation Law, the applicants were eligible for, and received, compensation from the fund which was set up by the Federal Republic of Germany and German industry, and they lost the civil claims which were pending before the domestic courts. The Court considers that the loss of the claims can only be interpreted as a “deprivation of possessions”. It is this interference with possessions whose compatibility with Article 1 of Protocol no. 1 the Court must determine.

(b)  Justification for the interference with the right to property

(i)  “Provided for by law”

The exclusion of the applicants’ claims is provided for by section 16 of the Foundation Law.

(ii)  “In accordance with the general principles of international law”

The Court recalls that the general principles of international law are only applicable to cases in which the State interferes with the property of  
non-nationals (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 40, § 66). As the applicants are not German nationals, those principles apply to the present case.

The parties do not contend that the principles of international law are of any relevance to the outcome of the present case, and the Court does not consider it necessary to pursue the question.

(iii)  “In the public interest”

The Court is of the opinion that, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities, accordingly, enjoy a certain margin of appreciation (see Jahn and Others v. Germany [GC],  
nos. 46720/99, 72203/01 and 72552/01, § 91, ECHR 2005-...).

The Court has stressed that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, unless that judgment be manifestly without reasonable justification  
(see James and Others, referred to above, p. 32, § 46).

Taking into consideration that one of the aims of the Foundation Law was to create legal certainty for German industry and the German State by creating a compensation fund in substitution for the various civil claims which had been made, the Court accepts that the replacement of the applicants’ claims can be considered to be “in the public interest”.

(iv) Proportionality of the Interference

The Court recalls that an interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights (see, among other authorities, Sporrong and Lönnroth, referred to above, p. 26, § 69). The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole, including therefore the second sentence, which is to be read in the light of the general principle enunciated in the first sentence. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions (see Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332, p. 23, § 38).

In determining whether this requirement is met, the Court recognises that the State enjoys a wide margin of appreciation with regard both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 75, ECHR 1999-III, and Jahn and Others, referred to above, § 93).

Compensation terms under the relevant legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it imposes a disproportionate burden on the applicants (see Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, p. 35, § 71).

The Court first notes that the claims which the applicants lost were not assets in the sense of matters which had a physical existence and a quantifiable value; indeed, the substance of the claims was not adjudicated on and the applicants never had the benefit of a final judgment in their favour. Rather, they were claims against a private company for compensation for slave labour exacted over 40 years earlier. It is particularly striking that the case-law when the applicants brought their actions indicated clearly that the actions would be time-barred: even assuming that such claims had been suspended during the period between the London Debt Agreement of 1953 and the Final Settlement with respect to Germany of 1990, by the time the applicants brought their actions, the period of two or four years had expired. The applicants’ actions thus involved a challenge to settled case-law, and can only be qualified as speculative. In this, the applicants’ loss was substantially less than that suffered by applicants in cases where pending claims had substantial prospects of success (see Stran Greek Refineries and Stratis Andreadis,, referred to above, p.85, §§ 61-62; Pressos Compania Naviera S. A. and Others, referred to above, p.21, § 31; National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society, referred to above, p. 2349, § 67).

It is true that the Frankfurt Court of Appeal, in its judgment of 25 September 2002, accepted the applicants’ arguments concerning limitation periods, at least so far as they concerned claims for restitution of unjustified enrichment, before finding that the claims were in any event frustrated by section 16 of the Foundation Law. However, that finding was not confirmed either by the Federal Court of Justice on 27 May 2003 or by the Federal Constitutional Court on 7 December 2004, both courts leaving the question open.

As against the loss of their respective court actions, the applicants were able to participate in the compensation scheme which was set up by the Foundation Law for former forced labourers. That participation resulted in payment to each of the applicants of the maximum amount available under the scheme, namely 7,669 EUR. It is true, as the applicants underline, that the civil claims against IG Farben were for amounts considerably in excess of that figure, namely for sums of between 20,452 EUR and 35,790. However, as noted above, the applicants were making their claims against the background of settled case-law to the effect that the claims were time-barred, and the value of the claims must be considered to have been substantially less than the sums contended for. In addition, compensation payments were made out of the fund with a minimum of formality and relatively speedily, whereas contested civil actions could have been protracted and would have been subject to the usual risks of civil litigation.

Finally, the Court notes the substantial public interest in setting up the Foundation Law to deal with all compensation claims for forced labour:  
a number of class actions had been introduced in various jurisdictions, and multipartite negotiations had indicated that the Law would be able to deal comprehensively with all claims.

The Court therefore concludes that the interference with the applicants’ right of property in the framework of an overall settlement of questions relating to compensation for forced labour under the Nazi regime did not upset the “fair balance” which has to be struck between the protection of property and the requirements of the general interest.

Thus, there is no appearance of a violation of the applicants’ rights under Article 1 of Protocol No. 1. Hence the applicants’ complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible in accordance with Article 35 § 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

POZNANSKI AND OTHERS v. GERMANY DECISION


POZNANSKI AND OTHERS v. GERMANY DECISION