THE FACTS

The facts of the case as submitted by the applicant may be summarised
as follows:

The applicant is an Australian citizen, born in 1911 in Poland and
resident at N., Victoria, in Australia where he is a minister. He is
represented by Mr. C., an international law consultant practising in
London.

The applicant was a curate in Poland when he, in October 1941, was
arrested by the Gestapo. He was then detained for three and a half
years in the Dachau concentration camp.

In 1950, he received compensation for loss of liberty from the
compensation authorities in Hamburg.

In November 1961, the applicant applied to the Federal Administrative
Office (Bundesverwaltungsamt) in Cologne for compensation for damage
to his health and body, basing his application on the Agreement of 5
October 1960 between the United Nations High Commissioner for Refugees
and the Government of the Federal Republic of Germany. In his
application, the applicant maintained that the principal, though not
exclusive, reason for the persecution suffered at the hands of the
Nazis was his Polish nationality and, accordingly, he was claiming
compensation as a victim of persecution by reason of nationality.

The Office considered that the applicant could only rely on Sec.1 of
the Federal Constitutional Act (Bundesentschädigungsgesetz) but not on
the Agreement, and his claim was first referred to the Compensation
Office in Hamburg which rejected it, on 22 July 1963, as having been
lodged out of time.

On 29 October 1963, the Federal Administrative Office to whom the
matter had been reverted, rejected the applicant's claim on the grounds
that he had suffered persecution, not because of his nationality but
of his Catholic faith.

However, on 16 January 1968, the Regional Court (Landgericht) of
Cologne granted the applicant compensation and this decision was
confirmed by the Court of Appeal (Oberlandesgericht) of Cologne on 11
July 1968. Both courts accepted that the applicant had been persecuted
because of his religion as well as his nationality. Both instances also
held the fact that the applicant had been persecuted because of his
religion, i.e. one of the grounds for compensation mentioned in Sec.
1 of the Federal Constitutional Act, did not exclude the admissibility
of his claim for compensation on grounds of nationality which was based
on Sec. VI of the Second Act to amend the Federal Constitutional Act
(2. Gesetz zur Änderung des Bundesentschädigungsgesetzes - hereinafter
referred to as the Amendment Act).

The Federal Administration Office appealed, however, to the Federal
Court (Bundesgerichtshof). In the course of these proceedings the
applicant challenged Mr. Z., one of the judges of the Federal Court on
the grounds of bias. The applicant stated that there were good reasons
to believe that Mr. Z. might be prejudiced in his capacity as a judge
because of his former activities in the Federal Ministry of Finance for
a period of 15 years. In particular, Mr. Z. had dealt with compensation
questions in an executive function and also, participated in the
drafting of the Amendment Act as well as of the directives for the
application of the provisions of that Act invoked by the applicant. He
had further written an article in a legal journal in which he had dealt
with the question of compensation to Catholic priests, expressing a
view which was unfavourable to the applicant's type of cases. In a
statement submitted to the Court, Mr. Z. stated himself that he was not
biased, and that, to his knowledge, he had not previously dealt with
the applicant's case.

On 10 July 1969, the Federal Court rejected the challenge of Mr. Z. as
not being justified. The Court first stated that the mere fact that an
official had been involved in the drafting of legislation could not
give rise to the fear that, once appointed a judge, he would not apply
that legislation in an unbiased and impartial manner. The Court then
went on to examine the particular reasons given by the applicant but
considered that none of them was sufficient to disqualify Mr. Z. from
taking part in the case.

By judgment of 17 November 1969, the Federal Court set aside the
decisions of the lower courts and dismissed the applicant's
compensation claim. The Court stated that the aim of Sec. VI of the
Amendment Act was to provide compensation for aliens who were otherwise
not entitled to compensation. The prohibited the granting of
compensation of this account to persons who were victims of persecution
for reasons stated in Sec. 1 of the Federal Constitutional Act, but had
failed to lodge a claim within the time-limit prescribed for such
claims. The Court of Appeal had established that the applicant was
persecuted because of his faith within the meaning of Sec. 1 of the Act
and he was therefore precluded from claiming compensation under Sec.
VI of the Amendment Act on grounds of nationality.

The judgment has been served on the applicant's counsel on 6 March
1970.

Complaints

The applicant alleges that the Federal Court violated his right under
Article 6 of the Convention to a fair hearing of his case by an
impartial tribunal in that :

(i)  the Court failed to base its conclusions and order on evidence
known to the applicant;

(ii) Mr. Z. participated as one of the judges although his
impartiality had been challenged by the applicant.

The applicant describes the Federal Court's decision as singularly
incomprehensible and violating the human sense of justice. In his
submission, the interpretation adopted by the Court of Sec. VI of the
Amendment Act does not correspond with either the letter or the spirit
of the law and was contrary to the view previously taken by the Court
that, in cases of Nazi persecution, the law should be interpreted as
wide as possible in order to enable the victims to be granted
compensation.

He maintains  that the principle of fair hearing requires that a court
bases its decision on evidence submitted to it by, or at least known
to the parties. The applicant contends that the Federal Court failed
to observe this principle. Thus the Court stated that the regulation
of claims by persons persecuted on grounds of nationality as provided
in Sec. VI of the Amendment Act, went back to the Bonn Settlement
Agreement of 26 May 1952. The Court then said that:  "The Federal
Government took the view, and this was shared by the Allies, that this
category of persons did not come within the ambit of the internal
German compensation law but belonged to the regime of reparations".

The applicant emphasises that the Court, in this context, exclusively
refers to German sources. The applicant could have been expected to be
given evidence by the Court to show that the attitude of the German
Federal Government was actually shared also by the other parties to the
Bonn Settlement Agreement, and that the Allied Powers considered claims
of persons persecuted on account of their nationality to be merely
subsidiary to claims under the Federal Compensation Act. The applicant
argues that there is nothing to support the interpretation of the Court
in this respect.

As regards the question of Mr. Z's participation in the case, the
applicant refers to the grounds for challenging the judge which were
submitted to the Federal Court. In addition, the applicant has now
produced two letters signed by Mr. Z. in 1964 which show that Mr. Z.,
contrary to his own recollection, had in fact dealt with the
applicant's case in the Ministry of Finance. In those letters which
were not known to the Federal Court, Mr. Z. had expressed the view that
the applicant's category, i.e. Catholic priests, had been persecuted
because of their faith and not of their nationality.

THE LAW

The applicant's only complaint before the Commission concerns the court
proceedings relating to his claim for compensation, under the Federal
Compensation Act or the relevant amendment thereto, as being a victim
of Nazi persecution. In this respect he has alleged that, contrary to
the rights guaranteed by Article 6 (1) (Art. 6-1) of the Convention,
the courts denied him a fair hearing of his case and that one of the
judges could not be considered as having been impartial.

Article 6 (1) (Art. 6-1) of the Convention provides:  "In the
determination of his civil rights and obligations ... everyone is
entitled to a fair and public hearing .... by an independent and
impartial tribunal established by law ...". The Commission must
therefore first decide whether the court proceedings relating to the
above claim by the applicant fall within the scope of that provision
to the extent that they involve the determination of his civil rights.

In this connection the Commission refers to its established case-law
to the effect that, on the question whether a right is of a civil
nature, it is not decisive that the right claimed by the applicant
constitutes a "civil right" in the country concerned and that, indeed,
the term "civil rights and obligations" cannot be construed as a mere
reference to the domestic law of the High Contracting Party concerned.
Instead, the concept relates to an autonomous notion which must be
interpreted independently having regard to the nature of the claim and
to the purpose of the complaint. Only in this connection can the
general principles of the domestic law of the High Contracting Parties
be taken into consideration (see decisions on the admissibility of
applications No. 808/60, Yearbook, Vol. 5, pp. 108, 122; No. 1931/63,
Yearbook, Vol. 7, pp. 213, 233; and No. 3959/69, Collection of
Decisions, Vol. 35, pp. 109, 112).

The Commission further refers to its decision of 2 October 1971 on the
admissibility of Application No. 4505/70 (X v. the Federal Republic of
Germany) in which it held that proceedings on a claim for compensation
under the Federal Liability Equalisation Act (Lastenausgleichsgesetz)
did not relate to "civil rights and obligations" within the meaning of
Article 6 (1) (Art. 6-1) of the Convention. The Commission found that
a grant of compensation under that Act was "made by the State in the
execution of its aim to provide for its citizens and to distribute
equally among them the burden of the losses suffered as a result of the
.... war". The relevant court proceedings accordingly concerned "the
exercise of the duties and powers imposed on the Government in the
implementation of the above aim as well as the rights of the individual
arising out of this relationship which is clearly one of public law".

The Commission finds that the above considerations are equally
applicable in respect of proceedings under the Federal Compensation
Act. Without going in detail into questions of State succession or
prescription, the Commission points out that the Federal Republic of
Germany, as such, could not, without specific provision, be held liable
either under German national law or under international law, for
injuries of the kind covered by the Act. However, in the Federal
Compensation Act itself the Government of the Federal Republic of
Germany has undertaken to pay to victims of Nazi persecution
compensation for specified injuries, or to grant such victims other
forms of benefits, within the limits laid down in the Act. This
legislation, like the Federal Liability Equalisation Laws, therefore
constitutes an undertaking on the part of the State to grant
compensation for injuries suffered in the course of special
circumstances for which otherwise damages cannot be recovered under the
general principles of tort liability. Accordingly, the proceedings in
which the eligibility of a particular claim is decided relate, like the
corresponding proceedings on claims under the Federal Liability
Equalisation Act, to rights of the individual vis-à-vis the State which
clearly belong to the domain of public law.

Consequently, the proceedings before the Federal Court in the present
case, were not concerned with the determination of the applicant's
"civil rights and obligations" and therefore fall outside the scope of
Article 6 (Art. 6) of the Convention. It follows that the Commission
has no competence ratione materiae, to examine the application which
must be rejected as being incompatible with the provisions of the
Convention in accordance with Article 27 (2) (Art. 27-2) thereof.

For these reasons, the Commission DECLARES THIS APPLICATION
INADMISSIBLE