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THE FACTS

The applicant, Islamische Religionsgemeinschaft e.V., is a religious association based in Berlin. It was represented before the Court by Mr H. Reckschmidt and Mr J.M. Schödler, both of the Berlin Bar.

A.  The circumstances of the case

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

1.  Background to the case

The applicant association was formed in the German Democratic Republic (GDR) in February 1990 by citizens of the Muslim faith.

On 1 March 1990 it obtained State approval as a religious association with legal personality (rechtsfähig).

On 25 May 1990 the Presidium of the Executive Committee (Präsidium des Parteivorstands) of the Party of Democratic Socialism (Partei des demokratischen Sozialismus – PDS) decided to make a donation (Spende) of 75,000,000 GDR marks to the applicant association, following a request to that effect from the association.

On 31 May 1990 the president of the applicant association received a cheque for that amount.

On 6 June 1990 he handed the cheque to the applicant association’s bank, which credited the sum to its account on the same day.

2.  Proceedings before the authorities and courts in the Federal Republic of Germany (FRG)

In a letter of 17 April 1991 the Independent Commission for the Investigation of the Assets of Parties and Mass Organisations in the GDR (Unabhängige Kommission zur Prüfung des Vermögens der Parteien und Massenorganisationen in der DDR) stated that the donation in question constituted an asset covered by section 20a(2) of the Law of 21 February 1990 on parties and other political associations, also known as the Political Parties Act (Gesetz über Parteien und andere politische Vereinigungen (Parteiengesetz)), as amended by the Political Parties (Amendment) Act of 31 May 1990 (Gesetz zur Änderung des Parteiengesetzes) (see “Relevant domestic law and practice” below). The asset was therefore subject to the administration of the Trust Agency (Treuhandanstalt).

The commission also considered that this unlawful disposal by the PDS of its assets without the Trust Agency’s consent, in breach of section 20b(1) of the Political Parties Act, had in fact amounted to a fictitious transaction (Scheingeschäft) designed to enable the applicant association’s president, who had close links with the PDS, to retain possession of the sum in question.

(a)  Decisions of 14 January and 13 April 1992 by the Federal Office for Special Tasks relating to German Reunification

In a decision of 14 January 1992 the Federal Office for Special Tasks relating to German Reunification (Bundesanstalt für vereinigungsbedingte Sonderaufgaben – “the Federal Office”) ruled that the sum of money – converted into 37,500,000 German marks (DEM), together with the accrued interest – in the applicant association’s bank account constituted an asset subject to the administration of the Trust Agency and could not be disposed of without the Agency’s consent, by virtue of section 20b(1) of the Political Parties Act.

The Federal Office considered that the sum in question had been part of the PDS’s assets, which had been placed under the administration of the Trust Agency from 1 June 1990 onwards, pursuant to section 20(2) of the Political Parties Act. As the applicant association’s bank account had not been credited with the sum until after 1 June 1990, authorisation for that change in assets should have been sought from the Trust Agency, in accordance with section 20b(1) of the Political Parties Act, but that had not been the case.

On 5 February 1992 the applicant association lodged an objection against that decision, arguing, in particular, that, in accordance with Article 76 § 1 of the GDR Civil Code (Zivilgesetzbuch DDR), payment of the donation had taken effect when the cheque had been handed over on 31 May 1990 and that the value of its assets had therefore increased on that date.

In a decision of 13 April 1992 the Federal Office dismissed the objection.

(b)  The Berlin Administrative Court’s judgment of 9 May 1994

The applicant association subsequently applied to the Berlin Administrative Court (Verwaltungsgericht) to have the Federal Office’s decisions set aside on the ground, inter alia, that it was not an organisation related to the PDS but a religious association entitled to protection under the Basic Law (Grundgesetz).

In a judgment of 9 May 1994 the Berlin Administrative Court granted the application in its entirety.

The Administrative Court held that the conditions for applying section 20b of the Political Parties Act were not satisfied. The applicant association was neither a juristic person nor an organisation related to the PDS, and the Trust Agency was not responsible for the administration of assets which had been transferred in accordance with the power of third parties to dispose of property (Verfügungsgewalt), even if the relevant contractual agreements had been invalid (unwirksam). In addition, it had not been established that the applicant association had been formed to pursue any aims other than those set out in its articles of association.

(c)  The Berlin Administrative Court of Appeal’s judgment of 22 November 1996

The Federal Office appealed against that judgment to the Berlin Administrative Court of Appeal (Oberverwaltungsgericht).

In a judgment of 22 November 1996 the Berlin Administrative Court of Appeal dismissed the appeal and upheld the Berlin Administrative Court’s judgment.

The Administrative Court of Appeal held that the Federal Office’s decision had had no basis in law as the applicant association was neither a juristic person nor an organisation related to the PDS. Even though the circumstances surrounding its formation and the payment of the donation in issue remained questionable in certain respects, there was insufficient evidence of any link between the applicant association and the PDS.

The Administrative Court of Appeal added that, in accordance with Article 76 § 2 of the GDR Civil Code, the power to dispose of the sum in question had not become effective until the money had been credited to the applicant association’s bank account. Admittedly, when the Political Parties Act had come into force on 1 June 1990, the money had still been part of the PDS’s assets. However, that did not justify the Federal Office’s actions, since it was required to institute civil proceedings if it wished to seek damages from third parties. It was unable to take any administrative measures by virtue of its powers as a public authority save in respect of the types of juristic person listed in section 20b of the Political Parties Act.

(d)  The Federal Administrative Court’s decision of 10 December 1998

The Federal Office subsequently appealed on points of law to the Federal Administrative Court (Bundesverwaltungsgericht).

In a judgment of 10 December 1998 the Federal Administrative Court allowed the Federal Office’s appeal and set aside the judgment of the Administrative Court of Appeal on the ground that it had contravened federal law (Bundesrecht).

The Federal Administrative Court held that the Federal Office had been entitled to consider that, pursuant to section 20b(2) of the Political Parties Act, the donation paid into the applicant association’s bank account was placed under the administration of the Trust Agency.

It considered, firstly, that the sum of money in question had indeed been part of the PDS’s assets on the key date of 7 October 1989 and that, secondly, administration by the Trust Agency under section 20b(2) of the Political Parties Act could extend to third parties other than those specifically referred to in that provision.

With regard to the first point, the Federal Administrative Court referred to its own decision of 7 November 1997 and reiterated that a change in assets did not take effect on the date on which the cheque was handed over but only on the date on which the sum appearing on the cheque was credited to the relevant bank account. In the instant case, that had not occurred until 6 June 1990 – in other words, after 1 June 1990, the date on which the Political Parties (Amendment) Act had come into force, placing the sum in issue under the administration of the Trust Agency.

The Federal Administrative Court subsequently held that the fact that, as a result of the transfer, the PDS’s right to payment from its bank had been transformed into a right enjoyed by the applicant association to payment from its own bank did not mean that that the money in question was no longer part of the PDS’s assets; furthermore, the money had been paid into an account that already contained assets belonging to the applicant association. In that connection, it pointed out that the purpose of section 20b(2) of the Political Parties Act was, as it had previously held, to secure political-party assets acquired in breach of the rule of law (rechtsstaatswidrig), with a view to returning them to their former owners or using them in the public interest. Section 20b(2) of the Political Parties Act should therefore be construed according to economic criteria (wirtschaftliche Kriterien) and, accordingly, the Trust Agency’s administration of cash assets or money held in a bank account did not cease to be effective as a result of ordinary private-law transactions but continued as long as the sum in question was still sufficiently identifiable as the property of the party concerned, as had been the case in this instance.

With regard to the second point, the Federal Administrative Court considered that the Federal Office’s power of administration did not entail administration as a trustee in the ordinary sense but entitled it to exercise its sovereign powers to administer and dispose of assets (hoheitliche Verwaltungs- und Verfügungsbefugnisse) vis-à-vis third parties by means of a declaratory administrative measure (feststellender Verwaltungsakt). Under section 20b(2) of the Political Parties Act, the Trust Agency’s activities were not designed to protect the best interests of the political party or related organisation. On the contrary, its task was to ensure, once the assets in question had been secured, that they were returned to their former owners by way of reparation (Wiedergutmachung) or, if that proved impossible, that they were used in the public interest. Only where the assets had been acquired in accordance with the rule of law were they to be returned to the party or related organisation. The sovereign powers conferred on the Federal Office accordingly included the right to use those powers against third parties by means of an administrative measure.

(e)  The Federal Constitutional Court’s decision of 21 April 1999

The applicant association subsequently lodged a constitutional appeal with the Federal Constitutional Court (Bundesverfassungsgericht).

In a decision of 21 April 1999 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the appeal.

B.  Relevant domestic law and practice

The Political Parties (Amendment) Act of 31 May 1990 (Gesetz zur Änderung des Parteiengesetzes), which amended the GDR’s Law of 21 February 1990 on parties and other political associations, also known as the Political Parties Act (Gesetz über Parteien und andere politische Vereinigungen (Parteiengesetz)), came into force on 1 June 1990.

Section 20a(1) of the Act provides that the Prime Minister (Ministerpräsident) is to appoint an independent commission to draw up a report on the assets (Vermögenswerte) of all the GDR’s political parties and related organisations, juristic persons and mass organisations, both within and outside the territory of the GDR.

By section 20a(2), all political parties and related organisations, juristic persons and mass organisations must, inter alia, provide the commission with a statement of all their assets as at 7 October 1989 and of any subsequent changes.

Section 20b(1) provides that as soon as the Act comes into force, no changes in the assets of such entities may be effected without the consent of the chairman of the independent commission.

Section 20b(2) provides:

“In order to secure the assets of political parties or related organisations, juristic persons and mass organisations, all assets which belonged to political parties and related organisations, juristic persons and mass organisations on 7 October 1989, or which have subsequently replaced those assets, shall be placed under the administration of a trustee.”

(“Zur Sicherung von Vermögenswerten von Parteien oder ihnen verbundenen Organisationen, juristischen Personen und Massenorganisationen wird das Vermögen der Parteien und der ihnen verbundenen Organisationen, juristischen Personen und Massenorganisationen, das am 7. Oktober 1989 bestanden oder seither an die Stelle dieses Vermögens getreten ist, unter treuhänderische Verwaltung gestellt.”)

COMPLAINTS

The applicant association complained that the decision by the German authorities and courts to place under the administration of the Trust Agency the donation of DEM 37,500,000 which it had received from the Party of Democratic Socialism had infringed its right to the peaceful enjoyment of its possessions as guaranteed by Article 1 of Protocol No. 1. It also relied on Article 14 of the Convention taken together with Article 1 of Protocol No. 1.

In addition, it complained that the decision in issue had infringed its freedom of religion as guaranteed by Article 9 of the Convention. It also relied on Article 14 of the Convention taken together with Article 9.

THE LAW

1. The applicant association complained that the decision by the German authorities and courts to place under the administration of the Trust Agency the donation of DEM 37,500,000 which it had received from the Party of Democratic Socialism had infringed its right to the peaceful enjoyment of its possessions as guaranteed by Article 1 of Protocol No. 1, which provides:

“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 association referred to the decisions of the Berlin Administrative Court and Administrative Court of Appeal, which had considered that the Trust Agency had been entitled to dispose only of the property of political parties or related organisations within the meaning of section 20b(2) of the Political Parties Act. The association could not in any way be regarded as an organisation related to the PDS. It submitted that, in broadening the Trust Agency’s powers, the Federal Administrative Court had misinterpreted that provision. The applicant association further considered that it had been the lawful owner of the money in issue since, in accordance with Article 282 § 1 of the GDR Civil Code, the transfer of that asset had taken place on 31 May 1990, when the cheque had been handed to its president. In support of that argument, it produced to the Court a legal assessment by Mr M. Posch, professor of law at the University of Jena.

The Court reiterates that “Article 1 in substance guarantees the right of property... It comprises ‘three distinct rules’: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property by enforcing such laws as they deem necessary in the general interest... However, the three rules are not ‘distinct’ in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule...” (see, among many other authorities, Döring v. Germany (dec.), no. 37595/97, ECHR 1999-VIII; Schmelzer v. Germany (dec.), no. 45176/99, 12 December 2000; and Honecker and Others v. Germany (dec.), nos. 53991/00 and 54999/00, ECHR 2001-XII).

Furthermore, according to the settled case-law of the Convention institutions, “possessions” within the meaning of Article 1 of Protocol No. 1 can be “existing possessions” (see Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, p. 23, § 48) or assets, including claims, in respect of which the applicant can argue that he has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see Pine Valley Developments Ltd and Others v. Ireland, judgment of 29 November 1991, Series A no. 222, p. 23, § 51; Pressos Companía Naviera SA v. Belgium, judgment of 20 November 1995, Series A no. 332, p. 21, § 31; and Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII).

In the instant case, the Court notes that the fact that the donation which the applicant association had received from the PDS was placed under the administration of the Trust Agency amounted to interference with the association’s right to the peaceful enjoyment of its possessions as guaranteed by the first sentence of Article 1 of Protocol No. 1.

The Court must first determine whether the material provision in the present case is the second sentence of the first paragraph or the second paragraph.

The seizure of the applicants’ assets did, admittedly, entail a deprivation of possessions. However, it was effected under the general regulations introduced in the GDR during the period before reunification with a view to checking the provenance of assets belonging to political parties and related organisations.

In the Court’s view, the interference complained of therefore constituted a control of the use of property to be considered under the second paragraph of Article 1 of Protocol No. 1 (see AGOSI v. the United Kingdom, judgment of 24 October 1986, Series A no. 108, p. 17, § 51, and Raimondo v. Italy, judgment of 22 February 1994, Series A no. 281-A, p. 16, § 29).

As to whether the interference was lawful, the Court notes, firstly, that the measure complained of was based on the GDR’s Political Parties Act, as amended by the Political Parties (Amendment) Act, which came into force on 1 June 1990. Pursuant to section 20b(2) of the Act, assets which had belonged to political parties and related organisations on 7 October 1989 or had subsequently taken replaced those assets were placed under the administration of the Trust Agency, in order to secure the assets of political parties and related organisations.

In its judgment of 10 December 1998 the Federal Administrative Court, the highest administrative court, interpreted the provision in issue and applied it to the instant case, concluding that the PDS’s donation to the applicant association fell within the scope of the provision.

The Court considers that this was not an arbitrary interpretation and reiterates in that connection that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II).

As regards the purpose of the interference, the Court considers that, in the instant case, the interference pursued an aim that was in the general interest. It appeared legitimate for the GDR parliament, after democratic elections, and subsequently for the FRG’s courts, after reunification, to check the provenance of political parties’ assets and to place them, where appropriate, under the administration of the Trust Agency, in the interests of public morality.

Lastly, the Court must consider whether the interference was proportionate.

In that connection, it points out that the second paragraph of Article 1 of Protocol No. 1 has to be construed in the light of the general principle set out in the first sentence of that Article. That sentence has been interpreted by the Court as including the requirement that a measure of interference should strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, among other authorities, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 26, § 69, and James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, p. 34, § 50). The search for this balance is reflected in the structure of Article 1 as a whole and hence also in the second paragraph. There must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Tre Traktörer AB v. Sweden, judgment of 7 July 1989, Series A no. 159, p. 23, § 59). In determining whether a fair balance exists, 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 AGOSI, cited above, p. 18, § 52, and Honecker and Others (dec.), cited above).

In the instant case the Federal Administrative Court considered, firstly, that, in accordance with Article 76 § 2 of the GDR Civil Code, the transfer of the property had not become effective on 31 May 1990, the date on which the PDS leadership had handed the cheque to the applicant association’s president, but only on 6 June 1990, the date on which the sum appearing on the cheque had actually been credited to the applicant association’s bank account. As the Political Parties (Amendment) Act had come into force on 1 June 1990, that sum, being part of the PDS’s assets, fell within the scope of section 20b(2) of the Political Parties Act.

The Federal Administrative Court further held that, regard being had to the aims of the Political Parties Act, namely securing political parties’ and related organisations’ assets that had been acquired in breach of the rule of law, with a view to redistributing them among their former owners or using them to serve the public interest, and to its own case-law on the subject, the Trust Agency was entitled to exercise its sovereign powers by taking administrative measures in respect of third parties other than those specified in the Political Parties Act.

Although the applicant association was not an organisation related to the PDS, the Court considers that the Federal Administrative Court’s reasoning was well-founded as regards the sovereign powers conferred on the Trust Agency in the light of the aims of the GDR’s Political Parties Act. The purpose of the Act was to ensure that political-party assets of questionable origin were not misappropriated but were placed under the administration of the Trust Agency so that they could be returned to their former owners by way of reparation or, should that prove impossible, put to use in the public interest.

Having regard to all the above considerations and, in particular, to the exceptional circumstances of German reunification, the Court considers that the respondent State did not overstep its margin of appreciation and that, in view of the legitimate aims pursued, it succeeded in achieving a “fair balance” between the applicant association’s interests and the general interest of German society.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2.  The applicant association further relied on Article 14 of the Convention taken together with Article 1 of Protocol No. 1. Article 14 of the Convention provides:

The enjoyment of the rights and freedoms set forth in [the] 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 applicant association submitted that, like the last GDR government, the PDS had wished to redistribute its assets by supporting State-organised, social, economic or cultural activities that had been consciously or unconsciously neglected by the SED (Sozialistische Einheitspartei Deutschlands – Socialist Unity Party) regime. Such support had also included the donation of funds to religious associations, as freedom of worship had been considerably impeded under the previous regime. For example, the Centrum Judaicum foundation had been given a donation of 70,000,000 GDR marks, other Jewish associations had also received donations and Humboldt University in Berlin had received a payment of 250,000,000 GDR marks. As far as it was aware, there had been no seizures of donations made to any other associations or institutions.

The Court reiterates that in accordance with its settled case-law, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent that Article 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 rights and freedoms guaranteed by the Convention (see, among other authorities, Gaygusuz v. Austria, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1141, § 36, and Kuna v. Germany (dec.), no. 52449/99, CEDH 2001-V).

Having regard to its line of reasoning under Article 1 of Protocol No. 1, the Court considers that no separate issue arises under Article 14 of the Convention taken together with Article 1 of Protocol No. 1.

It follows that this complaint is likewise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3.  The applicant association also complained that the impugned decision by the German authorities and courts had infringed its freedom of religion as guaranteed by Article 9 of the Convention, which provides:

“1.  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.  Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The applicant association asserted that the donation in question had been intended to help establish a peaceful Muslim community within the GDR’s territory, an aim covered by the freedom to manifest one’s religions or beliefs and the protection of religious communities as guaranteed by the Convention. In particular, the donation had been intended to help fund the construction of an Islamic cultural centre. In the applicant association’s submission, the unlawful seizure of practically all its funds showed that the Government had deliberately sought to hinder the development of such a Muslim community.

The Court reiterates that freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see, among other authorities, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 60, ECHR 2000-XI, and Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 114, ECHR 2001-XII).

The Court has doubts as to whether there was interference with the applicant association’s freedom of religion in the instant case because, unlike the position in other cases that have been brought before it, the impugned decision by the German authorities and courts concerned neither the internal organisation of the applicant association nor its official recognition by the State, seeing that it had precisely obtained State approval in March 1990. Furthermore, there was nothing in their decision to suggest that they had deliberately sought to interfere with the applicant association’s religious activities.

The decision in issue was consistent with the general regulations introduced in the GDR during the period before reunification with a view to checking the provenance of the assets of political parties and related organisations, irrespective of the intended recipients of such funds.

In any event, the Court is not called upon in the instant case to rule on the nature of the decision for the purposes of Article 9.

It observes that the decision was prescribed by law, being based on section 20b(2) of the GDR’s Political Parties Act, and pursued the legitimate aims of protecting public morals and the rights and freedoms of others.

In accordance with its line of reasoning under Article 1 of Protocol no. 1, the Court considers that the decision complained of was not disproportionate to the legitimate aims pursued by the Political Parties Act.

It follows that this complaint is likewise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4.  Lastly, the applicant association maintained that it had been the victim of a violation of Article 14 of the Convention taken together with Article 9. Article 14 provides:

The enjoyment of the rights and freedoms set forth in [the] 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 applicant association reiterated the arguments it had set out in support of its complaints under Article 14 of the Convention taken together with Article 1 of Protocol No. 1, submitting that the seizure of its assets had amounted to blatant discrimination against it, particularly in relation to Jewish religious associations. It therefore claimed to be the victim of a deliberate anti-Muslim policy.

Having regard to its line of reasoning under Article 9 of the Convention, the Court considers that no separate issue arises under Article 14 of the Convention taken together with Article 9.

It follows that this complaint is likewise manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

ISLAMISCHE RELIGIONSGEMEINSCHAFT E.V. v. GERMANY DECISION


ISLAMISCHE RELIGIONSGEMEINSCHAFT E.V.v. GERMANY DECISION