THE FACTS

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

1.   The applicant is an Israeli citizen, born in 1926 and residing
in Jerusalem. In the proceedings before the Commission he is
represented by Mr. K., a lawyer practising in Munich and Tel-Aviv and
acting under a power-of-attorney dated 8 March 1972.

The applicant was born in Amsterdam as a Dutch national. From November
1941 to April 1944 he was a victim of Nazi persecution because of his
Jewish origin. At the end of the war he went to Palestine and in 1952
he became an Israeli national.

2.   The applicant filed with the District Indemnification Office
(Bezirksamt für Wiedergutmachung) in Koblenz (Federal Republic of
Germany) a claim asking for compensation, under Article 43 of the
Federal Compensation Act 1953 (Bundesentschädigungsgesetz), for
deprivation of liberty in 1943 and 1944. The Office and, on appeals,
also the Regional Court (Landgericht) and the Court of Appeal
(Oberlandesgericht) in Koblenz, all rejected the claim on the statutory
ground that the applicant had never been stateless before the
acquisition of the Israeli nationality. An appeal on points of law
(Revision) was dismissed by the Federal Court (Bundesgerichtshof) on
.. October 1963.

3.   On .. June 1965 the applicant filed a petition of rehearing
(Restitutionsklage) with the Court of Appeal in Koblenz under Article
580 (7) (b) of the Code of Civil Procedure (Zivilprozeßordnung) and
submitted new evidence concerning his former status as a stateless
person.

On .. November 1966 the Court rejected the petition for rehearing.
Referring to the Federal Court's decision of 15 June 1966 in another
case, the Court of Appeal held that Article 580 of the Code of Civil
Procedure could not be applied in proceedings under the Compensation
Act. It declared, however, that under Article 221 of the Act "an appeal
on points of law is admissible without special permission" ("findet die
Revision ohne Zulassung statt").

On .. April 1967 the applicant appealed to the Federal Court in order
to obtain a rehearing. On .. October 1971 the Federal Court declared
the appeal on points of law inadmissible on the ground that the
conditions set up in Article 221 of the Compensation Act were not
satisfied in the present case : The attacked decision was neither based
on a lack of jurisdiction of the civil courts not did it concern the
inadmissibility of an appeal to the Court of Appeal (Berufung). The
above reference by the Court of Appeal to Article 221 was therefore
erroneous.

It followed in the Federal Court's view that an appeal on points of law
was only admissible in cases where it had either been allowed by the
Court of Appeal under Article 219 of the Compensation Act or by the
Regional Court itself on a complaint against the Court of Appeal's
refusal to allow the appeal (Nichtzulassungsbeschwerde). Since the
Court of Appeal's reference to Article 221 could not be considered as
a special permission to appeal the applicant, according to the Federal
Court, ought to have filed a complaint against the failure to allow the
appeal. The appeal which he had lodged instead could not be interpreted
as such a complaint by reason of the different objectives of these
remedies. Whereas an appeal on points of law (Revision) aimed at a
decision reversing the lower court's main decision, a complaint was
primarily directed against the lower court's refusal to allow the
appeal.

Finally, the Federal Court considered as irrelevant the Court of
Appeal's erroneous statement that an appeal from its decision did not
require special permission. It found that applicant's counsel, despite
this misleading statement, could have chosen the correct remedy by
looking at the language of Article 221 of the Compensation Act and at
two pertinent decisions of the Federal Court published in 1964 and
1965.

Complaints

4.   The applicant alleges a violation of Article 6 (1) of the
Convention. He complains that the Federal Court dismissed his appeal
on purely formalistic grounds. The Court's consideration that his
counsel could have chosen the correct remedy, despite the erroneous and
misleading statement of the lower court, made the applicant responsible
for an alleged mistake of high judges. He was furthermore the victim
of a sudden and temporary change in the Federal Court's jurisprudence
on rehearing in compensation proceedings : before and after the Federal
Court's decision of 15 June 1966, which led the lower court to dismiss
the applicant's motion for rehearing, the Federal Court had on various
occasions accepted such motions as admissible.

The applicant concludes that the Federal Court's decision had little
if anything to do with the elementary principles of justice. By
applying restrictive formalism the Court violated his right to have his
civil case tried by a fair and impartial tribunal. In support of this
submission the applicant refers to a statement by the Federal
Constitutional Court (Bundesverfassungsgericht) of 17 December 1969
that in compensation cases preference should be given to justice ("...
das Verlangen nach der Rechtssicherheit der Gerechtigkeit weichen
muß").

5.   The applicant further submits a detailed analysis and criticism
of the Federal Court's jurisprudence on the admissibility of motions
for rehearing in compensation proceedings and on the conditions of
compensation under the Compensation Act. He points out at the same time
that these submissions are obiter dicta, the main issue being the
question of a fair hearing before the Federal Court.

6.   The applicant further submits that, contrary to the jurisprudence
of the Commission (Application No. 4618/70, Collection of Decisions,
Vol. 40, p. 11), proceedings under the Federal Compensation Act involve
the "determination of civil rights and obligations" within the meaning
of Article 6 (1) of the Convention.

The Commission based its negative view on the consideration that the
Federal Republic of Germany as such could not, without specific
provision, be held liable under German law for injuries of the kind
covered by the Act. The Act constituted an undertaking to grant
compensation for injuries for which otherwise damages could not be
recovered under the general principles of tort liability.

The applicant, however, maintains that he has a "proprietary right" to
be indemnified, which has not been created by the Federal Compensation
Act but exists according to the valid stipulations of the law of torts
of the German Civil Code (Bürgerliches Gesetzbuch). It has been
confirmed by treaties with the Allies (26 May 1952; 23 October 1956),
in which the Federal Republic of Germany resumed the legal
responsibility for the debts of the Third Reich. The whole Federal
Compensation legislation was not conceived in order to create a legal
foundation for compensation claims but, on the contrary, for the
explicit purpose to limit, for reasons of the then insufficient
economic capacity of the Federal Republic of Germany, the scope of
those claims as existing in accordance with the valid German
legislation.

In support of this submission the applicant quotes one of the "fathers
and creators" of the Federal Compensation Act, Professor Franz Böhm,
who stated on 2 May 1954 in the German Bundestag: "Indemnification
cannot be considered as a voluntary contribution of the German State
and its citizens, accepted in pursuance of humanitarian and moral
principles to help needy people ... it is indeed a clear cut legal
obligation binding our Sate as successor of the Third Reich, from the
viewpoint of responsibility for illegal acts and crimes committed by
the former State authorities. If that responsibility were not regulated
by a special Federal Law, it would exist according to the binding civil
laws of our country. We would then be obliged to pay the full damages,
and that without regard to our capacity. Would it prove impossible for
us to satisfy those clear and in court proceedings enforceable claims,
bankruptcy proceeding would have to follow. If, instead, a Special
Federal Law regulates the duty to indemnify in a manner deviating from
the binding principles of our own and other civilised States civil
legislation, then it does so not to give the creditors and victims of
the illegal acts committed more than we are obliged to, but on the
contrary:  because it is done with regard for the economical capacity
of our nation, by far not sufficient to materialise the payments due
under the principles of the general laws." (Cited from
"Bundesentschädigungsgesetz" by Becker-Huber-Küster, Vahlen Verlag,
Berlin 1955, p. XXVIII.)

The applicant goes on to say: "The late Dr. Georg Blessin had for long
years been the head of the indemnifications department in the Federal
Ministry of Finance in Bonn. In that capacity he was also responsible
for all Government drafts of the relevant legislation. Understandingly
he is considered to most authoritative commentator of those laws. In
his standard commentary (Blessin-Wilden: Bundesentschädigungsgesetze,
Beck Verlag, München, 1957, p. 128) he declares: 'it cannot, however,
be doubted that, in principle, after the dissolution of the
national-socialist arbitrary State and re-establishment of the rule of
law in the form of the Federal Republic of Germany as the successor of
the preceding State authority, it would be necessary in accordance with
the valid general laws to pay the full indemnity for illegal acts of
the authorities, if those claims would not have been limited by special
legislation'."

7.   Finally, the applicant submits that he has exhausted his domestic
remedies. A constitutional appeal (Verfassungsbeschwerde) against the
Federal Court's decision was not available since no violation of
Articles 33, 38, 101, 103, 104 or any other provision of the Basic Law
(Grundgesetz) could be alleged. All courts in his case had been
competent, they had had proper jurisdiction and had in particular
respected his right to be heard (rechtliches Gehör) under Article 103
(1) of the Basic Law.

THE LAW

1.   The applicant complains that the Federal Court's judgment of ..
October 1971 violated his right, under Article 6 (1) (Art. 6-1) of the
Convention, to a fair hearing in the determination of his claim for
compensation under the Federal Compensation Act. He submits that,
contrary to the Commission's case-law, claims under the said Act
constitute "civil rights" within the meaning of Article 6 (1)
(Art. 6-1) of the Convention.

2.   The Commission notes that the proceedings complained of
(paragraph 3 of the statements of facts) concerned the applicant's
petition for a rehearing of his claim for compensation. That petition
was filed after the applicant's claim had been finally determined in
administrative and court proceedings which were concluded on .. October
1963 (cf. paragraph 2 of the statement of facts). On that day the
Federal Court, dismissing the applicant's appeal on points of law,
confirmed the refusal of his claim for compensation which thus acquired
the force of res judicata.

The Commission further notes that, under Articles 578 et seq. of the
Code of Civil Procedure, a party may apply for the "reopening of
proceedings which have been concluded by a final judgment that has
acquired the force of res judicata" ("Wiederaufnahme eines durch
rechtskräftiges Endurteil geschlossenen Verfahrens"); further, that the
applicant's petition for rehearing under Article 580 of the Code was
refused by the Court of Appeal on the ground that this provision could
not be applied in proceedings under the Federal Compensation Act; and
that the applicant's appeal from this decision was dismissed by the
Federal Court.

3.   However, under Article 25 (1) (Art. 25-1) of the Convention, it
is only the alleged violation of one of the rights and freedoms set out
in the Convention that can be the subject of an application presented
by a person, non-governmental organisation or group of individuals.
With regard to the present complaint, no right to a rehearing in
proceedings under the Federal Compensation Act is as such included
among the rights and freedoms guaranteed by the Convention.

4.   Furthermore, concerning the court proceedings relating to the
applicant's petition for rehearing, the Commission recalls that, in
accordance with its case-law, as confirmed in Application No. 4311/69
(X. v. Denmark, Collection of Decisions, Vol. 37, pp. 82, 97),
proceedings in criminal cases relating to applications for retrial fall
outside the scope of Article 6 (Art. 6) of the Convention, since a
person applying for retrial, having been finally convicted of a
criminal offence, is no longer a person charged with that offence
within the meaning of this Article. In a number of cases concerning
petitions for rehearing in civil proceedings (e.g. Application No.
2889/66 - unpublished) the Commission referring to its jurisprudence
in criminal cases, has equally come to the conclusion that the
proceedings relating to such petitions are not covered by Article 6
(Art. 6). It now confirms this view, which is based on the
consideration that such proceedings do not concern the "determination"
of civil rights or obligations within the meaning of this Article, but
the procedural question whether a determination given in previous
proceedings, which has acquired the force of res judicata, should be
reconsidered.

Furthermore, in the present case, the Federal Court was only faced with
the question of the decision of the applicant's appeal, on points of
law, against the judgment of the Court of Appeal declaring inadmissible
his petition of rehearing. This question was merely a procedural one
and different from the determination of the applicant's claim for
compensation, which had been the subject of the previous proceedings
(paragraph 2 of the statement of facts).

5.   It follows that the application is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article 27,
paragraph (2) (Art. 27-2).

The Commission therefore, does not find it necessary in the present
case to reconsider its case-law (Application No. 4618/70) according to
which proceedings under the Federal Compensation Act generally fall
outside the scope of Article 6 (Art. 6) of the Convention.

For these reasons, the Commission DECLARES THIS APPLICATION
INADMISSIBLE.