CEDH · CASELAW;CLIN;ENG — 8 décembre 2011

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Germany - 35023/04 Judgment 8.12.2011 [Section V] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Deprivation of property Loss of shares in land without full compensation in context of German reunification: no violation   Facts – The instant case concerned land that was purchased in 1938 from two Jewish brothers by an industrialist while the National-Socialists were in power. In 1948 the industrialist’s widow entered into a friendly settlement with an administrator under the terms of which she retained two-thirds of the property while the remaining third was returned to the brothers. On her death, she left her two-third share to a community of heirs, who in 1992 sold part of their share to the applicant under a notarial agreement that indicated that the applicant had been informed of the property’s history. The applicant acquired a further share in January 1997 and then agreed to sell both shares to a third party for DEM 600,000. The sale fell through, however, when the authorities upheld a claim under the Law on the resolution of outstanding property issues (the Property Act)* by the two brothers’ heirs for restitution of the two-thirds share the widow had retained under the friendly settlement in 1948. The friendly settlement was not a bar to restitution and, under the terms of the Act, the applicant was entitled only to consideration calculated by reference to the original (1938) sale price (giving him a total of DEM 1,250) or alternatively to compensation (estimated at DEM 15,000 by the Government) under the Compensation Act 1994. In his application to the European Court, the applicant complained that he had been deprived of his shares in the land without fair compensation. Law – Article 1 of Protocol No. 1: The restitution of the land to the heirs of the original owners constituted interference with the applicant’s right to the enjoyment of the two shares he had acquired and had to be regarded as a “deprivation” of possessions, within the meaning of the second sentence of Article   1 of Protocol No.   1. The deprivation was provided for by law and, being intended to return the property to the heirs of victims of persecution under the National-Socialist regime, was “in the public interest”. As regards proportionality, the applicant had not complained of the restitution per se . Indeed, he had taken the risk of acquiring the property knowing that a restitution claim could be, or in the case of the second share had been, made. Instead, his complaint related to the amount of reparation to which he was entitled (either consideration of DEM 1,250 under the Property Act or compensation under the Compensation Act, estimated at DEM 15,000). In this connection, two crucial factors came into play: firstly, the aim of the Property Act, which was to afford a priority right of restitution to the heirs of those despoiled at the time of the National-Socialist regime and, secondly, the applicant’s full knowledge when he acquired the shares of the risk of a claim for restitution by the heirs of the original owners. The fact that the applicant was entitled to claim compensation also distinguished his case from the case of Jahn and Others **, where no such right was provided. In view of the foregoing, and in particular the exceptional circumstances related to German reunification, the respondent State had not overstepped its margin of appreciation and had not failed to strike a “fair balance” between the interests of the applicant and the general interest of German society. Conclusion : no violation (unanimously). * The Property Act was passed in the context of German reunification in 1990 and enabled people whose land had been lost by forced sale, expropriation or other means under the National-Socialist regime to seek restitution. ** Jahn and Others v. Germany [GC], nos.   46720/99, 72203/01 and 72552/01, 30   June 2005, Information Note no.   76 .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes