CEDH · CASELAW;CLIN;ENG — 30 juin 2005

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Germany [GC] - 46720/99 Judgment 30.6.2005 [GC] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Deprivation of property Obligation to return to the reunified German State, without compensation, property allocated to ascendants during the GDR regime: no violation   Facts :The five applicants, all German nationals, inherited land that had been allocated to their ascendants, subject to certain restrictions on disposal, following the land reformimplemented in the Soviet Occupied Zone of Germany in 1945. In March 1990 the so-called Modrow Law came into force in the German Democratic Republic, lifting the restrictions on the disposal of land that had been applicable until then, whereupon those in possession of the land acquired full title to it. After German reunification, however, some heirs (including the applicants) of persons who had acquired land under the land reform were compelled to reassign their property to the tax authorities of their respective Land without compensation in accordance with the second Property Rights Amendment Act passed in July 1992 by the German federal parliament. Heirs of owners of land acquired under the land reform had to reassign it to the tax authorities if, on 15   March 1990, they were not carrying on an activity in the agriculture, forestry or food-industry sectors in the GDR, had not been carrying on an activity in one of those sectors during the previous ten years or were not members of an agricultural cooperative in the GDR. A Chamber of the Court had found that even if the circumstances pertaining to German reunification had to be regarded as exceptional, the lack of any compensation for the State’s taking of the applicants’ property had upset, to the applicants’ detriment, the fair balance which had to be struck between the protection of the right of property and the requirements of the general interest. Accordingly, the Chamber had concluded, unanimously, that there had been a violation of Article 1 of Protocol No. 1, rendering it unnecessary to examine the allegation of a breach of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (see Case-Law Reports N o 60). Law – Article 1 of Protocol No. 1 to the Convention: The Grand Chamber, like the Chamber, found that the interference in question had to be regarded as a deprivation of property and that it had been “provided for by law”. It also agreed with the Chamber that the impugned measures had been “in the public interest”, namely to correct the effects of the Modrow Law which the German authorities had considered unfair. The question remaining was whether a “fair balance” had been struck between the demands of the general interest of the community and the requirements of the protection of the individual’s property rights. As the taking of property without any compensation whatsoever could be considered justifiable under Article   1 of Protocol No.   1 only in exceptional circumstances the Court had to examine, in the light of the unique context of German reunification, whether such circumstances had existed. In the first place the Court noted that the Modrow Law had been passed by a parliament that had not been democratically elected, during a transitional period between two regimes that had inevitably been marked by upheavals and uncertainties. In those conditions, even if the applicants had acquired a formal property title, they could not be sure that their legal position would be maintained. The Court also noted the fairly short period of time that had elapsed between German reunification and the enactment of the second Property Rights Amendment Act. Having regard to the huge task facing the German legislature when dealing with, among other things, all the complex issues relating to property rights during the transition to a democratic, market-economy regime, including those relating to the liquidation of the land reform, the German parliament could be deemed to have intervened within a reasonable time to correct the effects of the Modrow Law in so far as they had been perceived to be unfair. Lastly, the reasons for passing the second Property Rights Amendment Act were also a decisive factor to be taken into consideration. The German parliament could not be deemed to have been unreasonable in considering that it had a duty to correct the effects of the Modrow Law for reasons of social justice so that the acquisition of full ownership by the heirs of land acquired under the land reform did not depend on the action or non-action of the GDR authorities at the time. Given the “windfall” from which the applicants had undeniably benefited as a result of the Modrow Law under the rules applicable in the GDR to the heirs to land acquired under the land reform, the fact that this had been done without paying any compensation had not been disproportionate. Having regard, in particular, to the uncertainty of the legal position of heirs and the grounds of social justice relied on by the German authorities, the Court concluded that in the unique context of German reunification, the lack of any compensation did not upset the “fair balance” which had to be struck between the protection of property and the requirements of the general interest. Conclusion :no violation of Article 1 of Protocol No. 1 (eleven votes to six). Article 14 taken together with Article 1 of Protocol No. 1: The purpose of the second Property Rights Amendment Act of 14 July 1992 had been to correct the effects of the Modrow Law in order to ensure equality of treatment between heirs to land acquired under the land reform, that is, those whose land had been allocated to third parties or returned to the pool of state-owned land in the GDR before the Modrow Law came into force and those who did not satisfy the conditions for allocation, but in respect of whom the GDR authorities had at the relevant time omitted to effect the transfers and enter them in the land register. The provisions of the Law of 1992 had been based on an objective and reasonable justification. Conclusion :no violation (fifteen votes to two).   © 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