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You are here: BAILII >> Databases >> European Court of Human Rights >> ERNEWEIN and Others v Germany - 14849/08 [2009] ECHR 867 (12 May 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/867.html Cite as: [2009] ECHR 867

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FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14849/08
by ERNEWEIN and Others
against Germany

The European Court of Human Rights (Fifth Section), sitting on
12 May 2009 as a Chamber composed of:

Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Renate Jaeger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 19 March 2008,

Having deliberated, decides as follows:

THE FACTS

The applicants are sixty-four natural persons who are all French citizens (see list appended) and an association, the “Orphelins de pères malgré-nous d’Alsace-Moselle” (OPMNAN). They were represented before the Court by Mr A. Friederich, a lawyer practising in Strasbourg.

A.  The circumstances of the case

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

The applicants are orphans whose fathers died while serving in the German armed forces during the Second World War as “malgré nous”.
The term “malgré nous” describes the 130,000 or so male adults from Alsace and Lorraine who were forcibly conscripted into the German armed forces from 1942 onwards; some 40,000 of them died. To prevent these conscripts from deserting, members of their extended family were occasionally taken hostage. Some members of the families of “malgré nous” who had deserted the German armed forces were subjected to forced labour or sent to concentration camps as reprisals.

B.  German compensation payments to French victims of Nazi persecution

The Federal Republic of Germany as successor to the German Reich and the French Republic agreed on substantial compensation payments.
On 15 July 1960 the Federal Republic of Germany paid 400 million German marks to the French Republic to indemnify French nationals who had been direct victims of Nazi persecution. On the basis of the Franco-German treaty of 31 March 1981, the Federal Republic of Germany made available
250 million marks to the “Fondation Entente Franco-Allemande”,
a foundation established under French law, which is responsible, inter alia, for distributing compensation payments to those who were forcibly conscripted; the Federal Republic of Germany and the French Republic agreed that with these payments the “malgré nous” had been compensated. Orphans of deceased “malgré nous” were not eligible for compensation.

C.  Parliamentary Petition

One applicant lodged a petition with the German Bundestag.
On 20 September 2007 the Bundestag decided to discontinue the examination of the petition on the grounds that the German and French governments had agreed that the payments in 1960 and 1981 had been the final gesture (abschließende Geste) towards the former French soldiers who had been forcibly conscripted into the German armed forces.

COMPLAINTS

1. The applicants complained under Articles 2, 3, 4, 5, 9, 10 and 14 of the Convention about the treatment of their late fathers and their families.

2. The applicants further complained under Article 1 of Protocol No. 1 that the orphans of deceased “malgré nous” had not been compensated.

3. They lastly complained under Article 14 and Article 1 of
Protocol No. 1 that they had been discriminated against in that they had not been compensated and that they were not considered victims of the forcible conscription of their late fathers.

THE LAW

1. The applicants complained under Articles 2 (right to life),
3 (prohibition of torture), 4 (prohibition of slavery and forced labour),
5 (right to liberty and security), 9 (freedom of thought, conscience and religion), 10 (freedom of expression) and 14 (prohibition of discrimination) about the forcible conscription of the “malgré nous”, their treatment in the German armed forces, the taking hostage, internment and subjection to forced labour of members of their extended families.

The Court reiterates that, in accordance with the general rules of international law, the provisions of the Convention do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the Convention (see, mutatis mutandis, Blečić v. Croatia [GC], no. 59532/00,
§ 70, ECHR 2006 ...). The acts complained of all took place before the Convention entered into force. It follows that these complaints are incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The applicants further complained under Article 1 of Protocol No. 1 that they had not been compensated as orphans of “malgré nous”.

Article 1 of Protocol No. 1 reads as follows:

“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.”

1. The Association’s complaint

At the outset, the Court must consider whether the association “Orphelins de pères malgré-nous d’Alsace-Moselle” (OPMNAN) can claim to be a victim of a lack of compensation for its members. In this context, the Court reiterates that an applicant must be directly affected in order to qualify as a victim of the act or omission in issue (see Amuur v. France, 25 June 1996,
§ 36, Reports of Judgments and Decisions 1996 III). The Court further reiterates that that an association may invoke a violation only of its own rights, but may not complain about a violation of its members’ rights, since Article 35 does not provide for individuals to institute a kind of
actio popularis for the interpretation of the Convention
(see Ada Rossi and Others v. Italy (dec.), nos. 55185/08, 55483/08, 55516/08, 55519/08, 56010/08, 56278/08, 58420/08 and 58424/08,
ECHR 2008–...).

The Court observes that the association is complaining only of a violation of its members’ rights and does accordingly not qualify as a victim. It follows that the association’s complaint as a whole is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The individual applicants’ complaints

As regards the remaining applicants, the Court reiterates that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions are related to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicants can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see von Maltzan and Others v. Germany (dec.) [GC],
nos. 71916/01, 71917/01 and 10260/02, § 74(c), ECHR 2005-V, and Kopecký v. Slovakia [GC], no. 44912/98, § 35(c), ECHR 2004-IX).
The Court reiterates that a proprietary interest may only be regarded as an asset and thus give rise to a “legitimate expectation” protected by
Article 1 of Protocol No. 1 if it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it (see Kopecký, cited above, § 52).

The applicants are not entitled to compensation under any compensation scheme for French victims of Nazi persecution or under German law.
It remains to be examined whether they can claim that they had a “legitimate expectation” of being compensated.

The Court notes that that the Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused by a predecessor to it (see Kopecký, cited above, §§ 35 and 37-38;
Woś v. Poland (dec.), no. 22860/02, § 84, ECHR 2005 IV, in which the applicant was able to establish, at least on arguable grounds, a claim in domestic law, subsequently confirmed in Woś v. Poland, no. 22860/02,
§§ 73 et seq., 8 June 2006; von Maltzan and Others, cited above, § 77; Associazione Nazionale Reduci Dalla Prigionia dall’Internamento e dalla Guerra di Liberazione and 275 Others v. Germany (dec.), no. 45563/04 , 4 September 2007; Epstein and Others v. Belgium (dec.), no. 9717/05, ECHR 2008 ... (extracts); and Preussische Treuhand GmbH & Co. Kg a. A. v. Poland (dec.), no. 47550/06, ECHR 2008-... (extracts)).

The Court further notes that the belief that a compensation scheme previously in force could be changed to an applicant’s advantage cannot be regarded as a form of legitimate expectation for the purposes of
Article 1 of Protocol No. 1, for there is a difference between a mere hope of compensation, however understandable that hope may be, and a legitimate expectation, which must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision
(see, mutatis mutandis, Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 73, ECHR 2002-VII, and
von Maltzan and Others, cited above, § 112).

The Court observes that the applicants’ claim for compensation was not based on legal provisions or a judicial decision. The Court therefore finds that the applicants had no “legitimate expectation” of being compensated.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3. The applicants further complained under Article 14, read in conjunction with Article 1 of Protocol No. 1, that they had been discriminated against in that they had not been compensated or treated as victims of the forcible conscription, treatment and death of their late fathers.

Article 14 reads as follows:

“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 Court reiterates that Article 14 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. The application of Article 14 does not necessarily presuppose a violation of one of the substantive rights guaranteed by the Convention. It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of one or more of the Convention Articles (see Burden v. the United Kingdom [GC],
no. 13378/05, § 58, 29 April 2008).

The Court has already found that the orphans of “malgré nous” cannot claim to have a legitimate expectation of being compensated and that the facts at issue do not fall within the ambit of Protocol No. 1.

This finding is not contradicted by the Court’s judgment in the case of Stec and Others in which the Court held that although Article 1 of Protocol No. 1 does not grant the right to receive a social security payment of any kind, if a State does decide to establish a benefits scheme, it must do so in a manner compatible with Article 14 (see Stec and Others v. the United Kingdom [GC], no. 65731/01, § 53, ECHR 2006 ...). The case is distinguishable from Stec and Others in that the United Kingdom government provided for a general pension scheme, whereas the German government did not provide for an all-encompassing compensation scheme under which the orphans of “malgré nous” were in principle entitled to compensation.

Furthermore, the “Fondation Entente Franco-Allemande” is a foundation established under French law. The Franco-German treaty of 31 March 1981 assigned the foundation with the distribution of compensation payments to “malgré nous”. The Court finds that Germany cannot be held directly accountable for the distribution of compensation by the foundation.

Lastly, any compensation to orphans of “malgré nous” would have been made outside the framework of German social security legislation, and therefore cannot be likened to social security payments (compare Associazione Nazionale Reduci Dalla Prigionia dall’Internamento e dalla Guerra di Liberazione and 275 Others, cited above).

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President

Annex

List of the applicants