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1. The authors of the
communication are Viktor-Gottfried and Josseline Riedl-Riedenstein (first
and second authors), born in 1916 and in 1934 respectively, and Maria
Scholtz (née Riedl-Riedenstein; third author). All are Austrian nationals.
The authors claim to be victims of a violation by Germany [FN1] of articles
14, paragraph 1, and 26 of the Covenant. They are represented by counsel.
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[FN1] The International Covenant on Civil and Political Rights and the
Optional Protocol entered into force for the State party respectively on 23
March 1976 and 25 November 1993. Upon ratification of the Optional Protocol,
the State party entered the following reservation: "The Federal Republic of
Germany formulates a reservation concerning article 5 paragraph 2 (a) to the
effect that the competence of the Committee shall not apply to
communications a) which have already been considered under another procedure
of international investigation or settlement; or b) by means of which a
violation of rights is reprimanded having its origin in events occurring
prior to the entry into force of the Optional Protocol for the Federal
Republic of Germany; c) by means of which a violation of article 26 of the
[said Covenant] is reprimanded, if and insofar as the reprimanded violation
refers to rights other than those guaranteed under the aforementioned
Covenant."
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THE FACTS AS SUBMITTED BY THE AUTHORS
2.1 Prior to World War II, the family of the authors owned extensive
property in Czechoslovakia, including stocks of German companies including
Daimler Benz (worth 154.000 Reichsmark), Dresdner Bank (worth 142.000
Reichsmark) and IG Farben Industrie AG (worth 410.000 Reichsmark). These
stocks were deposited at the family's secondary residence at Aich Castle. In
September 1944, the first and third authors' father, in the first author's
presence, decided to wrap the stocks in packages, on which he inscribed the
third author's name. Pursuant to the Benes decrees of 1945, the family's
properties in Czechoslovakia were confiscated, including Aich Castle, where
the stocks were hidden in a hall cupboard. While the physical evidence of
the stocks was confiscated, the Czechoslovak authorities did not attempt to
redeem the value of the stocks.
2.2 In 1948, the Deutsche Mark was introduced in the Federal Republic of
Germany, and stocks in Reichsmark were reissued. As proof of ownership, the
old stocks had to be submitted; failing this, ownership had to be
established in other ways, e.g. by submission of bank statements, tax
returns etc. The Federal Republic of Germany acted as trustee for the owners
and eventually took ownership of unclaimed stocks.
2.3 In 1965, the authors visited Aich Castle to collect information about
their stocks for eventual submission to the German Federal Compensation
Office, pursuant to the laws enacted between 1949 and 1964 on the procedure
for examining and validating claims to securities lost or destroyed during
or directly following the Second World War (Wertpapierbereinigungsschlussgesetze).
2.4 Between 1965 and 1976, the authors filed three claims for compensation
with the Federal Compensation Office; these were dismissed in 1965, 1971 and
1981, respectively, for lack of sufficient proof of their ownership of the
shares. The author's unsuccessfully appealed these decisions in separate
proceedings, relating to each parcel of shares, before different courts.
2.5 Before 1990, the authors could not document their ownership of the
stocks, since the papers kept at Aich Castle were inaccessible to them, and
pertinent bank statements and tax returns had been destroyed in a fire at
the family house in Vienna at the end of the War. Moreover, the Czech
authorities had consistently refused to issue a certificate from the Central
Bank, confirming the existence of their stocks.
2.6 Following the change of government in Czechoslovakia in 1990, the
authors gradually obtained access to the necessary documentary evidence. On
19 April 1991, a new application for compensation of the IG Farben shares
was submitted to the Securities Validation Chamber of the Frankfurt Regional
Court, which dismissed the claim on 2 November 1992. On appeal, the
Frankfurt Court of Appeal quashed that decision and referred the matter back
to the Frankfurt Regional Court.
2.7 Following requests by the authors to defer a decision because new
possibilities for securing fresh evidence from the Czech authorities had
developed, the Securities Validation Chamber of the Frankfurt Regional Court
decided, on 29 November 1999, that the authors had no case to claim
compensation for IG Farben shares worth 410.000 Reichsmark, and set the
amount in dispute at 1,644,000 DM. It considered that the requirements of
Section 15, paragraph 1, of the 1964 Act on the finalization of the
validation of securities had not been met, as the authors had not justified
their failure to apply for verification and registration of their rights to
the stocks before the legally prescribed deadline on 31 December 1964. The
Court rejected the authors' argument that they had been unable to obtain
evidence in support of their claims prior to the visit to Aich Castle in
1965, given the reappearance, in 1962, of their former estate manager at
Aich (now "Doubi"), who had detailed knowledge of the authors' assets,
including their stocks. Neither the confiscation of Aich Castle nor the fire
at their house in Vienna could justify their failure to meet the deadline,
since they could reasonably have been expected to make enquiries with the
bank in Karlsbad which had acted as intermediary for the purchase of the
stocks or to inquire into the possible existence of dividend coupons, tax
returns, or other evidence available with the Czech authorities.
2.8 Moreover, the authors had not plausibly shown their ownership of the
stocks, since the mere inscription of the third author's name, in 1944, on
the packages did not constitute a "delivery" of the stocks to the daughter,
nor a substitute for such delivery, without any indication of the legal
position of the bearer of the inscribed name, and because the father's power
to act on behalf of his wife and daughter had not been established. Even if
the first author, as the sole heir, would have been entitled to claim
compensation for the stocks, he had failed to have his ownership title
registered in the compensation proceedings before the expiry of the deadline
on 30 June 1976, as prescribed by Section 11, paragraph 1, of the 1975 Act
to finalize the currency conversion. Lastly, the division and nominal value
of the shares had not been specified.
2.9 On 2 October 2000, the Frankfurt Court of Appeal dismissed the authors'
immediate appeal, in the absence of a legal error in the impugned decision
of the Frankfurt Regional Court. With regard to the authors' argument that
their deceased estate manager's knowledge of the existence of the stocks had
suddenly become the central issue, the Court held that the mere fact that
the authors' claims were previously dismissed on other grounds did not give
rise to a bona fide expectation that their failure to meet the deadline for
claiming validation of their stocks was considered to be justified.
2.10 Irrespective of the authors' argument that it was beyond their
imagination that the estate manager would open the hall cupboard and find
the stocks, the Court considered that the authors' failure to ask him about
the destiny of the stocks amounted to a breach of their duty of care, given
that he had continued to administer Aich Castle after the family's
departure, that he had witnessed the confiscation of said properties by the
Czechoslovakian authorities in 1945, and that the transcript of the
confiscation, which he had handed over to the authors in 1962, did not
mention the stocks. The Appeal Court therefore endorsed the Regional Court's
finding that the authors had failed to show that they had made every
reasonable effort to find evidence in support of their validation claim
prior to their visit to Aich Castle in October 1965. By rejecting the
authors' compensation claim on the ground of their unexcused failure to
apply for validation of their stocks before the deadline on 31 December
1964, the Court did not examine the question of ownership of the stocks.
2.11 On 13 September 2001, the Federal Constitutional Court dismissed the
authors' constitutional complaint, finding that the lower courts' decisions
did not violate the constitutional prohibition of arbitrariness and that the
question of whether a possible breach of article 6 of the European
Convention, which required an oral hearing also in non-adversarial
proceedings of a civil character, would at the same time constitute a
violation of the German Basic Law, had no bearing on the case, since the
authors did not claim that they could have introduced further evidence
during an oral hearing which would have changed the lower courts' decisions.
2.12 On 1 February 1999, the authors submitted an application to the
European Court of Human Rights, alleging that the length of compensation
proceedings in relation to the Dresdner Bank, Daimler Benz and IG Farben
shares violated article 6 of the European Convention, whereas the denial of
any compensation for these shares breached their right to property (as
enshrined in article 1 of Protocol No. 1 to the European Convention). On 22
January 2002, the Court dismissed the authors' claims in respect of the
proceedings concerning the IG Farben and Dresdner Bank shares for
non-exhaustion of domestic remedies. With regard to the Daimler Benz shares,
it rejected their complaint about the length of these proceedings as
manifestly ill-founded and declared the application inadmissible ratione
materiae, insofar as article 1 of Protocol No. 1 to the Convention was
concerned, since the German courts' conclusion that the authors had not
sufficiently established their property rights over the shares was neither
arbitrary nor contrary to relevant provisions of national law.
THE COMPLAINT
3.1 The authors, who limit the scope of their communication to the
proceedings concerning the IG Farben shares, allege violations of their
right under article 14, paragraph 1, to an impartial tribunal and of their
right to equality and non-discrimination, under article 26, in conjunction
with article 14, paragraph 1, of the Covenant, arguing that the German
courts arbitrarily rejected their compensation claim by applying a stricter
standard of proof to their case than to past compensation claims, which had
frequently been granted in cases concerning confiscation of Jewish property.
This discriminatory treatment could be linked to the courts' intention to
protect the German treasury in times of severe economic constraints.
3.2 The authors submit that they exercised due diligence to document their
claims, but were first denied information by the former Czechoslovak
authorities and, when they finally obtained evidence that proved their
ownership of the stocks, were denied compensation by the German courts, on
the basis of their late filing of the claim and their failure to involve
their former estate manager.
3.3 The authors submit that they exhausted domestic remedies and that the
same matter is not being examined under another procedure of international
investigation or settlement. Regarding the German reservation to article 5,
paragraph 2 (a), they argue that their application to the European Court did
not relate to the same substantive rights, since it concerned their right to
property, which is not as such protected by the Covenant, and the length of
the proceedings, rather than their right to equality of treatment and
non-discrimination. Moreover, their claim regarding the IG Farben shares was
not examined by the European Court at all.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
4.1 On 12 August 2003, the State party contested the admissibility of the
communication, arguing that the authors' claims are unsubstantiated,
incompatible ratione materiae with the provisions of the Covenant, insofar
as an isolated argument based on article 26 would be incompatible with the
German reservation, and inadmissible for non-exhaustion of domestic
remedies, to the extent that the authors failed to raise "the prohibition of
arbitrariness under the aspect of unequal treatment compared to other
claimants" in the Federal Constitutional Court.
4.2 The State party submits that the authors have not substantiated, for
purposes of article 2 of the Optional Protocol, that their right to equality
before the courts was violated, and in particular by reference to which
comparable groups, or on the basis of which criteria, they had been
discriminated against by the German courts' application of an allegedly more
stringent standard of proof. Neither unidentified claimants who obtained
compensation for lost securities nor claimants who obtained restitution for
the confiscation of Jewish property could be deemed suitable groups of
comparison, in the absence of any indication of the criteria on which the
differential treatment was allegedly based, and since Jewish compensation
claims for war-induced losses concerned an entirely different situation
subject to distinct legislation.
AUTHORS' COMMENTS
5.1 By submission of 4 November 2003, the authors argued that the German
reservation has no bearing on their claims, since the issue before the
Committee is a denial of equal treatment in a suit at law; their complaint
is thus based on article 26, in conjunction with article 14, paragraph 1,
rather than on article 26 alone. If the reservation was deemed to cover
their claim, the authors request the Committee to examine whether it is
compatible with the object and purpose of the Optional Protocol.
5.2 The authors submit that they sufficiently substantiated their claims,
for purposes of admissibility, thereby reversing the burden of proof, in
accordance with Committee jurisprudence. Accordingly, it was incumbent on
the State party to specify what additional information it wished to obtain
and to explain why other claimants had their ownership recognized, while the
authors were always required to provide hard evidence inaccessible until the
1990s.
5.3 The authors reiterate that, once their claims had been made out, the
German courts rejected them on entirely different grounds, namely that the
authors should have tried to obtain an affidavit from someone who did not
necessarily know of the stocks and who had not listed them in the inventory
of Aich Castle. The State party should be estopped from raising this issue
after the estate manager had died. Moreover, the State party itself could
have assisted in obtaining the necessary information from the
Czechoslovakian authorities.
5.4 Lastly, the authors submit that it would be unreasonable to require them
to exhaust any further domestic remedies, after they had for decades
exercised due diligence to obtain their rights in German courts.
6.1 On 29 September 2004, counsel forwarded further comments, submitting
that, unlike Jewish and other victims of persecution on racial grounds,
whose claims could be assessed under the Act on Compensation for Nazi
Injustice (Bundesentschädigungsgesetz), the authors had been required to
state the nominal value of their shares. When this information finally
became available from the Czech authorities, their claim was rejected under
the pretext that the same information could have been obtained from their
former estate manager earlier. Given that the Compensation Act does not
establish a requirement that each potential witness be contacted, the
authors claim that they have been discriminated against in comparison to
Jewish and other victims of racial persecution.
6.2 In support of their claim, the authors submit a decision dated 12 June
2002 of the Berlin Regional Revenue Office, granting a considerable amount
of compensation to the joint heirs of a reportedly Jewish victim of
confiscation of real estate in 1944. This compensation had been estimated in
the absence of precise information on the real estate value to be
compensated.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
7.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
7.2 With regard to the authors' claim that the German courts' discriminated
against them by applying a more stringent standard of proof to their case
than to other past compensation claims, in particular claims concerning
restitution of confiscated Jewish property, the Committee notes that the
authors did not address this issue in their constitutional complaint dated
13 November 2000. It recalls that, in addition to ordinary judicial and
administrative appeals, authors must also avail themselves of all other
judicial remedies, including constitutional complaints, to meet the
requirement of exhaustion of all available domestic remedies, insofar as
such remedies appear to be effective in the given case and are de facto
available to an author. [FN2] The Committee considers that the authors have
not shown that addressing the alleged discriminatory application of a more
stringent standard of proof to their claims before the Federal
Constitutional Court would have been a futile remedy, merely because the
lower courts had consistently applied such a standard of proof to their
case. It therefore concludes that this part of the communication is
inadmissible under article 5, paragraph 2 (b), of the Optional Protocol,
since the authors have not exhausted all available domestic remedies in that
respect.
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[FN2] Communication No. 1003/2001, P.L. v. Germany, decision on
admissibility adopted on 22 October 2003, at para. 6.5.
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7.3 The Committee notes the authors' claim that the German courts' dismissal
of their compensation claim, in the proceedings concerning the IG Farben
stocks, on the ground that they did not contact their former estate manager
before the statutory deadline (31 December 1964) for filing a validation
claim, was arbitrary and in violation of their rights under article 14,
paragraph 1, in conjunction with article 26, of the Covenant, given the
uncertainty about the latter's knowledge of the existence of the stocks. It
recalls its constant jurisprudence that it is generally for the courts of
States parties to the Covenant to review facts and evidence, or the
application of domestic legislation, in a particular case, unless it can be
shown that such evaluation or application was clearly arbitrary or amounted
to a denial of justice, or that the court otherwise violated its obligation
of independence and impartiality. [FN3] The Committee notes that the German
courts based their finding that the authors had breached their duty of care,
inter alia, on the assumption that it would have been the normal conduct for
anyone who, as the first author, claimed to have known of the existence of
the stocks since 1944, to inquire about their whereabouts upon receipt, in
1962, of a confiscation transcript that made no mention of them, as well as
on their failure to inquire into the possible existence of other evidence of
said stocks (e.g. by checking with the family's former bank in Karlsbad for
proof of their purchase). It further notes that the Frankfurt Regional Court
dismissed the authors' compensation claim not only on grounds of their
unexcused failure to provide evidence of the IG Farben stocks before 31
December 1964, but also because they had not plausibly established their
ownership of the stocks. In these circumstances, the Committee concludes
that the authors have failed to substantiate, for purposes of admissibility,
any arbitrariness on the part of the German courts; this part of the
communication is therefore inadmissible under article 2 of the Optional
Protocol.
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[FN3] Communication No. 886/1999, Bondarenko v. Belarus, Views adopted on 3
April 2003, at para. 9.3; Communication No. 1138/2002, Arenz et al. v.
Germany, decision on admissibility adopted on 24 March 2004, at para. 8.6.
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7.4 In the light of the foregoing, the Committee need not address the
question of whether the State party's reservation regarding article 26 of
the Covenant applies in the present case.
8. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under articles 2 and 5, paragraph
2 (b), of the Optional Protocol;
(b) That this decision shall be communicated to the State party and to the
authors.
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[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.] |
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