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Expropriation without Compensation – the European Court of Human Rights sanctions German Legislation expropriating the Heirs of “New Farmers”

Published online by Cambridge University Press:  06 March 2019

Ulrike Deutsch

Extract

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On 30 June 2005, the Grand Chamber of the European Court of Human Rights (ECHR) issued a judgment concerning the expropriation of the heirs of new farmers in the former German Democratic Republic (GDR). With this decision, the Grand Chamber overturned a unanimous judgment by the Chamber of 22 January 2004. This article outlines the facts of the case (section A), the German case law (section B) and the Chamber and Grand Chamber judgments (section C) and provides an evaluation of the judgments (section D).

Type
Developments
Information
German Law Journal , Volume 6 , Issue 10: Special issue - Articles German Federalism: Theory and Recent Developments , 01 October 2005 , pp. 1367 - 1380
Copyright
Copyright © 2005 by German Law Journal GbR 

References

1 Eur. Court H.R., Grand Chamber Judgment, Jahn and others v. Germany, Judgment of 30 June 2005, available at: http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=3511702&skin=hudocen&action=request.Google Scholar

2 Eur. Court H.R., Chamber Judgment, Jahn and others v. Germany, Judgment of 22 January 2004, available at: http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=3511702&skin=hudoc-en&action=request.Google Scholar

3 See, Art. 1, para. 1 of the Land Reform Decree in the province of Saxony of 3 September 1945, official gazette (Verordnungsblatt) for the province of Saxony, No. 1/45, p. 28.Google Scholar

4 Hans Modrow was the prime minister of the GDR from November 1989 until March 1990.Google Scholar

5 Art. 9 I of the Unification Treaty of 31 August 1990, BGBl. II 1990, 885, 892 provides:Google Scholar

Law of the German Democratic Republic valid at the time of the signing of this Treaty which is law of the Länder according to the distribution of competence under the Basic Law shall remain in force in so far as it is compatible with the Basic Law, notwithstanding Article 143, with the federal law put into force in the territory specified in Article 3 of this Treaty and with the directly applicable law of the European Communities, and unless otherwise provided in this Treaty. Law of the GDR that is federal law according to the distribution of competence under the Basic Law and concerns legal aspects not regulated by the state remains valid as law of the Länder under the conditions of the first sentence until it is regulated by the federal legislature.Google Scholar

6 Law amending the Property Rights Act and other provisions (Zweites Vermögensrechtsänderungsgesetz), 14 July 1992, BGBl. I 1992, 1257.Google Scholar

7 Federal Constitutional Court, Judgment of 6 October 2000, 1 BvR 1637/99, available at: http://www.bverfg.de/cgi-bin/link.pl?entscheidungen.Google Scholar

8 Until the judgement by the German Federal Court of Justice of 17 December 1998, BGHZ 140, 223, 226 – 231, German courts had consistently held that land acquired under the land reform was not hereditary. See on this point Beate Grün, Die Geltung des Erbrechts beim Neubauerneigentum in der SBZ/DDR – verkannte Rechtslage mit schweren Folgen, 8 Zeitschrift für Vermögens- und Immobilienrecht (1998), 537.Google Scholar

9 Judgment of the Federal Constitutional Court (note 8), para. 16.Google Scholar

10 Federal Constitutional Court, The Groundwater Case, Judgment of 15 July 1981, 58 BVerfGE 300, 330 – 331, para. C II.Google Scholar

11 Judgment of the Federal Constitutional Court (note 8), para. 17.Google Scholar

12 Federal Court of Justice, Judgment of 17 December 1998, BGHZ 140, 223, 232–236.Google Scholar

13 Judgment of the Federal Constitutional Court (note 8), para. 24.Google Scholar

14 Id., para. 29.Google Scholar

15 Id., para. 30.Google Scholar

16 Eur. Court H.R., Jahn and others v. Germany (note 2), para. 78.Google Scholar

17 The nature of the title to land acquired under the land reform during GDR era was controversial due to its subjection to restrictions and conditions. For a detailed elaboration, see Kristina Graf, Das Vermögensgesetz und das Neubauerneigentum (2004), 220 – 224; Sebastian Pries, Das Neubauerneigentum in der ehemaligen DDR (1993), 117-142.Google Scholar

18 Eur. Court H.R., Jahn and others v. Germany (note 2), para. 79, which refers to the Chamber Judgment (note 3), paras 65 – 70.Google Scholar

19 Id, para. 87.Google Scholar

20 Id., para. 92.Google Scholar

21 Id., para. 93. The court first formulated this fair balance-test in the case of Sporrong and Lönnroth v. Sweden, Judgment of 23 September 1982, Series A No. 52, para. 69, where it held that the idea of proportionality was inherent in the Convention.Google Scholar

22 See, e.g., Eur. Court H.R., James and others v. The United Kingdom, Judgment of 21 February 1986, Series A No. 98, para. 54; Eur. Court H.R., The Former King of Greece v. Greece, Judgment of 23 November 2000, Reports of Judgments and Decisions 2000-XII, 119, para. 89.Google Scholar

23 Eur. Court H.R., Jahn and others v. Germany (note 3), para. 89.Google Scholar

24 Id., para. 93.Google Scholar

25 Eur. Court H.R., Jahn and others v. Germany (note 2), para. 116.Google Scholar

26 Id., para. 126.Google Scholar

27 See, the Official Gazette of the German Bundestag (federal parliament) 1992, 12/2480, 83-84.Google Scholar

28 Pries (note 18), 175.Google Scholar

29 Common Declaration of the Governments of the FRG and the GDR for the regulation of open questions concerning property, 15 June 1990, BGBl. II 1990, 1237.Google Scholar

30 See, Jahn and others v. Germany (note 2), dissenting opinions of Judges Costa and Borrego Borrego, para. 5, and Ress, para. 3.Google Scholar

31 Eur. Court H.R., Former King of Greece v. Greece (note 23).Google Scholar

32 See, Eur. Court H.R., Jahn and others v. Germany (note 2), dissenting opinion of Judge Cabral Barreto, Section 2.Google Scholar

33 Judgment of the Federal Constitutional Court (note 8), para. 29.Google Scholar

34 See, Eur. Court. H.R., Jahn and others v. Germany (note 2), dissenting opinion of Judge Ress, para. 2.Google Scholar

35 Grün (note 9), 539.Google Scholar

36 See, Eur. Court. H.R., Jahn and others v. Germany (note 2), paras 25, 27, 34, 36, 43, 46, 47.Google Scholar

37 Art. 9 I of the Unification Treaty (note 6).Google Scholar

38 This is stated in a Judgment by the Federal Constitutional Court of 25 May 1993, BVerfGE 88, 384, 404.Google Scholar