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07-16-2009, 01:05 PM
X. v. THE GERMANY - 2113/64 [1967] ECHR 3 (03 April 1967)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a German citizen, born in 1907, now living in Hamburg.In 1934 the Applicant was charged with the offence of preparing hightreason (Vorbereitung zum Hochverrat). He was tried by the Court ofAppeal (Oberlandesgericht) Hamm on ... 1934, and acquitted for lack ofevidence. In ... 1935 he emigrated to Brazil.On his return to the Federal Republic of Germany in 1951 he startedproceedings for compensation for Nazi prosecution.I. His case was first dealt with by the Local Recognition Board(Kreisanerkennungsausschuss), Lüdenscheid, on ... 1953, then by theProvincial President (Regierungspräsident) Arnsberg, by decisions of... 1954, ... 1954 and ... 1955.II. The Applicant then brought an action against the State of NorthRhine-Westphalia in the Regional Court (Landgericht) Arnsberg,contesting the decisions of the Provincial President of .. 1954 and ..1954.On ... 1956 the Compensation Chamber (Entschädigungskammer) of theRegional Court decided that the Applicant fulfilled the requirementsof Article 1, paragraph (1), and Article 3, paragraph (1), of theRecognition Law (Anerkennungsgesetz) of 4th March, 1952 and that hewas therefore entitled to be recognised as having been injured andprosecuted (geschädigt und verfolgt) by the Nazi regime.III. Between 1954 and 1958 the Applicant was awarded various sums bythe Provincial President, Arnsberg, for medical expenses, diet,emergency aid (Soforthilfe), compensation for damages to his career,and advance payments.IV. On .. 1958, on the Applicant's claim against NorthRhine-Westphalia, contesting two decisions of the Regional President(dated ... 1957 and ... 1957) the Regional Court, Arnsberg, awarded theApplicant a further capital sum of 31,950 DM for damage to his career.A further claim for a loan (Existenzaufbaudarlehen) appears to havebeen kept pending.Both parties appealed to the Court of Appeal (13. Zivilsenat desOberlandesgerichts) Hamm. It appears, that during the proceedingsin the Court of Appeal the defendant State invoked Article 7 of theCompensation Law (Bundesentschädigungsgesetz) to refuse the Applicantfurther payment. The ground for the refusal was that the Applicanthad denied being a member of any Nazi organisation but that this denialwas untrue as the Applicant had been a member of the National SocialistMotorists Association (NSKK) in 1934. The Applicant explained to theCourt of Appeal that this membership had been fabricated in order tosave him from conviction on the treason charge in 1934. The Court ofAppeal examined the facts, including the record of the proceedings in1934 and found that the Applicant had been an effective member of theNSKK. It dismissed his appeal on ... 1959 and refused to allow afurther appeal (Revision), stating that the matter was one of factonly.On .. 1959 the Applicant appealed to the Federal Court(Bundesgerichtshof) Karlsruhe against the refusal to allow a furtherappeal. He suggested among other grounds that he had not had anopportunity of replying to the allegations made against him in theCourt of Appeal. On ... 1960 the Federal Court rejected the appeal.V. The Applicant then applied to the Court of Appeal, Hamm, for areopening of the proceedings (Restitutionsklage) covered by thejudgment of .. 1959. This application was rejected on .. 1960.The Applicant appealed to the Federal Court (Bundesgerichtshof) againstthis decision of ... 1960 of the Court of Appeal (13. Zivilsenat desOberlandesgerichts), Hamm. He stated that the Court record (Protokoll)of ... 1960 had been issued with the participation of a judge to whosemembership of the Court he had previously raised objection. Theobjection had been made on the ground of apprehension of prejudice(Besorgnis der Befangenheit) because of the alleged activities of thejudge (Oberlandesgerichtsrat L) in Nazi Courts. The objection had notbeen dealt with because it was not certain at the time whether thejudge would be required to be a member of the Court in the Applicant'scase.It appears that this appeal to the Federal Court was withdrawn bythe Applicant after the Federal Court had pointed out that the nameof the judge had appeared on the Court record of ... 1960 in error.A second application for reopening proceedings was made by theApplicant on ... 1962 and was rejected as inadmissible by the Court ofAppeal (13. Zivilsenat des Oberlandesgerichts) Hamm, on ... 1962.VI. Following the main decision of ... 1959 of the Court of Appeal,Hamm, the Provincial President, Arnsberg, on ... 1959 revoked tenorders for payment that had been made in favour of the Applicant andordered repayment by the Applicant of this sum of 10,847 DMalready paid.On ... 1960 the Applicant appealed against this decision to theRegional Court, Arnsberg. He maintained his applications forcompensation and for a loan (Existenzaufbaudarlehen). On ... 1961 hemade a further, apparently supplementary application to the RegionalCourt, Arnsberg.By its decision of ... 1962 the Regional Court, Arnsberg, rejectedthe Applicant's claims, except that it set aside the order requiringrepayment of the money he had already received.On appeal, the Court of Appeal (13. Zivilsenat des Oberlandesgerichts)Hamm, on ... 1962 reimposed the order for repayment of the amountreceived by the Applicant. The Court of Appeal found no ground forallowing a further appeal (Revision).The Applicant appealed against the decision to the Federal Court(Karlsruhe). This appeal was rejected on ... 1963.VII. The Applicant has also sent petitions to the Federal Ministerof Justice, and to the Minister of Internal Affairs ofNorth-Rhine-Westphalia.The Applicant complains of the actions of the compensation authorities(Entschädigungsbehörde) and of the two judgments of the Court ofAppeal, Hamm, dated ... 1959 and ... 1962.He states that in relation to the first judgment of ... 1959, theCourt of Appeal (13. Zivilsenat des Oberlandesgerichts) Hamm, wasnot entirely composed of persons from whom a truly impartial andobjective decision could be expected, as Judge L had been a judge ina special court (Sondergericht) in Dortmund under the Nazi regime.In relation to the second judgment, of ... 1962, he states that theCourt of Appeal did not proceed impartially and objectively.He complains that the Court was biased in its assessment of the facts,prejudiced and partial. The two decisions do not properly interpretthe intentions of the Compensation Law and violate Article 3, paragraph1, of the Basic Law (Grundgesetz) and Article 6 of the Convention.In particular, the Applicant refers to his alleged membership ofthe NSKK. He states that the evidence proves that he never was aneffective member of this body. He was not on the list of membersof the Nazi Party, or its organisations. He had no contact withthe NSKK. He lived in the town of Lüdenscheid and was under policesupervision there, yet his alleged membership was in Halberstadt. Onthe day that one of the membership documents was made out, he was indetention pending trial on the treason charge.The Applicant claims that his statements to the compensationauthorities denying membership of Nazi organisations correspond to thefacts, especially as he was speaking as a layman, not a lawyer. Hestates that there can be no doubt that he was persecuted by the Naziregime and that he fulfils the requirements of the Compensation Law asfound by the final (rechtskräftig) judgment of the Regional Court(Arnsberg) of ... 1956. The Applicant states that it is harsh andunjustified to apply the punitive sections of that Law. No intentionalfault can be imputed to him.The Applicant has set out at length the arguments and evidence abouthis alleged membership of the NSKK. He states that the evidence provesthat this membership was "constructed" to save him from persecutionand punishment. He claims that it is an injustice now to invoke thesemeasures, that were taken at great risk by persons trying to assisthim, to deprive him of compensation.The Applicant asks the Commission to confirm that the facts are ashe has stated.The Applicant alleges violation of Articles 3 and 6 of the Convention.THE LAWWhereas certain of the facts alleged relate to a period prior to 3rdSeptember, 1953, the date of the entry into force of the Conventionwith respect to the Federal Republic of Germany; and whereas, inaccordance with the generally recognised rules of international law,the Convention only governs, for each Contracting Party, factssubsequent to its entry into force with respect to that Party; whereasit follows that the examination of the Application, in so far as itrelates to these alleged facts, is outside the competence of theCommission ratione temporis;Whereas, concerning the Applicant's claim for compensation, it is tobe observed that under the terms of Article 1 (Art. 1) the Conventionguarantees only the rights and freedoms set forth in Section I of theConvention, and that under Article 25, paragraph (1) (Art. 25-1) onlythe alleged violation of one of those rights and freedoms by aContracting Party can be the subject of an application presented by aperson, non-governmental organisation or group of individuals; whereasotherwise an examination of the Application is outside the competenceof the Commission ratione materiae; whereas in a series of previouscases (for instance, Applications Nos. 1164/61 - S. v. the FederalRepublic of Germany - and 1532/62 - H. v. the Netherlands) theCommission has consistently held that the right to obtain compensationfor an injury which does not itself constitute a violation of theConvention, for example as in the present case, ratione temporis, isnot a right guaranteed by any of the provisions of the Convention;whereas, therefore, this part of the Application is incompatible withthe provisions of the Convention and within the meaning of Article 27,paragraph (2) (Art. 27-2) of the Convention;Whereas, in regard to the Applicant's complaints relating to theproceedings brought to establish his right to compensation in respectof his persecution by the Nazi regime, an examination of the case asit has been submitted, including an examination made ex officio, doesnot disclose any appearance of a violation of the rights and freedomsset forth in the Convention and in particular in Article 6 (Art. 6);Whereas it follows that this part of the Application is manifestlyill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2)of the Convention.Now therefore the Commission declares this Application inadmissible