Rechtswidrige Enteignungen der
europäische Gerichtshof für Menschenrechte entschied am 22. Januar 2004, dass
die Enteignung von Grundstücken ehemaliger DDR-Bürger nach der Wiedervereinigung
ohne eine Entschädigungszahlung gegen die europäische Menschenrechtskonvention
Betroffen von diesen rechtswidrigen Enteignungen sind ca. 70.000 Bürger. Diese
hatten das Land nach der Bodenreform anno 1945 erhalten oder später geerbt und
mussten dieses - soweit sie nicht selbst in der Land-, Forst- oder
Nahrungsmittelwirtschaft arbeiteten - anno 1992 an die neuen Bundesländer
Betroffenen werden wir bei der Durchsetzung ihrer Rechte behilflich sein.
Entscheidung im Detail:
CHAMBER JUDGMENT IN THE CASE OF
JAHN AND OTHERS v. GERMANY
The European Court of Human Rights has today notified in
writing a judgment 1)
in the case of Jahn and Others v. Germany (application nos. 46720/99,
72203/01 and 72552/01). (The judgment is available in French and in English.)
The Court held:
unanimously, that there had been a violation of Article
1 of Protocol No. 1 (protection of property) of the European Convention on
unanimously, that it was not necessary to examine the
applicants’ complaint under Article 14 (prohibition of discrimination) of the
Convention taken together with Article 1 of Protocol No. 1;
by six votes to one, that the question of the
application of Article 41 (just satisfaction) was not ready for decision.
1. Principal facts
The five applicants are all German nationals living in Germany: Heidi Jahn and
Albert Thurm, who are sister and brother, born in 1947 and living in
Sangerhausen; Erika Rissmann and Ilse Höller, who are sisters, born in 1942 and
1944 and living in Erfstadt and Stotzheim respectively; and, Edith Loth, born in
1940 and living in Frankfurt an der Oder.
The applicants all inherited plots of land which had been
allocated to their families - subject to certain restrictions regarding the
transfer of title to the land - following the 1945 agrarian reform (Bodenreform-grundstücke)
in the German Democratic Republic (GDR). Such landowners were known at the time
as the new farmers (Neubauern).
On 16 March 1990 the Modrow Law (Gesetz über die Rechte
der Eigentümer von Grundstücken aus der Bodenreform) entered into force, lifting
the restrictions regarding the transfer of title and giving those concerned full
After German reunification, however, certain individuals
who had inherited land allocated following the agrarian reform, including the
applicants, were required to transfer this land to the tax authorities of their
local Länder without compensation, under the Federal Republic of Germany’s
second Pecuniary Rights Amendment Act (zweites Vermögensrechtsänderungsgesetz)
of 14 July 1992. This law stipulated that those inheriting land acquired
following the agrarian reform who had not worked in the agriculture, forestry or
food-production sectors either on 15 March 1990 or during the previous 10 years,
or been members of an agricultural cooperative (Landwirtschaftliche
Produktions-genossenschaft) in the GDR, transfer the land to the tax
2. Procedure and composition of the Court
The first application was lodged with the
European Commission of Human Rights on 2 September 1996 and transmitted to the
Court on 1 November 1998. It was declared admissible on 25 April 2002. The
second and third applications were lodged on 19 March and 23 April 2001 and were
declared partly admissible on 15 May 2003.
A public hearing took place in the Human Rights Building,
Strasbourg on 18 September 2003.
Judgment was given by a Chamber of seven judges, composed
Ireneu Cabral Barreto (Portuguese), President,
Georg Ress (German),
Lucius Caflisch (Swiss),
Pranas Küris (Lithuanian),
John Hedigan (Irish),
Margarita Tsatsa-Nikolovska (Macedonian),
Kristaq Traja (Albanian), judges,
and also Vincent Berger, Section Registrar.
3. Summary of the judgment
The applicants complained that, in being required to reassign their property
without compensation, they were deprived of their property, in violation of
Article 1 of Protocol No. 1 to the Convention. They also complained, under
Article 14, that the tax authorities’ right to assignment of the land amounted
to discrimination against them compared to other owners of land distributed
under the land reform.
Decision of the Court
Article 1 of Protocol No. 1
The European Court of Human Rights found that the applicants were owners of the
land in question. Whatever their position before the Modrow Law entered into
force, they had legally acquired full ownership of the land under that law,
which was passed by the GDR’s parliament and became an integral part of German
domestic law following the reunification of Germany. After reunification the
applicants had all been registered as owners in the land register and had,
initially, been able to dispose of their property as they wished. Ordering the
applicants to reassign their property to the tax authorities therefore deprived
them of their property within the meaning of Article 1 of Protocol No. 1.
The Court also recognised that this transfer of title had a legal basis and that
it was in the public interest; in that it was a question of correcting the
results - which the German authorities considered to be unjust - of the Modrow
However, a fair balance had to be struck between the demands of the general
interest of the community and the requirements of the protection of the
individual’s fundamental rights. The Court reiterated that the taking of
property without paying compensation related to its value would normally
constitute a disproportionate interference; a total lack of compensation could
only be considered justifiable under Article 1 of Protocol No. 1 in exceptional
The Court noted that the Modrow Law was passed by the first freely-elected
parliament in the GDR in 1990 in negotiations between the two German States
during the period between the fall of the Berlin Wall and the implementation of
German reunification. The aim of the law was to open up the GDR to a market
economy, by lifting all the restrictions on land acquired under the land reform.
If the German legislature’s intention was to correct the - in its opinion unjust
- effects of the Modrow Law by passing a new law two years later, this did not
pose a problem in itself. The problem was the content of the new law. In the
Court’s view, in order to comply with the principle of proportionality, the
German legislature could not deprive the applicants of their property for the
benefit of the State without making provision for them to be adequately
compensated. However, the applicants did not receive any compensation.
The Court accepted that the second Property Rights Amendment Act did not only
benefit the State, but also in some cases provided for the redistribution of
land for the benefit of farmers and to the detriment of heirs to the land who
had not themselves farmed it. However, the Court was required to deal only with
the cases actually brought before it. The applicants, as the heirs of owners of
land that had been acquired under the land reform, had had to reassign their
land to the tax authorities without any compensation whatsoever.
The Court concluded that, even if the circumstances surrounding German
reunification had to be regarded as exceptional, the lack of any compensation
for the State’s taking of the applicants’ property upset, to the applicants’
detriment, the fair balance which had to be struck between the protection of
property and the requirements of the general interest. There had therefore been
a violation of Article 1 of Protocol No. 1.
Noting its finding above, the Court did not find it necessary to examine the
alleged violation of Article 14 taken together with Article 1 of Protocol No. 1.
Judge Cabral Barreto expressed a partly concurring and partly dissenting
opinion, which is annexed to the judgment.
Registry of the European Court of Human Rights
F - 67075 Strasbourg Cedex
The European Court of Human Rights was set up in
Strasbourg by the Council of Europe Member States in 1959 to deal with alleged
violations of the 1950 European Convention on Human Rights. Since 1 November
1998 it has sat as a full-time Court composed of an equal number of judges to
that of the States party to the Convention. The Court examines the admissibility
and merits of applications submitted to it. It sits in Chambers of 7 judges or,
in exceptional cases, as a Grand Chamber of 17 judges. The Committee of
Ministers of the Council of Europe supervises the execution of the Court’s
Article 43 of the European Convention on Human Rights, within three months from
the date of a Chamber judgment, any party to the case may, in exceptional cases,
request that the case be referred to the 17‑member Grand Chamber of the Court.
In that event, a panel of five judges considers whether the case raises a
serious question affecting the interpretation or application of the Convention
or its protocols, or a serious issue of general importance, in which case the
Grand Chamber will deliver a final judgment. If no such question or issue arises,
the panel will reject the request, at which point the judgment becomes final.
Otherwise Chamber judgments become final on the expiry of the three-month period
or earlier if the parties declare that they do not intend to make a request to
This summary by the Registry does not bind the Court.