Submitted by:
Ms. Hena Neremberg et al. (represented by counsel, Mr.
Edward Kossoy)
Alleged victims:
The authors
State Party:
Germany
Date of Communication:
30 October 1999
The Human Rights
Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on:
27 July 2001
Adopts the following:
Decision on Admissibility
1. The authors of the communication are Ms. Hena Neremberg and ten
other individuals currently residing in Canada, France, and Israel
respectively. The authors claim to be victims of violations by Germany
of article 14 of the International Covenant on Civil and Political
Rights. The authors are represented by counsel. The Optional Protocol
entered into force for Germany on 25 November 1993. Germany entered
reservations ratione temporis and concerning article 5, paragraph
2 (a) of the Optional Protocol.
The facts as submitted
on behalf of the author:
2.1 The authors are
heirs and assigns of the property of a tannery in the city of Radom
(Poland). Shortly after the German occupation in World War II, the
enterprise had been confiscated for being owned by ethnic Jews and,
from then on, had been controlled by the administrative authorities
established in Poland by the German Reich. During this time, on
different occasions, high quantities of leather produced in the
tannery had been delivered to Hannover (Germany). Furthermore, other
property of the authors' ancestors had been confiscated or seized.
2.2 In November 1958,
the authors and/ or other relatives claimed compensation for the
leather delivered to Hannover and other confiscated or seized property
as provided for in the relevant provisions of the Federal Restitution
Act ("Bundesrückerstattungsgesetz"). From 1962 on, the case was
pending at the district court of Berlin ("Landgericht"). In 1971,
the authors agreed on a friendly settlement concerning one part
of the claim. With regard to another part of the claim the court
procedure continued.
2.3 In separate partial
decisions, in 1983 and in 1987, the district court Hannover granted
the authors compensation for other confiscated property of the tannery,
while the procedure continued. In 1992, some of the authors assigned
their claims to a commercial trust company, reserving their right
to claim compensation for damage caused by the delay of proceedings.
In 1993, after further evidence was established, the district court
awarded the authors compensation for other material losses. The
appeal against the partial decisions by Germany has been rejected
as unsubstantiated in second and third instance. Further appeals
against the costs order were dismissed. At that time, the total
compensation granted by the court amounted to several million DM.
2.4 In 1995, the authors
agreed to a friendly settlement on all outstanding compensation
claims against payment of DM 1,000,000.
2.5 In 1996, the authors
claimed, before the district court Hannover, compensation for the
length of procedure regarding their compensation claims.
2.6 The court rejected
the claim arguing that the Federal Restitution Act does not provide
for compensation claims other than those mentioned in this act.
In 1998, the appeal of the authors against this decision was rejected
finally by the Federal Court ("Bundesgerichtshof").
2.7 The authors then
turned to the European Commission of Human Rights with a complaint
against the delay in the procedures. In 1998, the European Commission
of Human Rights declared the application of the authors inadmissible
for lack of exhaustion of remedies available under German law, i.e.
the authors neither instituted official liability proceedings ("Amtshaftungsklage")
nor lodged a constitutional complaint ("Verfassungsbeschwerde")
with the Federal Constitutional Court ("Bundesverfassungsgericht").
Decision on inadmissibility:
3.1 Before considering
any claims contained in a communication, the Human Rights Committee
must, in accordance with rule 87 of its rules of procedure, decide
whether the or not it is admissible under the Optional Protocol
to the Covenant.
3.2 The Committee observes
that, when ratifying the Optional Protocol and recognizing the competence
of the Committee to receive and consider communications from individuals
subject to its jurisdiction, the State party made the following
reservation, with reference to article 5, paragraph 2 (a) of the
Optional Protocol:
"the competence of the Committee shall not apply to communications
a) which have already been considered under another procedure
of international investigation or settlement"
Moreover, the State party made a reservation ratione temporis
excluding the Committee's competence in any case:
"having its origin in events occurring prior to the entry into
force of the Optional Protocol for the Federal Republic of Germany".
3.3 The Committee notes
that the author's claim of undue delay in violation of article 14,
paragraph 1 of the Covenant is mainly related to proceedings that
were pending prior to 25 November 1993, the entry into force of
the Optional Protocol for the State party, and that no part of the
claim relates to events that occurred after 1995.
3.4 Moreover, the Committee
notes that the authors have not availed themselves of existing redress
possibilities, including official liability proceedings ("Amtshaftungsklage")
or constitutional complaint ("Verfassungsbeschwerde"). Consequently,
their complaint was declared inadmissible by the European Commission
of Human Rights due to the non-exhaustion of domestic remedies,
an admissibility requirement that appears also in article 5, paragraph
2 (b) of the Optional Protocol.
