Summary:

I.

The constitutional complaint relates to the question of whether the Federal Republic of Germany is obliged to provide compensation and damages for “acts of retaliation” perpetrated by members of the German armed forces during the occupation of Greece in the Second World War.

The complainants are Greek nationals. Their parents were shot dead in 1944 in an “act of retaliation” perpetrated against the residents of the Greek village of Distomo by members of an SS unit that was part of the German occupying forces. The complainants, who were minors at that time, only survived because of fortunate circumstances. In addition to material damage, they suffered psychological damage, as well as disadvantages in terms of their subsequent vocational training and professional advancement, as a result from losing their parents.

In 1995, the complainants filed an action to the Bonn Regional Court. They moved for a finding that the Federal Republic of Germany was obliged to provide compensation for the material damage that they suffered due the deployment of the SS troops in Distomo. The Regional Court, as well as the Cologne Higher Regional Court following an appeal on points of fact and law, rejected the action. The complainants’ appeal on points of law to the Federal Court of Justice was also unsuccessful. By contrast, in parallel proceedings conducted in Greece, to which the complainants amongst others were party, the Levadeia Court of First Instance ruled in 1997 that the compensation claims made in respect of the same factual circumstances were well-founded.

II.

The First Chamber of the First Senate of the Federal Constitutional Court did not admit the constitutional complaint for decision and concluded that, ultimately, the challenged court decisions are not constitutionally objectionable.

The Court’s decision is based in essence on the following considerations:

It is not constitutionally objectionable that the Federal Court of Justice rejected any binding effect of the judgment of the Greek Levadeia Court of First Instance. In accordance with public international law, a state may claim immunity from the jurisdiction of another state if and to the extent that the matters of adjudication constitutes sovereign acts – so-called acta iure imperii. Since the SS unit that was involved in the events in Distomo was part of the armed forces of the German Reich, the attacks must be categorised as sovereign acts. Hence, the Federal Court of Justice has rightly rejected any binding effect of the judgment of the Greek Court of First Instance.

To the extent that the complainants assert a violation of Article 14.1 of the Basic Law, claims for compensation and damages directed against the Federal Republic of Germany are recognised as falling within the scope of protection of the guarantee of ownership. The complainants, however, can neither invoke claims for compensation and damages under public international law, nor under the domestic law on official liability or on loss inflicted by public authority.

Article 3 of the Hague Convention (IV) does not give rise to any direct, individual compensation claims in the event of violations of the international humanitarian law. The genesis of the provision shows that it is intended to protect the individual, and hence indirectly to protect human rights. It does not follow from this, however, that the provision can be considered to form the basis of a direct, original compensation claim under international law on the part of the individual concerned against the state.

Firstly, according to the wording of this provision, a belligerent party which violates the provisions of the Convention is liable to pay compensation “if the case demands”. Since Article 3 of Convention (IV) is not self-executing regarding this restrictive qualifier, the provision cannot be regarded as a basis for individual claims because it is not directly applicable. Secondly, according to the traditional understanding of public international law, the individual was not qualified as a legal subject. Regardless of developments at the level of human rights protection which have led to the recognition of the individual being a subject of international law in some instances, as well as to the establishment of individual application proceedings under specific treaties, it remains that if a state undertakes actions towards foreign nationals that are in violation of public international law, in principle only the home state is entitled to claim compensation.

The complainants are also not entitled to claim compensation pursuant § 839 of the Civil Code in conjunction with Article 131 of the Weimar Constitution. Ultimately, the Federal Republic of Germany is not liable because of the lack of a guarantee of reciprocity in accordance with § 7 of the Reich Civil Servants’ Liability Act, former version. In accordance with the version of the provision applicable until 1992, nationals of a foreign state only had a right to official liability against the Federal Republic of Germany if reciprocity was guaranteed by virtue of the legislation of the foreign state or a state treaty. Such a guarantee by Greece regarding German nationals was, however, only enacted after the end of the Second World War.

Article 25 of the Basic Law does not rule out the application of § 7 of the Reich Civil Servants’ Liability Act, former version. There is no general rule of international law according which equal treatment of Germans and non-Germans was generally required. It is true that, it a conflict with the principles of international humanitarian law, as recognised under customary law, arises if an individual who has been unlawfully injured is denied any compensation whatsoever. This is, however, not the case here because § 7 of the Reich Civil Servants’ Liability Act, former version, did not exclude official liability as such, but only the transfer of liability to the state in accordance with Article 34 of the Basic Law and Article 131 of the Weimar Constitution.

Invoking § 7 of the Reich Civil Servants’ Liability Act, former version, is also not ruled out on the grounds that the provision applies to situations relating to the perpetration of war crimes. The provision was not intended to protect the German Reich against claims arising from atrocities that are specifically connected to the Nazi regime. While the events in Distomo are, however, subject to the international humanitarian law, they do not bear an inherent connection to the Nazi tyranny; they hence do not fall within separate framework governing compensation claims for the crimes of the Nazi regime.

The challenged decisions do not violate Article 3.1 of the Basic Law. With regard to Article 3.1 of the Basic Law, the legislature is also not barred from distinguishing between victims of general wartime events on the one hand and victims of persecution measures driven specifically by the ideology of the Nazi regime on the other. It hence does not contradict the right to equality if victims of persecution within the meaning of § 1.1 of the Federal Compensation Act, as well as forced labourers, are entitled to compensation in accordance with § 11.1 of the Law Creating a Foundation “Remembrance, Responsibility and the Future”, , whereas the complainants are not included in the group of entitled parties.