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Case:
BVerfGE 43, 203 1 BvR 210/74 et al German-Czechoslovakian Treaty
Date:
25 January 1977
Judges:
Dr. Benda, Dr. Haager, Rupp-von Brünneck, Dr. Simon, Dr. Faller, Dr. Hesse, Dr. Katzenstein
Copyright:
© Nomos Verlagsgesellschaft

HEADNOTE:
The German-Czechoslovakian Treaty of 11 December 1973 regulates the general political relations between the Federal Republic of Germany and the Czechoslovakian Socialist Republic.

The Consenting Act to this Treaty does not affect any constitutionally protected rights.

The constitutional complaints lodged against the Consenting Act, which are based on the violation of arts. 14, 5, 9, 11 and 2 Basic Law, are inadmissible.

Order of the First Senate of 25 January 1977 - 1 BvR 210/74 et al. --
in the proceedings on the constitutional complaints of H. et al. against: the Act of 12 July 1974 on the Treaty of 11 December 1973 on the Mutual Relations between the Federal Republic of Germany and the Czechoslovakian Socialist Republic (BGBl. II, p. 989).

DECISION:
The constitutional complaints are dismissed.

EXTRACT FROM GROUNDS:

A.
The constitutional complaints are directed against the Act of 12 July 1974 (BGBl. II, p. 989), by way of which the German Bundestag consented to the Treaty of 11 December 1973 on the Mutual Relations between the Federal Republic of Germany and the Czechoslovakian Socialist Republic (German-Czechoslovakian Treaty).

I.

The German-Czechoslovakian Treaty was signed by the parties on 11 December 1973; after receiving the consent of the Bundestag by way of the Act of 12 July 1974, it entered into force on 19 July 1974 with the exchange of the instruments of ratification (BGBl. II, p. 1127).

It has the following wording:The Federal Republic of Germany
and
the Czechoslovakian Socialist RepublicREALIZING that the harmonious co-existence of the peoples of Europe represents an historical requirement for peace,
IN THE FIRM DETERMINATION once and for all to put an end to the tragedy witnessed in their former relations, above all, in the context of the Second World War, which brought immeasurable suffering to the peoples of Europe,
RECOGNIZING that the Munich Agreement of 29 September 1938 was forced upon by Republic of Czechoslovakia by the National Socialist regime under threat of force,
IN VIEW OF THE FACT that a new generation has arisen in both countries that has a right to a protected, peaceful future,
WITH THE INTENTION of creating a lasting basis for the development of friendly relations,
ASPIRING to strengthen peace and security,
CONVINCED that peaceful cooperation on the basis of the purposes and principles of the Charter of the United Nations corresponds to the desires of the peoples and to the interest of peace in the world,
hereby agree on the following:

ARTICLE I
The Federal Republic of Germany and the Czechoslovakian Socialist Republic consider the Munich Agreement of 29 September 1938 to be null and void pursuant to this Treaty with respect to the mutual relations of the Parties.

ARTICLE II
(1) This Treaty shall not affect the consequences with regard to law applied to natural or juridical persons in the period from 30 September 1938 to 9 May 1945.

This shall not include those consequences resulting from measures viewed by the Parties to be null and void on account of their incompatibility with the fundamental principles of justice.

(2) This Treaty shall not affect the nationality of persons, either living or dead, as determined by the legal system of each of the two Parties.

(3) This Treaty shall not establish by way of its declarations regarding the Munich Agreement a legal basis for claims in law by the Czechoslovakian Socialist Republic and its natural and juridical persons.

ARTICLE III
(1) The Federal Republic of Germany and the Czechoslovakian Socialist Republic shall be guided in their mutual relations and in issues regarding guaranteeing security in Europe and the world by the purposes and principles set forth in the Charter of the United Nations.

(2) In conformity with Articles 1 and 2 of the Charter of the United Nations, they shall accordingly settle all of their disputes solely with peaceful means and shall refrain from the threat or use of force in matters dealing with European and international security and in their mutual relations.

ARTICLE IV
(1) In conformity with the above purposes and principles, the Federal Republic of Germany and the Czechoslovakian Socialist Republic hereby declare their common border to be inviolable now and in the future and commit themselves unconditionally to respect the other Party's territorial integrity.

(2) Each Party hereby declares that it does not have any territorial claims whatsoever against the other and that it also shall not assert such in the future.

ARTICLE V
(1) The Federal Republic of Germany and the Czechoslovakian Socialist Republic shall undertake further steps toward comprehensive development of their mutual relations.

(2) The Parties hereby agree that it is in the interest of both to expand their friendly cooperation in the areas of industry, science, technological relations, culture, environmental protection, sport, transportation and other relations.

ARTICLE VI
This Treaty shall require ratification and shall enter into force on the date of exchange of instruments of ratification, which is to take place in Bonn.
IN WITNESS WHEREOF, the representatives of the Parties to this Treaty have placed their signatures.
DONE at Prague, this 11th day of December 1973, in two original texts in German and Czech, respectively, whereby each wording is equally authentic.

II.
1. The Complainants are Sudeten Germans who were driven from their home country expatriated following the end of the Second World War and have since lived in the Federal Republic. They allege that they left behind real estate in the Sudeten territories upon their expulsion.

2. In the view of the Complainants, the Consenting Act to the German-Czechoslovakian Treaty violates their basic rights under arts. 2, 5, 9 and 14 Basic Law.

a) Article IV of the Treaty is alleged to regulate the border matter in such a way as to interfere with their freedom of opinion and association. By way of this regulation, the present German-Czechoslovakian border is said to be recognized as a border that, pursuant to the rule found in Art. 3 of the Moscow Treaty of 12 August 1970, may not be challenged by anyone. As a result, they assert that they are prevented from advocating the right of self-determination for those that have been driven from the Sudetenland by expression of opinion or by their activities in the Sudeten Expellees Association.

b) The border regulation in the German-Czechoslovakian Treaty is therefore also said to interfere in addition with the ownership of their real estate located in the Sudetenland. ...

c) Finally, the Complainants are of the view that the German-Czechoslovakian Treaty violates not only the Basic Law's mandate of reunification but also Art. 2 Basic Law. They allege that they have been deprived of the right to freedom of movement, which covers the entire territory of the German Reich, since upon conclusion of the Treaty, the Czechoslovakian State is at liberty to allow or to deny them the opportunity to visit their home country.

d) In relation to their constitutional complaint, the Complainants have moved to obligate the organs of the Federal Republic to rectify the unconstitutional status that has come about under the Consenting Act, the German-Czechoslovakian Treaty and its entry into force and to render compensation for the resulting damages.

III.
The Federal Minister of Justice, who has set forth the position of the Federal Government, considers the constitutional complaints to be inadmissible, since the Complainants have not been personally, currently and directly affected in their rights. ...

IV.

...B.

The constitutional complaints are inadmissible.

The Complainants have not been affected in their basic rights by the Consenting Act to the German-Czechoslovakian Treaty. The Consenting Act contains nothing that might occasion a direct, detrimental effect on the protected scope of basic rights alleged by the Complainants to have been violated (cf. BVerfGE 40, 141 [156]).

I.
The German-Czechoslovakian Treaty does not establish any duties of action or conduct that would be capable of interfering with the rights of the Complainants under arts. 5 and 9 Basic Law, since the text of the Treaty lacks any formulations whatsoever that might indicate such legal commitments (BVerfGE 38, 49 [51]). Direct duties of action or conduct on individual citizens may only be inferred from international treaties, such as the German-Czechoslovakian Treaty, if and when this is unambiguously expressed by the text of the Treaty. Neither the declaration regarding the inviolability of the common border in Article IV of the Treaty nor Art. 3 of the Moscow Treaty permits the inference of such a direct obligation on individuals (cf. BVerfGE 40, 141 [164]).

II.
The Complainants have also not been affected by the Consenting Act to the German-Czechoslovakian Treaty in their right of property as protected by art. 14 Basic Law.

1. As a result of confiscation actions by the Czechoslovakian authorities in the postwar period, the Complainants have lost their real estate located in the Sudeten territories. The interference with their right of property is thus not attributable to the Consenting Act or the German-Czechoslovakian Treaty but rather to actions that, as acts of foreign public authority, may not be evaluated under art. 14 Basic Law (cf. BVerfGE 41, 126 [157-58], with further references).

2. The conclusion of the German-Czechoslovakian Treaty may also not be construed as participation by the Federal Government in the Czechoslovakian confiscation actions. The Treaty itself does not contain any provisions even distantly relating to matters of private German property. In addition, the Federal Government did not make any declarations of intent upon conclusion of the Treaty with respect to the confiscation actions undertaken by the Czechoslovakian authorities and, in particular, did not declare its approval or recognition of such actions.

3. The Treaty furthermore may not be said to have the effect of having introduced in some other manner a change in property law to the detriment of the Complainants. In this regard, it may be left unresolved whether the German-Czechoslovakian Treaty occasioned a transformation in the national and international status of the Sudeten territories in the sense asserted by the Complainants. In any event, an ex post facto legalization of the Czechoslovakian confiscation actions directed against the Complainants' real estate did not take place with the Treaty. The Treaty likewise does not contain a provision that could be understood renouncing the assertion of claims possibly resulting from such action. In other words, to the extent that the Complainants were still entitled to property rights or claims for restitution and damages with respect to their real estate at the time the Treaty was concluded, the state of the law did not change with the Treaty's conclusion.

4. The Federal Republic of Germany continues to be authorized to represent the Complainants' concerns vis-à-vis the Czechoslovakian Socialist Republic, since, as Sudeten Germans, they are German nationals (cf. BVerfGE 1, 322 [330-31]). The German-Czechoslovakian Treaty did nothing to change this, in that Article II(2) states that the Treaty does "not affect the nationality of persons either living or dead as determined by the legal system of each of the two Parties".

In light of these facts, the Complainants' allegation that in concluding the Treaty, the Federal Government violated the constitutional duty to accord them diplomatic protection can only mean that they are seeking a finding by the Court that a certain factual regulation to their benefit should have been attained in negotiations and that conclusion of the Treaty without this regulation establishes a constitutional violation resulting in the invalidity of the Treaty as a whole. When a constitutional complaint is based on such an allegation, it cannot be considered admissible (BVerfGE 40, 141 [178]).

III.
The Complainants' right to freedom of movement is not impaired by the German-Czechoslovakian Treaty. Pursuant to art. 11(1) Basic Law, this right guarantees freedom of movement in the Federal territory -- i.e., the right to establish residence at any location in the Federal territory unhindered by German public authority -- including for the purpose of entering Federal territory (BVerfGE 2, 266 [273]); this does not cover the Sudeten territories.

A violation of art. 2(1) Basic Law is also not evident; insofar as the Complainants are prevented from visiting the Sudeten territories, this is not to be attributed to the Treaty.

Finally, a constitutional complaint cannot be based on the Basic Law's mandate of reunification for the simple reason that this mandate does not guarantee basic rights.

IV.
Claims for damages cannot be asserted by way of the constitutional complaint before the Federal Constitutional Court (BVerfGE 1, 3).
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