24 / 12 / 2009
BGHZ 155, 279 – Compensation for Distomo Massacre [1]
In the Distomo case Greek nationals sought damages from the Federal Republic of Germany for a massacre committed by an SS-unit integrated into the German army during the German occupation of Greece in 1944. Following an armed conflict with Greek partisans the SS-unit burned down the [...]
Compensation for Distomo Massacre [1]
BGHZ 155, 279 – Compensation for Distomo Massacre [1]
In the Distomo case Greek nationals sought damages from the Federal Republic of Germany for a massacre committed by an SS-unit integrated into the German army during the German occupation of Greece in 1944. Following an armed conflict with Greek partisans the SS-unit burned down the village of Distomo and shot over 300 innocent inhabitants – amongst them the claimants’ parents – as a “retribution measure”. The action for compensation in respect of the destruction of the parental home and business as well as disadvantages to the claimants’ personal health and professional training was dismissed both by the Landgericht (LG – Regional Court) Bonn and on appeal by the Oberlandesgericht (OLG – Higher Regional Court) Cologne. Leave to appeal to the Bundesgerichtshof (BGH – Federal Court of Justice) on points of law was granted.
The BGH first considered whether it was bound by a judgment of the Regional Court of Livadeia in Greece, which in 1997 had already awarded damages for the massacre to the appellants. The decision was confirmed by the Greek Areopag (Supreme Court), however, execution against assets of the Federal Republic of Germany in Greece[2] failed for lack of permission by the Greek government required under Greek law. The BGH reasoned that the principle of res judicata only prevents a German court from re-assessing the same factual situation if the foreign decision must be recognised. On this issue the Court held that the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters of 1968 was not applicable to compensation claims against states exercising sovereign powers. Recognition of the Greek judgment therefore depended on an application of either the German-Greek Treaty on Mutual Recognition and Execution of Court Decisions, Settlements and Public Documents in Civil and Commercial Matters of 1961 or Section 328 of the Zivilprozeßordnung (ZPO – Code of Civil Procedure) which governs the recognition of foreign judgments in general. According to the BGH, both the treaty and Section 328 ZPO required that Greek courts had (international) jurisdiction to hear the case. The Court concluded that this prerequisite was not fulfilled as the principle of sovereign immunity had been breached. Based on this principle of public international law states may claim immunity from another state’s jurisdiction for their own acts of sovereign power (acta iure imperii). The BGH considered the massacre an act of sovereign power – irrespective of its gravity – since it had been committed by a unit of the German armed forces. While the Court acknowledged recent endeavors not to apply the principle of sovereign immunity to breaches of mandatory rules of public international law (ius cogens), it determined that – without doubt[3] – such a restrictive approach was not (yet) generally considered a rule of current public international law. As the judgment of the Livadeia Regional Court could therefore not be recognised, the BGH found it to be not binding.
On the merits of the case the Court first decided that specific post-war compensation legislation[4] was not applicable. The massacre as a “retribution measure” did not constitute an act directed against the political belief, race, religious faith or ideology of the Distomo inhabitants as required by the Federal Compensation Act 1953. Instead, the Court treated the claim as a possible liability of the former German Empire for which the Federal Republic of Germany would be liable under principles of state succession.[5] Such reparation claims against the German Empire could generally not be adjudicated as the came under the provisions of the London Debt Agreement[6] of 27 September 1953 which served as a moratorium on claims against Germany until the conclusion of a final peace agreement dealing with reparation.[7] However, the BGH held that the treaty between the former occupying powers and the two German states of 12 September 1990 establishing full sovereignty of a unified Germany (Zwei-plus-Vier-Vertrag[8] – Final Agreement with respect to Germany), although not a conventional peace agreement, had rendered the London Debt Agreement obsolete. Thus, the moratorium no longer barred the adjudication of reparation claims.
In determining whether the appellants’ claims against the German Empire were founded the Court examined them under two possible heads on the basis of the law of 1944.[9] First, the BGH dismissed the claims under public international law, which, at the time, only entitled sovereign states – as opposed to individuals – to claim damages for violations of the laws and customs of war or breaches of human rights.[10] While acknowledging the development of public international law in recent years towards the recognition of (limited) individual rights,[11] the Court pointed out that such a development could not be applied retrospectively.
Secondly, the BGH considered whether he appellants were entitled to claim damages from the German Empire under domestic state liability provisions for malfeasance in office, Section 839(1) Bürgerliches Gesetzbuch (BGB – Civil Code)[12] in conjunction with Article 131(1) Weimarer Reichsverfassung (WRV – Constitution of the German Empire)[13]. It concluded that the massacre constituted a breach of official duty incumbent upon the German armed forces[14] by virtue of the Hague Convention Respecting the Laws and Customs of War on Land of 1907. However, the Court reasoned that during a state of war large parts of the domestic legal order were suspended and replaced by the ius in bello. As stipulated by Article 131(1) WRV, the state was liable only “in principle” for unlawful acts of its officials. According to the BGH, it was the general understanding at the time that war constituted an exceptional relationship between the belligerent states which excluded liability under domestic law for actions committed by the armed forces of one state towards individuals of the other. In this context, the Court rejected the appellants’ proposition that the massacre was not a belligerent act but rather a “police operation” for which state liability would not be barred. The events of 10 June 1944 were directly connected with the foregoing armed conflicts and therefore had to be seen – irrespective of the fact that the massacre was directed against civilians – as a military operation.
Source: Jan Stemplewitz, Report – Bundesgerichtshof-Zivilsachen (Federal Court of Justice-Private Law) 2003, in: Miller/Zumbansen (eds), Annual of German and European Law 2004
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[1] Judgment of 26 June 2003 (BGH III ZR 245/98), also published in NJW (Neue Juristische Wochenschrift) 2003, 3488. The case has also been discussed in: Pittrof, “Compensation Claims for Human Rights Breaches Committed by German Armed Forces Abroad During the Second World War: Federal Court of Justice Hands Down Decision in the Distomo Case” 5 German L.J. No. 1, at http://www.germanlawjournal.com/ past_issues.php?id=359.
[2] The claimants tried to levy execution, inter alia, against the German Goethe Institut in Athens.
[3] Otherwise, the BGH would have had to obtain an opinion from the Bundesverfassungsgericht (Federal Constitutional Court) first according to Article 100(2) Grundgesetz (GG – Basic Law). However, the Court relied on decisions by the European Court for Human Rights and the Greek Supreme Special Court which had both specifically dealt with this question and had rejected a restrictive approach.
[4] Bundesentschädigungsgesetz (Federal Compensation Act) of 18 September 1953, Bundesgesetzblatt (BGBl. – Federal Law Gazette) I 1953, 1387.
[5] Articles 134(4), 135a(1) No. 1 GG.
[6] BGBl. II 1953, 336.
[7] Article 5(2) London Debt Agreement.
[8] BGBl. II 1990, 1318.
[9] Not taking into account, of course, any traces of Nazi ideology in the law of the time.
[10] In part, the Court based its conclusion on Articles 2 and 3 of the Convention Respecting the Laws and Customs of War on Land (Hague IV) of 18 October 1907 which provide that the Convention only applies “between Contracting Powers” and that “a belligerent party” may be liable to pay compensation to another party.
[11] Referring to a judgment of the Bundesverfassungsgericht, BVerfGE 94, 315, at 329.
[12] « If an official wilfully or negligently commits a breach of official duty incumbent upon him towards a third party, he shall compensate said party for any damage arising therefrom. » (translation by author).
[13] « If an official, in exercising entrusted public powers, commits a breach of official duty incumbent upon him towards a third party, the state or public body in whose employ the official serves shall in principle be liable. » (translation by author).
[14] « Officials » within the meaning of § 839(1) BGB and Article 131(1) WRV.
HellenesOnline | 24 / 12 / 2009 | WORLD WAR II | Tags: EUROPEAN UNION, Germany, Hellas Greece, War Reparations, WWII |
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