In the case of Prince Hans-Adam II of Liechtenstein v. Germany,
The European Court of Human Rights, sitting as a Grand Chamber
composed of the following judges:
Mrs E. Palm,
President,
Mr C.L. Rozakis,
Mr G. Ress,
Mr J.-P. Costa,
Mr A. Pastor Ridruejo,
Mr I. Cabral Barreto,
Mr M. Fischbach,
Mr V. Butkevych,
Mr J. Casadevall,
Mr B. Zupanèiè,
Mrs N. Vajiæ,
Mr J. Hedigan,
Mr M. Pellonpää,
Mrs M. Tsatsa-Nikolovska,
Mr K. Traja,
Mrs S.
Botoucharova,
Mr A. Kovler,
and also of Mr M. de
Salvia, Jurisconsult, for the Registrar,
Having deliberated in private on 31 January and 27 June 2001,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case originated in an application (no.
42527/98) against the Federal Republic of Germany lodged with the European
Commission of Human Rights (“the Commission”) under former Article 25 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by His Serene Highness Prince Hans-Adam
II of Liechtenstein (“the applicant”), on 28 July 1998.
2. The applicant was represented before the Court by
his counsel. The German Government (“the Government”) were represented by their
Agent, Mr K. Stoltenberg, Ministerialdirigent.
3. The applicant alleged,
in particular, that he had been deprived of an effective access to a court in
respect of his claim for restitution of property, namely a painting confiscated
by the former Czechoslovakia under Presidential Decree no. 12. He also complained that the German court decisions to declare his action inadmissible, and the
consequential return of the painting to the Czech Republic, violated his right
to property. He relied on Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1, taken alone and in conjunction with Article 14 of the
Convention.
4. The application was transmitted to the Court on
1 November 1998, when Protocol No. 11 to the Convention came into force
(Article 5 § 2 of Protocol No. 11).
5. The application was allocated to the Fourth
Section of the Court. On 6 June 2000 it was declared admissible by a
Chamber of that Section, composed of Mr A. Pastor Ridruejo, President, Mr G. Ress,
Mr I. Cabral
Barreto, Mr V. Butkevych, Mrs N. Vajiæ, Mr J. Hedigan,
and Mr M. Pellonpää,
judges,and Mr V. Berger, Section Registrar [Note by the Registry.
The Court’s decision is obtainable from the Registry].
The Government of Liechtenstein, having been informed of their
right to intervene (Article 36 § 1 of the Convention and Rule 61 § 1 of the
Rules of Court), indicated that they had no intention of so doing.
On 14 September 2000 the Chamber relinquished jurisdiction in
favour of the Grand Chamber, none of the parties having objected to the
relinquishment (Article 30 of the Convention and Rule 72).
6. The composition of the Grand Chamber was
determined according to the provisions of Article 27 §§ 2 and 3 of the
Convention and Rule 24. Due to the withdrawal of Mr L. Wildhaber, the President
of the Court, Mrs E. Palm replaced him as President of the Grand
Chamber in this case and Mr K. Traja participated as judge.
7. A hearing took place in public in the Human
Rights Building, Strasbourg, on 31 January 2001 (Rule 59 § 2).
There appeared before the Court:
(a) for the Government
Mr K. Stöhr, Ministerialrat, Deputy
Agent,
Mrs S. Wasum-Rainer, Ministerialrat, Adviser;
(b) for the applicant
Mr A. Goepfert, of the Düsseldorf Bar, Counsel,
Mr P. Rädler, of the Düsseldorf Bar,
Mr D. Blumenwitz, Professor of law at
Würzburg University,
Mrs G. Klein, Advisers.
The Court heard addresses by Mr Goepfert, Mr Rädler, Mr
Blumenwitz and Mr Stöhr, and their answers to
questions put by some of the judges.
8. The applicant and the Government each filed
observations on the question of just satisfaction under Article 41 of the
Convention.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant is the monarch of Liechtenstein, born
in 1945 and living in Vaduz (Liechtenstein).
A. The background of the case
10. The applicant’s late father, the
former monarch of Liechtenstein, had been the owner of the painting Szene an
einem römischen Kalkofen (alias Der große Kalkofen) of Pieter van
Laer, which had formed part of his family’s art collection since at least 1767.
Until the end of the Second World War the painting had been in one of the
family’s castles on the territory of the now Czech Republic.
11. In 1946 the former Czechoslovakia confiscated
the property of the applicant’s father which was situated in its territory,
including the painting in question, under Decree no. 12 on the “confiscation
and accelerated allocation of agricultural property of German and Hungarian
persons and of those having committed treason and acted as enemies of the Czech
and Slovak people” (dekretu prezidenta republiky è. 12/1945 Sb. o konfiskaci
a urychleném rozdìlení majetku Nìmcù, Mad’arù, zrádcù a nepøátel), issued
by the President of the former Czechoslovakia on 21 June 1945 (“the Beneš
Decrees” – “Benešovy dekrety”).
12. On 21 November 1951 the Bratislava
Administrative Court (správní soud) dismissed the appeal lodged
by the applicant’s father.
In its reasoning on the merits of the case,
the Administrative Court stated that the defendant office had come to the
conclusion that the appellant was a person of German nationality within the
meaning of the provision in Article 1 § 1 (a) of the decree, on the basis
of a finding that this was and had been generally known. It noted that the
defence of the complaint directed against this finding was restricted to the
representation that this finding was not supported in the files and that, due
to this shortcoming, it had not been necessary to deal with the finding in
greater detail. The Administrative Court considered that this approach was
mistaken as, under the relevant
provision of the administrative regulations, no evidence was required for facts
which were generally known and, therefore, it was not necessary for evidence to
be contained in the administrative files; however, counter-evidence against an
official finding that a certain fact was generally known would have been
admitted.
The Administrative Court concluded that, as the appellant had
failed to raise the objection that the issue was not a fact of general
knowledge and to contend that he was in a position to bring counter-evidence,
the finding of the defendant office had remained uncontested.
B. The proceedings in the German courts
13. In 1991 the municipality of Cologne obtained the
painting as a temporary loan from the Brno Historical Monuments Office in the
Czech Republic.
14. On 11 November 1991 the Cologne Regional Court (Landgericht)
granted the applicant’s request for an interim injunction ordering the
municipality of Cologne to hand over the painting to a bailiff at the end of
the exhibition. The painting was sequestrated on 17 December 1991.
15. At the beginning of 1992
the applicant instituted proceedings before the Cologne Regional Court
against the municipality of Cologne, requesting that the defendant consent to
the delivery of the painting to him by the bailiff. He argued that, as his late
father’s heir, he was the owner of the painting. He submitted that the painting
had not been subject to expropriation measures in the former Czechoslovakia and
that in any event such measures were invalid or irrelevant on account of
violation of the ordre public of the Federal Republic of Germany.
16. The Brno Historical Monuments Office intervened
in these proceedings in support of the defendant. It submitted that the
applicant’s father had lost his ownership of the painting as a result of the
confiscation in 1946 and that the lawfulness of this confiscation had been
confirmed by the Bratislava Administrative Court in its decision of 21 November
1951.
17. On 10 October 1995 the Cologne Regional Court,
following a hearing, declared the applicant’s action inadmissible. In the
court’s view, Chapter 6, Article 3, of the Convention on the Settlement of
Matters Arising out of the War and the Occupation (Vertrag zur Regelung aus
Krieg und Besatzung entstandener Fragen – “the Settlement Convention”) of
23 October 1954 between the United States of America, the United Kingdom
of Great Britain and Northern Ireland, the French Republic and the Federal
Republic of Germany excluded German jurisdiction over the applicant’s case.
In its reasoning, the Regional Court noted that, under the
terms of that Article’s paragraph 3 taken in conjunction with paragraph 1,
claims or actions against persons having acquired or transferred title to property
on the basis of measures carried out with regard to German external assets or
other property, seized for the purpose of reparation or restitution, or as a
result of the state of war, or on the basis of specific agreements, were not
admissible. These particular provisions had been confirmed upon German
unification.
According to the Regional Court, Chapter 6, Article 3 § 3, of
the Settlement Convention applied, mutatis mutandis, to the applicant’s
claims against the defendant, which had obtained the painting on loan and had
not acquired property, because any review of the aforementioned measures should
be excluded.
The Regional Court found that the confiscation of the
applicant’s father’s property under Decree no. 12 on the “confiscation and
accelerated allocation of agricultural property of German and Hungarian persons
and of those having committed treason and acted as enemies of the Czech and
Slovak people”, issued by the President of the former Czechoslovakia on 21 June
1945, constituted a measure within the meaning of Chapter 6, Article 3 §
3.
The Regional Court rejected, in particular, the applicant’s
argument that this provision did not apply as it only concerned measures
carried out with regard to German external assets or other property and his father
had never been a German citizen. In this respect, the court, referring to
case-law of the Federal Court of Justice (Bundesgerichtshof), stated
that the view of the confiscating State was decisive. The aim and purpose of
this provision, namely to sanction, without any further examination,
confiscation measures implemented abroad could only be achieved by excluding
such measures from judicial review in Germany.
Moreover, the Regional Court found that the confiscation
measure in question pursued one of the purposes mentioned in Chapter 6, Article
3 § 3. Having regard to German case-law regarding other “Beneš Decrees”,
especially Decree no. 108 on the “confiscation of enemy property and the
national reform fund”, it considered that Decree no. 12, while also pursuing
economic aims, was intended to expropriate the property of German and Hungarian
nationals, that is, “enemy property”.
The Regional Court further noted that the applicant’s father’s
painting had been expropriated under Decree no. 12. The competent
Czechoslovakian authorities had interpreted its provisions as applying to the
applicant’s father, regarding him as a “person of German nationality”. The
applicant’s father had unsuccessfully appealed against this decision which
had been confirmed by the Bratislava Administrative Court in 1951. The German
courts were not in a position to review the lawfulness of the confiscation at
issue.
Finally, the Regional Court considered that the painting at
issue, as part of the inventory of the agricultural property, had been included
in the confiscation measure.
The Regional Court dismissed the applicant’s request to suspend
the proceedings in order to await the outcome of proceedings to be instituted
under the German Equalisation of Burdens Act (Lastenausgleichsgesetz)
concerning compensation for damage and losses due to, inter alia,
expulsion and destruction during the Second World War and the post-war period
in the then Soviet-occupied zone of Germany and of Berlin. The Regional Court
considered that the question underlying the litigation before it would not be
clarified in such proceedings. Irrespective of the question of whether the
plaintiff was of German origin, he had no equalisation claims under the said
legislation, which only applied to persons who resided in the Federal Republic
of Germany or West Berlin on 31 December 1952. In any event, there was no right
to compensation for the loss of works of art (Kunstgegenstände).
18. On 9 July 1996 the Cologne Court of Appeal (Oberlandesgericht)
dismissed the applicant’s appeal. The Court of Appeal confirmed that the
applicant’s action was inadmissible as German jurisdiction in respect of his
claim was excluded under Chapter 6, Article 3 § 1, in conjunction with
paragraph 3, of the Settlement Convention.
The Court of Appeal considered that the notion of German
jurisdiction included the competence, derived from
State sovereignty and generally vested by the State in the courts, to
administer justice. German jurisdiction was delimited by international
agreements, customary international law and the generally recognised rules of
international law. Chapter 6, Article 3 § 3, taken in conjunction with
paragraph 1, of the Settlements Convention excluded German jurisdiction in
respect of claims and actions against persons, who, as a consequence of
reparation measures, had directly or indirectly acquired title to German
property confiscated abroad.
The Court of Appeal confirmed that the provisions in question
continued to be in force under the Treaty of 12 September 1990 on the Final
Settlement with respect to Germany. Article 7 of this Treaty, which provided
for the termination of the operation of quadripartite rights and
responsibilities with respect to Berlin and Germany as a whole, was amended by
the Agreement of 27 and 28 September 1990 according to which the Settlement
Convention was suspended and later terminated with the exception of the
provisions specified in paragraph 3 of that Agreement, inter alia,
Chapter 6, Article 3 §§ 1 and 3. That Agreement was valid under public
international law and under German constitutional law.
The Court of Appeal further considered that Chapter 6, Article
3 § 3, of the Settlement Convention applied in the applicant’s case. In the
court’s view, this provision was the procedural consequence of the notion that
the legal relations resulting from the liquidation of German property abroad by
foreign powers for the purpose of reparation were “final and unchallengeable” (Endgültigkeit
und Unanfechtbarkeit) for the Federal Republic of Germany and the private
persons concerned.
According to the Court of Appeal, the applicant’s
constitutional rights, in particular his right to property, his right of access
to a court and his right to a decision by the legally competent court (gesetzlicher
Richter), had not been infringed. Basic rights protected individuals
against acts of domestic public authorities and not against the exercise of
public authority by a foreign State abroad. The domestic legislator was
therefore not prevented from limiting domestic legal protection against
violations of basic rights by a foreign State if this was necessary to attain
more important goals.
When applying Chapter 6, Article 3 § 3, of the Settlement
Convention, the domestic law of the expropriating State concerning the concrete
confiscation measure had to be taken into account, as this provision was aimed
at excluding litigation in Germany regarding confiscation measures based on
legislation concerning enemy property.
As regards the applicant’s objections against the lawfulness,
in particular under public international law, of the confiscation and
expropriation of his father’s property, the Court of Appeal found that by
virtue of Chapter 6, Article 3 § 3 of the Settlement Convention, German courts had
no jurisdiction. Likewise, this provision did not allow recourse to be had to
general rules of public international law or to German ordre public when
examining the admissibility of the action. The applicant’s argument that the
provisions of the Settlement Convention and their application to him as a
national and head of a neutral State violated the law of peace was accordingly
rejected.
According to the Court of Appeal, the painting at issue
constituted external assets within the meaning of Chapter 6, Article 3 § 1, of
the Settlement Convention, referred to in paragraph 3 of Article 3. The Court
of Appeal noted that the applicant’s father had indisputably never had German
nationality. However, following the case-law of the Federal Court of Justice,
it considered that the notion of “German external assets” had to be interpreted
in the light of the law of the expropriating State. The confiscation in dispute
had been found to be in compliance with the legislation of the expropriating
State: the competent Czechoslovakian administrative authorities as well as the
Bratislava Administrative Court had found that Presidential Decree no. 12 of 21
June 1945 applied to the applicant’s father’s confiscated property. Article 1 §
1 (a) of this decree provided for the confiscation of agricultural properties
of “all persons of German or Hungarian nationality” irrespective of their
citizenship. The notions of “German nationality”, or of “German origin” (“deutsche
Volkszugehörigkeit”), likewise used at that time, comprised as relevant
elements a person’s citizenship and nationality, the latter depending on the
mother tongue. At the relevant time, the Czechoslovakian authorities
indisputably regarded the applicant’s father as of German origin in that
broader sense.
The Court of Appeal also found that the painting at issue, as
part of the confiscated agricultural property, had been subject to the
expropriation measure. There were no doubts as to the effectiveness of the
expropriation, as it was sufficient under the relevant case-law that such
expropriations had been implemented and that the previous owners had been
deprived of their factual power of disposition. Furthermore, the painting had
been confiscated for the purpose of reparation within the meaning of Chapter 6,
Article 3 §§ 1 and 3, of the Settlement Agreement. The limitation of the
confiscation measures to persons belonging to enemy States in itself justified
such a conclusion. The assets of the persons concerned were confiscated as
enemy assets.
Finally, the Court of Appeal considered that both the defendant
and the intervener belonged to the group of persons protected by Chapter 6,
Article 3 § 3, of the Settlement Agreement. German jurisdiction was
excluded whenever the plaintiff intended to challenge measures within the
meaning of Chapter 6, Article 3 § 1.
19. On 25 September 1997 the Federal Court of
Justice refused to entertain the applicant’s appeal on points of law, as the
case was of no fundamental importance and, in any event, had no prospect of
success.
20. On 28 January 1998 the Third Section of the
Second Division (3. Kammer des zweiten Senats) of the Federal
Constitutional Court (Bundesverfassungsgericht) refused to entertain the
applicant’s constitutional complaint (Verfassungsbeschwerde), as it
offered no prospect of success.
The Federal Constitutional Court considered in particular that,
for the purposes of the civil court decisions, questions as to the existence or
non-existence of certain rules of customary international law on the
confiscation of neutral assets or on the determination of citizenship were
irrelevant as they concerned the issue of the lawfulness of the expropriation
by the former Czechoslovakia. The German civil courts had not decided this issue
and, under public international law, they had not been obliged to do so.
Moreover, to the extent that the civil courts had regarded the expropriation as
a measure within the meaning of Chapter 6, Article 3 § 1, of the Settlement
Convention, they had expressly refrained from qualifying the applicant’s
father’s nationality. Their interpretation of the terms “measures with regard
to German external assets” as comprising any measures which, in the intention
of the expropriating State, were directed against German assets, could not be
objected to under constitutional law. The bar on litigation did not constitute
an agreement to the detriment of Liechtenstein, as only the Federal Republic of
Germany and its courts were under this treaty obligation.
The Federal Constitutional Court further recalled that the
exclusion of jurisdiction did not amount to a violation of the right of
property as these clauses and the Settlement Convention as a whole served to
settle matters dating back to a time before the entry into force of the German
Basic Law (Grundgesetz) on 23 May 1949.
Finally, there was no indication of arbitrariness or of a
violation of other constitutional rights. The Federal Constitutional Court
confirmed that Chapter 6, Article 3 §§ 1 and 3, of the Settlement Convention
had not been set aside by the Treaty on the Final Settlement with respect to
Germany: while Germany obtained full sovereignty, its obligations under
treaties with the Three Powers were not affected. This had also been the legal
opinion of the Federal Republic of Germany and the Three Powers, which
otherwise would not have settled the suspension and termination of parts of the
Settlement Convention in a separate agreement.
The decision was served on 2 February 1998.
21. On 9 June 1998 the Cologne Regional Court
discharged its interim injunction of 11 November 1991. The bailiff thereupon
handed the painting over to the Cologne municipality, which had it returned to
the Czech Republic.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
A. Beneš Decree no. 12
22. Beneš Decree no. 12 on the “confiscation and
accelerated allocation of agricultural property of German and Hungarian persons
and of those having committed treason and acted as enemies of the Czech and
Slovak people” provided for the expropriation, with immediate effect and
without compensation, of agricultural property, for the purposes of land
reform. It concerned agricultural property, including, inter alia,
buildings and movable goods on such property, in the ownership of all persons
of German and Hungarian nationality irrespective of their citizenship status.
According to Article 2 of the said decree, those persons were
to be considered as German or Hungarian nationals who, in any census since 1929,
had declared to be of German or Hungarian nationality, or who had become
members of national groups, formations or political parties which had been made
up of persons of German or Hungarian nationality.
B. The Convention on the Settlement of Matters Arising
out of the War and the Occupation
23. After the German capitulation of 8 May 1945, the Four
Powers had assumed supreme authority in Germany, as stated in the Allied
Declaration of 5 June 1945 (Declaration regarding the defeat of Germany and the
assumption of supreme authority with respect to Germany by the Governments of
the United States of America, the Union of Soviet Socialist Republics, the
United Kingdom and the Provisional Government of the French Republic, United Nations
Treaty Series, vol. 68, pp. 190 et seq.). The supreme military commanders of
the four Allied Forces administered their respective zones and dealt jointly,
through the Inter-Allied Control Council, with all matters relating to the
country as a whole, namely military matters, transport, finance, economic
affairs, reparations, justice, prisoners of war, communications, law and order,
as well as political affairs.
24. The Convention on the Settlement of Matters
Arising out of the War and the Occupation (“the Settlement Convention – see
paragraph 17 above) is one of the “Bonn Conventions” (Bonner Verträge)
signed by France, the United States of America, the United Kingdom and the
Federal Republic of Germany at Bonn on 26 May 1952, and designed to end the
Occupation Regime.
The other Bonn Conventions were:
– the Convention on Relations between the Three
Powers and the Federal Republic of Germany (“the Relations Convention”);
– the Convention on the Rights and Obligations of
Foreign Forces and their Members in the Federal Republic of Germany;
– the Finance Convention.
25. The Bonn Conventions as such did not enter into
force, but were amended in accordance with the five Schedules to the Protocol
on the Termination of the Occupation Regime in the Federal Republic of Germany,
one of the “Paris Agreements”,
which were signed in Paris on 23 October 1954.
26. Article 1 of Schedule I which amends the
above-mentioned Relations Convention states
that the Three Powers will terminate the Occupation Regime in Western Germany,
revoke the Occupation Statute, and abolish the offices of the Land
Commissioners. The Federal Republic of Germany is accorded “the full authority of a sovereign State over its
internal and external affairs”. According to Article 2, the
Three Powers retain their rights “relating
to Berlin and to Germany as a whole, including the reunification of Germany and
a peace settlement”.
27. The above-mentioned Paris Agreements comprise:
(1) documents
signed by France and the Federal Republic of Germany, relating to
disputes between the two States (the resolution of cultural, economic and other
difficulties) and to the Saar;
(2) documents
signed at the so-called Four-Power Conference by France, the United
States of America, the United Kingdom and the Federal Republic of Germany,
relating to German sovereignty and including in particular:
– the above-mentioned Protocol on the Termination of
the Occupation Regime in the Federal Republic of Germany and the five Schedules
thereto (amending the Relations Convention, the Settlement Convention and the
other Bonn Conventions), as well as letters dealing with specific points in the
Bonn Conventions;
– the Convention on the Presence of Foreign Forces
in the Federal Republic of Germany (in this context, mention should be made of
the Tripartite Declaration on Berlin);
(3) documents
signed by Belgium, the Netherlands, Luxembourg, France, the United
Kingdom, the Federal Republic of Germany and Italy, including the
– Protocol Modifying and Completing the Brussels
Treaty;
– Protocol on the Forces of the Western European
Union;
– Protocol on the Control of Armaments:
– Protocol on the Agency of the Western European
Union for the Control of Armaments;
– Resolution on the Production and Standardisation
of Armaments;
(4) documents
signed by the fourteen countries party to the North Atlantic Treaty:
– Protocol to the North Atlantic Treaty on the
Accession of the Federal Republic of Germany;
– Resolution by the North Atlantic Council to
implement Section IV of the Final Act of the London Conference;
– Resolution on the results of the Four- and
Nine-Power Conferences;
– Resolution of Association taking note of the
obligations accepted by the Federal Republic on the signature of the London
Agreements and of the declaration relating to such obligations.
28. Under the general provisions of the Settlement
Convention (Federal Gazette – Bundesgesetzblatt II, 31 March 1955, pp.
405 et seq.), as amended by Schedule IV to the Protocol on the
Termination of the Occupation Regime (see paragraph 25 above), the federal and
the Land authorities were given powers to repeal or amend legislation
enacted by the Occupation Authorities.
However, in many other respects, the status quo was confirmed.
In particular, rights and obligations created or established by or under
legislative, administrative or judicial action of the Occupation Authorities
remained valid for all purposes under German law. The same applied to rights
and obligations arising under treaties or international agreements which had
been concluded on behalf of the three Western Zones of Occupation by the
Occupation Authorities or by the governments of the Three Powers. Furthermore,
there was a bar on prosecution of persons by action of German courts or
authorities on the ground of having sympathised with, aided or supplied
information or services to the Three Powers or their Allies. German courts and
authorities had as a rule no jurisdiction in any criminal or non-criminal
proceedings relating to an act or omission which had occurred before the date
of entry into force of this convention, if immediately prior to such date
German courts and authorities were without jurisdiction with respect to such
act or omission whether ratione materiae or ratione personae.
The finality (Rechtskraft), validity and enforceability of judgments and
decisions in criminal or non-criminal matters rendered in Germany by tribunals
or judicial authorities of the Three Powers or any of them were confirmed.
29. Chapter 6 of the Settlement Convention concerns
reparation issues and the relevant parts of Article 3 provide as follows:
“1. The Federal Republic of Germany shall in the
future raise no objections against the measures which have been, or will be,
carried out with regard to German external assets or other property, seized for
the purpose of reparation or restitution, or as a result of the state of war,
or on the basis of agreements concluded, or to be concluded, by the Three
Powers with other Allied countries, neutral countries or former allies of
Germany.
...
3. No claim or action shall be admissible against
persons who shall have acquired or transferred title to property on the basis
of the measures referred to in paragraph 1 ... of this Article, or against
international organisations, foreign governments or persons who have acted upon
instructions of such organisations or governments.”
C. The Paris Agreement on Reparations
30. At the eighteen-nation Paris Conference on
Reparations in November and December 1945, the participating States, including
Czechoslovakia, agreed on more detailed policies based upon the Potsdam undertakings
(provisions agreed upon at Potsdam on 1 August 1945 between the governments of
the United States of America, the United Kingdom of
Great Britain and Northern Ireland and the Union of Soviet Socialist Republics)
in order to obtain an equitable distribution among themselves of the total
assets available as reparation from Germany, to establish an Inter-Allied
Reparation Agency, and to settle an equitable procedure for the restitution of
monetary gold.
The Paris Agreement (Agreement on Reparation from Germany, on
the Establishment of an Inter-Allied Reparation Agency, and on the Restitution
of Monetary Gold of 14 January 1946, United Nations Treaty Series,
vol. 555, p. 69) established, inter alia, the shares which
each country was to receive from German reparations. The Inter-Allied
Reparation Agency, established in accordance with Part II of the Agreement,
charged the reparation account of each signatory government for the German
assets within that government’s jurisdiction and maintained detailed accounts
of assets available for, and of assets distributed as, German reparation.
D. The Act on Losses due to Reparations
31. The Act on Losses
due to Reparations of 12 February 1969 (Gesetz zur Abgeltung von
Reparations-, Restitutions-, Zerstörungs- und Rückerstattungsschäden –
Reparationsschädengesetz, Federal Gazette I, 1969, p. 105) was one of the
statutes passed to deal with the consequences of the Second World War and the
collapse of the National Socialist regime.
32. Section 2(1) of the Act provided a general
definition of losses due to reparations, the relevant parts of which read as
follows:
“A loss due to reparations in the meaning of this Act is any
loss, which occurred in the context of the events and consequences of the
Second World War, including also the occupation regime, and resulted from the
fact that economic goods were taken away
1. in currently occupied East German territories or
in territories outside the German Reich on the basis of measures carried
out by foreign States with regard to German assets, in particular on the basis
of legislation on enemy property,
...”
33. Sections 11 to 16 laid down the conditions of
compensation for losses. The Act was limited to losses suffered by natural
persons (section 13(1)). In case of losses which had occurred in the then
occupied East German territories or in territories outside the German Reich,
only German nationals or persons of German origin (deutscher
Volkszugehöriger) who were, at the time of the occurrence of the loss,
stateless or had only the nationality of a State where they had been subjected
to expropriation or expulsion measures on account of their German origin could
claim compensation (section 13(2)). Section 15 listed works of art and
collections among the losses excluded from compensation. The time-limit for
filing compensation claims under the Act expired on 31 December 1974
(section 53).
E. Legal materials concerning German unification
34. During 1990, in parallel with internal German
developments, the Four Powers (France, the Soviet Union, the United Kingdom and
the United States) negotiated to end the reserved rights of the Four Powers for
Berlin and Germany as a whole.
The Treaty on the Final Settlement with respect to Germany (the
so-called Two-Plus-Four Treaty) was eventually signed in Moscow on
12 September 1990, and published in the Federal Gazette on 13 October 1990
(pp. 1308 et seq.). The Treaty confirms in particular the definite nature of
the borders of the united Germany (Article 1). According to its Article 7, the
rights and responsibilities of the Four Powers relating to Berlin and Germany
as a whole terminated with the result that the corresponding, related quadripartite
agreements, decisions and practices were terminated; and the united Germany was
given full sovereignty over its internal and external affairs. The Treaty
entered into force on 15 March 1991.
35. As regards the above-mentioned
Relations Convention and Settlement Convention, as amended, an agreement was
reached between the governments of the Federal Republic of Germany, the French
Republic, the United Kingdom of Great Britain and Northern Ireland and the
United States of America, following an exchange of notes on 27 and 28
September 1990, which entered into force on the last-mentioned date (Federal
Gazette II, 8 November 1990, pp. 1386 et seq.).
This agreement provides, inter alia:
“1. The Convention on Relations between the Three
Powers and the Federal Republic of Germany of 26 May 1952 ... (“the Relations
Convention”) shall be suspended upon the suspension of the operation of
quadripartite rights and responsibilities with respect to Berlin and to Germany
as a whole, and shall terminate upon the entry into force of the Treaty on the
Final Settlement with respect to Germany, signed at Moscow on 12 September
1990.
2. Subject to paragraph 3 below, the Convention on
the Settlement of Matters Arising out of the War and the Occupation of 26 May
1952 ... (“the Settlement Convention”) shall be suspended and shall terminate
at the same time as the Relations Convention; ...
3. The following provisions of the Settlement
Convention shall, however, remain in force:
...
Chapter Six:
Article 3, paragraphs 1 and 3
...”
36. The political union of the Federal Republic of
Germany and the German Democratic Republic occurred on 3 October 1990, with the
accession (in accordance with Article 23 of the Basic Law) of the five Länder
which had been re-established in the German Democratic Republic.
F. German private international law
37. The second chapter of the Introductory Act to
the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch), as in force
at the relevant time (as amended by the Act on the Reform of Private
International Law – Gesetz zur Neuregelung des Internationalen Privatrechts,
Federal Gazette I, 25 July 1986, p. 1142), contained statutory rules of
German private international law relating to the rights of natural persons and
the rules on legal transactions, family law and succession law. This
legislation did not comprise statutory provisions on property matters and,
before the entry into force of the 1999 Act on Private International Law (Gesetz zum internationalen Privatrecht für
ausservertragliche Schuldverhältnisse und für Sachen, Federal Gazette I, 21
May 1999, p. 1026, amending Chapter 2 of the Introductory Act to the Civil
Code), the German courts applied customary law, that is, as a rule the lex
rei sitae. According to section 6 of the Introductory Act to the Civil
Code, the legal provisions of a foreign State shall not be applied if their
application would lead to a result incompatible with essential principles of
German law (ordre public).
THE LAW
I. ALLEGED VIOLATION
OF ARTICLE 6 OF THE CONVENTION
38. The applicant complained of a breach of Article
6 § 1, the relevant part of which reads as follows:
“In the determination of his civil
rights and obligations ..., everyone is entitled to a fair and public hearing
... by [a] ... tribunal ...”
39. His complaints concerned his right of access to
a court and the alleged unfairness of the proceedings before the Federal
Constitutional Court.
A. Applicability of Article 6 § 1 of the Convention
40. The Court notes that
the German court proceedings at issue concerned the applicant’s claim for
restitution of a painting which had belonged to his late father, the former
monarch of Liechtenstein, and which had been confiscated by the former
Czechoslovakia in 1946. Challenging in particular the validity of the said
expropriation, the applicant argued that, as heir, he was the owner of the
painting concerned.
The Government did not dispute that
these proceedings related to the “determination of his civil rights”. In the
light of this, and bearing in mind that the parties’ arguments before it were
centred on the issue of compliance with Article 6 § 1, the Court will proceed
on the basis that it is applicable to the present case.
B. The right of access to a court
1. Arguments of those appearing before the Court
(a) The applicant
41. The applicant submitted that the German courts’
decisions declaring his action inadmissible under Chapter 6, Article 3 §§ 1 and
3 of the Settlement Convention amounted to a denial of access to a court.
According to the applicant, the
interpretation of the Settlement Convention by the German courts in the instant
case had been contrary to international law and therefore violated the
Convention. In his view, the confiscation of Liechtenstein property by the
authorities of the former Czechoslovakia could not possibly be regarded as
confiscation of “German external assets” within the meaning of Chapter 6,
Article 3 § 1, of the Settlement Convention. In the case of the applicant’s
father in his capacity as Head of State of the sovereign State of
Liechtenstein, the finding of the Bratislava Administrative Court in 1951, according
to which his “ethnic German origin” was “generally known”, was
incomprehensible.
Referring to the sovereignty of
Liechtenstein and its neutrality during the Second World War, the applicant
further considered that the German courts arbitrarily assumed that the assets
owned by the applicant’s father had been seized “for the purpose of
reparation”. Czechoslovakia had never charged its reparation account under the
1946 Paris Agreement on Reparation with the confiscated Liechtenstein assets as
“German external assets”. There was no indication that the Settlement
Convention was intended to cover confiscation measures directed against neutral
property and should be interpreted in a way contrary to neutrality law.
Finally, customary international
law had prohibited confiscation of works of art.
(b) The Government
42. The Government stated that the provision in the
Settlement Convention had been necessary for the purpose of re-establishing the
initially partial and later complete sovereignty of Germany and to ensure the
recognition of German property. Sovereignty was granted to the Federal Republic
ex nunc and the exclusion of German jurisdiction was intended to ensure
that orders and measures of the Allies dating back to the time of German
occupation were not retroactively questioned.
They pointed out that Germany did
not have any influence on the deprivation of property or on the organisation of
property relations in the former Czechoslovakia and its successor States. The
exclusion of German jurisdiction, which had been established in the Settlement
Convention and had been maintained in the Agreement of 27 and 28 September 1990
following the Two-Plus-Four Treaty, neither prejudiced nor affected de facto
the power to dispose of property. This was true at least for the great majority
of cases where property had remained within the territory of the former
Czechoslovakia. The provision had only consequences of a procedural nature, and
no qualification of the individual confiscation measures was involved.
Furthermore, only German jurisdiction was excluded, not the possibility of
lodging claims in foreign courts. In particular, the applicant was not
prevented from instituting proceedings before Czech or Slovak courts, claiming
restitution of the property confiscated in 1946. Finally, a statutory
regulation and international obligation could only cover the usual course of
events and not exceptional situations.
The Government further submitted
that the German courts had given extensive and comprehensible reasons for their
decisions. The question of whether or not their interpretation of Chapter 6,
Article 3, of the Settlement Convention was correct in an individual case was
irrelevant. At least, having regard to the reasoning adopted by the Bratislava
Administrative Court, the assumption of the German courts that the property had
been seized as German property for reparation purposes in a more general sense
was not arbitrary, but defendable. The relevant provisions of Beneš Decree no.
12 differentiated between citizenship and nationality or “ethnicity”, a
criterion also found in the confiscation laws of other East European States or
in German legislation.
2. The Court’s assessment
(a) General principles
43. Firstly, the Court
reiterates that Article 6 § 1 secures to everyone the right to have any claim
relating to his civil rights and obligations brought before a court or
tribunal. In this way the Article embodies the “right to a court”, of which the
right of access, that is, the right to institute proceedings before courts in
civil matters, constitutes one aspect only (see Golder v. the United Kingdom,
judgment of 21 February 1975, Series A no. 18, p. 18, § 36, and Waite
and Kennedy v. Germany [GC], no.
26083/94, § 50, ECHR 1999-I).
44. The right of access to the courts secured by
Article 6 § 1 of the Convention is not absolute, but may be subject to
limitations; these are permitted by implication since the right of access by
its very nature calls for regulation by the State. In this respect, the
Contracting States enjoy a certain margin of appreciation, although the final
decision as to the observance of the Convention’s requirements rests with the
Court. It must be satisfied that the limitations applied do not restrict or
reduce the access left to the individual in such a way or to such an extent
that the very essence of the right is impaired. Furthermore, a limitation will
not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and
if there is not a reasonable relationship of proportionality between the means
employed and the aim sought to be achieved (see Waite
and Kennedy, cited above, § 59; T.P. and K.M. v. the United Kingdom [GC],
no. 28945/95, § 98, ECHR 2001-V; and Z and Others v. the United
Kingdom [GC], no. 29392/95, § 93, ECHR 2001-V).
If the restriction is compatible with these principles, no
violation of Article 6 will arise.
45. In this context, it should be recalled that the
Convention is intended to guarantee not theoretical or illusory rights, but
rights that are practical and effective. This is particularly true for the
right of access to the courts in view of the prominent place held in a
democratic society by the right to a fair trial (see Waite and Kennedy,
cited above, § 67).
46. Secondly, as regards the responsibility of the
High Contracting Parties under the Convention, the Court points out that
Article 1 requires them to “secure to everyone within their jurisdiction the
rights and freedoms defined in ... [the] Convention”.
Article 1 makes no distinction as to the type of rule or
measure concerned, and does not exclude any part of the Contracting States’
“jurisdiction” from scrutiny under the Convention (see United Communist
Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports
of Judgments and Decisions 1998-I, pp. 17-18, § 29).
47. Thus the Contracting
States’ responsibility continues even after their having entered into treaty
commitments subsequent to the entry into force of the Convention or its
Protocols in respect of these States (see, mutatis mutandis, Matthews
v. the United Kingdom [GC], no. 24833/94, §§ 29, 32‑34, ECHR 1999-I).
48. The Court reiterates in this respect that where
States establish international organisations in order to pursue or strengthen
their cooperation in certain fields of activities, and where they attribute to
these organisations certain competences and accord them immunities, there may
be implications as to the protection of fundamental rights. It would be
incompatible with the object and purpose of the Convention, however, if the
Contracting States were thereby absolved from their responsibility under the Convention
in relation to the field of activity covered by such attribution. In
determining whether granting an international organisation immunity from
national jurisdiction is permissible under the Convention, a material factor is
whether reasonable alternative means were available to protect effectively the
rights under the Convention (see Waite and Kennedy, cited above,
§§ 67-68).
49. Thirdly, the Court reiterates the fundamental
principles established by its case-law on the interpretation and application of
domestic law.
While the Court’s duty, according to Article 19 of the
Convention, is to ensure the observance of the engagements undertaken by the
Contracting Parties to the Convention, it is not its function to deal with
errors of fact or law allegedly committed by a national court unless and in so
far as they may have infringed rights and freedoms protected by the Convention.
50. Moreover, it is primarily for the national
authorities, notably the courts, to interpret and apply domestic law. This also
applies where domestic law refers to rules of general international law or
international agreements. The Court’s role is confined to ascertaining whether
the effects of such an interpretation are compatible with the Convention (see Waite
and Kennedy, cited above, § 54, and, as a recent authority, Streletz, Kessler and Krenz v. Germany [GC], nos.
34044/96, 35532/97, 44801/98, § 49,
ECHR 2001-II).
(b) Application of the above principles to the
present case
51. In the present case,
the applicant based his property claim, as his late father’s heir, on the
submission that the painting had not been subject to expropriation measures in
the former Czechoslovakia and that in any event such measures were invalid or
irrelevant on account of violation of the ordre public of the Federal
Republic of Germany. The German courts did not address these arguments relating
to the German rules of private international law and to the merits of his
property claim, but concentrated on the preliminary question of whether Chapter
6, Article 3, of the Settlement Convention excluded German jurisdiction and
decided that his action was barred by operation of law. The Federal Court of
Justice and the Federal Constitutional Court declined to accept his case for
adjudication.
52. The Court considers that the applicant was
thereby deprived of his right to a determination of his property claim, in
application of the rules of private international law. It will have to examine
whether the German courts were allowed under Article 6 § 1 of the Convention to
limit the applicant’s right of access to a court in order to give effect to the
rules of an international agreement excluding German jurisdiction concerning
“measures which have been, or will be, carried out with regard to German
external assets or other property, seized for the purpose of reparation or
restitution”.
53. The Court must first determine whether the
limitation as such pursued a legitimate aim.
54. The Court observes at the outset that the
Federal Republic of Germany, when ratifying the Convention on 5 December 1952,
was still an occupied country under the supreme authority of the Four Powers,
France, the United States of America, the United Kingdom and the Soviet Union.
This generally known situation prevailed when the Convention entered into force
on 3 September 1953.
The Settlement Convention was one of a series of agreements,
signed by France, the United States of America, the United Kingdom and the
Federal Republic of Germany in 1952 and amended in
accordance with the five Schedules to the Protocol on the Termination of the
Occupation Regime in the Federal Republic of Germany, signed on 23 October 1954
(see paragraphs 24-28 above).
According to Schedule I amending the Relations Convention, the Occupying Powers terminated the
Occupation Regime in Western Germany, revoked the Occupation Statute, and
abolished the offices of the Land Commissioners. The Federal Republic
was thereby accorded “the full authority of
a sovereign State over its internal and external affairs”.
Nevertheless, the Occupying Powers retained their rights “relating to Berlin and to Germany as a whole,
including the reunification of Germany and a peace settlement” and foreign
forces remained present in the Federal Republic of Germany. Specific provision was made for the validity of rights
or obligations established by or under the Occupation Authorities and the
validity, finality and enforceability of judgments and decisions rendered by
them.
55. The Court finds that, when
negotiating the terms of the Settlement Convention and the related agreements,
the Federal Republic of Germany was not negotiating a transfer of competences
or the restriction of sovereignty in matters of jurisdiction which it already
possessed. On the contrary, it was negotiating for the transfer to itself of
sovereign authority and for the termination of the Occupation Regime (see, mutatis
mutandis, Kahn v. Germany, no. 235/56, Commission decision of 10
June 1958, Yearbook 2, pp. 257 et seq., at p. 300; and Hess v. the United
Kingdom, no. 6231/73, Commission decision of 28 May 1975, Decisions
and Reports (DR) 2, p. 72).
56. The Court accepts that after the Second World
War the Federal Republic of Germany was not in a position to argue against the
intention of the Three Powers to exclude a review by German courts of
confiscation measures against German external assets for reparation purposes or
to impose other limitations on German jurisdiction under the Settlement
Convention.
In this context, the Court would add that not only Contracting
Parties to the Convention were involved in these negotiations. Vis-à-vis
the United States of America, the Federal Republic of Germany could not invoke
any obligations under the Convention.
57. The Court notes that this situation
prevailed until 1990 when, in parallel with internal developments towards a
unified Germany, the Four Powers started negotiations resulting in the Treaty
on the Final Settlement with respect to Germany, which was signed on 12
September 1990 and entered into force on 15 March 1991. This so-called
Two-Plus-Four Treaty provided, in its Article 7, for the termination of the
rights and responsibilities of the Four Powers relating to Berlin and Germany
as a whole, and for the full sovereignty of the united Germany. An additional
agreement between the Three Powers and the Federal Republic of Germany of 28
September 1990 dealt with the suspension of the Relations Convention and
Settlement Convention and provided that certain provisions of the Settlement
Convention, including, inter alia, Chapter 6, Article 3, thereof,
remained in force.
58. The Court finds that when, half a century after
the end of the Second World War, a final settlement with respect to Germany and
the unification of the two German States were within reach, the position of the
Federal Republic of Germany had not changed. In the negotiations with the Three
Powers, the Federal Republic of Germany had to accept that this specific
limitation on its jurisdiction was not abolished.
59. In the Court’s view, the exclusion of
German jurisdiction under Chapter 6, Article 3, of the Settlement Convention is
a consequence of the particular status of Germany under public international
law after the Second World War. It was only as a result of the 1954 Paris
Agreements with regard to the Federal Republic of Germany and the Treaty on the
Final Settlement with respect to Germany of 1990 that the Federal Republic
secured the end of the Occupation Regime and obtained the authority of a
sovereign State over its internal and external affairs for a united Germany. In these unique circumstances, the limitation on
access to a German court, as a consequence of the Settlement Convention, had a
legitimate objective.
60. Having reached this conclusion, the Court will
next look at the interpretation and application of the said provision in the
applicant’s case.
61. The German courts concluded that the conditions
under Chapter 6, Article 3, of the Settlement Convention for declaring the
applicant’s action inadmissible for lack of German jurisdiction were fulfilled.
The Cologne Regional Court considered that the said provision
excluded any review, by German courts, of measures carried out with regard to
German external assets or other property, seized for the purpose of reparation
or restitution, or as a result of the state of war, or on the basis of specific
agreements. In dealing with the applicant’s argument that this provision did
not apply as it concerned measures carried out with regard to German external
assets and his father had never been a German citizen, the Regional Court,
accepting that the applicant’s father had never had German nationality,
regarded the view of the confiscating State as decisive. The authorities of the
former Czechoslovakia had expropriated the painting at issue, as part of the
inventory of agricultural property, under the provisions of Beneš Decree no.
12, regarding him as a “person of German nationality”. The Cologne Court of
Appeal confirmed that Chapter 6, Article 3, of the Settlement Convention, as it
aimed at excluding litigation regarding confiscation measures based on
legislation concerning enemy property, had to be applied in the light of the
law of the expropriating State.
The Federal Constitutional Court found that the civil courts’
interpretation was not arbitrary and could not be objected to under German
constitutional law.
62. The Court notes that Chapter 6, Article 3, of
the Settlement Convention excluded German jurisdiction in respect of litigation
concerning “measures ... carried out with regard to German external assets or
other property, seized for the purpose of reparation”. In the process of
terminating the Occupation Regime, the Three Powers thereby upheld a
restriction on sovereign rights of the Federal Republic of Germany in
restitution matters which were transferred to it under the Settlement
Convention. Bearing in mind the object and purpose
of the Settlement Convention and its political background, it was not
unreasonable for the German courts to assume that the logic of the system
excluded any German review of confiscation measures carried out by the Three
Powers or other Allied countries for the purpose of reparation.
63. In the instant case, the German courts had
elements at their disposal which indicated that the authorities of the former
Czechoslovakia, when confiscating the painting at issue as part of the
agricultural property of the applicant’s father, had carried out a measure with
regard to “German external assets or other property, seized for the purpose of
reparation”. In particular, the property had been confiscated in application of
Decree no. 12 on the “confiscation and accelerated allocation of agricultural
property of German and Hungarian persons and of those having committed treason
and acted as enemies of the Czech and Slovak people”. Moreover, in the
proceedings before the Bratislava Administrative Court, the administrative
authorities of the former Czechoslovakia had made it clear that they regarded
the applicant’s father as a person of German nationality within the meaning of
this decree.
64. In this connection, the Court observes that the
German courts were not required to assess whether the standard of the
Bratislava Administrative Court proceedings resulting in the decision of
November 1951 was adequate, in particular if seen against the procedural
safeguards of the Convention (see, mutatis mutandis, Drozd and
Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240,
p. 34, § 110).
65. In the light of these findings and having regard
to the limited power of review exercisable by the Court (see paragraphs 49-50
above), it cannot be said that the German courts’ interpretation of Chapter 6,
Article 3, of the Settlement Convention was inconsistent with previous German
case-law or that its application was manifestly erroneous or was such as to
lead to arbitrary conclusions.
66. Furthermore, in examining whether the limitation
on the applicant’s access to the German courts was compatible with the
principles established in the Court’s case-law (see paragraphs 44-48 above),
the Court attaches particular significance to the nature of the applicant’s
property claims in respect of the painting at issue. As part of the applicant’s
father’s agricultural property in the former Czechoslovakia, it had been
expropriated by the authorities of the former Czechoslovakia in 1946 and had
remained within the latter State’s territory and later within the territory of
the Czech Republic. As the Government pointed out, the exclusion of German
jurisdiction did not affect the great majority of such cases where property had
remained within the territory of the expropriating State. The genuine forum for
the settlement of disputes in respect of these expropriation measures was, in
the past, the courts of the former Czechoslovakia and, subsequently, the courts
of the Czech or Slovak Republics. Indeed, in 1951 the applicant’s father had
availed himself of the opportunity of challenging the expropriation in question
before the Bratislava Administrative Court (see paragraph 12 above).
67. The Court finds
that, for the applicant, the possibility of instituting proceedings in the
Federal Republic of Germany to challenge the validity and lawfulness of the
expropriation measures, which had been carried out by the former Czechoslovakia
at a time prior to the existence of the Federal Republic of Germany under its
1949 Constitution, was a remote and unlikely prospect. It was only when, in
1991, the municipality of Cologne received the painting on loan from the Czech
Republic that the applicant brought proceedings before the German courts and
that the exclusion of German jurisdiction under Chapter 6, Article 3, of the
Settlement Convention became operative. It prevented the applicant from
obtaining a decision by the German courts, under the principles of German
private international law, on his property claim and especially his argument
that the confiscation measures of 1946 constituted a violation of the German ordre
public (see paragraphs 15 and 34 above).
68. Moreover, the factors
referred to above – the particular status of the Federal Republic of Germany
under public international law after the Second World War and the fortuitous
connection between the factual basis of the applicant’s claim and German
jurisdiction – distinguish the present case from that in Waite and Kennedy
(see paragraph 48 above) concerning the transfer of competences to an
international organisation, where the Court regarded as a material factor
whether there were reasonable alternative means to protect effectively the
rights under the Convention.
69. In view of the above, the Court considers that
the applicant’s interest in bringing litigation in the Federal Republic of
Germany was not sufficient to outweigh the vital public interest in regaining
sovereignty and unifying Germany. Accordingly, the German court decisions
declaring the applicant’s ownership action inadmissible cannot be regarded as
disproportionate to the legitimate aim pursued and they did not, therefore,
impair the very essence of the applicant’s “right of access to a court” within
the meaning of the Court’s case-law (see paragraphs 43-44 above).
70. It follows that there has been no breach of the
applicant’s right to a court, as guaranteed by Article 6 § 1 of the Convention.
C. The alleged unfairness of the proceedings before
the Federal Constitutional Court
71. The applicant further submitted that he did not
have a fair hearing, as guaranteed under Article 6 § 1, in the proceedings
before the Federal Constitutional Court.
72. The applicant submitted that before the German
courts it was of essential importance to know whether Article 3 of the
Settlement Convention had continued to have legal force, taking into account
the Two-Plus-Four Treaty and the Agreement of 27 and 28 September 1990. In its
decision the Federal Constitutional Court had deviated from the opinion of the
Cologne Court of Appeal, by proceeding on an assumption – not previously made
in this case – that the occupation treaties of the three Western Allies
constituted an original legal regime independent of the law of the Four Powers
and invoked a legal position of the Western Allies which had not been
discussed.
73. The Government considered that the
Cologne Court of Appeal had already dealt in detail with the history and the
interpretation of the Two-Plus-Four Treaty and of the Agreement of 27 and 28
September 1990. For them, it was decisive that the Court of Appeal had already
argued that the Two-Plus-Four Treaty had not already entailed the abrogation of
the Settlement Convention as the law of the Three Powers. The Federal
Constitutional Court had only confirmed this legal opinion – which therefore
could not have been surprising for the applicant – and developed the legal
arguments thereon. Moreover, the Constitutional Court had not made use of
comments withheld from the applicant. Rather, in order to ascertain the
presumed legal opinion of the acting States, it had interpreted the treaties
concerned in order to find therein a confirmation of its own legal view.
74. The Court finds that the applicant had the
benefit of adversarial proceedings before the Federal Constitutional Court and
that he was able to submit the arguments he considered relevant to his case
(see, mutatis mutandis, APEH Üldözötteinek Szövetsége and
Others v. Hungary, no. 32367/96, § 39, ECHR 2000-X).
75. The Court shares the opinion of the Government
that the Federal Constitutional Court had drawn inferences from the course of
the international negotiations and the contents of international agreements,
namely circumstances which had been known to the applicant and which had been
the subject of argument in court, in order to confirm the lower court’s finding
that Chapter 6, Article 3 §§ 1 and 3, of the Settlement Convention had not been
set aside by the Treaty on the Final Settlement with respect to Germany.
76. In conclusion, the Court finds no indication of
unfairness in the manner in which the proceedings at issue were conducted.
D. Conclusion
77. There has therefore been no violation of Article
6 § 1 of the Convention in this case.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL
No. 1
78. The applicant complained that the German court
decisions declaring his claims for ownership of the painting Szene an einem
römischen Kalkofen by Pieter van Laer inadmissible and its return to the
Czech Republic violated his right of property. He relied on Article 1 of
Protocol No. 1, which provides:
“Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions
except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.”
79. In the applicant’s submission, the restitution
of the painting in question to the Czech Republic amounted to an unlawful
interference with his “existing possessions”. The confiscation of the painting
by the former Czechoslovakia under Beneš Decree no. 12 had been unlawful and
void. His father had been neither “German” nor an “enemy of the Czech and
Slovak people”, as stipulated in that decree. In his view, the confiscation had
been contrary to public international law and had, therefore, to remain
ineffective. In this respect, he referred to the Court’s reasoning in Loizidou
v. Turkey (merits) (judgment of 18 December 1996, Reports 1996-VI).
He considered that the Government’s arguments giving effect to such an unlawful
confiscation contradicted the previous German practice not to recognise
confiscation measures under the Beneš Decrees. He also referred to decisions of
the Czech Constitutional Court according to which confiscations on the basis of
the Beneš Decrees were invalid because the former Czechoslovakian authorities
had assumed without good reason that the owner was of “German ethnic origin” at the
time.
80. The Government submitted that the confiscation
measure and in particular the factual deprivation of the property in question
had been carried out by the former Czechoslovakia in 1946. With regard to these
and other comparable confiscation measures, the former Czechoslovakia and its
successor States had never agreed to discuss the possibility of restitution.
Thus in 1991, when the painting concerned came to Germany, the applicant could
no longer have had any legitimate expectation of enjoying any property right over
it. Furthermore, the unlawfulness of a confiscation under international law did
not entail lack of effect and there were no sufficient reasons to question the
validity of the confiscation of the painting.
81. The Court notes that the applicant’s complaint
submitted under Article 1 of Protocol No. 1 does not concern the original
confiscation of the painting, which was carried out by authorities of the
former Czechoslovakia in 1946. In the present proceedings, the applicant complains
that, as in the German court proceedings instituted in 1992 he could not obtain
a decision on the merits of his claim to ownership of the painting, it was
eventually returned to the Czech Republic. The Court’s competence to deal with
this aspect of the application is therefore not excluded ratione temporis (see
Malhous v. the Czech Republic (dec.) [GC], no. 33071/96,
ECHR 2000-XII).
82. The applicant can allege a violation of Article
1 of Protocol No. 1 only in so far as the impugned decisions related to his
“possessions” within the meaning of this provision.
83. The Court notes that, according to the
established case-law of the Convention organs, “possessions” can be “existing
possessions” or assets, including claims, in respect of which the applicant can
argue that he has at least a “legitimate expectation” of obtaining effective
enjoyment of a property right. By way of contrast, the hope of recognition of
the survival of an old property right which it has long been impossible to
exercise effectively cannot be considered as a “possession” within the meaning
of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a
result of the non-fulfilment of the condition (see the recapitulation of the
relevant principles in Malhous, decision cited above, with further
references, in particular to the Commission’s case-law).
84. In the present case, the applicant brought
proceedings before the German courts claiming ownership of the painting which
had once belonged to his father. He challenged the validity of the
expropriation carried out by authorities of the former Czechoslovakia, his main
argument being that the measure had allegedly been effected contrary to the
terms of Beneš Decree no. 12 and to the rules of public international law.
85. As regards this preliminary issue, the Court
observes that the expropriation had been carried out by authorities of the
former Czechoslovakia in 1946, as confirmed by the Bratislava Administrative
Court in 1951, that is before 3 September 1953, the date of entry into force of
the Convention, and before 18 May 1954, the date of entry into force of
Protocol No. 1. Accordingly, the Court is not competent ratione temporis
to examine the circumstances of the expropriation or the continuing effects
produced by it up to the present date (see Malhous, cited above, and the
Commission’s case-law, for example, Mayer and Others v. Germany,
nos. 18890/91, 19048/91, 19049/91, 19342/92 and 19549/92, Commission
decision of 4 March 1996, DR 85-A, p. 5).
The Court would add that in these circumstances there is no
question of a continuing violation of the Convention which could be imputable
to the Federal Republic of Germany and which could have effects as to the
temporal limitations of the competence of the Court (see, a contrario, Loizidou
(merits), cited above, p. 2230, § 41).
Subsequent to this measure, the applicant’s father and the
applicant himself had not been able to exercise any owner’s rights in respect
of the painting, which was kept by the Brno Historical Monuments Office in the
Czech Republic.
In these circumstances, the applicant as his father’s heir
cannot, for the purposes of Article 1 of Protocol No. 1, be deemed to have
retained a title to property nor a claim to restitution against the Federal
Republic of Germany amounting to a “legitimate expectation” in the sense of the
Court’s case-law.
86. This being so, the German court decisions and
the subsequent return of the painting to the Czech Republic cannot be
considered as an interference with the applicant’s “possessions” within the
meaning of Article 1 of Protocol No. 1 (see paragraph 78 above).
87. The Court thus concludes that there has been no
violation of Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION
88. The applicant complained that he had been
discriminated against on the basis of his status as a Liechtenstein national,
contrary to Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.”
89. The applicant submitted that while the German
authorities regarded his father’s assets in the former Czechoslovakia as
“German external assets” for the purposes of the Settlement Convention, the
German equalisation legislation did not extend to losses suffered by citizens
of neutral States. He considered that no legitimate distinction could be made
between German and foreign nationals in respect of compensation for losses due
to reparation. Moreover, the Government could not rely on the exclusion of
works of art from claims for compensation after having recognised the
confiscation of the painting concerned, which was in his view in breach of
public international law.
90. The Government maintained that, as Article 1 of
Protocol No. 1 was not applicable to the instant case, there was no room to
find a violation of Article 14. In any event, it had not been necessary to
include foreign nationals who had been victims of measures directed against
German external assets in the legislation on compensation for losses due to
reparation etc., as the margin of appreciation permitted the German State to
provide particular advantages for its citizens. Other citizens could have
resort to legal and diplomatic protection by their country of origin. In any
event, the Act on Losses due to Reparation did not provide for compensation in
respect of losses of works of art and collections. Moreover, the time-limit for
filing claims had expired on 31 December 1974.
91. As the Court has consistently held, Article 14
of the Convention complements the other substantive provisions of the Convention
and its Protocols. It has no independent existence since it has effect solely
in relation to “the enjoyment of the rights and freedoms” safeguarded by those
provisions. Although the application of Article 14 does not presuppose a breach
of those provisions - and to this extent it is autonomous - there can be no
room for its application unless the facts at issue fall within the ambit of one
or more of the latter (see Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 86, ECHR 2000-VII).
92. The Court has found above that the facts of
which the applicant complained under Article 1 of Protocol No. 1, namely the
German court decisions and the return of the painting to the Czech Republic,
did not amount to an interference with any of his rights under that provision.
He cannot therefore claim that in these respects he had been discriminated
against in the enjoyment of his property rights (see Marckx v. Belgium,
judgment of 13 June 1979, Series A no. 31, p. 23, § 50).
93. The Court notes that the applicant alleged
discrimination under the Act on Losses due to Reparations, which enabled only
German nationals or, under specific conditions, persons of German origin, and
not foreign nationals to make compensation claims.
However, the Convention does not guarantee any right to
compensation for damage the initial cause of which does not constitute a
violation of the Convention (see Mayer and Others, cited above, p. 18).
94. Article 14 of the Convention does not therefore
apply to the present case. Consequently, the Court finds no violation under
this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been no violation of
Article 6 § 1 of the Convention;
2. Holds that there has been no violation of
Article 1 of Protocol No. 1;
3. Holds that there has been no violation of
Article 14 of the Convention.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 12 July 2001.
Elisabeth
Palm
President
For the Registrar
Michele de Salvia
Jurisconsult
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the following concurring opinions are annexed to this judgment:
(a) concurring opinion of Mr Ress joined by Mr
Zupanèiè;
(b) concurring opinion of Mr Costa.
E.P.
M. de S.
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