PRINCE HANS ADAM II OF LIECHTENSTEIN proti Německu

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42527/98
by Prince Hans Adam II of Liechtenstein
against Germany

The European Court of Human Rights (Fourth Section), sitting on 6 June 2000 as a Chamber composed of

Mr A. Pastor Ridruejo, President,
Mr G. Ress,

Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs N. Vajić,
Mr J. Hedigan,
Mr M. Pellonpää, judges,

and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 28 July 1998 and registered on 31 July 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is His Serene Highness Prince Hans-Adam II, monarch of Liechtenstein. The applicant, born in 1945, is resident in Vaduz. In the proceedings before the Court, he is represented by Mr A. Goepfert, a lawyer practising in Düsseldorf. The respondent Government are represented by Mr K. Stoltenberg, Ministerialdirigent.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Particular circumstances of the case

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 this family's art collection since at least 1767. Until the end of World War II the painting had been in one of the family's castles on the territory of the now Czech Republic.

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 the Decree No. 12 on the “confiscation and accelerated allocation of agricultural property of the German and Hungarian persons and of those having committed treason and acted as enemies of the Czech and Slovak people” (dekretu prezidenta republiky č. 12/1945 Sb. o konfiskaci a urychleném rozdělení majetku Němců, Mad'arů, zrádců a nepřátel), issued by the President of former Czechoslovakia on 21 June 1945 (“Benes Decrees” - “Benešovy dekrety”).

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 section 1a of the Decree, on the basis of the 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 this 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 that, therefore, no evidence had to be furnished in the administrative files; however, counter evidence against the official finding that a certain fact was generally known would have been admitted. The Administrative Court concluded that, as 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, also indicating the form thereof, the finding of the defendant office had remained uncontested.

In 1991 the Municipality of Cologne obtained the painting as a temporary loan by the Brno Historical Monuments Office in the Czech Republic.

On 11 November 1991 the Cologne Regional Court (Landgericht) granted the applicant's request for an interim injunction ordering the Municipality of Cologne to render the painting to a bailiff at the end of the exhibition. The painting was sequestrated on 17 December 1991.

In the beginning of 1992, the applicant instituted proceedings before the Cologne Regional Court against the Municipality of Cologne, claiming the defendant's consent that the bailiff should render the painting to him. He argued that, as his late father's heir, he was the owner of the painting concerned. He submitted that the painting had not been subject to expropriation measures in former Czechoslovakia and that anyway such measures were invalid or irrelevant for violation of the ordre public of the Federal Republic of Germany. According to section 6 of the Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch), 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..

In these proceedings, the Brno Historical Monuments Office intervened 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.

On 10 October 1995 the Cologne Regional Court, following a hearing, declared the applicant's action inadmissible. In the court's view, Article 3 of Chapter 6 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 regarding the applicant's case.

In its reasoning, the Regional Court noted that under the terms of paragraph 3, in conjunction with paragraph 1, of this provision, 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 as a loan and had not acquired property, as any review of the aforementioned measures should be excluded.

The Regional Court found that the confiscation of the applicant's father's property under the Decree No. 12 on the “confiscation and accelerated allocation of agricultural property of the 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 former Czechoslovakia on 21 June 1945, constituted a measure within the meaning of Chapter 6, Article 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 confiscation measures implemented abroad without any further examination, 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 “Benes-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, i.e. “enemy property”.

The Regional Court further noted that the painting of the applicant's father 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 comprised by 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 the compensation for damages and losses due to, inter alia, expulsion and destruction during World War II 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 had 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 articles of virtu (Kunstgegenstände).

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 § 3, of the Settlement Convention.

The Court of Appeal considered that the notion of German jurisdiction (facultas iurisdictionis) comprised 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, international customary law and the generally recognised rules of international law. Chapter 6, Article 3 § 3, in conjunction with § 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 on the Final Settlement with respect to Germany of 12 September 1990. 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 27/28 September 1990 according to which the Settlement Convention was suspended and later terminated with the exception of the provisions stated in paragraph 3 of this Agreement, inter alia Chapter 6, Article 3 §§ 1 and 3. This 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 idea 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 necessary to reach 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 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 German courts had no jurisdiction under Chapter 6, Article 3 § 3, of the Settlement Convention. Likewise, this provision did not allow having recourse to general rules of public international law or to the 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 indisputedly 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 in compliance with the legislation of the expropriating State: the competent Czechoslovakian administrative authorities as well as the Bratislava Administrative Court had found that the Presidential Decree No. 12 of 21 June 1945 applied to the applicant's father's confiscated property. Section 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 notion 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 undisputedly 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 personal 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.

On 25 September 1997 the Federal Court of Justice (Bundesgerichtshof) 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.

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 former Czechoslovakia. The German civil courts had not decided on 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 against 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 waiver of jurisdiction did not amount to a violation of the right to 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).

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 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.

B. Relevant law

I. The Benes Decree No. 12

The Benes Decree No. 12 on the “confiscation and accelerated allocation of agricultural property of the 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 inter alia agricultural property in the ownership of all persons of German and Hungarian nationality irrespective of their citizenship status. According to section 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.

II. The Convention on the Settlement of Matters Arising out of the War and the Occupation

Chapter 6, Article 3, of the Convention on the Settlement of Matters Arising out of the War and the Occupation, signed at Bonn on 26 May 1952 (as amended by Schedule IV to the Protocol on the Termination of the Occupation Regime in the Federal Republic of Germany, signed at Paris on 23 October 1954), published in the Federal Gazette on 31 March 1955 (Bundesgesetzblatt, S. 405 et seq.), as far as relevant, provides 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 of 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.”

The “Settlement Convention” is one of the “Bonn Conventions” (“Bonner Verträge”) signed by France, the United States, the United Kingdom and the Federal Republic of Germany at Bonn on 26 May 1952, and designed to end the Occupation Regime. The other 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.

These agreements, which as such did not enter into force, 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 the “Paris Agreements”, which were signed in Paris on 23 October 1954.

Article 1 of Schedule I which amends the above Convention on Relations between the Three Powers and the Federal Republic of Germany states that the three Powers will terminate the Occupation régime 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”. According to its Article 10, the Convention may be reviewed inter alia in the event of the reunification of Germany, or an international understanding being reached with the participation or consent on steps towards bringing about the reunification of Germany;

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 so-called Four-Power Conference by France, the United States, 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, as well as letters dealing 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 Western European Union;

- Protocol on the Control of Armaments:

- Protocol on the Agency of Western European Union for the Control of Armaments;

- Exchange of letters referring to the jurisdiction of the International Court of Justice;

- Resolution on the Production and Standardisation of Armaments.

4. Documents signed by the 14 North Atlantic Treaty countries:

- 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 (authority of SACEUR);

- 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.

III. German unification

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 (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 (Bundesgesetzblatt, S. 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.

As regards the above-mentioned Relations Convention and the Settlement Convention, as amended, an exchange of notes took place on 27 and 28 September 1990 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, published in the Official Gazette on 9 November 1990 (Bundesgesetzblatt 1990 II, S. 1386 et seq.), an agreement was reached in Bonn which entered into force on the last-mentioned date. 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

...”

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.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the German courts declared his action inadmissible under Chapter 6, Article 3 §§ 1 and 3, of the Settlement Convention. He submits that, under the Convention, the Federal Republic of Germany was not entitled to dispose of its jurisdiction regarding the litigation at issue. Moreover, the German courts had arbitrarily applied the Settlement Convention in his case. Thus they had incorrectly interpreted the term of “confiscation for reparation purposes”, treated Liechtenstein assets, i.e. assets of a neutral citizen, like German assets and wrongly applied the Settlements Convention to the advantage of a German public entity. Furthermore, they had disregarded the fact that the intervener had not claimed that the painting had been confiscated for reparation purposes.

2. The applicant further submits that he did not have a fair hearing, as guaranteed under Article 6 § 1, in the proceedings before the Federal Constitutional Court. In his view, the Federal Constitutional Court failed to inform him that it intended to deviate in an essential point from the parties' argumentation before the civil courts. In this respect, he refers to the considerations of the Federal Constitutional Court as to the legal consequences of the Treaty on the Final Settlement with respect to Germany and the legal opinions of the Federal Republic of Germany and the Three Powers on this matter. Accordingly, he had not been in a position to prove that no such legal opinion existed.

3. The applicant further considers that the German court decisions in question violated his right to property under Article 1 of Protocol No. 1. He affirms that his late father had been the owner of the painting concerned and that he had acquired title to property upon succession. Ownership had not been lost as a consequence of the Czechoslovakian confiscation measures as they should not have been recognised as legally valid in Germany.

4. The applicant also complains about discrimination on the ground of his nationality in that no compensation for the loss of his external assets was granted. While the German authorities regarded his father's assets in former Czechoslovakia as “German external assets” for the purposes of the Settlement Convention, the equalisation legislation did not extend to losses of citizens of neutral States.

THE LAW

1. The applicant complains 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 court. He invokes Article 6 § 1 of the Convention, according to which

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal...”

The Government submit that neither the exclusion of German jurisdiction which was established in the Settlement Convention and was maintained in the Agreement of 27 and 28 September 1990, nor the interpretation by the German courts of the relevant provision of the Settlement Convention violate Article 6 § 1.

The Government state that Germany did not and does not have any influence on the deprivation of property nor on the organisation of property relations in the former Czechoslovakia and its successor states. The Settlement Convention and the Agreement of 27 and 28 September 1990 therefore neither prejudiced nor affected de facto the power to dispose of property. The legal consequences of this provision are - as stated by the Cologne Court of Appeal - of a purely procedural nature, and no qualification of the individual confiscation measures is involved. Moreover, only German jurisdiction was excluded and not the filing of an action before a non-German court with jurisdiction. In any event, the provision in the Settlement Convention had been necessary for the purpose of re-establishing the initially partial and later complete sovereignty of Germany. The Government refer in this respect to the text of a memorandum to the Settlement Convention (Deutscher Bundestag, Drucksache 1/3500, annex 4) of 21 July 1952, according to which “the use of German external assets for the purposes of reparation on the basis of international agreements and laws of the occupying powers had to be accepted as a hard fact”.

According to the Government, the Agreement of 27 and 28 September 1990 constituted the review, on the occasion of the German unification, of the Settlement Convention which had not been abrogated by the Treaty on the Final Settlement with respect to Germany or automatically affected by the German unification process. Thus, extensive parts of the Settlement Convention were rescinded. Nevertheless, with Article 3 §§ 1 and 3 of the Settlement Convention, a provision was maintained which indicated that the sovereignty granted to Germany applied ex tunc and that the orders and measures of the Allies taken under the occupation regime were not to be retroactively questioned.

As regards the application of the Settlement Convention in the applicant's case, the Government maintain that the German courts, having due regard to the case law of the Federal Court of Justice and opinions expressed in literature, gave extensive and comprehensible reasons for their decisions. The question of whether or not their interpretation of Article 3 of Chapter Six of the Settlement Convention is correct in an individual case is 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, even with knowledge of the applicant's and his father's Liechtenstein citizenship. They further explain that the relevant provisions of the Benes-Decree No. 12 differentiated between citizenship and nationality or “ethnicity”, a criterion also found in the confiscation acts of other East European States or in German legislation.

The applicant contends that irrespective of whether the ban on access to court under the Settlement Convention in itself was compatible with Article 6 § 1 of the Convention, its interpretation by the German courts in the instant case had been contrary to international law and therefore in breach of the Convention. In his view, the confiscation of Liechtenstein property by the authorities of 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.

Referring to the sovereignty of Liechtenstein and its neutrality during World War II, the applicant considers that the confiscation of property of a Liechtenstein citizen for reparation purposes would have amounted to a breach of customary international law. Foreign courts had no final ruling on the question of whether or not properties were German external assets. There is no indication that the Settlement Convention was intended to cover any confiscation measures directed against neutral property.

The applicant objects to the Government's argument that the German courts' reasoning that the property of his father had been confiscated as property belonging to a German person within the meaning of the Benes-Decree No. 12 was defendable.

Furthermore, the applicant submits that the German courts arbitrarily extended Chapter 6, Article 3 § 1 of the Settlement Convention to a confiscation measure which had been carried out for other than reparation purposes. The property in question had belonged to the Head of a neutral third State and could not even be regarded as enemy property. Finally, customary international law had prohibited confiscation of articles in virtu.

In the light of the parties' observations, the Court considers that this part of the application raises serious questions of fact and law, which are of such a complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

2. The applicant further submits that he did not have a fair hearing, as guaranteed under Article 6 § 1, in the proceedings before the Federal Constitutional Court. He submits that the considerations of the Federal Constitutional Court as to the legal consequences of the Treaty on the Final Settlement with respect to Germany and the legal opinions of the Federal Republic of Germany and the Three Powers on this matter took him by surprise.

The Government maintains that the arguments in question were a confirmation of the legal opinion expressed by the Court of Appeal and an interpretation of the relevant international treaties.

According to the applicant, the Federal Constitutional Court had based its reasoning on new central issues which would have required a possibility to present his comments.

The Court considers that this complaint is closely related to the above complaint under Article 6 of the Convention and it must therefore also be declared admissible.

3. The applicant further considers that the German court decisions in question violated his right to property under Article 1 of Protocol No. 1 which provides as follows:

“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.”

The Government, referring to case-law of the Commission, submit that the confiscation measure and in particular the factual deprivation of the property in question had been carried out by former Czechoslovakia in 1946. With regard to these and other comparable confiscation measures, 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 to realise any property right. Furthermore, unlawfulness of a confiscation under international law does not entail lack of effect and there were no sufficient reasons to question the validity of the confiscation of the painting.

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 said painting by former Czechoslovakia under the Benes-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. Confiscation of neutral property had been contrary to public international law and, as violation of the rule of law, also contrary to Czech law. He considers that the Government's arguments giving effect to such an unlawful confiscation contradict the previous German practice not to recognise confiscation measures under the Benes-Decrees.

The Court considers that this complaint is also closely related to the complaint about lack of access to a court under Article 6 of the Convention and it must therefore also be declared admissible.

4. The applicant also complains about discrimination on the ground of his nationality in that no compensation for the loss of his external assets was granted. While the German authorities regarded his father's assets in former Czechoslovakia as “German external assets” for the purposes of the Settlement Convention, the equalisation legislation did not extend to losses of citizens of neutral States. Article 14 of the Convention reads as follows:

“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.”

According to the Government, as Article 1 of Protocol No. 1 does not apply in the instant case, there is 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 welfare to its citizens. Other citizens could have resort to the legal and diplomatic protection by their native country. In any event, the Act concerning Losses due to Reparations did not provide for compensation in respect of losses of articles in virtu and collections and the time-limit for filing claims had expired on 31 December 1974.

The applicant objects to the Government's arguments. In particular, 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 exemption of compensation for articles in virtu after having recognised the confiscation of the painting concerned, i.e. a confiscation in breach of public international law. Finally, for lack of German nationality, the applicant could not have lodged claims under the equalisation legislation.

The Court considers that this complaint is likewise closely related to the above complaints. It must therefore also be declared admissible.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

Vincent Berger Antonio Pastor Ridruejo
Registrar President