ITEMID: 001-75104
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF RAICHINOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. At the relevant time the applicant was the head of the Ministry of Justice’s division responsible for the financial and logistical support for the judicial system. In this capacity, he sometimes attended the meetings of the Supreme Judicial Council – the body responsible for, inter alia, allocating the judicial budget. The Supreme Judicial Council consists of twentyfive members, including the chairpersons of the Supreme Court of Cassation and the Supreme Administrative Court, and the Prosecutor-General. Its meetings are presided over by the Minister of Justice.
9. The Supreme Judicial Council held a meeting on 15 December 1993, at which the issue of the endofyear bonus for judges, prosecutors, and investigators was discussed. The applicant attended the meeting, as he usually did in cases when budgetary matters were considered. The deputy ProsecutorGeneral, Mr S., who was a member of the Council, was also present.
10. At some point during the meeting, after commenting the provisions of the State Budget Act, the applicant said: “You have decided to have financial matters dealt with by Mr S. For me he is not a clean person...”. He then added: “I can prove this”. The Prosecutor-General reacted vehemently, asking the applicant to leave the room. The applicant tried to continue but was interrupted by Mr S. who asked him to clarify what he meant by “unclean person”. The Minister of Justice intervened and requested the applicant to retract the words “unclean person”. The Prosecutor-General reacted immediately: “There is no retraction, there are prosecution authorities. This is already a problem, this is already a crime”. The Minister insisted on the applicant apologising for the words “unclean person”. Thereupon the applicant said: “Alright, I apologise”. Because of the tense situation all financial matters which were due to be discussed at the meeting were adjourned.
11. Immediately after the meeting the ProsecutorGeneral requested a copy of the minutes. He received it on 27 December 1993 and on 12 January 1994 sent it to the Sofia City Prosecutor’s Office with instructions to carry out a preliminary inquiry with a view to opening criminal proceedings against the applicant. On 11 February 1994 the Sofia City Prosecutor’s Office transmitted the case file to the Sofia District Prosecutor’s Office with instructions to open criminal proceedings against the applicant for insult. The investigation was to be performed not by an investigator, as would usually be the case, but by a prosecutor.
12. On 16 February 1994 the Sofia District Prosecutor’s Office instituted criminal proceedings against the applicant for “having said publicly ‘for me he is not a clean person’ in respect of [Mr S.] in his presence ... which was degrading for the latter’s dignity”, contrary to Article 148 § 1 (1), (3) and (4) in conjunction with Article 146 § 1 of the Criminal Code.
13. On 20 April 1994 the applicant was charged.
14. The investigation was concluded on 16 June 1994 and the applicant and his counsel were allowed to consult the case file. After having done so, counsel for the applicant requested that all members of the Supreme Judicial Council who had been present at the meeting be questioned and that an expert report be prepared to compare the audio tape of the meeting with the written minutes. The prosecutor in charge of the investigation refused, reasoning that the facts of the case had been elucidated by the evidence already gathered, which supported the accusation.
15. The applicant was indicted. The trial against him took place on 11 April 1995 at the Sofia District Court. The court heard two witnesses: the alleged victim of the insult, Mr S., and another member of the Supreme Judicial Council. Mr S. stated that it was difficult for him to say whether the applicant’s remark had changed the Supreme Judicial Council’s opinion of him. The other witness stated that sometimes the discussions in the Council were quite heated but that no one had ever used such words or made such remarks. Three other witnesses called
16. After that the court heard the parties’ closing argument. Counsel for the applicant pleaded for a verdict of not guilty, relying, inter alia, on Article 10 of the Convention. She argued that the words “for me he is not a clean person” were only an expression of the applicant’s personal opinion about Mr S. The applicant’s words were objectively not rude, vulgar or insulting. He had simply exercised his right to voice what he thought about another person, in purely neutral terms. To equate this with an insult would mean that only those who had a favourable opinion of Mr S. would be allowed to express it. In her view, the entire case had been sparked by the ProsecutorGeneral’s vindictiveness.
17. In a judgment of 12 April 1995 the Sofia District Court found the applicant guilty as charged and sentenced him to a fine of 3,000 old Bulgarian levs (BGL) and to a public reprimand. The court held as follows:
“The actus reus consisted of uttering words which were humiliating and disparaging for [Mr S.] in his presence. It is not disputed ... that the accused ... said in respect of [Mr S.] ‘For me he is not a clean person’. The expression has an insulting character, because it dishonours [Mr S.]. It contains a disapproval of his ethical and moral qualities, which is irreconcilable with his being in charge of the budgetary funds of the judiciary. In this fashion the personality of [Mr S.] and his authority in front of the other members of the [Supreme Judicial Council] were disparaged. ‘Not a clean person’ has only one interpretation, that the person concerned has a tainted consciousness and lacks morality. Even if this is the [applicant’s] personal opinion about the qualities of [Mr S.], the remark was aimed at affecting the honour and the dignity of [Mr S.]. Criticism ..., especially when it comes to the public manifestations of persons who represent state institutions, has to be consistent with the rules of society, ethics and the common rules of decency and morality. These must not be trampled on under the pretence that the personal opinion about another is a matter of perception and [represents the exercise] of the constitutional right to freedom of expression... It is unconstitutional and criminal to criticise in an insulting form, as in the case at hand...
The offence was intentional... It was committed in public, in front of twentyfive members of the Supreme Judicial Council and the deputyMinister of Justice. This increases the gravity of the offence, because the offensive words were heard not only by the victim, but also by a large group of persons...
The fact that the [applicant] apologised to the victim after being invited to do so by the [Minister of Justice] does not remove the criminal character of his act or its harmful consequences. By uttering words which were humiliating for the victim, [the applicant] completed the offence and the harmful consequences arose. The derogation of the victim’s reputation was irreversible. The fact [that the applicant apologised] must, however, be taken into consideration for the purpose of assessing the gravity of the offence ... and for the purpose of sentencing.
The defence’s argument that the [applicant’s] act was not criminal because it was in fact the expression of a personal criticism by a person exercising his freedom of expression ... cannot be sustained. The right to freedom of expression carries the duty, set out in Article 39 § 2 of the Constitution, not to exercise this right to the detriment of the reputation of another. The present case represents an abuse of this right, because the personal disproval of [Mr S.] which the [applicant] expressed publicly had a humiliating content. The negative opinion was expressed indecently, in an insulting and humiliating manner, which is contrary to the law. This implies that the [statement] was contrary to both Article 146 of the Criminal Code and Article 39 of the Constitution and Article 10 of the European Convention for Human Rights ..., which enshrine the right to freedom of expression, but in the bounds of decency, respect for the rights of every member of society, tolerance and respect for the reputation of the others...”
18. The applicant appealed to the Sofia City Court. His counsel again argued that the applicant’s remark had not been couched in offensive terms, that he had expressed his personal views in an entirely acceptable way and that a penalty imposed on him for having voiced an opinion ran counter to his freedom of expression.
19. The prosecution appealed as well, requesting an increase of the applicant’s sentence.
20. The Sofia City Court held a hearing on 27 November 1995.
21. In a judgment of 23 January 1996 the Sofia City Court dismissed the applicant’s and the prosecution’s appeals. It held, inter alia, as follows:
“The [court below] correctly concluded that the [applicant’s] words had an insulting content. The expression was examined by the district court in accordance with the meaning which was put in it – a disapproval of the ethical and moral qualities of [Mr S.], which was incompatible with his being in charge of the budgetary funds of the judiciary; a disapproval aiming to impinge on the victim’s personal dignity. The [words] were analysed by the firstinstance court in view of their objective potential to impinge on the dignity of the victim, because they exceeded the bounds of ethical communication and the generally accepted rules of decency.
The defence’s arguments ... that the [words] in issue were in fact the [applicant’s] personal opinion, the expression of which is protected by the rule of Article 39 of the Constitution, are unfounded. The district court was correct in concluding that the expression of a personal opinion about someone, even though a constitutionally protected right, should not exceed the bounds set out in paragraph 2 of [Article 39 of the Constitution]. In other words, the right to freely express one’s opinion may not be used to infringe the rights and reputation of another...
In its reasoning the district court examined all arguments of the defence, relying on the courts’ constant caselaw under the Constitution and the European Convention for Human Rights. ...”
22. On 2 April 1998 the applicant lodged a petition for review with the Supreme Court of Cassation, claiming that the lower courts’ judgments were unfounded and in breach of the law.
23. On 27 April 1998 the Supreme Court of Cassation accepted the petition for examination and listed the case for hearing.
24. The court held a hearing on 10 June 1998. It heard the parties’ argument and reserved judgment. Prior to the hearing the applicant’s defence presented written observations, in which it argued that the lower courts’ judgments were unfounded and unlawful. In particular, the courts’ holding that the applicant’s words were offensive was arbitrary. On the opposite, they were not rude, vulgar or cynical, but completely neutral. The defence also reiterated its submissions in respect of the applicant’s right to voice personal opinions.
25. The Supreme Court of Cassation delivered its judgment on 8 July 1998, dismissing the petition in the following terms:
“[The words] used by [the applicant] in the presence of [Mr S.] were humiliating and it cannot be accepted that this was in line with the rule of Article 39 of the Constitution, which guarantees to all Bulgarian citizens the possibility to express their personal opinion and criticise other persons. This possibility is subject to and dependent on the limitations of paragraph 2 [of this Article], according to which this right should not be used for impinging on the reputation of another. In the case at hand there has been an abuse of the right under paragraph 1 [of this Article], because the personal opinion, expressed by [the applicant] in respect of [Mr S.] has a disparaging content. The negative opinion is expressed in an indecent, insulting and humiliating manner... As such it falls under the prohibition of Articles 148 [and] 146 of the Criminal Code, because it not only goes against Article 39 § 1 of the Constitution, but also against Article 10 of the European Convention for Human Rights ... which enshrine the right to freedom of expression, but within the bounds of decency, respect for the rights of the person, tolerance, and protection of the reputation of the others. These rules are valid in all civilised and democratic societies.
It is unconstitutional and criminally liable to ‘criticise’ in an insulting manner, as has been done in the case at hand. The words which were used had an insulting content, because they debased the victim’s dignity and his authority before the other members of the [Supreme Judicial] Council. They contained a disapproval of his moral and ethical qualities which is incompatible with his function as a person disposing with budgetary funds. What was said could be interpreted in one manner only: that the person in question has a tainted consciousness and lacks morality; it was aimed at impinging the honour and dignity of [Mr S.]. ...”
26. The applicant paid the fine on 9 May 1996. He was not publicly reprimanded and on 23 March 1999 a prosecutor of the Sofia District Prosecutor’s Office ordered that his sentence was not to be enforced because the relevant limitation period had expired.
27. Article 39 of the Constitution of 1991 provides:
“1. Everyone is entitled to express an opinion or to publicise it through words, written or oral, sound, or image, or in any other way.
2. This right shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of enmity or violence against anyone.”
28. Article 146 § 1 of the Criminal Code, as in force at the relevant time, provided:
“Whoever says or does something degrading for the honour or the dignity of another in his presence shall be punished for insult by up to six months’ imprisonment or a fine of up to three thousand levs. The court may also impose a public reprimand.”
29. If an insult has been made in public, or against an official in the performance of his duties, or by an official in the performance of his duties, it was punishable by up to two years’ imprisonment or a fine of up to BGL 5,000 (Article 148 § 1(1), (3), and (4) of the Criminal Code, as in force at the relevant time).
30. At the relevant time insult was privately prosecutable in all cases, save when perpetrated in respect of or by an official, in which case it was publicly prosecutable (Article 161 of the Criminal Code, as in force at the relevant time, in conjunction with Article 146 § 1 and Article 148 § 1 (1) and (2) thereof). At present insult is privately prosecutable in all cases without exception (Article 161 § 1 of the Code, as amended in March 2000 and presently in force).
31. By Article 60 § 1 of the Code of Criminal Procedure of 1974, the victim of a criminal offence may make a civil claim in the context of the criminal proceedings, and request compensation for the damage sustained as a result of the offence. He or she may also take part in the criminal proceedings as a private prosecuting party alongside the public prosecutor (Article 76 of the Code of Criminal Procedure of 1974).
VIOLATED_ARTICLES: 10


ITEMID: 001-23764
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: G.L. & S.L. v. FRANCE |Extracts]
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants are French nationals, who live in Geffosses, Manche (France).
The facts of the case, as submitted by the parties, may be summarised as follows.
From 1984 to 1990, land consolidation was carried out in the municipality of Geffosses. In order to implement this project, the prefect set up a municipal committee for land management (commission communale d’aménagement foncier – “the CCAF”). A land consolidation association (association foncière de remembrement – “the AFR”) was also set up to implement and manage the works to be carried out as part of the land consolidation project (the CCAF and AFR are provided for in Article L.121-2 et seq of the new Countryside Code ...)
The land consolidation proceeded in a divisive atmosphere, a section of the municipality’s residents having repeatedly demonstrated their disagreement regarding the works being undertaken. Intervention by the riot police was necessary to impose compliance with the decisions adopted.
One of the farmers in the municipality, L., a member of the CCAF and deputy-chairperson of the AFR, successfully requested that a large water reserve be created, which necessitated the digging, in stony terrain, of several ditches needed for the installation of water pipes.
The cost of this work was met through a loan. Reimbursement of this loan was charged to the members of the AFR, including the applicants, through property taxes.
The applicants disputed the payment of these taxes, since they considered that they should not be obliged to pay for pipes which had not been laid on their properties or which had no proven positive impact on them.
They commenced proceedings before the administrative courts, requesting exemption from the taxes assigned in respect of 1989 to 1994. They were granted exemption in respect of the taxes for which they had been liable in 1989, 1990 and 1991 (decision delivered on 21 June 1994 by the Caen Administrative Court, upheld by a judgment delivered on 4 March 1997 by the Nantes Administrative Court of Appeal), and also in 1992, 1993 and 1994 (decision delivered on 10 March 1997 by the Caen Administrative Court).
In its judgment, the Administrative Court of Appeal found, inter alia:
“... Under the last sub-paragraph of Article 28 of the Countryside Code, applicable in this case, ‘The decree by the Conseil d’Etat ... shall establish the criteria ... for determining the formula for apportioning costs among the landowners, on the basis of the area assigned in the land consolidation, except in respect of costs appertaining to water-management works, which shall be divided in proportion to their expected benefit ...’. It follows from this provision, firstly, that the payment of the cost of water-management works carried out by a land consolidation association may be charged to a member of the association only where properties belonging to the latter and included in the land consolidation will benefit from these works, and that, in addition, the amount charged must be proportionate to the benefit of these works.
It follows from the inquiry into the facts that the taxes for the works related to the Gefosses land consolidation project which were charged [to the applicants] ... include, to a substantial degree, participation in the cost of the water-management works; the allocation of costs was calculated on the basis of the properties’ area alone and not, as concerns the water-management works, on the basis of the actual benefit for each of the properties concerned. Such a method of assigning costs could only have been legally applied if it had been established that the said works were of benefit, in fact and proportionally to their area, to all the properties forming part of the land consolidation scheme. It has been established that this is not the case; it therefore follows ... that [the applicants are] justified in requesting exemption from the taxes which they dispute ...”
Taking account of several similar judicial decisions which had exempted farmers from taxes imposed on them, the bureau of the AFR re-examined on 19 October 1995 the formula for assigning the costs arising from the water-management works. It adopted a new, detailed proposal for assigning costs, in such a way that each member of the AFR would benefit to an equal degree from completion of the water-management works and was consequently obliged to finance them. This proposal was then submitted to the landowners concerned for observations and to a public inquiry.
At its meeting on 30 November 1995 the bureau of the AFR, having inspected the complaints submitted, adopted a new decision containing the final version of the formula for assigning costs for the water-management works. This decision was signed by the Chair of the AFR and approved by the Coutances sub-prefect on 5 January 1996. However, it was not signed by the members of the bureau and entered in the register of decisions until 9 October 1996, when it contained a typed addition making it several pages longer than the document initially approved.
The applicants appealed to the administrative courts. They contested the validity of the procedures which had established the formula for assigning taxes at the AFR bureau’s meetings on 19 October 1995, 30 November 1995 and 9 October 1996, and requested that they be set aside. The applicants asked, in consequence, to be exempted from property taxes in respect of 1995 and 1996, which, they claimed, had been decided under invalid procedures.
In a judgment adopted on 20 January 1998 the Caen Administrative Court confirmed the exemption from the property taxes due in respect of 1989-1994, but rejected the applications concerning the taxes due in respect of 1995 and 1996. The applicants appealed to the Nantes Administrative Court of Appeal.
In addition, they lodged a criminal complaint, with an application to join the proceedings as civil parties, alleging forgery in connection with the decision of 30 November 1995 and asked the administrative court to defer its decision until the conclusion of the criminal proceedings.
In a judgment of 30 December 1998 the Nantes Administrative Court of Appeal confirmed the Administrative Court’s judgment in which it had refused to grant exemption for the taxes due in respect of 1995 and 1996.
In its judgment the Administrative Court of Appeal held, firstly, that the procedure to establish the formula for assigning the costs arising from the water-management works had been lawful, since “the fact that [the] decision ... was not signed by the members of the bureau and entered into the register of decisions contemporaneously is, in itself, without significance for its existence or validity”.
It went on to say:
“The water-management works conducted in the context of projects related to the Gefosses land consolidation entailed, as part of a general land improvement programme implemented homogeneously throughout the re-parcelled area, the clean-up of watercourses and the introduction of a network of primary ditches or culverts in the public-works strips reserved for the land association and of secondary ditches leading to the individual plots, so as to provide for the evacuation of excess water from all the re-parcelled plots .... the applicants’ allegation that the works in dispute were, in reality, carried out for the benefit of a single landowner is not corroborated by any evidence in the file.”
It concluded:
“Accordingly, the bureau of the Gefosses land consolidation association was entitled to consider, without infringing the provisions ... of Article R.133-8 of the Countryside Code, that these works would be of actual benefit to all the properties concerned by the land consolidation, in proportion to their area, and to decide, as it did by its decision of 30 November 1995, to divide the costs among the landowners concerned ... it follows from the foregoing that the [applicants’] submissions, requesting exemption from the taxes imposed on them ... in respect of 1995 and 1996, must be rejected”.
The applicants lodged an appeal on points of law. On 24 November 1999 the Conseil d’Etat dismissed this appeal in a judgment reasoned as follows:
“Under Article 11 of the Law of 31 December 1987 reforming administrative proceedings: ‘An appeal on points of law before the Conseil d’Etat shall be subject to a preliminary admissibility procedure. Admissibility shall be refused by judicial decision if the appeal is inadmissible or is not based on any reasonable arguments ...’.
In requesting the setting aside of the contested judgment, Mr and Ms G.L. allege that the Court was in breach of Article R. 133-8 of the Countryside Code in refusing to exempt them from the property taxes imposed on them in respect of 1995 and 1996, even though these taxes, which were intended to cover the cost of the water-management works, had allegedly been calculated in proportion to the area of re-parcelled land belonging to them rather than the actual benefit that they would derive from these works. To ensure that its judgment would not be vitiated by insufficient reasoning, the Court ought, at the very least, to have identified this benefit in specific terms with reference to the facts of the case. The Court had also failed to justify its refusal to defer decision until after the conclusion of the criminal proceedings introduced following a complaint of forgery in connection with the decision of 30 November 1995, which had decided the amount of the aforementioned taxes. The Court could not, without misdirecting itself, refuse to exempt them from the taxes in respect of 1995 and 1996, given that the decision of 30 November 1995 by the bureau of the land consolidation association was flawed by retroactiveness, in that it fixed the dates on which payments were to fall due for the 1995 financial year as a whole. Finally, the Court is alleged to have misdirected itself in declaring inadmissible the submissions requesting the setting aside of the decision of 30 November 1995, on the ground that members of a land consolidation association may not directly contest a decision by the association’s bureau fixing the amount and method of allocation of property taxes;
None of the above grounds is such as to render the appeal admissible.”


ITEMID: 001-5991
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: TOMLINSON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in Jamaica in 1956. He is currently serving a life sentence in the United Kingdom. He is represented before the Court by Mr D. Simpson, a solicitor practising in Sheffield, England.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 27 January 1997 the applicant was tried before a jury at Sheffield Crown Court on a charge of murder. According to the prosecution case, on 17 July 1996 the applicant deliberately mounted a pavement and drove his car at a pedestrian (“M.”), striking him. M. died on 4 August 1996 of his injuries.
The applicant maintained that M. had without provocation attacked and beaten him shortly before the incident. A few minutes later, still dazed by the attack, he was driving his car along a street and saw M. throw or appear to throw a brick or similar missile at his vehicle. The applicant was forced to duck down with the result that he lost control of the car. When he regained control of the car he realised that he had hit something and that the car had been damaged. The windscreen and roof pillar (which M. had hit) were badly broken. He did not stop and drove to a garage where he left the car to be repaired. He was planning to collect the car the same day. Instead, as it turned out, it was collected by the police.
The applicant later informed his girlfriend that M. had gone to throw a brick at him and that he had ducked, swerved and hit M. He telephoned the police and inquired about M.’s condition and whether he would obtain bail. The prosecution made a formal admission that the day after the incident the applicant’s girlfriend had told a police officer that within a very short time after the incident the applicant had given her this account.
On 18 July 1996 the applicant went to a police station unaccompanied by a solicitor. He was arrested, charged with attempted murder and cautioned. He told the police that M. had beaten him for no reason and had thrown bricks at him. He stated repeatedly that he was sorry for what had happened and inquired about M.’s condition. The prosecution accepted that the applicant made this statement to the police. The applicant did not say however that he had ducked and that the collision had been an accident. Shortly afterwards a representative of his solicitors arrived at the police station and advised the applicant to remain silent during the police interviews on the ground that there had been inadequate disclosure of the police case against the applicant. The applicant maintains that during the time he spent in custody at the police station on 18 and 19 July 1996 he wished to answer police questions but accepted the firm advice of his representative to remain silent.
Before each interview the applicant was cautioned in the following terms:
“You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.”
On each occasion the applicant acknowledged that he understood the meaning of the caution. The applicant’s solicitor was present throughout the interviews and had private consultations with him on a number of occasions.
The applicant was asked numerous questions about the incident on 17 July 1996 and his involvement, if any, in it. He was asked, inter alia, about the conversation he had earlier in the day with the police officer; his acquaintance with M. and the fight they had had; the evidence of the two eyewitnesses; whether the collision was an accident and the applicant’s earlier explanations to his girlfriend.
The applicant refused to comment.
On 14 August 1996 the police again interviewed the applicant under caution and in the presence of his solicitor. On this occasion the applicant answered fully the questions put to him. His account of the incident was that he believed M. to be throwing an object at his car, he ducked, lost control of the vehicle and hit M. by accident. The applicant stated that he then panicked and did not stop at the scene. At one point in the first interview the applicant said that he did not know that he had hit M. until told by the police in that very interview. The applicant was also asked why he had swerved towards, rather than away from, a person whom he said was threatening him with a missile.
Since M. had died in the meantime the applicant’s charge was changed to one of murder.
At the trial two eyewitnesses gave evidence for the prosecution. Both witnesses testified that they saw the applicant’s car hit M. and drive off without hesitating or attempting to stop. One of the witnesses stated that he saw the car smoothly mount the pavement to the full extent possible so that it was more on the pavement than on the road. It drove straight at M. and hit him from behind as he walking along the pavement away from it. The car’s speed was a constant 30-40 miles per hour but it may have speeded up a little before hitting M. Neither witness had seen M. throwing a missile at the car.
A pathologist testified that the bruising to the deceased’s calves indicated that he had been struck from behind. He also conceded that bruising was consistent with M. walking or “turning in some way”.
In his evidence to the court, the applicant stated that he had not stopped at the scene of the incident because he had been afraid of M. and because he, therefore, panicked. After the collision he went to see his girlfriend and told her that he had “hit” M. after he received a telephone call there saying that M. was in hospital. The applicant strongly disagreed with the pathologist’s evidence. He insisted that M. had been facing the car throwing or appearing to throw a missile. The applicant confirmed the accuracy of the conversation he had with the police officer on 18 July 1996 before the interview.
The applicant testified that he had not answered the questions put to him during the police interview on 18 and 19 July 1996 because his solicitor had advised him not to.
The applicant waived legal professional privilege and his solicitor gave evidence. The solicitor testified that in private early on 18 July 1996 the applicant had given the same account of an accident as he had given to his girlfriend. The solicitor, however, advised the applicant not to answer any questions because he was not satisfied with the extent of disclosure by the police. After further disclosure, he changed this advice and the applicant answered police questions.
The passenger who was in the applicant’s car at the time of the incident testified on the applicant’s behalf, supporting his account.
Following a ruling by the trial judge on the voir dire the prosecution in their closing speech to the jury was allowed to invite the jury to draw inferences from the applicant’s silence when interviewed by the police on 18 and 19 July 1996. Counsel for the prosecution indicated that:
“A proper inference to draw from his failure to say in the first formal interviews these things, is that this was not an accident at all, and that the idea of saying that it was an accident came to him later, and is designed to mislead you.”
In his summing up to the jury the trial judge directed the jury that the law permitted it to draw such inferences as appeared proper from the applicant’s failure to mention at the police interview on 18 and 19 July 1996 the facts he subsequently relied on in his defence. He stressed however that it was not obliged to hold the applicant’s failure to reply to police questions at that interview against him and that his silence could not alone amount to proof of guilt. The judge continued:
“Now, in deciding whether to draw inferences adverse to the accused ... you must have regard to a number of factors. For instance, the times of the day when he was being interviewed; his age and his experience of life; his apparent mental capacity; his state of health... You have to bear in mind the legal advice he was given...
... You must, as best you can, judge the condition and capacity of this particular [applicant] on the particular occasion of these first formal interviews, and take into account any evidence that is before you as to his qualities, knowledge and fears, and whatever advice he was receiving at the time.”
The judge directed the jury that:
“The weight of any adverse inference which you are invited to draw in this case, may well be diminished by the evidence of things said by the [applicant] before the process of interviewing began and before he received his solicitor’s representative’s advice. Such things will be factors for you to consider in deciding what inferences, if any, should be drawn from his failure to mention these particular matters in the first round of formal interviews.”
The judge reminded the jury of what the applicant had related to his girlfriend on the day of the incident and the similarity between that account and his subsequent account to the police on 14 August 1996. The jury was advised that this did not necessarily mean that that the account was true. The trial judge stressed that it was the same account which the applicant gave in due course to the police and at the trial. He explained that this factor undermined the prosecution’s suggestion that the applicant had fabricated the account at a later stage and the invitation to the jury to draw an adverse inference from the applicant’s silence during the first round of interviews.
The judge also addressed the fact that the applicant remained silent on the advice of his legal representative. He stated:
“Now, you are entitled to draw inferences from his refusal to answer questions in the first two interviews, but whether it is right to do so is for you to judge, and you may think ... that since the same account was apparently being given in detail before he was interviewed to [the applicant’s girlfriend] and, it was being suggested ... before interview to [a police officer] and it was then given in detail on 14 August to the police ... you may think ... that the reason why he did not say it to the police on 18 and 19 July was that he was advised not to say anything by the solicitor. If that advice of the solicitor was bad advice ... you do not hold it against this [applicant], and if you have any doubt about this question of whether it is right to hold the matter against the [applicant], then if you have any doubt about it, you resolve any such doubt in his favour rather than against him.”
On 3 February 1997 the applicant, by a unanimous verdict, was found guilty of murder. The applicant was sentenced to life imprisonment.
On 13 May 1997 the applicant’s application for leave to appeal against his conviction was refused by a Single Judge. The Single Judge stated:
“The [trial judge’s] direction cannot be faulted. The fact that you were advised not to say anything by your solicitor (whether that advice was good or bad) is not an automatic reason for forbidding a jury to draw any inference from your silence. It is merely one of the circumstances – a powerful one – for the jury to take into account. In fact when the [trial judge] came to direct the jury he practically told them not to hold your silence against you; and in view of the fact that you had given your account of it being an accident to your solicitor and to [your girlfriend] before being interviewed, it is virtually inconceivable that they did.”
The applicant renewed his application for leave to appeal before the Court of Appeal. In the grounds of appeal reference was made, inter alia, to the fact that the judge had erred in allowing the jury to draw inferences from the applicant’s silence at the police interviews on 18 and 19 July 1996. However before the Court of Appeal the applicant’s counsel stated that he could not support either that ground of appeal or indeed the other grounds prepared by the applicant’s trial solicitor. Mr Justice Owen in the Court of Appeal observed that the grounds of appeal prepared by the applicant’s trial solicitor would not have been sufficient to ground a successful appeal and that he was not surprised that the Single Judge had refused leave to appeal. The applicant’s counsel pleaded the application for leave to appeal on the ground that the jury were not directed on the issue of provocation. On 28 October 1997, following argument on that ground alone, the Court of Appeal refused the applicant’s application for leave to appeal.
Section 34 of the Criminal Justice and Public Order Act 1994 provides that:
“1. Where in any proceedings against a person for an offence, evidence is given that the accused –
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
2. Where this subsection applies ...
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.
3. Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.”
Section 35 (2) and (3) provides:
“(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.
(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.”
Section 38 (3) adds that:
“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...”
Guidance as to the direction which the judge should give the jury in respect of section 35 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board specimen directions and by the dicta of Lord Taylor CJ in R. v. Cowan ([1996] 1 Criminal Appeal Reports 1). The relevance of these dicta to directions under section 34 of the same Act was confirmed by the Court of Appeal in R. v. Condron ([1997] 1 Criminal Appeal Reports 185).
The Judicial Studies Board guideline direction at the time of the Court of Appeal’s consideration of the applicant’s appeal provided that:
“If he failed to mention [a fact] ... when he was questioned, decide whether in the circumstances which existed at the time, it was a fact which he could reasonably have been expected then to mention.
The law is that you may draw such inferences as appear proper from his failure to mention it at that time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such a fact at that time cannot, on its own, prove guilt, but depending on the circumstances, you may hold that failure against him when deciding whether he is guilty, that is, take into account as some additional support for the prosecution’s case. It is for you to decide whether it is fair to do so.”
The dicta of Lord Taylor CJ are as follows:
“We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials which we would highlight:
1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.
2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.
3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.
4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.
5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”
The current specimen direction for section 34, up-dated in May 1999 in the light of the judgments of the Court of Appeal in R. v. Argent ([1997] Criminal Appeal Reports 27) and in the instant case, provides:
“[When arrested, and at the beginning of each interview] this defendant was cautioned, he was told that he need not say anything, but that it may harm his defence if he did not mention something when questioned which he later relied on in court. Anything he did say may be given in evidence.
The defendant as part of his defence has relied upon [...] (here specify precisely the fact(s) to which this direction applies). But [the prosecution case is] [he admits] that he did not mention this [when he was questioned before being charged with the offence] [when he was charged with the offence] [when he was officially informed that he might be prosecuted for the offence].
The prosecution case is that in the circumstances, and having regard to the warning which he has been given, if this fact had been true, he could reasonably have been expected to mention it at that stage, and as he did not do so you may therefore conclude that [it has since been invented/tailored to fit the prosecution case/he believed that it would not then stand up to scrutiny].
If you are sure that he did fail to mention [...] when he was [charged] [questioned] [informed], it is for you decide whether in the circumstances it was something which he could reasonably have been expected to mention at that time. If it was, the law is that you may draw such inferences as appear proper from his failure to do so.
Failure to mention [...] cannot, on its own, prove guilt. But, if you are sure that quite regardless of this failure, there is a case for him to meet, it is something which you are entitled to take into account when deciding whether his evidence about this matter is true, i.e. you may take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.
[There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so. That evidence is [...]. If you think this amounts to a reason why you should not hold the defendant’s failure against him, do not do so. On the other hand, if it does not in your judgment provide an adequate explanation, and you are sure that the real reason for his failure to mention this fact was that he then had no innocent explanation to offer in relation to this aspect of the case, you may hold it against him.]”
In R. v. Argent the Court of Appeal confirmed that legal advice is one circumstance to be taken into account by the jury. The Court of Appeal explained six conditions that had to be met before section 34 of the 1994 could allow inferences to be drawn. As regards the sixth condition, Lord Bingham CJ stated:
“The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could be reasonably have been expected to mention when questioned. The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at the time. The courts should not construe the expression ‘in the circumstances’ restrictively: matters such as the time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant ...
Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature. Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as he was ... worried at committing himself without legal advice, acting on legal advice, or some other reason accepted by the jury.”
In R. v. Roble ([1997] Criminal Law Reports 449) the Court of Appeal stressed the defendant’s right to reveal to the jury not only the fact that he remained silent on legal advice but also his right to adduce evidence before the jury (by way of oral evidence from the defendant himself and / or the solicitor who gave the advice) about the contents of the advice, that is the reasons why he was so advised.
The approach in R. v. Roble was confirmed in the later cases of R. v. Daniel ([1998] 2 Criminal Appeal Reports 373), R. v. Bowden ([1999] 1 Weekly Law Reports 823), and R. v. Fitzgerald (judgment of 6 March 1998, unreported).
In R. v. McGarry ([1999] 1 Criminal Appeal Report 377) the Court of Appeal held that where a trial judge decides, as a matter of law, that no jury could properly conclude that the requirements of section 34 of the 1994 have been satisfied and, therefore, it is not open to the jury to draw an adverse inference under section 34(2), he must specifically direct the jury not to draw any inference. In R. v. Doldur (judgment of 23 November 1999: “The Times”, 7 December 1999) the Court of Appeal (per Lord Justice Auld) stated:
“Acceptance of the truth and accuracy of all or part of the prosecution evidence may or may not amount to sureness of guilt. Something more may be required, which may be provided by an adverse inference from silence if they think it proper to draw one. What is plain is that it is not for the jury to repeat the threshold test of the Judge in ruling whether there is a case to answer on the prosecution evidence if accepted by them. The direction approved in Cowan has a different object. It is to remind the jury that they cannot convict on adverse inferences alone. It is to remind them that they must have evidence, which, in the sense of section 34 inferences, may include defence evidence where called and which, when considered together with any such adverse inference as they think proper to draw, enables them to be sure both of the truth and accuracy of that evidence and, in consequence, guilt.”
The Government submitted in the Condron v. the United Kingdom case (judgment of 2 May 2000, no. 35718/97, to be published in ECHR 2000-V) that the case of R. v. Doldur is authority for the proposition that the jury must be satisfied that the prosecution have established a prima facie case of guilt before inferences may be drawn under section 34 of the 1994 Act.
In R. v. Bowden ([1999] 2 Criminal Appeal Reports 176) the Court of Appeal confirmed that if a defendant seeks to rely on reasons given in the course of an interview by a solicitor for advising his client to remain silent this would constitute a waiver of privilege even if the solicitor was not called to give evidence at the trial.
Section 2(1) of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, provides a single, composite ground of appeal against a criminal conviction. It states that the Court of Appeal:
“shall allow an appeal against conviction if it thinks that the conviction is unsafe”.


ITEMID: 001-59591
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: GRANDCHAMBER
DATE: 2001
DOCNAME: CASE OF PRINCE HANS-ADAM II OF LIECHTENSTEIN v. GERMANY
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1;No violation of P1-1;No violation of Art. 14
JUDGES: Elisabeth Palm
TEXT: 9. The applicant is the monarch of Liechtenstein, born in 1945 and living in Vaduz (Liechtenstein).
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 č. 12/1945 Sb. o konfiskaci a urychleném rozdělení majetku Němců, Mad’arů, zrádců a nepřátel), 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.
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.
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.
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.”
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.
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).
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.
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).
NON_VIOLATED_ARTICLES: 14
6
NON_VIOLATED_PARAGRAPHS: 6-1