CASE OF PRINCE HANS-ADAM II OF LIECHTENSTEIN v. GERMANY

No violation of Art. 6-1;No violation of P1-1;No violation of Art. 14

The applicant is the monarch of GPE , born in DATE and living in GPE ( GPE ) .

The applicant ’s late father , the former monarch of GPE , had been the owner of the painting Szene an einem römischen GPE ( alias Der große GPE ) of PERSON , which had formed part of his family ’s art collection since DATE . Until DATE the Second World War the painting had been in one of the family ’s castles on the territory of the now GPE .

In DATE the former GPE confiscated the property of the applicant ’s father which was situated in its territory , including the painting in question , under Decree no . CARDINAL on the “ confiscation and accelerated allocation of agricultural property of NORP and NORP persons and of those having committed treason and acted as enemies of the NORP and NORP people ” ( dekretu prezidenta republiky č . CARDINAL/CARDINAL PERSON . o konfiskaci a urychleném rozdělení majetku PERSON , ORG , zrádců a nepřátel ) , issued by the President of the former GPE on DATE ( “ the Beneš Decrees ” – “ GPE dekrety ” ) .

On DATE ORG ( správní soud ) dismissed the appeal lodged by the applicant ’s father .

In its reasoning on the merits of the case , ORG stated that the defendant office had come to the conclusion that the appellant was a person of NORP nationality within the meaning of the provision in LAW ( 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 . ORG 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 .

ORG 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 .

In DATE the municipality of GPE obtained the painting as a temporary loan from ORG in GPE .

On DATE ORG ( Landgericht ) granted the applicant ’s request for an interim injunction ordering the municipality of GPE to hand over the painting to a bailiff at the end of the exhibition . The painting was sequestrated on DATE .

At DATE the applicant instituted proceedings before ORG against the municipality of GPE , 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 GPE and that in any event such measures were invalid or irrelevant on account of violation of the ordre public of GPE .

ORG 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 DATE and that the lawfulness of this confiscation had been confirmed by ORG in its decision of CARDINAL DATE .

On DATE ORG , following a hearing , declared the applicant ’s action inadmissible . In the court ’s view , LAW , LAW , of ORG ( PERSON aus ORG entstandener DATE “ the FAC ” ) of DATE between GPE , GPE and GPE , GPE and GPE excluded NORP jurisdiction over the applicant ’s case .

In its reasoning , ORG noted that , under the terms of that Article ’s paragraph CARDINAL taken in conjunction with paragraph CARDINAL , claims or actions against persons having acquired or transferred title to property on the basis of measures carried out with regard to NORP 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 NORP unification .

According to ORG , Chapter CARDINAL , LAW , of ORG 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 .

ORG found that the confiscation of the applicant ’s father ’s property under Decree no . CARDINAL on the “ confiscation and accelerated allocation of agricultural property of NORP and NORP persons and of those having committed treason and acted as enemies of the NORP and NORP people ” , issued by the President of the former GPE on DATE , constituted a measure within the meaning of LAW , LAW .

ORG rejected , in particular , the applicant ’s argument that this provision did not apply as it only concerned measures carried out with regard to NORP external assets or other property and his father had never been a NORP citizen . In this respect , the court , referring to case - law of ORG ( ORG ) , stated that the view of the confiscating ORG 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 GPE .

Moreover , ORG found that the confiscation measure in question pursued CARDINAL of the purposes mentioned in LAW , LAW . Having regard to NORP case - law regarding other “ ORG Decrees ” , especially Decree no . CARDINAL on the “ confiscation of enemy property and the national reform fund ” , it considered that Decree no . CARDINAL , while also pursuing economic aims , was intended to expropriate the property of NORP and NORP nationals , that is , “ enemy property ” .

ORG further noted that the applicant ’s father ’s painting had been expropriated under Decree no . CARDINAL . The competent NORP authorities had interpreted its provisions as applying to the applicant ’s father , regarding him as a “ person of NORP nationality ” . The applicant ’s father had unsuccessfully appealed against this decision which ORG had been confirmed by ORG in DATE . The NORP courts were not in a position to review the lawfulness of the confiscation at issue .

Finally , ORG considered that the painting at issue , as part of the inventory of the agricultural property , had been included in the confiscation measure .

ORG dismissed the applicant ’s request to suspend the proceedings in order to await the outcome of proceedings to be instituted under the NORP Equalisation of Burdens Act ( GPE ) 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 NORP - occupied zone of GPE and of GPE . ORG 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 NORP origin , he had no equalisation claims under the said legislation , which only applied to persons who resided in GPE or GPE on DATE . In any event , there was no right to compensation for the loss of works of art ( ORG ) .

On DATE ORG ( Oberlandesgericht ) dismissed the applicant ’s appeal . ORG confirmed that the applicant ’s action was inadmissible as NORP jurisdiction in respect of his claim was excluded under LAW , LAW , in conjunction with paragraph CARDINAL , of LAW .

ORG considered that the notion of NORP jurisdiction included the competence , derived from ORG sovereignty and generally vested by the ORG in the courts , to administer justice . NORP jurisdiction was delimited by international agreements , customary international law and the generally recognised rules of international law . LAW , LAW , taken in conjunction with paragraph CARDINAL , of the Settlements Convention excluded NORP jurisdiction in respect of claims and actions against persons , who , as a consequence of reparation measures , had directly or indirectly acquired title to NORP property confiscated abroad .

ORG confirmed that the provisions in question continued to be in force under LAW of DATE on ORG with respect to GPE . DATE , which provided for the termination of the operation of quadripartite rights and responsibilities with respect to GPE and GPE as a whole , was amended by LAW and DATE according to which ORG was suspended and later terminated with the exception of the provisions specified in paragraph CARDINAL of that Agreement , inter alia , LAW , LAW § CARDINAL and DATE . That Agreement was valid under public international law and under NORP constitutional law .

ORG further considered that LAW , LAW , of ORG 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 NORP property abroad by foreign powers for the purpose of reparation were “ final and unchallengeable ” ( PERSON ) for GPE and the private persons concerned .

According to ORG , 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 ORG abroad . The domestic legislator was therefore not prevented from limiting domestic legal protection against violations of basic rights by a foreign ORG if this was necessary to attain more important goals .

When applying LAW , LAW , of ORG , the domestic law of the expropriating ORG concerning the concrete confiscation measure had to be taken into account , as this provision was aimed at excluding litigation in GPE 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 , ORG found that by virtue of LAW , LAW of ORG , NORP courts had no jurisdiction . Likewise , this provision did not allow recourse to be had to general rules of public international law or to NORP ordre public when examining the admissibility of the action . The applicant ’s argument that the provisions of ORG and their application to him as a national and head of a neutral ORG violated the law of peace was accordingly rejected .

According to ORG , the painting at issue constituted external assets within the meaning of LAW , LAW , of ORG , referred to in paragraph CARDINAL of Article CARDINAL . ORG noted that the applicant ’s father had indisputably never had NORP nationality . However , following the case - law of ORG , it considered that the notion of “ NORP external assets ” had to be interpreted in the light of the law of the expropriating ORG . The confiscation in dispute had been found to be in compliance with the legislation of the expropriating ORG : the competent NORP administrative authorities as well as ORG had found that Presidential Decree no . CARDINAL of DATE applied to the applicant ’s father ’s confiscated property . LAW ( a ) of this decree provided for the confiscation of agricultural properties of “ all persons of NORP or NORP nationality ” irrespective of their citizenship . The notions of “ NORP nationality ” , or of “ NORP origin ” ( “ deutsche GPE ” ) , 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 NORP authorities indisputably regarded the applicant ’s father as of NORP origin in that broader sense .

ORG 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 LAW , LAW CARDINAL , of ORG . The limitation of the confiscation measures to persons belonging to enemy GPE in itself justified such a conclusion . The assets of the persons concerned were confiscated as enemy assets .

Finally , ORG considered that both the defendant and the intervener belonged to the group of persons protected by LAW , LAW , of ORG . NORP jurisdiction was excluded whenever the plaintiff intended to challenge measures within the meaning of LAW , LAW .

On DATE ORG 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 DATE the Third Section of the Second Division ( CARDINAL . Kammer des zweiten GPE ) of ORG ( Bundesverfassungsgericht ) refused to entertain the applicant ’s constitutional complaint ( ORG ) , as it offered no prospect of success .

ORG 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 GPE . The NORP 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 LAW , LAW , of LAW , they had expressly refrained from qualifying the applicant ’s father ’s nationality . Their interpretation of the terms “ measures with regard to NORP external assets ” as comprising any measures which , in the intention of the expropriating ORG , were directed against NORP assets , could not be objected to under constitutional law . The bar on litigation did not constitute an agreement to the detriment of GPE , as only GPE and its courts were under this treaty obligation .

ORG further recalled that the exclusion of jurisdiction did not amount to a violation of the right of property as these clauses and LAW as a whole served to settle matters dating back to a time before the entry into force of LAW ) on DATE .

Finally , there was no indication of arbitrariness or of a violation of other constitutional rights . ORG confirmed that LAW , LAW and DATE , of ORG had not been set aside by LAW on LOC with respect to GPE : while GPE obtained full sovereignty , its obligations under treaties with the Three Powers were not affected . This had also been the legal opinion of GPE and ORG , which otherwise would not have settled the suspension and termination of parts of LAW in a separate agreement .

The decision was served on DATE .

On DATE ORG discharged its interim injunction of CARDINAL DATE . The bailiff thereupon handed the painting over to the GPE municipality , which had it returned to GPE .

Beneš Decree no . CARDINAL on the “ confiscation and accelerated allocation of agricultural property of NORP and NORP persons and of those having committed treason and acted as enemies of the NORP and NORP 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 NORP and NORP nationality irrespective of their citizenship status .

According to LAW said decree , those persons were to be considered as NORP or NORP nationals who , in any census since DATE , had declared to be of NORP or NORP nationality , or who had become members of national groups , formations or political parties which had been made up of persons of NORP or NORP nationality .

After the NORP capitulation of DATE , ORG had assumed supreme authority in GPE , as stated in LAW of DATE ( Declaration regarding the defeat of GPE and the assumption of supreme authority with respect to GPE by ORG , ORG , GPE and ORG of GPE , LAW , vol . DATE , pp . CARDINAL et seq . ) . The supreme military commanders of the CARDINAL ORG administered their respective zones and dealt jointly , through ORG , 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 .

The Convention on the Settlement of Matters Arising out of the War and the Occupation ( “ LAW see paragraph CARDINAL above ) is CARDINAL of the “ GPE Conventions ” ( ORG ) signed by GPE , GPE , GPE and GPE at GPE on DATE , and designed to end the Occupation Regime .

The other LAW were :

– the Convention on Relations between the CARDINAL Powers and GPE ( “ the LAW ” ) ;

– the Convention on the Rights and Obligations of Foreign Forces and their Members in GPE ;

– the Finance Convention .

LAW as such did not enter into force , but were amended in accordance with ORG to LAW , CARDINAL of the “ GPE Agreements ” , which were signed in GPE on DATE .

DATE I which amends the above - mentioned LAW states that ORG will terminate the Occupation Regime in Western Germany , revoke LAW , and abolish the offices of ORG . GPE is accorded “ the full authority of a sovereign ORG over its internal and external affairs ” . According to LAW , the CARDINAL Powers retain their rights “ relating to GPE and to GPE as a whole , including the reunification of GPE and a peace settlement ” .

The above - mentioned GPE Agreements comprise :

( CARDINAL ) documents signed by GPE and GPE , relating to disputes between GPE ( the resolution of cultural , economic and other difficulties ) and to the PERSON ;

( CARDINAL ) documents signed at the so - called CARDINAL - Power Conference by GPE , GPE , GPE and GPE , relating to NORP sovereignty and including in particular :

– the above - mentioned LAW on the Termination of the Occupation Regime in GPE and ORG thereto ( amending LAW , LAW and the other LAW ) , as well as letters dealing with specific points in LAW ;

– the Convention on the Presence of Foreign Forces in GPE ( in this context , mention should be made of LAW on GPE ) ;

( CARDINAL ) documents signed by GPE , the GPE , GPE , GPE , GPE , GPE and GPE , including the

– Protocol Modifying and Completing LAW ;

– Protocol on ORG ;

– Protocol on the Control of Armaments :

– Protocol on the Agency of ORG for ORG ;

– Resolution on the Production and Standardisation of Armaments ;

( CARDINAL ) documents signed by the CARDINAL countries party to LOC :

– Protocol to LOC on the Accession of GPE ;

– Resolution by ORG to implement LAW of LAW of the London Conference ;

– Resolution on the results of the Four- and ORG ;

– ORG taking note of the obligations accepted by GPE on the signature of the London Agreements and of the declaration relating to such obligations .

Under the general provisions of LAW – PERSON , DATE , pp . CARDINAL et seq . ) , as amended by PERSON to LAW see paragraph CARDINAL above ) , the federal and the Land authorities were given powers to repeal or amend legislation enacted by ORG .

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 NORP law . The same applied to rights and obligations arising under treaties or international agreements which had been concluded on behalf of the CARDINAL GPE of Occupation by ORG or by the governments of ORG . Furthermore , there was a bar on prosecution of persons by action of NORP courts or authorities on the ground of having sympathised with , aided or supplied information or services to ORG or their ORG . NORP 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 NORP courts and authorities were without jurisdiction with respect to such act or omission whether ratione materiae or ratione personae . The finality ( NORP ) , validity and enforceability of judgments and decisions in criminal or non - criminal matters rendered in GPE by tribunals or judicial authorities of ORG or any of them were confirmed .

Chapter CARDINAL of the Settlement Convention concerns reparation issues and the relevant parts of Article CARDINAL provide as follows :

“ CARDINAL . GPE shall in the future raise no objections against the measures which have been , or will be , carried out with regard to NORP 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 ORG with other ORG countries , neutral countries or former allies of GPE .

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 CARDINAL ... of this Article , or against international organisations , foreign governments or persons who have acted upon instructions of such organisations or governments . ”

At the CARDINAL - nation Paris Conference on Reparations in DATE and DATE , the participating GPE , including GPE , agreed on more detailed policies based upon the GPE undertakings ( provisions agreed upon at GPE on DATE between the governments of GPE , GPE and GPE and ORG ) in order to obtain an equitable distribution among themselves of the total assets available as reparation from GPE , to establish an ORG , and to settle an equitable procedure for the restitution of monetary gold .

ORG from GPE , on the Establishment of an ORG , and on ORG of DATE , LAW , vol . CARDINAL , p. CARDINAL ) established , inter alia , the shares which each country was to receive from NORP reparations . ORG , established in accordance with Part II of the Agreement , charged the reparation account of each signatory government for the NORP assets within that government ’s jurisdiction and maintained detailed accounts of assets available for , and of assets distributed as , NORP reparation .

The Act on Losses due to Reparations of CARDINAL DATE ( Gesetz zur PERSON Reparations- , Restitutions- , Zerstörungs- und Rückerstattungsschäden – Reparationsschädengesetz , ORG I , DATE , p. CARDINAL ) was CARDINAL of the statutes passed to deal with the consequences of the Second World War and the collapse of the ORG regime .

Section CARDINAL(CARDINAL ) 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 LAW 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

NORP in currently occupied NORP territories or in territories outside ORG on the basis of measures carried out by foreign States with regard to NORP assets , in particular on the basis of legislation on enemy property ,

Sections CARDINAL to CARDINAL laid down the conditions of compensation for losses . The LAW was limited to losses suffered by natural persons ( section PERSON ) ) . In case of losses which had occurred in the then occupied NORP territories or in territories outside ORG , only NORP nationals or persons of NORP origin ( deutscher PERSON ) who were , at the time of the occurrence of the loss , stateless or had only the nationality of a ORG where they had been subjected to expropriation or expulsion measures on account of their NORP origin could claim compensation ( section CARDINAL ) ) . LAW listed works of art and collections among the losses excluded from compensation . The time - limit for filing compensation claims under LAW expired on DATE ( section DATE ) .

During DATE , in parallel with internal NORP developments , ORG ( GPE , GPE , GPE and GPE ) negotiated to end the reserved rights of the Four Powers for GPE and GPE as a whole .

The LAW on LOC with respect to GPE ( the so - called LAW ) was eventually signed in GPE on DATE , and published in ORG on DATE ( pp . CARDINAL et seq . ) . The LAW confirms in particular the definite nature of the borders of the united GPE ( LAW . According to its LAW , the rights and responsibilities of the CARDINAL Powers relating to GPE and GPE as a whole terminated with the result that the corresponding , related quadripartite agreements , decisions and practices were terminated ; and the united GPE was given full sovereignty over its internal and external affairs . The LAW entered into force on DATE .

As regards the above - mentioned ORG , as amended , an agreement was reached between the governments of GPE , GPE , GPE and GPE and GPE , following an exchange of notes on CARDINAL and DATE , which entered into force on the last - mentioned date ( ORG , DATE , pp . CARDINAL et seq . ) .

This agreement provides , inter alia :

“ CARDINAL . The Convention on Relations between the CARDINAL Powers and GPE of CARDINAL DATE ... ( “ the Relations Convention ” ) shall be suspended upon the suspension of the operation of quadripartite rights and responsibilities with respect to GPE and to GPE as a whole , and shall terminate upon the entry into force of LAW on the Final Settlement with respect to GPE , signed at GPE on DATE .

Subject to paragraph CARDINAL below , ORG out of the War and the Occupation of CARDINAL DATE ... ( “ the Settlement Convention ” ) shall be suspended and shall terminate at the same time as LAW ; ...

The following provisions of the Settlement Convention shall , however , remain in force :

LAW :

Article CARDINAL , paragraphs CARDINAL and CARDINAL

The political union of GPE and GPE occurred on DATE , with the accession ( in accordance with LAW CARDINAL ORG which had been re - established in GPE .

The second chapter of LAW to LAW ( Einführungsgesetz zum PERSON ) , as in force at the relevant time ( as amended by LAW zur Neuregelung des Internationalen GPE , ORG I , DATE , p. CARDINAL ) , contained statutory rules of NORP 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 LAW Gesetz zum internationalen LOC ausservertragliche GPE und für ORG , ORG I , DATE , p. CARDINAL , amending LAW of LAW to LAW ) , the NORP courts applied customary law , that is , as a rule the lex rei sitae . According to section CARDINAL of LAW to LAW , the legal provisions of a foreign State shall not be applied if their application would lead to a result incompatible with essential principles of NORP law ( ordre public ) .


The applicant is a NORP national , born in DATE , and currently serving a prison sentence . He is represented by PERSON and PERSON , both lawyers practising in GPE and GPE respectively .

On DATE , the applicant was arrested and placed in detention on suspicion of narcotics offences . He remained in detention during the criminal proceedings that were subsequently brought against him .

On DATE , ORG ( Arrondissementsrechtbank ) of GPE handed down its judgment in the applicant ’s case .

In its judgment of DATE , following proceedings on appeal , ORG ( Gerechtshof ) of GPE , quashed the judgment of DATE , convicted the applicant of participation in a criminal organisation and of narcotics offences and sentenced him to CARDINAL years’ imprisonment and payment of a fine of ORG . CARDINAL .

On DATE , the applicant filed an appeal in cassation with ORG ( PERSON ) . On DATE , the applicant ’s case - file was received by ORG . On DATE , ORG commenced its examination of the applicant ’s appeal in cassation and , by judgment of DATE , rejected it . The applicant ’s sole complaint was that , given the delay between the judgment of ORG and the first examination of his appeal in cassation , the criminal proceedings against him had exceeded a reasonable time . ORG rejected this complaint , holding that the delay complained of was not of such a duration that the reasonable time requirement under LAW had been violated .

The judgment of DATE thus became final . The date on which the applicant would become eligible for early release was DATE . On the basis of the contents of a letter addressed by the applicant to PERSON ( ORG ) , which raised certain concerns as to the applicant ’s mental health , it was decided to examine the applicant ’s situation . To this end he was admitted to ORG ; “ ORG ” ) for a clinical psychological examination . The ORG examination resulted in a finding that the applicant ’s affective functioning was laboured , that he displayed an attitude of helplessness , that he was showing narcissistic , dependent and passive - aggressive tendencies and that is was clear that he was very vulnerable in detention and needed guidance and protection .

The applicant was subsequently placed in the Individual Care Unit ( PERSON ; “ IBA ” ) of the PERSON prison , where inmates , who are unable to function in a regular prison environment on grounds of their mental state , are placed .

According to reports of the mental health consultative body ( PERSON ; “ PMO ” ) of the PERSON prison on the applicant ’s situation in detention , the applicant required much attention and care , and had to be stimulated constantly in order not to sink into a serious depression . With the exception of a short period , special surveillance measures had to be taken during TIME on grounds of a perceived real risk of suicide .

In DATE , the applicant filed a request for pardon ( gratie ) on , inter alia , compassionate grounds in relation to his mental problems caused by his detention . He argued that a continuation of his detention , in view of his resulting mental condition , constituted inhuman treatment . In a letter to the direction of the PERSON prison , the ORG of the ORG prison supported this request for pardon .

The applicant ’s request was further supported in a report dated DATE by a rehabilitation officer ( reclasseringswerker ) . This report mentions that the ORG had found that the ORG was the only option for detaining the applicant , as the chances of a suicide were so high that the applicant could too easily escape the attention of the warders working on a regular prison unit . The report further sketches the increasing mental problems of the applicant arising from his feeling to have been convicted unjustly and the detrimental effects of the applicant ’s lengthy detention on his family life and his company . The applicant is described as a downcast , unstable and depressive man , who , as a consequence of continuous stress , develops more and more physical problems .

Although the Advocate - General ( PERSON ) to ORG had issued a positive opinion as to the applicant ’s request for a pardon , ORG , on DATE , advised the Minister of ORG to grant the applicant ’s request only in part , i.e. by reducing the sentence from DATE to CARDINAL years’ imprisonment .

As the applicant considered that his request for a pardon was not dealt with diligently , he instituted summary proceedings ( kort geding ) against ORG before ORG of GPE . He sought an injunction against the ORG , ordering the latter to immediately cease the execution of his sentence . He submitted that a continuation of his detention constituted inhuman treatment .

On DATE , ORG examined the case and heard the parties . In the course of this hearing , ORG argued that the applicant could avail himself of the possibility of seeking an interruption of sentence ( strafonderbreking ) . Following the parties’ hearing , ORG decided to adjourn its further examination until DATE .

On DATE , the applicant filed a request for interruption of sentence . In his reply of DATE , the Minister of ORG noted that the applicant ’s request for a pardon was still pending , that , according to a recent opinion of ORG to ORG , a further forensic psychiatric and psychological examination of the applicant was required in order to determine his suitability for detention ( detentiegeschiktheid ) and that , to this end , the ORG had agreed to admit the applicant with priority , namely during DATE . The Minister informed the applicant that the decision on his request for interruption of sentence was postponed until the submission of the ORG report .

On DATE , the applicant was transferred from the ORG prison to the ORG for an examination of his suitability for detention . In its report of DATE , the ORG concluded that , on grounds of his mental problems , the applicant ’s suitability for detention was reduced to a significant extent and that his request for a pardon warranted support and that only a substantial reduction of his punishment by way of a pardon could reduce the stress factors which maintained the applicant ’s adjustment disorder .

On DATE , ORG resumed its examination in the summary proceedings instituted by the applicant . After having heard the parties’ further submissions , it decided to adjourn its further examination until DATE .

In the light of the ORG report of CARDINAL DATE , the applicant ’s request was re - submitted to ORG , requesting the court to consider whether or not these new elements gave reason to the court to alter its advice on the request for pardon .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

ORG Mr PERSON is a NORP citizen born in DATE and resident in PERSON ( GPE ) .

ORG On DATE he was dismissed without notice from the posts of chairman ( Verwaltungsratspräsident ) and managing director ( Geschäftsführer ) of a family - run public limited company ( Aktiengesellschaft ) incorporated under NORP law , following a change of majority among the shareholders .

ORG On DATE he brought proceedings against the company seeking arrears of salary and a severance payment ( LOC ) . ORG ( Bezirksgericht ) gave judgment against him on DATE .

ORG On DATE ORG ( Kantonsgericht ) dismissed an appeal ( Berufung ) by the applicant . Endorsing the reasons of the lower court , it held that the applicant ’s dismissal had been justified because in the conflict between PERSON and the minority shareholders he had neglected the interests of the company in favour of his own . As a result , the new majority no longer trusted him to manage the company honestly .

ORG The applicant then applied to ORG by means of an appeal ( GPE ) lodged with ORG on DATE . ORG transmitted the appeal to ORG on DATE together with the case file and CARDINAL page of observations ( Stellungnahme zur Berufung ) , which were not communicated to the applicant . In these observations it argued that the appeal should be dismissed and refuted some of the grounds of appeal , emphasising , inter alia , that Mr Nideröst - Huber ’s dismissal had been the legitimate consequence of his intractable and unlawful conduct over DATE at the head of the firm .

ORG The company submitted a defence ( Berufungsantwort ) on DATE . This was communicated to Mr Nideröst - Huber .

ORG On DATE ORG dismissed the appeal , holding that ORG had rightly ruled that the applicant ’s dismissal without notice was justified , since he had abused his majority shareholding in the company in order to serve his personal interests , systematically disregarding those of the minority shareholders , even in breach of binding judicial decisions ; the new majority had therefore been justified in dismissing him forthwith .

ORG The judgment was served on the applicant on DATE . On DATE he asked ORG to supply him with a copy of ORG observations ( see paragraph CARDINAL above ) . He obtained this on DATE .

ORG LAW of LAW of DATE provides :

" The cantonal authority shall immediately inform the respondent of the grounds of appeal , even if the appeal appears to be out of time , and shall transmit to ORG , within DATE , the documents whereby the appeal has been lodged , a copy of the final decision and the preliminary decisions which have preceded it , the complete file and , where appropriate , its own observations . It shall also inform ORG of the date on which the impugned decision was notified , the date on which the appeal reached it or on which it was posted and the date on which it was communicated to the respondent . "


André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

The applicants , PERSON ( the first applicant ) and Ms Sevleta PERSON ( the second applicant ) , are nationals of GPE and GPE who were born in DATE and DATE , respectively , and are currently in GPE . They were represented before the ORG by Mr M. ORG , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

The applicants arrived in GPE for the first time in DATE together with their CARDINAL daughters , born in DATE and DATE , respectively . They applied for asylum and submitted that they should be granted residence permits on humanitarian grounds . They claimed that they had fled from the war to GPE in DATE . In DATE they had returned and had been subjected to harassment by other villagers who had considered them traitors for fleeing . In addition , they claimed that the first applicant , who had run a small shop , had been harassed by the health department and other authorities .

On DATE ORG ( Migrationsverket ) rejected the application and held that the alleged harassment did not constitute grounds for asylum . ORG also noted that the applicants had failed to seek assistance from the domestic authorities before leaving GPE .

The applicants appealed to ORG ( Utlänningsnämnden ) which , on DATE , upheld ORG decision in full .

During DATE and DATE , the applicants repeatedly applied to ORG for re - examination of their case due to the continuous deterioration of their physical and mental health . All these motions were rejected both by ORG and ORG .

At some point during DATE the applicants left GPE and travelled to GPE and GPE to apply for asylum . However , they were transferred back in accordance with LAW .

In DATE the applicants again applied for asylum . On DATE ORG rejected the application . ORG upheld the decision on DATE .

On DATE the applicants turned again to ORG and applied for a re - examination of their case . They added that their family had spent DATE in GPE and that their oldest daughter and her children had been granted residence permits . They also referred to their deteriorating health , in particular the first applicant ’s poor mental health and his suicidal tendencies .

On DATE ORG decided to stay the enforcement of the deportation order until further notice . However , on CARDINAL DATE , ORG rejected the application and decided that the enforcement of the deportation order should proceed .

Upon appeal , ORG ( Migrationsdomstolen ) upheld the decision and , on CARDINAL DATE , ORG ( Migrationsöverdomstolen ) refused leave to appeal .

The applicants were registered as missing on DATE and the deportation order became time - barred on CARDINAL DATE .

On DATE the applicants applied for asylum again . They maintained their earlier story and added the following . The first applicant suffered from severe mental illness and had received voluntary psychiatric care . He had also been considered for mandatory psychiatric care in a closed ward . Furthermore , he suffered from a severe heart condition . He submitted CARDINAL medical certificates issued DATE from CARDINAL different psychiatric clinics .

According to a certificate issued on DATE by ORG , a psychologist at ORG in ORG , the insulting treatment to which the first applicant and his family had been subjected in GPE had caused him trauma and long lasting psychological harm . Due to this he suffered from memory loss , difficulties with sleeping and concentrating , moments of absence , anxiety attacks and a deep sense of depression . He had also developed hallucinations urging him to commit suicide . At CARDINAL point he had tried to jump off a building , but had been stopped by a family member . He expressed fears of being left alone and not being able to resist the urge to commit suicide . This state was most probably aggravated by the uncertainty of his situation , not knowing whether he would be allowed to stay in GPE or not . His physical health had also been affected by his mental illness and there were reasons to believe that this had been a factor causing him to suffer a heart attack in DATE .

According to another medical certificate , issued on DATE by ORG , senior physician and specialist in general medicine and general psychiatry at ORG hospital in GPE , the first applicant had tried to commit suicide on several occasions and could therefore never be left on his own . He suffered panic attacks , mostly at TIME , and therefore had trouble sleeping . In connection with the attacks , he had trouble communicating properly , even with his closest family . Heavy medication had not helped and his prognosis was considered negative .

The second applicant suffered from diabetes and a skin disease . She submitted a medical certificate to this effect issued on DATE .

On DATE ORG rejected the application . It observed that the applicants had not submitted any new information regarding their need for protection and thus there was no need for it to make a new evaluation . It further considered that the medical certificates regarding the first applicant did not clearly indicate his mental state or what kind of care he needed . The certificates only showed that he suffered from mental illness , but not that it was life threatening . Furthermore , the ORG noted that country information showed that health care was available in GPE . The applicants’ health problems were therefore not sufficient grounds to grant them asylum . Lastly , the ORG noted that CARDINAL of the applicants’ daughters had been granted a permanent residence permit in GPE in DATE . However , it stressed that the general rule was that an application for residence permit on the grounds of family relations should be submitted before entering GPE . ORG held that no exception to this rule was applicable in the present case . It was not unreasonable to expect the applicants to file such an application from GPE .

The applicants appealed against the decision and requested ORG to hold an oral hearing where they could submit oral evidence as to their deteriorating health .

On DATE ORG rejected the motion for an oral hearing and requested the applicants to submit further written observations .

The applicants claimed that ORG had not duly considered the fact that there was an imminent risk that the first applicant would commit suicide and that he was highly dependent on his older daughter for his mental well - being . They also added that the second applicant did not have the means or the ability to care of her husband alone if they were to return to GPE and GPE .

On DATE ORG , by a majority , upheld the ORG ’s decision . It noted that the ORG allegations of persecution had been assessed by the domestic authorities in GPE on several occasions since they had first applied for asylum in DATE . Moreover , no new information had been submitted and therefore there was no reason to depart from the earlier assessments . Regarding the first applicant ’s health , the court found that his mental and physical state was not severe enough to constitute a sufficient ground for asylum . The court observed that his mental illness seemed to have developed only after arriving in GPE and also seemed to be connected to the pressure of going through the asylum proceedings . His state had not improved although he had received medication . In conclusion the court held that his illness was not life threatening and hence not serious enough to allow him to stay . Furthermore , it shared ORG assessment that the applicants could reasonably be expected to apply for residence permits from their home country .

The presiding judge gave a dissenting opinion and considered that the first applicant ’s severe mental illness and his connection to his older daughter , who had a residence permit in GPE , constituted sufficient grounds for allowing him and his wife to stay . The presiding judge also pointed out that several attempts to enforce the applicants’ deportation had failed , inter alia , due to the first applicant ’s state of health and , consequently , nothing indicated that future enforcement attempts would be more successful .

The applicants appealed to ORG . They submitted a new medical certificate issued on DATE by PERSON , in which the progression of the first applicant ’s illness , his current state and acute suicidal tendencies were described in detail .

ORG refused leave to appeal on DATE .

In the meantime , on DATE , ORG granted the applicants’ younger daughter , her husband and their CARDINAL children residence permits in GPE .

On DATE the applicants requested the ORG to apply Rule CARDINAL of ORG in order to stop their deportation to GPE .

On DATE the President of the Section to which the case had been allocated granted the applicants’ request for interim measures until further notice . On DATE , ORG , with reference to the ORG ’s decision , stayed the enforcement of the applicants’ deportation order until further notice .

Subsequently , the applicants again applied for a re - examination of their case before ORG , first on DATE and then on CARDINAL DATE . However , both motions were rejected .

Before the ORG , the applicants submitted several medical certificates , issued DATE and DATE by CARDINAL different doctors , regarding the applicants’ state of health .

As regards the first applicant , the certificates stated , inter alia , that he was suffering from post - traumatic stress disorder and that the practical enforcement of the deportation order could endanger his life since mental pressure would strongly increase the risk of an immediate heart attack . According to a medical certificate issued in DATE , his health had further deteriorated . It also stated that the first applicant had not had any contact with psychiatric clinics before he came to GPE .

As regards the second applicant ’s state of health , a certificate issued on DATE was submitted . It stated that she suffered from diabetes and anxiety related to the deportation , which had caused her trouble sleeping and feelings of depression .

The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE ) . It defines the conditions under which an alien can be deported or expelled from the country , as well as the procedures relating to the enforcement of such decisions .

LAW , of LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of LAW ) .

Moreover , if a residence permit can not be granted on the above grounds , a permit may nevertheless be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) as to allow him or her to remain in GPE ( LAW , section CARDINAL of LAW ) . During this assessment , special consideration should be given to , inter alia , the alien ’s state of health . In the preparatory works to this provision ( Government Bill CARDINAL/CARDINAL:CARDINAL , pp . CARDINAL ) , life - threatening physical or mental illness for which no treatment can be given in the alien ’s home country could constitute a reason for granting a residence permit .

According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of LAW ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of LAW ) .

Under LAW , LAW a , first paragraph , point CARDINAL of LAW a residence permit may be given to an alien who is a close relative of someone who is resident in or who has been granted a residence permit to settle in GPE , if he or she has been a member of the same household as that person and there exists a special relationship of dependence between the relatives that already existed in the country of origin .

By virtue of LAW , LAW , of the LAW , an alien who wants a residence permit in GPE on account of family ties or serious relationships must have applied for and been granted such a permit before entering the country . An application for a residence permit may not , as a general rule , be approved after entry . However , exemptions from this rule can be made for example if the alien has strong ties to a person who is resident in GPE and it can not reasonably be required that he or she travel to another country to submit an application there ( LAW , LAW , second paragraph , point CARDINAL ) . As regards this exemption , the preparatory works to the provision ( Government PERSON , p. CARDINAL et seq . ) state that the main emphasis should be placed on the question of whether it is reasonable to require that the alien return to another country in order to submit an application there . Relevant elements , which may be favourable for the alien , may be whether he or she can be expected , after returning home , to encounter difficulties in obtaining a passport or exit permit and this is due to some form of harassment on the part of the authorities in the country of origin . It may also be whether the alien will be required to complete a long period of national service or service under unusually severe conditions . It may also be relevant whether the alien has to return to a country where there is no NORP foreign representation and where major practical difficulties and considerable costs are associated with travelling to a neighbouring country to submit the application there . Relevant elements , which may count against the alien , may be that he or she is staying in the country illegally , that their identity is unclear or if there are strong ties to the country of origin . An exemption may also be made if there are some other exceptional grounds ( LAW , LAW , second paragraph , point CARDINAL ) .

The requirement that , in principle , residence permits for family members have to be granted before entry into GPE was introduced as CARDINAL of a number of measures aimed at reducing the possibilities of obtaining a residence permit by means of marriages or relationships of convenience . Subsequently , ORG and ORG have underlined on several occasions that the requirement that residence permits be obtained before entry into GPE is an important part of measures to maintain regulated immigration . Moreover , the preparatory works to LAW state that it is important that aliens staying in GPE illegally do not enjoy a better position than those who comply with decisions by the authorities to return to their country of origin in order to apply for a permit from there ( Government PERSON ) .

ORG ) , an independent human rights research body set up to provide the NORP immigration authorities with relevant information has , in a note concerning health care in GPE , dated DATE , observed that extensive reforms have been made in the health care sector . Among other things , centres for psychiatric health care have been built , offering specialist treatment for patients suffering from mental ill - health . Persons suffering from mental health problems can seek help either at the nearest centre for psychiatric health , or at the social services . Persons with serious mental health problems are referred to hospital or to a psychiatric ward at a central hospital . As for heart disease , most problems can be treated in the country and medication for unstable heart disease is available there .

According to ORG GPE DATE progress report , published on DATE , there has been some progress in the area of mental health . ORG accepted the application of the GPE Herzegovina ORG to set up the regional centre for cooperation and development in the area of mental health for LOC . The regional centre was operational . Both Entities adopted mental health strategies and new mental health centres were opened . However , establishment of community - based services , provision of aid to dependent persons and mental health care for children and young people needed further attention .

According to ORG GPE DATE progress report , published on DATE , progress was reported in the area of mental health . The country amended ORG , improving the protection of human rights and dignity of persons with mental disorders as well as the legal protection of legally incapacitated adults . ORG in South- LOC in GPE became operational . However , further actions remained to be taken towards promoting inclusion of people with mental health problems and their empowerment . Community - based mental health services of high quality that focused on recovery needed further support .


Violation of Art. 6-1;Pecuniary and non-pecuniary damage - award

Alvina Gyulumyan;András Sajó;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;Giorgio Malinverni;Ineta Ziemele;Ireneu Cabral Barreto;Jean-Paul Costa;John Hedigan;Josep Casadevall;Lucius Caflisch;Mark Villiger;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Renate Jaeger;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

On DATE the applicant was recruited by the embassy of GPE in GPE ( “ the embassy ” or “ the NORP embassy ” ) , to the post of secretary and switchboard operator ( korespondentė - telefonistė ) .

The contract of employment provided in DATE that the applicant ’s responsibilities and tasks were limited by the scope of her ( secretarial and switchboard - related ) duties . If the applicant agreed , she could be assigned other tasks not covered by this agreement . In such circumstances , a new contract would have to be signed . According to LAW had to comply with NORP laws , was liable for any damage she might cause to her employer and could be subjected to disciplinary action for failing to fulfil her professional obligations or to observe safety regulations at work . In return for extra work , the applicant could receive remuneration , bonuses , discretionary benefits or compensatory leave . Article CARDINAL provided that any disputes arising under the contract were to be settled in accordance with the laws of GPE : the LAW , LAW , LAW , LAW and LAW . Lastly , the contract could be terminated in accordance with sections CARDINAL , DATE , DATE and CARDINAL of LAW ( enacted on DATE with a number of subsequent amendments ) .

NORP The applicant ’s duties – as set out in a schedule to her employment contract – included the following :

“ CARDINAL . Operating the switchboard of the embassy and FAC and recording international telephone conversations .

Typing texts in NORP and NORP .

Operating the fax machine .

Providing information in NORP , NORP and NORP .

Helping to organise small receptions and cocktail parties .

Photocopying documents .

Performing other work at the request of the head of the mission . ”

In DATE the applicant lodged a complaint before the Equal Opportunities Ombudsman , alleging sexual harassment by CARDINAL of her male colleagues , a member of the diplomatic staff of the embassy . Following an inquiry , the ORG reported that the applicant was indeed a victim of sexual harassment . The applicant alleged that she had fallen ill because of the tension she was experiencing at work .

The applicant was on sick leave from DATE to DATE . On DATE she went to work but was not authorised to enter the embassy building . On DATE the applicant was again refused entry when she arrived for work . The same thing occurred again on DATE .

On DATE the applicant wrote a letter to the ambassador , informing her about the incidents . On DATE the applicant was notified that she had been dismissed on the ground of her failure to come to work from CARDINAL to CARDINAL DATE .

The applicant brought a civil claim , requesting compensation for unlawful dismissal . She did not claim reinstatement . The NORP Minister for ORG issued a note verbale claiming immunity from the jurisdiction of the NORP courts . On DATE ORG discontinued the proceedings for lack of jurisdiction . On DATE ORG upheld the decision . The final decision was taken by ORG on DATE .

ORG established , inter alia , that the DATE agreement on legal assistance between GPE and GPE had not resolved the question of ORG immunity , that GPE had no laws on the question , and that the domestic case - law in this area was only just being developed . ORG therefore considered it appropriate to decide the case in the light of the general principles of international law , in particular the DATE LAW .

ORG observed that LAW , as then in force , established the principle of absolute State immunity , but that that provision had become inapplicable in practice . It noted that the prevailing international practice was to adopt a restrictive interpretation of ORG immunity , granting such immunity only for acts of sovereign authority ( acta jure imperii ) , as opposed to acts of a commercial or private - law nature ( acta jure gestionis ) . ORG further held , in particular , as follows :

“ ... in ORG view , it is possible to apply the principle of restrictive immunity to GPE . Having regard to the fact that GPE recognises that foreign nationals may bring actions in respect of private - law disputes , it must be accepted that , in order to defend their rights , individuals or entities from GPE are entitled to take proceedings against foreign GPE .

It is thus necessary to establish in the present case whether the relationship between the claimant and GPE was CARDINAL of a public - law nature ( acta jure imperii ) or a private - law nature ( acta jure gestionis ) . Besides that , other criteria are applicable and should allow [ the court ] to determine whether the ORG concerned enjoys immunity ... in employment disputes . These criteria include , in particular , the nature of the workplace , the status of the employee , the territorial connection between the country of employment and the country of the court , and the nature of the claim .

Regard being had to the plea of immunity by ORG GPE ... it is possible to conclude that there was a public - service relationship governed by public law ( acta jure imperii ) between the claimant and the embassy of GPE , and that GPE may lay claim to immunity from the jurisdiction of foreign courts . This conclusion is supported by other criteria . With regard to the nature of the workplace , it should be noted that the main function of the embassy ... is directly related to the exercise of sovereignty of GPE . With respect to the status of [ the ] employee ... while the parties had entered into a contract of employment , the very fact that the employee was a switchboard operator implies that the parties developed a relationship akin to that which characterises a public - service function ... The court was unable to obtain any information allowing it to establish the scope of the claimant ’s actual duties . Thus , merely from the title of her position , it can be concluded that the duties entrusted to her facilitated , to a certain degree , the exercise by GPE of its sovereign functions . ... It must also be established whether the country of employment is the country of the court , since a court in the country of employment is best placed to resolve a dispute that has arisen in that country . In this respect , it is to be recognised that the exercise of the sovereign powers of the forum ORG is severely restricted with regard to an embassy , even though it is not a foreign territory as such ( section CARDINAL(CARDINAL ) of ORG ) . As to the nature of the claim ... it should be noted that a claim for recognition of unlawful dismissal and for compensation can not be regarded as violating the sovereignty of [ another ] ORG , since such a claim pertains solely to the economic aspect of the impugned legal relationship [ ; ] there is no claim for reinstatement ... However , by reason of this criterion alone , it can not be unconditionally asserted that GPE can not invoke ORG immunity in this case . ... [ The claimant ] has submitted no [ other ] evidence to confirm the inability for GPE to enjoy ORG immunity ( Article CARDINAL of the Code of Civil Procedure ) .

Against the background of the above criteria , [ in view of ] the aspiration of GPE and GPE to maintain good bilateral relations ... and respect the principle of sovereign equality between GPE ... , the chamber concludes that the courts [ below ] properly decided that they had no jurisdiction to entertain this case .

ORG notes that both ORG of GPE and ORG based the decision to apply jurisdictional immunity to GPE merely on the fact that the latter had refused to appear in the proceedings . Those courts did not examine the question of the application of restrictive jurisdictional immunity in the light of the criteria developed by ORG . However , this breach of procedural rules does not constitute , in ORG view , a ground for quashing the decisions of the courts below . ...

The application of jurisdictional immunity by the courts of GPE does not prevent the claimant from taking proceedings before the NORP courts . ”

There is no special legislation governing the issue of ORG immunity in GPE . The question is usually resolved by the courts on a case - by - case basis , with reference to the provisions of various bilateral and multilateral treaties .

LAW ( applicable at the material time and in force until DATE ) established the rule of absolute State immunity :

“ Adjudication of actions against foreign GPE , and adoption of measures of constraint and execution against the property of a foreign ORG , shall be allowed only with the consent of the competent institutions of the foreign ORG . ”

On DATE ORG gave a decision in the case of PERSON v. GPE embassy , regarding an action for unlawful dismissal against GPE embassy in GPE . LAW was considered by the court to be inappropriate in the light of the changing reality of international relations and public international law . ORG noted the trend in international legal opinion to restrict the categories of cases in which a foreign ORG could invoke immunity from the jurisdiction of forum courts . It held that NORP legal practice should follow the doctrine of restrictive ORG immunity . It found , inter alia , as follows :

“ State immunity does not mean immunity from institution of civil proceedings , but immunity from jurisdiction of courts . The LAW establishes the right to apply to a court ( LAW ... However , the ability of a court to defend the rights of a claimant , where the defendant is a foreign ORG , will depend on whether that foreign ORG requests the application of the ORG immunity doctrine ... In order to determine whether or not the dispute should give rise to immunity ... it is necessary to determine the nature of the legal relations between the parties ... ”

On DATE the plenary of ORG adopted a decision regarding “ Judicial Practice in GPE in Applying Rules of Private International Law ” ( PERSON , no . CARDINAL ) . It stated that while LAW established a norm whereby “ foreign GPE [ and ] diplomatic and consular representatives and diplomats of foreign NORP ] immunity from the jurisdiction of NORP courts ” , that rule guaranteed ORG immunity only for “ legal relations governed by public law ” . ORG pointed out that when deciding whether or not a case containing an international element fell within the jurisdiction of NORP courts , the court in question had to consider whether its judgment would be recognised and enforced in the foreign ORG concerned or whether it would refuse to do so . If the case also fell within the jurisdiction of a foreign court , the forum court would be entitled to relinquish jurisdiction and instruct the claimant to take proceedings in the court of the foreign ORG where the judgment should be enforced .

This interpretation by ORG had to be followed by the lower courts .

On DATE ORG delivered a judgment in a case that was very similar to that of the applicant , namely ORG v. the embassy of GPE . It found that “ despite the fact that GPE had not enacted any legislation on ORG immunity , it could nevertheless be seen from the case - law of the domestic courts that GPE recognised the doctrine of restrictive State immunity ” . In that case it was considered that the provisions of LAW and their Property , adopted on DATE , could be taken into account , even though they were not binding , since they reflected a certain trend in international law in matters of ORG immunity . ORG further observed that the case - law of the courts of both States – GPE and GPE – being based on common practice in international relations , confirmed that they had been adhering to a restrictive approach to ORG immunity , whereby a ORG could not claim immunity from jurisdiction if the dispute was of a private - law nature . In such cases GPE could not therefore object to the case being heard by the NORP courts . However , ORG held that the dispute between the parties had arisen from a public - law relationship and was not an employment relationship under private law .

ORG further observed that there was no uniform international practice of GPE whereby the members of staff of foreign States’ diplomatic missions who participated in the exercise of the public authority of the GPE they represented could be distinguished from other members of staff . As there were no legally binding international rules , it was for each ORG to take its own decisions in such matters .

The relevant provisions of the DATE LAW ( “ the Basle Convention ” ) read as follows :

“ CARDINAL . A Contracting State can not claim immunity from the jurisdiction of a court of ORG if the proceedings relate to a contract of employment between the ORG and an individual where the work has to be performed on the territory of the ORG of the forum .

Paragraph CARDINAL shall not apply where :

( a ) the individual is a national of the employing ORG at the time when the proceedings are brought ;

( b ) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that ORG ; or

( c ) the parties to the contract have otherwise agreed in writing , unless , in accordance with the law of the State of the forum , the courts of that ORG have exclusive jurisdiction by reason of the subject matter . ... ”

The Convention ’s Explanatory Report indicates that “ [ GPE regards contracts of employment with diplomatic missions or consular posts , Article CARDINAL shall also be taken into account ” . That Article provides as follows :

“ Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them . ”

Neither GPE nor GPE are parties to LAW .

In DATE ORG ( ILC ) was given the task of codifying and gradually developing international law in matters of jurisdictional immunities of GPE and their property . It produced a number of drafts that were submitted to GPE for comment . GPE never made any negative observation on those drafts . ORG that were used as the basis for the text adopted in DATE dated back to DATE . The relevant part of the text then read as follows :

“ CARDINAL . Unless otherwise agreed between the GPE concerned , a ORG can not invoke immunity from jurisdiction before a court of another ORG which is otherwise competent in a proceeding which relates to a contract of employment between the ORG and an individual for work performed or to be performed , in whole or in part , in the territory of that other ORG .

Paragraph CARDINAL does not apply if :

( a ) the employee has been recruited to perform functions closely related to the exercise of governmental authority ;

( b ) the subject of the proceeding is the recruitment , renewal of employment or reinstatement of an individual ;

( c ) the employee was neither a national nor a habitual resident of the State of the forum at the time when the contract of employment was concluded ;

( d ) the employee is a national of the employer ORG at the time when the proceeding is instituted ; or

( e ) NORP the employer ORG and the employee have otherwise agreed in writing , subject to any considerations of public policy conferring on the courts of the ORG of the forum exclusive jurisdiction by reason of the subject matter of the proceeding . ”

In the commentary on the ORG ’s ORG of DATE , it was stated that the rules formulated in LAW appeared to be consistent with the trend in the legislative and treaty practice of a growing number of States ( ILC Yearbook , DATE , PERSON . II , Part CARDINAL , p. CARDINAL , paragraph CARDINAL ) .

NORP In DATE ORG adopted LAW and their Property . It was opened for signature on DATE . CARDINAL of the major issues that had arisen during the codification work by the ORG related to the exception from ORG immunity in so far as it related to employment contracts . The final version of LAW , as set out in the Convention , reads as follows :

Paragraph CARDINAL does not apply if :

( a ) the employee has been recruited to perform particular functions in the exercise of governmental authority ;

( b ) the employee is :

( i ) a diplomatic agent , as defined in LAW ;

( ii ) a consular officer , as defined in LAW of DATE ;

( iii ) a member of the diplomatic staff of a permanent mission to an international organisation or of a special mission , or is recruited to represent a ORG at an international conference ; or

( iv ) any other person enjoying diplomatic immunity ;

( c ) the subject matter of the proceeding is the recruitment , renewal of employment or reinstatement of an individual ;

( d ) the subject matter of the proceeding is the dismissal or termination of employment of an individual and , as determined by the head of ORG , the head of government or the Minister for ORG of the employer State , such a proceeding would interfere with the security interests of that State ;

( e ) the employee is a national of the employer ORG at the time when the proceeding is instituted , unless this person has the permanent residence in the ORG of the forum ; or

( f ) the employer ORG and the employee have otherwise agreed in writing , subject to any considerations of public policy conferring on the courts of the ORG of the forum exclusive jurisdiction by reason of the subject matter of the proceeding . ”

DATE GPE did not vote against the adoption of this text but has not ratified it either .

The understandings with respect to LAW in the Annex to LAW explain that the reference to the “ security interests ” of the employer ORG , in paragraph CARDINAL ( d ) , “ is intended primarily to address matters of national security and the security of diplomatic missions and consular posts ” .

DATE LAW , which is appended to ORG DATE , provides the following definitions :

Article CARDINAL

( a ) the ‘ head of the GPE is the person charged by the sending ORG with the duty of acting in that capacity ;

( b ) the ‘ members of the GPE are the head of the mission and the members of the staff of the mission ;

( c ) the ‘ members of the staff of the GPE are the members of the diplomatic staff , of the administrative and technical staff and of the service staff of the mission ;

( d ) the ‘ members of the diplomatic NORP are the members of the staff of the mission having diplomatic rank ;

( e ) a ‘ diplomatic agent’ is the head of the mission or a member of the diplomatic staff of the mission ;

( f ) the ‘ members of the administrative and technical PERSON are the members of the staff of the mission employed in the administrative and technical service of the mission ;


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , PERSON , is a NORP national and lives in GPE . She was represented before the ORG by PERSON , a lawyer practising in GPE .

In DATE the applicant inherited a QUANTITY plot of land in GPE on the territory of the former GPE ( GPE ) ( “ the property ” ) and was registered in the land register as owner of the property . QUANTITY of the property had been used , DATE , as a road and were recorded as such in the registers of public roads in DATE and DATE . The applicant disputed that the relevant authorities of the GPE had designated the property as a public road as required by the laws of the GPE .

On DATE , and amended on DATE , the municipality made a written offer to the applicant , certified by a notary public , to buy the property for CARDINAL pursuant to LAW and Other Publicly Used Private Property – “ the Traffic Space Allocation Act ” ( Gesetz zur Bereinigung der Rechtsverhältnisse an LOC anderen öffentlich genutzten privaten ORG ) ( see “ Relevant domestic law ” below ) .

The applicant declined the offer .

On DATE ORG ordered the applicant to accept the offer . ORG held that the property was “ traffic space ” within the meaning of LAW ) No . CARDINAL of ORG ( see “ Relevant domestic law ” below ) ; that the municipality had proved that the relevant authorities of the GPE had considered the road as a public road DATE and that it was therefore “ traffic space ” within the meaning of LAW ) No . CARDINAL of that Act ( see “ Relevant domestic law ” below ) , since the laws of the GPE did not necessarily require the proper designation of property as a public road ; that all other requirements for the sale as required by ORG had been met ; and that the calculation of the purchase price was in accordance with the statutory requirements .

On DATE ORG informed counsel for the applicant of its intention to dismiss the applicant ’s appeal as manifestly ill - founded because ORG judgment , in particular concerning the qualification of the property as “ traffic space ” , had been free of error .

On DATE ORG dismissed the applicant ’s appeal . It held that it could not consider the applicant ’s claim that only part of the property was used as a road whereas the whole property was to be taken on the following grounds : the municipality had stated before ORG that it had made an offer for the whole property because the remainder of the property could not be sufficiently used ; the applicant had not disputed this assertion in the proceedings before ORG ; his new submission that the taking of the whole property would be contrary to Sections CARDINAL(CARDINAL ) No . CARDINAL and GPE ) of ORG ( see “ Relevant domestic law and practice ” below ) was procedurally barred pursuant to LAW ( see “ Relevant domestic law and practice ” below ) .

On DATE ORG refused to admit the applicant ’s constitutional complaint for adjudication without giving further reasons ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

In the GPE private property was often used for public purposes without the property being transferred into public ownership . Following NORP reunification the public use of private property was initially allowed to continue without any revision until DATE and the owners of such property were , under certain conditions , entitled to rent from the public authority pursuant to Section CARDINAL ) of LAW to LAW ( Einführungsgesetz zum PERSON ) .

Under LAW ( Sachenrechtsbereinigungsgesetz ) , owners were in principle entitled to PERCENT of the value of the land as compensation for the loss of the land ( Section CARDINAL(CARDINAL ) of LAW , is , as far as relevant here , inapplicable in cases concerning the use of private property for public purposes ( Section CARDINAL(CARDINAL ) No . CARDINAL of LAW ) ) .

With effect from DATE the continued use of private property on the territory of the former GPE is governed by ORG . That LAW is , inter alia , applicable if private property that was used as a public road by the authorities of the GPE continues to be used as a public road ( LAW ) of ORG ) . “ Traffic space ” is defined as roads , alleys and squares that are either designated as public roads or treated as if they were by law ( Section CARDINAL(CARDINAL ) No . CARDINAL of that Act ) . The public authority using private property for a public road may request that the property be sold to it by making a written offer , certified by a notary public ( Section CARDINAL(CARDINAL ) of that Act ) . The public authority may only request the sale of the property directly used for a public road ( Section CARDINAL(CARDINAL ) No . CARDINAL of that Act ) ; it has to purchase the remainder the property only if it can not be sufficiently used ( Section CARDINAL(CARDINAL ) of that Act ) . The purchase price is PERCENT of the value of the land ( LAW ) . Until DATE only the public authority could request the sale ; since that date , only the private owner can do so ( Section CARDINAL(CARDINAL ) of that Act ) . Until the sale has been concluded , the owner can request that the public authority pay him PERCENT of the statutory purchase price as DATE rent and bear the public expenses of the property ; the public authority has the right to continue using the property pending the transfer of ownership ( Section CARDINAL(CARDINAL ) of that Act ) . If the sold property is no longer used as a public road , the former owner can request that the property be sold to him for a certain purchase price ( Section CARDINAL(CARDINAL ) of that Act ) .

The former owner can request the restitution of property irrespective of a public authority ’s continuing use of it pursuant to ORG . The public authority continues to enjoy a right to use the property following the return of the property to the former owner ORG , judgment of DATE , no . BVerwG CARDINAL C CARDINAL.CARDINAL ) .

In cases in which the public authority ’s right to use the private property derived from Section CARDINAL(CARDINAL ) of ORG , the right to use prior to that Act ’s coming into force derived from Section CARDINAL ) of LAW to LAW ( ORG , judgment of DATE , V ZR CARDINAL ) .

ORG held in a leading judgment of DATE ( no . V ZR CARDINAL ) that the purchase price of PERCENT of the value of the land pursuant to LAW was constitutional on the grounds that the property had been used as a public road in the GPE and could not have been sold or used by the private owner prior to NORP reunification ; that the value of the property was diminished by the public use ; that the legislator had taken into account that not the owner but upon request the public authority had to bear expenses related to the property ; and that the public authority ’s right to use was considerably more limited than that of a user who acquired the property under the terms of LAW : whereas the latter could stop using the property and nevertheless remain the owner , the public authority was bound to sell the property to the former owner for a certain purchase price on request once it had stopped using the property as “ traffic space ” . Furthermore ORG held that the contested provisions of ORG did not violate the owner ’s rights under LAW No . CARDINAL read alone or in conjunction with LAW . Although the sale amounted to a de facto expropriation within the meaning of LAW No . CARDINAL , it had a basis in domestic law , was in the general interest and not disproportionate . In particular , the legislator had acted within the wide margin of appreciation to be accorded to him in the unique context of the NORP reunification .

Pursuant to LAW shall base its decision on the facts established by the first instance court , unless there are concrete indications that raise doubts as to the correctness or completeness of the establishment of the relevant facts by the first instance court , and on new facts , as long as it is admissible to consider these .

ORG may not consider submissions that the trial court has correctly excluded ( Section CARDINAL(CARDINAL ) of LAW ) . It may , as far as relevant here , admit new submissions on appeal only if the party did not introduce them at trial through no fault of its own ( LAW ) No . CARDINAL of the Code of Civil Procedure ) .