CONCURRING OPINION OF JUDGE RESS

1. The result of the judgment of the Grand Chamber in this case is in full harmony with the judgment of the Chamber (over which I presided, which is the reason why I am still a judge in this case in the Grand Chamber). Nevertheless I would like to make some remarks additional to the reasoning in this case to make the underlying problems better understandable.

2. The successor States to the Socialist Federative Republic of Yugoslavia have adopted different legislative rules as regards the criteria which must be fulfilled if an account holder at the Ljubljana Bank claims an entitlement from one of the former subsidiaries of this bank in one of the republics. These different rules are the very reason for this case because Slovenia permitted claims from all those living on its territory while Croatia accepted such claims only from those who held Croatian nationality. Under the normal rules of state succession, territoriality is the first criterion to divide claims and to justify any entitlement, not so nationality ( see Yearbook of the Institute of International Law, Vol. 69, Session of Vancouver, 2001, pp. 712-742, Resolution on ' State Succession in Matters of Property and Debts ' , in particular Article 11 ). Therefore, there are good reasons to conclude that the Slovenian legislation is more in harmony with these normal succession rules than the Croatian legislation. Debts that cannot be apportioned in accordance with the territoriality principle should be apportioned equitably, bearing in mind the result of the apportionment of other property or debts on the basis of the territoriality principle.

3. However, these principles are only applicable in genuine cases of state succession, in other words, where there are claims against these successor States and not only against private persons or corporations. if the present case were not a state succession case then the Ljubljana Bank ( Ljubljanska Banka ) as a private corporation would be liable for all the debts regardless of the emergence of new republics and the resulting division of territory. But, since there was a legal relation between the “private” banks in the federal territories in the Socialist Federative Republic of Yugoslavia with the National Bank of Yugoslavia to which at least part of the foreign currency had to be transferred, there was an implicit federal guarantee of these local debts regardless of whether in a socialist system one could really speak of a “private” bank in the full market-system oriented sense of the word. Therefore, in my view, this was a clear succession case with the underlying responsibility for all these debts falling on the Socialist Federative Republic of Yugoslavia. It follows that for the division and apportionment of these debts, the principles of state succ ession had to be applied.

4. Apart from these principles, successor states have the predominant obligation to regulate among themselves by agreement the outstanding questions of division and apportionment, questions which have already been solved in the Agreement on Succession Issues (in force since 2 June 2004). In this treaty the successor states to the Socialist Federative Republic of Yugoslavia agreed finally that the question of the distribution of bank accounts and claims against banks had in all respects to be settled among them by agreement. There is not only a duty to negotiate ( pactum de negotiando ) but also a pactum de contrahendo . Since this question between Croatia and Slovenia is still pending, it is important to determine whether it is only an international-law question to be decided by a compromise or by bringing it before the international Court of Justice, or whether it is also a question which the European Court of Human Rights should address. The Court has examined this question in paragraphs 255 and 256 of its judgments. In my view, the contracting states concerned are under a clear duty to solve this question urgently by way of agreement and if necessary by interstate settlement procedures.

Given the fact that this case has been struck out there is no basis for a pilot-judgment procedure. But in future cases the Court could envisage suspending all pending applications on these issues until the States concerned have found an agreement binding on them not only as Successor States but also as States Parties to the Convention. In the so-called pilot judgments ( Broniowski v. Poland [GC], no. 31443/96, ECHR 2004 ‑ V; Xenides-Arestis v. Turkey , no. 46347/99, 22 December 2005; and Hutten-Czapska v. Poland [GC], no. 35014/97, ECHR 2006 ‑ ... ) the Court ordered the respondent States to find a settlement with the individual claimant and also to adopt a general procedure (with a claims commission) to solve the problem for all pending similar cases. Here, the problem cannot be solved unilaterally but only by agreement between the successor States. The obligation to find a general solution is nevertheless of the same character. It is an obligation under international law which is, moreover, reinforced by the fact that the successor States that are parties to the Agreement on Succession Issues are also contracting Parties to the European Convention on Human Rights and have to ensure the protection of property rights. This legal situation makes it clear that this case has features of an interstate procedure rather than of an individual claim, which is, however, the way in which it must be seen in terms of Convention procedure. The suspension of all the pending cases should continue until a final solution has been found, at least until the end of 2009.