CONCURRING OPINION OF JUDGE RESS JOINED BY JUDGE ZUPANČIČ

If the applicant had an arguable claim under Article 6 § 1 of the Convention, then the decision of the German courts not to accept that claim for adjudication, on the ground that his action was barred by operation of Article 3 of Chapter 6 of the Settlement Convention, amounted to a denial of justice ( déni de justice ). That rule in the Settlement Convention infringed the very essence of the right of access to courts, so that the question whether this kind of limitation can be regarded as one in respect of which there is a reasonable relationship of proportionality between the means employed and the aims sought to be achieved does not, in my view, even arise. Under the rule in the Settlement Convention the guarantee of access to a court becomes really theoretical and illusory. Under the Settlement Convention this right has no practical and effective significance. This is so because the three Western Powers wanted in all probability to exclude any measures taken under enemy legislation against German property, be it abroad or be it on German territory, from any scrutiny by the German courts. It does not seem arbitrary to have concluded that those measures, whatever their justification may have been, should not have been called into question, at least not by the German courts, and that this was – and still is – the very significance of Article 3 of Chapter 6 of the Settlement Convention. Since the procedure before the German Courts was one of rei vindicatio , the Court is not concerned with the question of access to a court for a claim to compensation for loss of property.

Nevertheless, I am in full agreement with the opinion that there was no violation of Article 6 § 1, but my reasoning would be somewhat different. The Court should have stated that, besides the limitations on the right of access to the courts described in paragraph 44 of the judgment, limitations may also follow from the specific legal status of a Contracting Party implicitly accepted by all other Parties at the time of ratification of the Convention. As the Court has observed in paragraph 54 of the judgment, the Federal Republic of Germany, when ratifying the Convention on 5 December 1952, was still an occupied country and under the supreme authority of the Four Powers, France, the United States of America, the United Kingdom and the Soviet Union. It was far from being a sovereign State and the exclusion of German jurisdiction under the Settlement Convention was, as the Court has shown in paragraph 59, a consequence of the particular status of Germany under public international law after the Second World War. A State under such an occupation regime, which was considered to be sui generis , was far from being able to fulfil all the requirements, in particular of Article 6, of the Convention. That must have been obvious not only to the Federal Republic of Germany, when the Convention came into force on 3 September 1953, but also to the other Contracting Parties at that time. The particular status of Germany was so obvious that no declaration to that effect was made in relation with the deposit of the instrument of ratification. Furthermore, any “reservation” to that effect would not have met the requirements under former Article 64 (now Article 57). A reservation had to be related to specific provisions of the internal law. The particular status of Germany related to its situation under public international law, in which it did not have the full authority of a sovereign State over its internal and external affairs. If Contracting States admit a State with such restrictions as to its statehood to the Convention and if the depository of the Convention, the Secretary General of the Council of Europe, has no objections to its admittance, it can be presumed that they do not have any objections to later treaties by which this restricted legal status in the field of jurisdiction over certain matters is merely confirmed. The Federal Republic of Germany had in fact no choice. To regain the full authority of a sovereign State it had to accept in 1954 as well as in 1990 these restrictions on the jurisdiction of the German courts. This is true even though in 1990 the Federal Republic of Germany fully participated in the prolongation of the Settlement Convention. That limitation on the jurisdiction of its courts cannot be judged according to the principle of proportionality since it was absolute and a kind of force majeure for the Federal Republic of Germany.

The Court relies mainly on two further elements in its examination of proportionality. Firstly, that the expropriation in question could have been challenged in the expropriating State, the former Czechoslovakia, and secondly that challenging the validity and lawfulness of the expropriation measure in the Federal Republic of Germany was a remote and unlikely prospect. I think that alternative means in the sense of Waite and Kennedy v. Germany ([GC], no. 26083/94, § 68, ECHR 1999-I) cannot be alternative means in a third State, but must be access to the courts of the defendant State (see my dissenting opinion in the case of Waite and Kennedy , opinion of the Commission, ibid., p. 462 et seq.). The second argument, namely that the possibility of bringing litigation in the Federal Republic of Germany was remote, is an argument which relates to the nature of the claim itself and would need further examination. It would probably be in the interests of international art exhibitions for States to conclude agreements by which they exclude jurisdiction for such claims during the time of the exhibition. This kind of agreed limitation of jurisdiction, which is related to the remoteness of an eventual claim, could be discussed in the light of a general public interest. Until now, however, such a specific limitation on jurisdiction has not been accepted by the Court and it would not be easy to see this case only in the light of the public interest in art exhibitions.

Regardless of those considerations, the only convincing justification for the exclusion of the jurisdiction of the German courts is the particular international status of the Federal Republic of Germany. In contrast to the opinion of the Court in paragraph 69 of the judgment, this exclusion of German jurisdiction impaired the very essence of the applicant’s right of access to a court and could not be measured according to the principle of proportionality. It is a structural limitation on the right of access to a court under Article 6 § 1.

CONCURRING OPINION OF JUDGE COSTA

(Translation)

I agree with my colleagues that there has not been a violation of Article 6 § 1 of the Convention, but my reasons are different from those set out in the judgment and are fairly similar to those of Judge Ress. To my mind, it is difficult to maintain, as in paragraph 69 of the judgment, that the dismissal of the applicant’s action by the German courts was not disproportionate to the legitimate aim pursued and did not therefore impair the very essence of the applicant’s right of access to a court. That reasoning mixes up two approaches which the case-law of the Commission and of the Court had almost always carefully distinguished as two distinct alternatives: (explicit or implicit) limitations on the right to a court are compatible with Article 6 only if they do not restrict or reduce the access left to the litigant in such a way or to such an extent that the very essence of the right is impaired; furthermore, such limitations must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom , judgment of 28 May 1985, Series A no. 93, pp. 24-25, § 57, or Levages Prestations Services v. France , judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, p. 1543, § 40). I find the reasoning of the present judgment both unorthodox and illogical. The question of proportionality arises only as a subsidiary issue, in the event that the very essence of the right to a court has not been affected. To deduce that there has not been an infringement of that right because there was a satisfactory relationship of proportionality is not at all convincing to my mind.

Furthermore, it is difficult in the instant case to assert that the Prince suffered merely limitations on his right of access to a court. Admittedly, his father had had the opportunity of challenging in a former Czechoslovakian court the application to his case of the Beneš Decree, under which his property had been confiscated. However, that action (which was, moreover, dismissed by that court) had not exhausted his rights under Article 6 in the German courts, not least because the next action was brought against a different defendant and did not concern exactly the same object or cause of action. The adage res judicata pro veritate habetur was therefore inapplicable. Again, it is true that the German courts did not refuse to entertain his application to the extent that an interim injunction was granted sequestrating the painting immediately and was not discharged for seven and a half years. However, the German trial and appeal courts all ruled the applicant’s claim inadmissible under the “Settlement Convention”. It cannot therefore be said that access to the courts enabled the plaintiff to secure a determination of his rights; the courts in question based their decision on

their lack of jurisdiction under an international treaty, and did not examine the merits of the dispute between the applicant, who claimed to be the owner of the painting, and the municipality of Cologne, which had received it on loan from the Brno Historical Monuments Office. Hans-Adam II’s access to a court was in fact so limited that “the very essence” of that right was indeed impaired.

If the approach taken by the judgment in concluding that there has not been a violation is unacceptable, what would have been the “correct” reasoning (if my immodesty can be forgiven)? The concept of an arguable claim might give cause for reflection. Having regard to the existence of the Settlement Convention, the applicant did not have a recognised complaint, at least on arguable grounds, under domestic law in Germany. It is not rare to find reasoning of that kind in the case-law of the Convention institutions (see, for example, Masson and Van Zon v. the Netherlands , judgment of 28 September 1995, Series A no. 327-A, p. 27, § 52). It might even be feasible, following the same logic, to deny the “genuine and serious” nature of the dispute, which the present judgment seems to imply at paragraph 67 where it refers to the possibility of bringing litigation (in Germany) as a “remote and unlikely prospect”. I, for my part, prefer – following reasoning similar to that of my colleague, Judge Ress – to consider that the immunity from jurisdiction created by the Settlement Convention fully excluded the applicant’s having a right to a hearing of the merits of his case, given the nature and object of the legal action he had brought and the confiscation measure from which the loss of his title to the painting originated. Such reasoning on the subject of immunities does, moreover, feature in the case-law of the Convention institutions (see, in a case concerning parliamentary immunity, X v. Austria , no. 3374/67, Commission decision of 6 February 1969, Yearbook 12, p. 247, or, in one concerning diplomatic immunity, N., C., F. and A.G. v. Italy , no. 24236/94, Commission decision of 4 December 1995, Decisions and Reports 84-A, p. 84).

Of course these immunities are and must remain exceptional. Such is the case here, however, for what is at issue? Movable property confiscated fifty-five years ago to which a claim was laid ten years ago (following fortuitous circumstances) before being barred by lack of jurisdiction under a treaty signed in 1952 prior to ratification by the respondent State of the European Convention on Human Rights. It has to be admitted that this type of immunity is infrequent.

I concede that my point of view should, strictly speaking, result in a finding that Article 6 § 1 is inapplicable rather than a finding that Germany has complied with it (but that is a technical point rather than one of principle, and the practical result is the same). I also admit that the reasoning of the judgment, which makes the lack of impairment of the essence of the right to a court dependent on the finding that there were only (not disproportionate) limitations on that right is not completely unprecedented in the case-law (there is a certain similarity with Fayed v. the United Kingdom , judgment of 21 September 1994, Series A no. 294-B). All things considered, however, I continue to prefer the line of decisions which seems to me the most orthodox, according to which an impairment of the very essence of the right of access to a court is sometimes not incompatible with Article 6, without it being necessary to review the proportionality aspect. I would add that, on the last point, I prefer the proposition that a treaty (the Settlement Convention) takes precedence over domestic law, or even that this was a case of quasi- force majeure (concurring opinion of Judge Ress), or, alternatively, a combination of the two, to bringing into play “the vital public interest in regaining sovereignty and unifying Germany” (paragraph 69 of the judgment). I fully recognise that interest and respect it entirely, but I sincerely doubt that the decisions given by the German courts in this case between 1995 and 1998 were absolutely necessary to make that interest prevail. The proportionality “test” seems to me, to be quite honest, somewhat artificial in the circumstances of the case.

That said, I maintain my opinion that Article 6 of the Convention has not been infringed.