Liechtenstein v Czech Republic before the European Court of Human Rights

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On 19 August 2020, Liechtenstein lodged an inter-State application against the Czech Republic. Liechtenstein alleges breaches of the rights of its citizens, inter alia, of their right to property under Article 1 Protocol 1 of the European Convention on Human Rights (ECHR, the Convention). The case made it to the headlines of major international newspapers, such as the Financial Times and the Neue Züricher Zeitung.

According to the summary of the application (on file with the authors) “Liechtenstein nationals are being forced by the Czech Republic, directly or indirectly, into the Czech domestic courts where they are obliged to defend their property ownership rights challenged by the Czech Republic on the grounds of the alleged German ethnicity of their predecessors. After being forced into court, the Liechtenstein nationals are confronted with proceedings that are conducted in an unfair, discriminatory, intrusive and arbitrary manner, with no reasonable prospect of redress for violations of their rights.” According to the press release of the Court, the immediate trigger and subject of the application is a decision by the Constitutional Court of the Czech Republic of 20 February 2020.

In this piece, we first provide for some perspective on inter-State applications under the ECHR. Then, we situate the case in its intricate historical context in and after the second World War. In some detail, we distinguish the new inter-State proceedings from previous litigation, namely the 2001 individual case under Article 34 ECHR of Prince Hans Adam II of Liechtenstein v Germany and the Certain Property case Liechtenstein brought against Germany before the International Court of Justice (ICJ). Then we discuss some of the procedural issues of the new case.

Rare inter-State applications

Inter-State applications are rare occurrences, the application of Liechtenstein being only the 26th of its kind in the history of the Convention. Currently, an unprecedented number of now ten sets of inter-State proceedings are pending before the Court. A majority of them, including the recent case of the Netherlands v Russia concerning the MH 17 incident, which we discussed on this blog last month, are directed against Russia in the wake of the conflict with Ukraine. We provided a broader overview of the challenges the Court faces on this blog earlier this year.

Complex historical context

The root of the application lies in the aftermath of the second World War. The so-called Beneš Decrees were part of a wider bundle of measures in postwar Czechoslovakia targeting the German-speaking population in Bohemia and Moravia, the so-called Sudeten. Liechtenstein nationals were included in the measures even if Liechtenstein was a neutral State in the war and had been a sovereign State since 1806. The controversial measures comprised, inter alia, the forced transfer (mainly to Bavaria) of some three million individuals and the expropriation of their property. This took place at a time when the European Convention of Human Rights was not yet adopted; they also predate the Universal Declaration of Human Rights of 1948. One might add that international human rights was still a concept in the making. Andrea Gattini has put together a detailed analysis of the historical background through the prism of national and international litigation in EJIL (no paywall).

Former Czechoslovakia joined the Council of Europe and the Convention in the early 1990s, and both the Czech and the Slovak Republics became subject to the Convention as successors in 1992. Liechtenstein joined the Convention in 1982.

Prince Hans-Adam II of Liechtenstein v Germany

The individual application under Article 34 ECHR Prince Hans-Adam II of Liechtenstein lodged in 1998 against Germany was a claim concerning the painting Szene an einem römischen Kalkofen by Pieter van Laer. The artwork had belonged to the father of the applicant, Prince Franz Joseph II, the former monarch of Liechtenstein. It had been owned by the royal family for some 200 years before it was confiscated in 1946 by the former Czechoslovakia under the Beneš Decrees.

The 1998 application was directed against Germany because the painting had been on display in Cologne, on loan from the Brno Historical Monuments Office in the Czech Republic. All German courts, including the German Constitutional Court, dismissed the case for the lack of jurisdiction, citing Chapter 6, Article 3, of the Convention on the Settlement of Matters Arising out of the War and the Occupation of 23 October 1954 between the United States of America, the United Kingdom of Great Britain and Northern Ireland, the French Republic and the Federal Republic of Germany.

In 2001, the Grand Chamber of the European Court of Human Rights (ECtHR) held unanimously that there had been no violation of the Convention or its Protocols by Germany, namely Articles 6 § 1, Article 1 Protocol 1 to the ECHR and Article 14 ECHR. As Judges Ress and Zupančič explained in their concurring opinion, “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.”

Liechtenstein had not availed itself of the possibility to intervene under Article 36 § 1 ECHR. Consequently, the judgment is not binding upon Liechtenstein under Article 46 § 1 ECHR.

The Certain Property case before the ICJ

The German Constitutional’s Court decision of 1998 cited above lay also at the foundation of the case Liechtenstein brought before the ICJ. The application was an uphill battle from the start. The jurisdictional basis for the proceedings was the 1957 European Convention for the Peaceful Settlement of Disputes, which entered into force in 1980. The allegation Liechtenstein made before the ICJ was that Germany would be taking advantage of the post-war confiscations by the former Czechoslovakia of the property of Liechtenstein and its nationals. The ICJ found itself without jurisdiction ratione temporis.

The application against the Czech Republic

The main difference of the present litigation is the respondent, the Czech Republic, while in previous cases, Germany was in that role. According to the summary of the application, “the Czech Republic, allegedly has, on its own initiative, commenced court proceedings seeking to acquire for itself title to property that has been owned for centuries by Liechtenstein nationals, despite the fact that those nationals have been long-registered as the lawful owners of the property and their ownership has been repeatedly recognised and recently confirmed by various Czech public authorities.” The Court’s press release further details that the Constitutional Court of the Czech Republic rendered a decision on 20 February 2020, with which Liechtenstein takes issue.

The goal of the application before the ECtHR was, according to the Liechtenstein foreign minister Eggenberger, “to protect the interests of the State and the citizens towards the Czech Republic”. The press release (in German) issued by the government of Liechtenstein underlines that the application is intended to safeguard the “sovereignty of Liechtenstein”. The Principality sees itself under an obligation to provide for the “best possible legal protection for its citizens” which points to a use akin to the law of diplomatic protection.

The subject of the application is, according to the press release of the Court “two sets of proceedings concerning property in the Czech Republic, one set against the Prince of Liechtenstein Foundation, which inherited all the property owned by the late Prince Franz Josef II, and one set concerning 33 individual cases brought by Liechtenstein nationals, including the [current] head of state, Prince Hans-Adam II.”

Jurisdiction ratione temporis

In view of the Certain Property case, an important hurdle for the case in Strasbourg to move forward will be the Court’s jurisdiction ratione temporis. The Strasbourg Court can take cognizance of the events after the ratification of the Convention by the former Czechoslovakia in the early 1990s, to which the Czech Republic is one of two successor States. It is thus of the essence to frame the application as relating to events or decisions after the entry into force for the respondent. The Court’s press release details that the Constitutional Court of the Czech Republic has rendered a decision on 20 February 2020, with which Liechtenstein takes issue. It appears that in proceedings initiated in 2014, which found their formal end before the Czech Constitutional Court, property of citizens of Liechtenstein was expropriated. If the subject of the application hinges on the decisions and the procedure leading up to it, the case could reach the jurisdictional shores of the Strasbourg court.

Admissibility

The application must comply with the six-month rule as mandated by Article 35 § 1 ECHR. If the decision of 20 February 2020 is at the heart of the matter, the rule has been complied with.

Further, the individuals protected with the application must have exhausted domestic remedies under Article 35 § 1 ECHR. If the decision of the Czech Constitutional Court is the centerpiece of the application, this requirement seems to be satisfied.

Merits

With this brief preliminary analysis we see a real possibility for the case to reach the merits stage. It is a matter of speculation how the Court might handle the merits. While the quest to protect Liechtenstein’s “sovereignty” before the ECtHR is not convincing, it is possible that at least some of the claims brought against the Czech Republic are meritorious.

Liechtenstein sees the action taken, according to its press release, as part of the effort “to solve all open questions in the relationship with the Czech Republic in the basis of the law”. This is no small undertaking, also in view of the limited yardstick for the case, namely the Convention. It does, however, leave room for a friendly settlement of the case, which the Court could facilitate. A settlement would dispense the Court from the certainly not easy task to deal with the complex historical context of this case.

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