Kalogeropoulou and Others v. Greece and Germany (dec.)

Information Note on the Court’s case-law 48

December 2002

Kalogeropoulou and Others v. Greece and Germany (dec.) - 59021/00

Decision 12.12.2002 [Section I]

Article 6

Civil proceedings

Article 6-1

Access to court

Immunity of foreign State: inadmissible

Impartial tribunal

Participation of the president of the Court of Cassation enforcement proceedings after previous involvement in damages action: inadmissible

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Refusal to authorise enforcement proceedings against a foreign State with a view to recovering a debt recognised by the courts: inadmissible

The application was introduced by 257 Greek nationals who are relatives of victims of the massacre by the Nazi occupation forces at Distomo in 1944.  By decision of October 1997, a Greek regional court allowed the applicants’ claim that Germany should be ordered to pay them various sums by way of compensation for the pecuniary and non-pecuniary damage sustained.  When that decision became final, the applicants initiated the procedure provided for in the Greek Code of Civil Procedure to recover the amounts owed and served a copy of the decision delivered in their favour on the German authorities, together with a demand for payment of the amounts due.  Germany refused to comply with the decision and the applicants stated their desire to seize certain German property in Greece.  They applied to the Greek Minister of Justice for prior authorisation to enforce the decision against the German State, which is a mandatory requirement before a decision against a foreign State can be enforced.  Although the Minister refused to give his consent, the applicants undertook enforcement proceedings.  The German State opposed the enforcement and applied for suspension of the procedure.  The Athens Court of First Instance stayed the enforcement procedure but then eventually dismissed the objection.  However, the Athens Court of Appeal upheld the objection by the German State.  The applicants appealed on a point of law, but without success.  The case was examined by the Full Court of the Court of Cassation, the president of which had previously considered the case in the course of the action for damages.

Inadmissible under Article 6 § 1 (access to a tribunal/ complaint directed against Greece): the refusal by the Greek State to allow the applicants to enforce the decision which they had been given awarding them damages against their opponent constitutes a restriction on their right of access to a tribunal.  Grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of observing international law in the interests of courtesy and good relations between States through respect for another State’s sovereignty.  As regards proportionality, the Convention must be interpreted in such a way as to reconcile it with the other rules of international law of which it forms an integral part, including those relating to the immunity granted to States.  Accordingly, measures taken by a High Contracting Party which reflect generally recognised rules of international law on State immunity cannot be generally regarded as a disproportionate restriction on the right of access to a tribunal such as that laid down in Article 6 § 1.  Thus, the fact that the Greek courts ordered the German State to pay damages to the applicants does not necessarily entail that the Greek State is required to ensure that the applicants can recover their debt by means of an enforcement procedure on Greek soil.  Furthermore, the Greek Government cannot be required to infringe against its will the rule on State immunity.  Accordingly, the refusal by the Greek Minister of Justice to authorise the applicants to seize certain German assets in Greece cannot be construed as an unjustified restriction of the applicants’ right of access to a tribunal: manifestly ill-founded.

Inadmissible under Article 1 of Protocol No. 1 (complaint directed against Greece): the applicants obtained a final claim against the German State, which constitutes an “asset”.  The fact that they are at present unable to obtain payment of the sums due constitutes an interference with their right to the peaceable enjoyment of their assets.  This interference was provided for by law.  The refusal to authorise the seizure of certain German property in Greece was “in the public interest”, namely that of avoiding disruption of relations between Greece and Germany.  The Greek Government cannot be required to infringe against its will the principle of State immunity and to jeopardise its good international relations in order to allow the applicants to enforce a judicial decision delivered following civil proceedings.  In having recourse to the enforcement procedure, the applicants must have been fully aware that in the absence of the prior consent of the Minister of Justice their action would very probably fail; the situation cannot therefore have reasonably led them to entertain a justified hope that they would be able to obtain payment of their claim.  Last, the applicants have not lost their claim against the German State; it cannot be ruled out that enforcement will take place at some future time.  The courts’ refusal to authorise the enforcement procedure did not therefore upset the balance which must exist between the rights of individuals and the general interest: manifestly ill-founded.

Application inadmissible in so far as it is directed against Germany: it is necessary to determine whether the procedure at issue is imputable to Germany despite not taking place on German territory.  Under public international law, a State’s jurisdiction is principally territorial.  Only exceptionally does the Court accept that a contracting State has engaged in extraterritorial exercise of its jurisdiction.  It has held that a State’s participation as respondent in proceedings brought against it in another State does not in itself entail extraterritorial exercise of its jurisdiction.  In this case, the proceedings took place exclusively on Greek soil and the Greek courts were the only ones to exercise sovereign power vis-à-vis the applicants; the German courts therefore had no power of control whatsoever, either direct or indirect, over the decisions and judgments delivered by Greece.  Furthermore, the fact that the German Government raised before the Greek courts an objection based on its sovereign immunity in proceedings instigated by the applicants does not suffice to bring the applicants within Germany’s jurisdiction for purposes of Article 1 of the Convention.  Accordingly, the refusal to authorise enforcement cannot be imputed to Germany: that State was the applicants’ opponent in a civil matter examined by the Greek courts; as party to the proceedings it was akin to a private individual.  The applicants have therefore failed to show that they can be regarded as coming “within the jurisdiction” of the German State by virtue of the proceedings at issue: incompatibility with the provisions of the Convention.

Inadmissible under Article 6 § 1 (impartial tribunal): there is no evidence before the Court to support the applicants’ allegations regarding lack of impartiality on the part of the president of the Court of Cassation, which they base on mere speculation.  The applicants’ fears as regards the participation of the president of the Court of Cassation in both the proceedings for damages and the enforcement proceedings are not objectively justified: the mere fact of his having to preside, in his capacity as president of the Court of Cassation, during the proceedings on the merits and then during the enforcement proceedings did not make the court less impartial, particularly as, although the two matters with which the Court of Cassation dealt had a common material core, they were none the less quite different: civil proceedings for damages and enforcement proceedings.  Furthermore, the case was never dealt with by the president alone, but by the plenary formation of the Court of Cassation: manifestly ill-founded.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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