Higher Regional Court of Munich Case Files Number: 19 U 4878/10 9 O 4481/04 RC Munich I
IN THE NAME OF THE PEOPLE
In the lawsuit of 1) The Republic of Cyprus, represented by the Attorney General Mr Solon Nikitas, Ministry of Justice, 1403 Nicosia, Cyprus plaintiff and appellee 2) Autocephalous GreekOrthodox Church of Cyprus, represented by the Holly Council, archbishop Kyprianou Square, 1016 Nicosia, Cyprus plaintiff and appellee 3) Bishopric of the Armenians of Cyprus, represented by the archbishop of the Armenians of Cyprus Baroujan, Postal Code 21987, 21987 Nicosia, Cyprus plaintiff and appellee 4) Archbishop of the Maronites of Cyprus, represented by the archbishop of the Maronits of Cyprus Petros Tzamail. St. Maronas St., Paphos Gate, Nicosia, Cyprus plaintiff and appellee Attorney of record for the 14: Lawyers Weiss, Walter, Fischer Zernin, Kardinal Faulhaber Street 10, 80333, Munich, File reference number: EE/Jm s1211Zypern against XY. defendant and appellant Attorney of record: Lawyer Dr. Braitinger & Co, Kaiser Street 50, 71764 Reutlingen, File reference number: 1201537 Gr/Lo due to demand the Higher Regional Court of Munich 19th civil division issues through the presiding judge of the Higher Regional Court Antor, the judge of the Higher Regional Court Dr. Barwitz and the judge of the Higher Regional Court Meyberg, on the 18/3/2013, based on the documentation from 8/3/2013, without oral procedure, according to the article
128 par. 3 of the Code of Civil Procedure the following
PARTIAL DECISION 1. The appeal of the defendant and appellant against the final decision of the district court Munich I of the 23th September 2010 is being rejected as far as the defendant is condemned in case 237 Js 230262/97 in front of the lower regional court of Munich and the public prosecutor's office of Munich I to give his consent to give the following impounded objects, that are in the Bavarian Police Office of Munich, Mailinger Street 15 and specifically to give to the plaintiff with number 2, the objects with number I.2.(2) to (5), (8) to (14), (18) to (35), (37) to (40), (44) to (50), (54), (57) to (79), (84) to (87), (89) to (95), (100) to (103), (105) to (108), (110) to (120), (123) to (136), (139), (141) to (145), (147) to (157), (159) to (177), (179), (182), (186) to (187), (189) to (200), (202), (205), (207) to (214) and to the plaintiff with number 4 the objects with number 1.4, as how they are being described in the operative provision of the judgement.
2. The contested decision, according to the number 1, without civil bail temporarily enforceable. The defendant can turn away the execution of the plaintiff under number 2 with bail of 7.400.000 Euro, the execution of the plaintiff under number 4 with bail of 100.000 Euro, if the respective obligee does not offer before the execution bail of the same value. 3. The costs order is reserved until the issue of the final decision.
Causes: Ascertainments of facts 1. The plaintiffs ask the permission of the defendant for the return of the holy icons, pieces of church art and early historical objects, that the public prosecutor's office of Munich I secured, within the preliminary interrogation 237 Js 230262/97 with suspect the defendant for receiving stolen goods, and that at present time are stored at the Bavarian regional Criminal Investigation Department. The plaintiffs refer to their ownership on these objects. They claim that the objects of the church were there until the occupation of the northern part of Cyprus by the Turkish forces in the year 1974. They claim that during the occupation these objects were removed from the churches, monasteries and museums in the northern part of Cyprus and then carried out of the country. The also seized, prehistorical objects, that were found in excavations, are part of the property of the republic of Cyprus, according to the current Antiquities Law. The defendant considers that the seized objects are part of his wife's or daughter's property.
At the request of the public prosecutor's office of Munich I, the competent high criminal court of the higher regional court of Munich has already on the 3rd of June 2004 decided, that some of the objects should be returned with legal assistance to the plaintiffs. But the Federal Foreign Office of Germany did not approve the legal assistance and proposed the plaintiffs to follow the procedures of the civil law. 2. Because of the resulted lawsuit, the district court of Munich I, after the carrying out of the hearing of the evidence, came up with the contested decision. With this decision the lawsuit was completely accepted by the court. The decision of the court of first instance was based at first on the fact that the plaintiffs have ownership on the impounded objects and that the defendant has no right to possess and surrender the objects. This was proved during the taking of the evidence on the findings of the expert Dr. D., according to which these objects were in Cypriot churches, monasteries and art museums until 1974. Even in case that the proving of ownership was not possible only through an expertise, the plaintiffs could, according to the court of first instance, demand acquiescence for the return of the objects. The public prosecutor's office could have given the objects, if it was proved that the defendant had never had ownership on the objects. The ownership was never proved. 3. Against this decision of the district court of Munich I directs the appeal of the defendant, which repeats the petition that was filed in front of the first instance court, of rejecting the civil suit. The defendant applies for the quashing of the decision of the court of the first instance and the rejection of the lawsuit and by an alternative method, the remission. In the additional brief, of the 6/10/2012 (relative 10) the ref feral request is being transformed into to absolute. In the grounds for the appeal, the defendant refers to procedural errors and mistakes in the evaluation of the evidence. The flat reference to the report of the expert Dr. D. is not right evaluation of the evidence. In addition, according to the defendant, the court of first instance misjudged the burden of proof. Furthermore, he disputes the capacity to sue of the plaintiffs and he waives the objection of limitation. The plaintiffs support the decision of the court of first instance and they claim the rejection of the appeal. Additionally the documents submitted by both sides have will be taken into consideration. The judicial council took evidence about the capacity to sue of the defendant. Taking into account the results of the taking of the evidence, refers to the written report on the report of the expert Dr. D. (page 1782 to 1847 of the case files). To the defendant is given, after relative claim of his, legal aid for the appeal, restricted to the question about his capacity to sue and only in the extend that the decision is being contested for the russian icons and the prehistorical objects. In accordance to this, a reference is made to the decision of the judicial council, page 1853/1868 of the case files.
REASONS FOR THE DECISION (1) The admissible appeal of the defendant is proved unfounded at any case, taking into account the points referred in the causes os the decision. According to the already carried out hearing of the evidence, the conviction of the court of first instance was unobjectable, that the plaintiffs have the ownership of the objects and that they can claim the consent of the defendant for the handing over of these objects. According to other points of the civil suit, the judicial council cannot follow the arguments of the court of first instance and regards a further hearing of evidence as necessary. Although, as, regarding to the points that are being mentioned in the causes of the first instance decision, the council has made a legal conviction, the council is able to, according to the article number 301 of the Code of Civil Procedure, come to a partial decision. The different objects are being described in detail and it is probable that the can be separated from each other. Furthermore, there is no danger of contradictory decisions, and also there is no obligation to be decided for all the impounded objects if there is a right to claim the consent for the handing over of them. With the grounds for the appeal, that were put forward, the defendant did not convinced about the following: 1.1 [ ] 1.2 Against the claims for the appeal, procedural problems, that can be imputed to the court of first instance, about which the defendant is complaining were not found, or if they exist, they did not affect the decision of the court. 1.2.1. The appeal was not convincing about the claim that the court of first instance evaluated wrongly the resignation of the four plaintiffs from the document of the lawsuit and as a result came up with a wrong costs order. The base of the previous ground of the appeal is that from the 4th of June 2004, the plaintiffs reformulated the claim of their civil suit and, instead of claiming the handing over if the things to them all, they claimed that the things were distributed in an appropriate way to the plaintiffs 1 to 4. This is not a resignation from the document of the lawsuit, but a reform of the claim of the lawsuit, according to the article 263 of the Code of Civil Procedure. There was neither a change in the opposing parties, nor a change of the demand of the lawsuit. Simply the demand of the lawsuit was reformulated. With their statement of the 29th of May 2009, the plaintiffs expended their lawsuit also to the return of the paper money of value 200.000 Dutch guilder and they also took back their demand related to the object number I 59. Taking into account the previous, the costs order is right. 1.2.2. The ground of the appeal, with which it is being put forward that the decision of the 18th civil division the superior court is problematic, because it decided about a demand of expulsion because of prejudice of the attorney of the defendant, because it was taken and issued by one judge and not by the judicial council, is right, but it is not a procedural error of the court of first instance. Furthermore, the contested decision of the judge was checked and reconfirmed with the judicial council decision of the 05/08/2009. The 19th judicial council rejected the objections of the defendant against it, with the its decision of the 14/07/2011. 1.2.3 The assertion of the appeal that the 9th civil chamber of the district court of Munich
I is of special jurisdiction and as following the right of the defendant to have the competent judge was not proved. Only the assertion of the defendant that the lawsuit was submitted in 2004 to the district court of Munich I, and that in 2005 there was an internal change of the competences, is not a sufficient proof of this assertion. 1.2.4 It is indifferent whether it was permitted to the authorized representative of the defendant to access the records of the case, and especially to the penal part of it, after the announcement of the decision, although before he was not given this permission. In fact, the claim of the authorized representative of the defendant of the 08/09/2010 for reading the case records, was accepted only in 13/09/2010 by the court of first instance, although this right was never used. At any case, the appeal does not prove what will have changed to the defense of the defendant and the whole process, if there was an on time permission to the case files. 1.2.5 The assertion of the appeal that the at last moment submitted demands of expulsion of some members of the court of first instance were not taken into account. However the members of the court was not determined according to these demands before the procedure of 23/09/2010, when the final decision was taken, decision about the demands of expulsion was part of the final decision (see also 150/151 LGU). About this issue, the court of the first instance came up with the conclusion that the demands of expulsion before the day of the hearing serve only the aim to keep the procedure back and there unacceptable because of that character of theirs. There is no obligation to pause the procedure, in case of such unacceptable demands. (===) 1.2.6. The rest assertions of the appeal about the manipulation of the procedure by the district court are obviously meaningless. 1.3. Its is correct that the appeal refers to the fact that during the procedure in front of the district court, the ownership of the plaintiffs on all of the objects was not proved. This is resulted by the fact that the hearing of the evidence remains incomplete by the district court and that the burden of proof was misjudged. The judicial council is not capable to agree with the view of the court of first instance, that the handing over of the objects to the plaintiffs is possible, even if the plaintiffs can not prove their ownership on the objects and that the defendant should prove his ownership on the objects. If this was accepted, it would lead to a shift of the burden of proof, which can not be based on the generally accepted principles of the civil procedure. According to an unwritten principle of the civil procedure, the plaintiff carries the burden to prove the facts in which his right of ownership is based, and the defendant should prove the facts that infringe or reprieve this right (BGH NJW 91, 1052). As long as the claim to consent to the handing over of the objects that make the plaintiffs is based on their ownership right, they are also obliged to prove it. Something else is not being concluded from the special fact, which is also the base of the case, that the objects are seized because of preliminary interrogation of the article 94 of the Code of Civil Procedure. Although it reminds the article 111 of the Code of Civil Procedure about the delivery of the disputed objects during the trial, after the competence of the enquiry to the penal trial, it is possible, as in this case, to get the case in front of the civil courts (see also OLG FRANKFURT 3 WS 813/10 OLG STUTTGART, 2 WS 165/01). The civil courts decide then according to the general principles of the civil procedure, because the trial is being held according to the procedure law of the court, in front of which the trial was brought.
1.3.1. Consequently, the decision of the court of first instance about the objects that are referred in the operative part of the judgement, is right. About these objects, there was legal conviction of the court of first instance that the plaintiffs proved their ownership. The referred objects were all classified by the expert Dr. D. according to place and time in museums, churches and monasteries of the northern Cyprus. The objections that are being raised with the appeal are not enough to prove a doubt about the legal conviction of the court of first instance. 1.3.1.1. Concerning the claim for the appeal, with which is condemns the fact that the court of first instance referred only to the report of expert Dr. D., the judicial council has not a different opinion. According to article 286, par. 1, subpar. 2 of the code of civil procedure, the court should consider the main reasons which led to this assessment of the evidence. (===) This is into followed by the court of first instance, as long as its legal conviction is based only upon the written report and the oral presentation of the report by Dr. D (page 137 LGU). Only when the circumstances are so, that no detailed assessment is necessary, it is not necessary that every single object is analyzed. The appellant did not specified the objects, about which the report of the exert was not sufficient. The accusal that the expert classified the objects based only on photos of them, is not a reason to question the accuracy of the report. The appeal did not also proved which conclusions had been made through the expert's report, if there was also an inspection. In addition, the expert mentions in his finding of 24/03.2009 that he got to the Bavarian Police Department and examined the objects. 1.3.1.2. The experts go on to further examination, when their findings does not agree with other findings , or when the court is about not to follow the findings or when the court contests the qualifications and the fairness of the expert. About this, the appeal contains only unfounded accusation of collusion between the expert and the President of the court of first instance. 1.3.1.3. The claims mentioned in the causes of the appeal, according to which the experts's report should not be taken into account, as long as it is part of an other case, cannot be completely understood. The expert made a report between 12/02/2006 and 30/08/2006 in an other parallel pending case in front of the same part of the distract court of Munich I, regarding the origin of these objects. This report was filed in this case and can legally be taken into account by the court of first instance, according to article 411 A Code of civil procedure. Furthermore, the expert wrote an additional report for the present case on 24/03/2009, that can be found in the decision of the court of first instance. 1.3.1.4. The claims of the defendant, that the archive of icons, on which the expert's report is based, is fake, was correctly not taken into account by the court of first instance. These claims are obviously unfounded and they are only based upon the fact that the handwriting in all the cards of the archive is the same. It was not made clear by the defendant how this fact results that the archive is fake. 1.3.1.5. The court of first instance correctly considered that for the majority of the icons, their origin from churches of northern Cyprus can be concluded through the method of style defining. The expert mentions in his report that this method is being applied by art historians since years. Furthermore, he mentioned the special features of some of the
seized icons and he classified them according to the special style of each one. This report was accepted by the court of first instance (S. 135 LGU) and it was considered that the ownership of the plaintiffs was proved. This refers to the icons that are mentioned in the appeal with numbers I.2. (44), (45), (54), (59), (72), (78), (116), (120), (145), (177) and in the operative part of the decision with numbers I.4. (1), (2). (two difficult to be read sentences in the original) Here the name itself indicates that the origin of the icons is not necessarily in Northern Cyprus. The objects with numbers I.2. (47), (64), (176), (194), (198), in contrary to the operative part of the decision, are being mentioned in the expert's report of 24/09/2009 and the objects with numbers I.2. (144), (69) in the expert's report of 30/08/2006 and the objects with numbers I.2. (2), (28), (154), (175), (189), (196), (202) and (208) in both the reports of the expert Dr.D. and they classified with origin from Northern Cyprus. Also the mosaic of St Thomas (number on the decision I.2. (9)) is clearly classified in the report of 30/08/2006 as a mosaic, that belongs to the mosaic of the arch of the church of Lynthracomis in Cyprus. Just, in this case, the number of the seizure is written once 137 and once 1.3.7. There is no doubt also that the piece of art was seized by the Bavarian Police Force. The plaintiffs proved, beyond any doubt, that the restored mosaics are other objects from the same mosaic. 1.3.1.6. The objects are still stored by the Bavarian Police Force. From the report of the Bavarian Police Force of the 26/11/2009 (page 1237/1241) results that the only objects that were given back to the services of Cyprus, were the ones that are not subject of the present trial. 1.3.2. The plaintiffs can also invoke their ownership. The objects mentioned in the operative part of the decision, before their removal, were in monasteries, museums and churches of Northern Cyprus. This was proved by the report of Dr. D. The expert has worked in detail on the issue of the origin of the religious objects and their classification. On these are based also the testimonies given by the defendant and his advocate during the investigation, which are also taken into account by the court of first instance in order to come up with a legal conviction. (…) The plaintiffs have not lost their ownership on the objects. After the occupation of northern Cyprus and the foundation of the State of Northern Cyprus, in 1974 the ownership was not taken by the state of Northern Cyprus, an contrary to the claims of the appeal. Αcquisition of property with a legal act was not claimed. The Turkish State of Northern Cyprus was also not a successor to the Republic of Cyprus and cannot have taken ownership as a successor. It is known that the Republic of Cyprus still exists. Regulations of the Turkish State of Northern Cyprus, which prove transfer of ownership , are not suggested in the appeal. At any case, it is of no importance for the final decision, because with the appeal cannot be suggested that the Turkish state of Northern Cyprus is capable for legal acts and that it is able, according to the german law, to acquire ownership on objects. Foreign states, that act as fiskus, have legal personality. (===). Similarly, some associations of states are recognized as having legal personality in the territory. Prerequisite for this is them to be subjects of the international law. The Turkish state of Northern Cyprus is not recognized as a subject of international law. Turkey is the only state, that recognizes the Turkish Republic of Northern Cyprus. Αlthough Cyprus does not exercise sovereignty, since the occupation of the northern part of the island in 1974, de jure this part still belongs to the Cyprus Republic. The
Security Council of the UN, with the resolution 541, featured the declaration of the Turkish Republic of Northern Cyprus as contrary to international law. The European Union also regards the island as inseparable. 1.3.3. The appeal is not directed specially against the part of the decision with which is being accepted that nor the defendant, neither his wife or his daughter can prove their ownership on the objects. 1.3.4. The claims about the delivery of the objects is not barred. With the assertation of the appeal that the lawsuit was brought by the plaintiffs more than 30 years after the occupation of the northern part of Cyrpus by the Turkish army and it is consequently banned, it is not taken into account that the objects were lost at the earlier and not the the later point during the Turkish invasion. The period of limitation starts just after the deduction of the objects. The exact time of the deduction is unknown, but it is for sure after the year 1974. 2.The court reserves the costs order until the issue of the final decision. The decision about the provisional enforceability of the decision is based on the articles 708, el. 10, 711 of the Code of Civil Procedure. The decision of the judicial council was issued according to the procedure for property disputes. This is not affected by the fact that in this case the claim is about a declaration of intention, and specifically about the agreement to the handing over of the things. The claim of the plaintiffs is based on the ownership on the objects and it is even if it is not directly connected with a property disposal a property dispute, referred to in the Code of Civil Procedure () Antor Presiding Judge of the Higher Regional Court Dr. Barwitz Judge of the Higher Regional Court Meyberg Judge of the Higher Regional Court 18.03.2013