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Case:
BVerfGE 15, 25 2 BvM 1/60 Yugoslav Military Mission
Date:
30 October 1962
Judges:
Wagner, Dr. Schunck, Dr. Klaas, Henneka, Dr. Leibholz, Dr. Friesenhahn, Dr. Geiger, Dr. Federer, Dr. Kutscher
Copyright:
© Nomos Verlagsgesellschaft

HEADNOTES:

1. Submissions pursuant to Article 100 (2) Basic Law are admissible even
a) if the submitting court has doubts merely as regards the scope of a rule of public international law; or
b) if the submitting court doubts whether a rule of public international law exists but not whether a rule of public international law is a general rule of public international law; or
c) where the rule of international law is by its content not capable of directly generating rights and duties for the individual, but is directed only at States and their organs.

2. A rule of international law whereby domestic jurisdiction in actions against a foreign State in relation to its legation premises is in every case excluded is not an integral part of Federal law.
For actions agaist a foreign State for approval of the correction to the Land Register in respect of ownership of its legation premises, German jurisdiction is not excluded by a general rule of public international law (Article 25 Basic Law).

Order of the Second Senate of 30 October 1962 -- 2 BvM 1/60 --
in the proceedings for consideration of the question whether the following rule of public international law is an integral part of Federal law: The extra-territoriality of a legation building does not extend to an action concerning a legation building for approval of a correction to the Land Register - submission by the Federal High Court, 5th Civil Division, of 13 January 1960 -
V ZR 146/57

DECISION:

A rule of public international law whereby domestic jurisdiction for actions against a foreign State in relation to its legation premises is in every case excluded is not an integral part of Federal Law.

For actions against a foreign State for approval of a correction to the Land Register as regards property in its legation premises, German jurisdiction is not excluded by a general rule of public international law (Article 25 of the Basic Law).

EXTRACT FROM GROUNDS:

A.-I.

The Vereinigten Kaliwerke Salzdetfurth AG (plaintiff in the initial case) in 1946 sold its property at Berlin-Grunewald, Tauberstrasse 18, to the Federative National Republic of Yugoslavia (defendant in the initial case) and at the same time conveyed the property to the defendant, which was entered in the Land Register in 1953 as owner of the premises. The defendant's military mission accredited to the Allied Control Council has its official seat in the premises.

The plaintiff regards the purchase contract and conveyance as null and void on various grounds. He has brought suit petitioning that the defendant to be sentenced to
1. consent to the correction of the Land Register to the effect that the plaintiff be entered as owner of the property in the Land Register and
2. surrender the property (with two keys).

The Regional Court of Berlin fully allowed the suit. On appeal by the defendant the Berlin Court of Appeal in a non-appealable part-judgment of December 1954 set aside the Regional Court's judgment and rejected the suit insofar as surrender of the property (and keys) was demanded. The Court of Appeal rejected the rest of the appeal in a final judgment of May 1957. The Court of Appeal takes the view that the Yugoslav military mission has the legal status of a diplomatic representation. Actions in rem aimed merely at establishing the property relationships in legation premises did not however constitute an interference in the sphere of a legation impermissible in international law. The property relationships in the premises where the diplomatic representation had its seat were without essential importance for its activity.

II.

1.The defendant lodged an appeal on points of law against the Court of Appeal's final judgment of May 1957. The defendant has complained to the Federal High Court that it had not been represented according to the provisions of law. According to Yugoslav law, decisive in this respect, the Federative National Republic of Yugoslavia is to be represented before foreign courts by the Public Federal Attorney; but in these proceedings it had been represented by the head of the Yugoslav Military Mission in Berlin.

In a ruling of 11 February 1959 pursuant to para.275 of the Code of Civil Procedure the Federal High Court ordered separate hearing of

"1. the question of legal representation of the defendant,
2. the question of extra-territoriality."

The Federal High Court secured an expert opinion from the Max Planck Institute for foreign public law and international law in Heidelberg on inter alia the question of extra-territoriality, and requested the defendant to reply to questions relating to its statutory representation. Following receipt of the expert opinion and the defendant's statement the Federal High Court finally decided to secure a ruling from the Federal Constitutional Court pursuant to Article 100 (2) Basic Law as to whether the following rule of public international law was an integral part of Federal law and whether it directly created rights and duties for the individual:

The extra-territoriality of a legation building does not extend to an action for consent to correction of the Land Register in relation to the legation building.

2. In the decision making the reference the Federal High Court states that the defendant is not intrinsically exempt from German jurisdiction in the case of actions concerning real estate. Its Military Mission did however have the legal position of a diplomatic representation. The defendant had voluntarily submitted to German jurisdiction. Insofar as separate hearings had been ordered, therefore, the decision of the legal dispute depended on the question put before the Federal Constitutional Court.

According to the expert opinion from the Max Planck Institute, the exercise of German jurisdiction over the legation premises was inadmissible only to the extent that it would impair unrestricted exercise of the functions of diplomatic representation on these premises; the German courts were accordingly not prevented in international law from deciding on the merits of a suit for correction of the Land Register of the present kind.

It was however doubtful whether a rule of public international law of this content existed. The argument against such a rule might, in the opinion of the Federal High Court, be that extra-territoriality meant exemption from the exercise of sovereign power of the host State and that the exercise of sovereign power also included implementation of court proceedings and in particular the judicial decision sentencing the foreign State, in which here the defendant State would be deprived of ownership of the premises.

III.

1. On behalf of the Federal Government, the Foreign Office in its statement (para.83 (2) BVerfGG) largely associated itself with the findings of the Max Planck Institute's expert opinion...(elaboration).

B.-I.

The submission is admissible.

1. Though Article 100 (2) Basic Law, by contrast with Article 100 (1) Basic Law, does not explicitly prescribe that the norm to be tested by the Federal Constitutional Court must be relevant for the decision of the referring court, it nevertheless follows from the meaning and purpose of the procedure regulated by Article 100 (2) Basic Law that submissions under this provision are admissible only where the rule of public international law and the question whether it is an integral part of Federal law are relevant to the decision of the initial proceedings (BVerfGE 4, 319 [321]). The grounds of submission under Article 100 (2) Basic Law must indicate the extent to which the refering court's decision is dependent on whether a rule of public international is an integral part of Federal law (para.84 taken together with para.80 (2) BVerfGG). It is sufficient when this can be derived from the context of the statements in the submission decision (cf. BVerGE 7, 171 [174]; 13, 178 [180]). This is the case here.

The Federal High Court has pursuant to para.275 of the Code of Civil Procedure ordered separate hearing of two prequisites for the proceedings: the defendant's legal representation and whether German jurisdiction can be exercised. If the Federal High Court denies only one of these two procedural requirements then it would have to overturn the Court of Appeal's final judgment. The rule of public international law decisive for the exercise of German jurisdiction is therefore - as long as no decision has yet been taken as to the legal representation of the defendant - relevant to the decision only if this procedural requirement has for legal reasons to be tested before the other procedural requirement. It is only in that case that the Federal High Court cannot avoid the question whether the norm of public international law applies. It must "decide" this question even if - should it affirm German jurisdiction - it would still have to overturn the Court of Appeal's judgment insofar as the proper representation of the defendant was denied.

The Federal High Court takes the position in the case on referal that the decision to be taken on the basis of the separate hearing depends on the question whether German jurisdiction can be exercised. This allows the conclusion that the Federal High Court is of the opinion that the legal representation could for legal reasons be verified only once German jursidiction over the defendant had been affirmed (on this cf. Rosenberg, Zivilprozessrecht, 9th ed. 1961, para.89 IV 5, p.431; Baumbach/Lauterbach, Zivilprozessordnung, 26th ed. 1961, introduction to paras. 274 ff., Note 3). This view of the presenting court is not manifestly untenable and therefore decisive for the verification of admissibilty (BVerfGE 11, 245 [249] and 89 [92]). The same applies to the view of the presenting court that the Yugoslav Military Mission has the legal status of a diplomatic representation.

2. Admissibility of the submission is not opposed by the fact that the Federal High Court has doubts merely as regards the scope of a rule of public international law. The importance attached by Article 25 Basic Law to the general rules of public international law calls for unitary case law as to their scope too.

The Federal High Court has formulated a rule in the wording of the submission decision, but it certainly cannot be a general rule of public international law. The Foreign Office has rightly pointed out that actions for correction of the Land Register are characteristic only of German law or at most a few other national legal systems, and that consequently there ought not to exist a general rule of public international law on the admissibility specifically of actions for correction of the Land Register relating to legation premises.

Nor is the object of the submission the rule of public international law whereby foreign States are in principle not subject to domestic jurisdiction. The presenting court is similarly not concerned with the rule according to which immunity of States does not extend to actions concerning real estate involving a property of a foreign State located within a given country.

The presentation decision states that the Federal High Court regards it as "not unquestionable to assume a rule of public international law regarding the extraterritoriality of legation premises with the content given in the expert opinion [of the Max Planck Institute]". The rule hypothesized in the expert opinion, against which the Federal High Court has reservations, is however worded that "the exercise of jurisdiction over legation premises [is]...inadmissible only to the extent that it would impair unhampered exercise of the functions of diplomatic representation on the premises". The Federal High Court by contrast clearly tends to assume that the extraterritoriality of legation premises means that any action concerning real estate in respect of such premises is ruled out.

The Federal High Court thus has doubts only as regards the scope of the rule of public international law that "legation premises are extraterritorial", specifically as to whether this rule allows exceptions and whether an exception is admissible for actions for correction to the Land Register.

3. Admissibility of the question certified is not opposed by the fact the Federal High Court doubts whether there exists a rule of public international law but not whether a rule of public international law is a general rule of public international law.

The tenor of Article 100 (2) and Article 25 Basic Law might induce one to regard submissions pursuant to Article 100 (2) Basic Law as admissible only where there is dubiety as to the qualification of an indubitably valid rule as a general rule. But general rules of public international law within the meaning of Article 25 Basic Law will in the main be universally valid customary international law. The present case too is one of such a rule. With these rules of public international law, however, the question of validity is inseparably bound up with that of universal validity. Article 100 (2) Basic Law is intended to guarantee uniform case law as to whether rules of public international law are an integral part of Federal law. It would be incompatible with the meaning and purpose of the provision were the Federal Constitutional Court to be able to decide only whether a rule taken to be valid ought to be qualified as a general rule of public international law.

4. Submissions pursuant to Article 100 (2) Basic Law are admissible even where the rule of public international law is not by its content suitable to directly create rights and duties for the individual but is directed only to States and their organs. It may therefore be left open whether the rule of public international law at issue here belongs to one group or the other.

If one kept only to the wording of Article 100 (2) Basic Law and para.83 (1) BVerfGG, one might arrive at the view that a submission would be admissible only where doubt also existed as to whether a rule of public international law directly created rights and duties for the individual. But this interpretation is not in line with the sense of Article 100 (2) Basic Law.

Article 25 Basic Law, first sentence, delares that the general rules of public international law are an integral part of Federal law. According to the second sentence, these rules take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory. It is recognized that the second phrase of the second sentence of Article 25 Basic Law is of merely declaratory character and serves only for emphasis. The direct creation of rights and duties for the individual follows simply from the incoporation of the rule in Federal law by the first sentence (see Mangoldt/Klein, Das Bonner Grundgesetz, Note VI 1 to Article 25 Basic Law; Dahm, Völkerrecht, Vol.I p.67). The second phrase of the second sentence of Article 25 thus means only that the general rules of public international law have the same legal effects for and against the individual as (other) domestic law, in the process creating, as far as their content permits, also subjective rights and duties for the individual.

But if the phrase "...directly create rights and duties for the inhabitants of the federal territory" in Article 25 Basic Law, second sentence, serves only to repeat and emphasize the incoporation of the general rules of public international law into Federal law already brought about by the first sentence, then the corresponding phrase in Article 100 (2) Basic Law must be attributed the same meaning, especially since Article 100 (2) Basic Law refers to Article 25 Basic Law. The words "...and whether such rule directly creates rights and duties for the individual (Article 25)" in Article 100 (2) Basic Law are intended merely to describe the quality of the rule as a general rule from the effects which Article 25 Basic Law, second sentence, attributes to the general rules of public international law. This meaning of Article 100 (2) Basic Law is entirely compatible with its tenor.

II.

A general rule of public international law whereby domestic jurisdiction for actions against a foreign State in relation to its legation premises is in every case ruled out does not exist.

1. a) The rule of public international law at issue in the present case concerns the exemption of foreign States from domestic jurisdiction. Rules of this and similar technical content are general rules of public international law within the meaning of Article 25 Basic Law where they are recognized by the overwhelming majority of States - not necessarily also by the Federal Republic of Germany.

The rules of international law on immunity of States for actions relating to legation premises can belong only to customary international law. Treaty rules generally recognized do not exist. Nor are there recognized general principles of law which could be decisive for the extent of the immunity of States, in supplementation of customary international law.

A usage over a long period by the overwhelming majority of States in an awareness of their legal obligations whereby foreign States are in every case exempt from domestic jurisdiction in actions relating to legation premises cannot be demonstrated. The usage of States is, since the issue is one of the exercise of jurisdiction, to be established mainly from the practice of their courts. Also to be adduced are attempts to codify the international law at issue here and the doctrine of recognized authors.

b) According to general practice and doctrine, the inviolability and immunity of legation premises rule out access to them of organs of the host State without consent by the head of mission. Searches, seizures and enforcement measures on the premises are inadmissible even where they are intended to implement court decisions (cf. Verdross, Völkerrecht, 4th ed. 1959, p.261; Oppenheim/Lauterpacht, International Law, vol.I, 8th ed. 1955, para.390, p.795; Article 22 of the Vienna Convention on diplomatic relations of 1961). On the question of whether the exercise of domestice jurisdiction in relation to legation premises is ruled out even where enforcement measures on the premises are not involved, however, opinions differ.

2. From the practice of courts, it cannot be deduced that States in every case enjoy immunity in actions relating to legation premises according to a usage practised by an overwhelming majority of States.

a) In some court decisions a foreign State is simply recognized as having immunity in the case of actions relating to its legation premises.

The Hamburg Regional Court, in restitution proceedings against the United States of Mexico, denied German jurisdiction. The United States of Mexico were owners of a property still uninhabitable because of war damage, which they had designated to accommodate their consulate. The Hamburg Regional Court decided that there was no German jurisdiction for either the claim to restitution of the property or the claim to acceptance of the change to the Land Register entry (NJW/RzW 1953, 177). The point whether the same thing might not apply to consulate premises as to legation premises can be left out of account here.

In re Beckmann v. the People's Republic of China, the Supreme Court of Justice of Sweden in a decision of 1 March 1957 denied Swedish jurisdiction, because of the immunity of legation premises. The defendant People's Republic had acquired a property later used by its Embassy in Sweden. The plaintiffs had petitioned for the disposal of the property to the People's Republic of China to declared inoperative (International Law Reports 1957. p.221 f.).

b) These decisions can be juxtaposed with others which take it that in suits relating to legation premises domestic jurisdiction is ruled out not in every case but only on particular conditions.

aa) In a decision of 5 January 1920 the Austrian Supreme Court of Justice approved the view of the Regional Appeal Court of Vienna that the immunity of legation premises served only to "protect the mission", and that in consequence it was not unlimited and in particular was "ineffective vis-à-vis real estate jurisdiction" (decisions of the Austrian Supreme Court of Justice in Civil and Judicial Administration Cases [S.Z.], vol.II p.3 [4]). In a further decision of 11 September 1928 the same Court stated that ownership of its legation premises subjected the Czechoslovak State - were one to follow the doctrine of limited State immunity - to Austrian jurisdiction insofar as a legal dispute had as its object this immovable good itself or obligatory agreements concluded in respect of it (S.Z.) (X, p.427 [429]).

bb) The two following decisions point in the same direction.

The Appeal Court of Athens affirmed Greek jurisdiction in 1949 for an action against the Romanian State for the surrender of premises which the Romanian ambassador had dwelt in in Athens on the basis of a rental agreement. The Court found that it was competent because private rights were at issue. This was not countered by the fact that the ambassador would have the rented premises taken away and his diplomatic immunity infringed were the action to succeed. The Court also found it relevant that diplomatic relations between Romania and Greece had been broken off and that no member of the Romanian Legation was residing in Greece in an official capacity (Annual Digest and Reports of Public International Law Cases 1949, p.291 f.).

The Tribunale civile in Rome decided in 1928 that purchase of a property by a foreign State was a matter of private law and subject to domestic jurisdiction even where the premises were to be used as legation premises (cf. Harvard Law School, Research in International Law, Supplement to the American Journal of International Law [AJIL] vol.26 [1932] p.579 [=Harvard Law School]).

The former case involved premises that no longer served the purposes of a legation, the latter ones that did not yet. In deciding as to the immunity of the foreign State, the courts had regard to whether the premises were actually being used for diplomatic purposes. This allows the conclusion that in the view of these courts immunity was due the States in relation to their legation premises not without restriction but only insofar as this was requisite for the meaning and purpose of diplomatic privileges and immunities.

cc) The Supreme Restitution Tribunal (ORG) for Berlin, to which judges of various nationalities belong, decided in four judgments of 10 July 1959 on restitution claims of former owners against foreign States (Latvia, Japan, Bulgaria and Hungary) concerning premises formerly used by these States as legation premises in Berlin. The Court in all the cases rejected the objection raised against the exercise of domestic jurisdiction on the ground that the premises concerned could not be assigned immunity because they had for several years no longer been used for diplomatic purposes (ORG for Berlin 13, 36 ff., 53 ff., 199, 200=AJIL vol.54 [1960] p.165 ff., p.178 ff.; see also NJW/RzW 1959, 526 ff.).

From the grounds of the decisions it emerges as the Court's view that the "special privileges and immunities" of the legation premises could indeed lead to exemption of the sending State from domestic jurisdiction. But the Court limited this immunity of the legation premises by the meaning and purpose of the diplomatic privileges and immunities. The justification of these privileges and immunities was seen by the Court as being to guarantee the unhampered performance of diplomatic tasks.

In the proceedings relating to the Japanese premises the Berlin Court of Appeal as appellate division had affirmed domestic jurisdiction on the ground that special protection of legation premises persisted only for as long as they were used for diplomatic activity. A diplomatic representative was granted immunity in order to be able to carry out his office freely and without restriction. On the view of the Court of Appeal, accordingly, the legation premises enjoyed immunity only insofar as necessary for the free and unhampered performance of diplomatic activity (NJW/RzW 1957, 185 f.).

3. The view that immunity of legation premises in every case excludes domestic jurisdiction cannot be supported from the draft codifications.

a) The efforts of the International Law Commission of the United Nations have not so far applied to the codification of the law of immunity of States, but have done to the law of diplomatic privileges and immunities. In the Commission's discussions see Yearbook of the International Law Commission 1957 vol.I p.2-154, 119-223, 225-231; vol. II p.132-143 (Commission's first draft); 1958 vol. I p.84-95, 100-200, 234-252; vol. II p.89 to 105 (Commission's final draft with commentary)

it was pointed out by Spiropoulos (Greece), Zourek (Czechoslovakia) and Franc_,ois (Netherlands) that views diverged as to whether legation premises were in every case excluded from domestic jurisdiction. This is indeed asserted by some authors. Other authors are instead of the view that legation premises enjoy immunity only insofar as the exercise of domestic jurisdiction would encroach on their inviolability (Yearbook 1957 vol. I p.96). The difference of opinion that had arisen among Commission members on this question was not taken up again in the further course of discussion. The Commission's final draft nevertheless supports the view that the meaning and purpose of diplomatic privileges and immunities is to make it possible for the mission to carry out its tasks notwithstanding the fact that the mission also had a representative character (Yearbook 1958 vol.II p.94f.). On the basis of this view, the assumption presents itself that the immunity of legation premises is limited in accordance with its meaning and purpose.

b) The 1961 Vienna Convention on diplomatic privileges, not yet in force, is based on the work of the International Law Commission. Its Article 22 contains provisions, in line with existing customary law, on the inviolability of legation premises. Enforcement measures inadmissible by Article 22 (3) on the premises also include measures in execution of court orders. The inviolability of legation premises is according to the International Law Commission's commentary on the corresponding provision of its draft not the consequence of the head of mission's inviolability, but an attribute of the sending State on the basis of the fact that the premises are used as the seat of the diplomatic mission (Yearbook 1958 vol. II p.95).

Accordingly, Article 22 of the Vienna Convention is presumably also based on the view that the immunity of legation premises is justified, but also delimited, by the purpose of granting protection for diplomatic activity.

4) Additionally, non-official institutions have dealt with the question of immunity of States, as follows.

a) According to the Resolution of the Institut de Droit International on the immunity of foreign States of 1954 (Annuaire of the Institute 1954 vol.II p.293 ff., and p.301f.) domestic jurisdiction could be exercised where there was dispute as to the question whether ownership of premises used for diplomatic purposes had been properly acquired in private law; for this dispute would not concern an act of the public power (see Articles 1 and 3 of the Resolution; for the inadmissibility of execution measures and seizures, see Article 5). The general rules on immunity of States proposed by the Institute were also evidently regarded as adequate for legation premises, even though the special immunity of States in relation to such premises is scarcely mentioned in the written statements of Institute members and their discussions (see Annuaire of the Institute 1952 vol.I p.5-136; vol.II p.424-431; 1954 vol.II p.200-227).

b) According to the proposals of the Harvard Law School Study Group on the regulation of jurisdiction over foreign States of 1932 (Supplement to AJIL vol.26 [1932] p.451 ff), immunity of States in relation to legation premises is justified only insofar as the exercise of domestic jurisdiction would infringe the inviolability of the premises. Accordingly, execution measures on the premises are inadmissible. The judicial finding as to property relationships in the premises did not constitute a restriction on diplomatic activity. Actions with this as their aim are therefore to be admissible (loc.cit. p.577 f., and Articles 9 and 23 of the draft). The Study Group's report bases itself for this proposal on a number of court decisions, including the above-mentioned 1decision of the Austrian Supreme Court of Justice of 11 September 1928 (S.Z. X p.427).

5) Nor does the doctrine of international law teach that the immunity of legation premises rules out domestic jurisdiction in every case.

In the doctrine of international law, domestic jurisdiction is mostly regarded as ruled out, reference being made to the immunity of legation premises, without however the extent of this immunity being verified.

Cf. e.g. Eleanor Allen, The position of foreign States before national courts, 1933, p.17; Hyde, International Law chiefly as interpreted and applied by the United States, 2nd ed., 1947, vol.2 p.848; Gmür, Gerichtsbarkeit über fremde Staaten, 1948, p.126 Note 203; Cavaré, L'immunité de juridiction des États étrangers, Revue générale de droit international public, vol.58 1954) p.177 ff., 189.

Zorn (Deutsches Gesandtschafts- und Konsularrecht, 1920 [=Handbuch des Völkerrechts vol.3 Section 2], p.43) takes the view that in the case of real-estate disputes, even regarding legation premises, no exemption from German jurisdiction exists, since German law does not to that extent make any exception from exclusive forum rei sitae (para.20 GVG, para.24 ZPO). By contrast Dahm (Völkerrecht, vol.I p.348 Note 7) opines - without further argumentation - that actions in rem too relating to legation premises are ruled out.

In two respected accounts of international law, however, the view is put forward that the immunity of legation premises is granted only in order to assure diplomatic functions. Verdross (loc.cit. p. 261) regards the immunity of legation premises as a derived immunity. This can, as is apparent from the context of the presentations, be understood only to the effect that in his view the immunity of legation premises is justified solely as securing the tasks of diplomatic representation. More clearly, Oppenheim/Lauterpacht (loc.cit. para.390, p.795 f.) say that the legation premises are to be regarded as extraterritorial only in a certain sense and in a certain respect. Their immunity is guaranteed only insofar as necessary having regard to the independence and inviolability of the envoys and the inviolability of their official documents and archives. Both Verdross and Oppenheim/Lauterpacht, accordingly, justify the immunity of legation premises on the basis of diplomatic functions. The conclusion to be drawn is that the limits to that immunity are also set thereby.

6. Summarizing, an evaluation shows that no general rule of public international law whereby domestic jurisdiction in suits against a foreign State in relation to its legation premises are in every case ruled out can be found. The immunity of legation premises instead reaches only as far as is requisite for carrying out the tasks of the diplomatic mission.

III.

In its submission, the Federal High Court is concerned with the question whether German jurisdiction exists for an action for correction of the Land Register against a foreign State when it concerns its legation premises. It is therefore appropriate to answer this more specific question too. German jurisdiction is not ruled out for such actions.

An action for correction of the Land Register does not restrict the diplomatic mission in carrying out its tasks. A judgment allowing the action would not alter the property relationships in the premises. It would find merely that the content of the Land Register as regards property in the premises did not correspond with the true legal position (para.894 BGB) and accordingly oblige the defendant State to collaborate in correcting the Land Register. With the legal force of this judgment, correction to the Land Register pursuant to para.894 (1), first sentence, of the Code of Civil Procedure could be undertaken without its collaboration; according to this provision a declaration of intent to the giving of which a debtor has been enjoined counts as given as soon as the judgment has acquired legal force. The immediate consequence of the correction to the Land Register would be that pursuant to para.891 BGB it would be presumed that ownership of the premises was with the plaintiff of the initial case, whereas it would according to those provisions be presumed until any possible correction of the Land Register that the defendant State registered in the Land Register is the owner of the premises. Furthermore, following correction of the Land Register, no-one could any longer effectively acquire a right in the premises pursuant to para.892 BGB by legal transactions with this State. All this would not hamper the mission in carrying out its diplomatic functions. For exercising its tasks it is not of relevance whether the sending State or another person is entered in the Land Register as the owner of the legation premises.

Judges: Wagner, Dr. Schunck, Dr. Klaas, Henneka, Dr. Leibholz, Dr. Friesenhahn, Dr. Geiger, Dr. Federer, Dr. Kutscher

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