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Doc. 8176

16 July 1998

Former embassies of the Baltic states on the territory of some Council of Europe member states

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Göran Magnusson, Sweden, Socialist Group

Summary

      During or immediately after the Second World War four former embassies of the three Baltic states (Estonia, Latvia and Lithuania) in Paris and in Rome were turned over to the Soviet Union. They are now used by various diplomatic or consular services from Russia.

      Yet, from a legal point of view, these embassies are still the property of the three Baltic states, who cannot obtain their return through legal means because of the diplomatic immunity accorded to those who occupy the buildings.

      The embassies should now be returned to their rightful owners. Effective negotiations should be conducted between all parties concerned for the return of the embassies. The Committee of Ministers of the Council of Europe should play an active role in promoting these negotiations.

I. Draft recommendation

1.        As a result of the Second World War four former embassies of the three Baltic states (Estonia, Latvia and Lithuania) in Paris and in Rome were turned over to the diplomatic representatives of the Soviet Union.

2.        They are presently used by various diplomatic or consular services of the Federation of Russia.

3.        Legally speaking, these former embassies are still the property of the three Baltic states, who cannot obtain the return of the embassies through legal means because of the diplomatic immunity accorded to those who occupy the buildings.

4.        The Assembly is however of the opinion that these embassies should be returned to their rightful owners.

5.        It recalls its Opinion No. 193 (1996) on Russia's request for membership of the Council of Europe, in which it is stated, among other things, as a commitment of the Russian Federation "to settle rapidly all issues related to the return of property claimed by Council of Europe member states …".

6.        It urges all parties concerned to conduct effective negotiations to arrange for the return of the embassies.

7.        It recommends that the Committee of Ministers play an active role in promoting these negotiations and offer its good offices in this respect.

II. Explanatory memorandum by Mr Magnusson

A.       Introduction

1. After the Baltic states had been invaded by the troops of the Soviet Union in June 1940, diplomatic staff of the Baltic republics in some European countries were obliged to abandon their embassies. There are four former embassies of Estonia, Latvia and Lithuania, which have never been returned to their former – and in fact titular – owners and are still occupied by diplomatic or consular staff of the Russian Federation. Three of them are situated in Paris and one in Rome.

2. A motion for a resolution on this matter was tabled in 1994 (Doc 7119 rev) and referred to the Committee on Legal Affairs and Human Rights. The Committee first appointed Sir Peter Fry as its Rapporteur, but when Sir Peter left the United Kingdom Delegation I was appointed as his successor.

3. In the autumn of 1997 I prepared an introductory memorandum which was discussed by the Committee on Legal Affairs and Human Rights at its meeting on 15 December 1997. At that meeting, the Committee decided to transmit the memorandum, for their observations, to the parliamentary delegations of the countries concerned, ie the three Baltic states, France, Italy and the Russian Federation. They were given three months in which to reply. In response to this request the Committee received comments from the Estonian parliamentary delegation1, observations and updated observations from the Ministry of Foreign Affairs of Latvia2 and comments from the Lithuanian parliamentary delegation3, which were all reproduced as Committee documents and are available on request from the Committee's secretariat.

4.        When the three-month period had expired the Committee on Legal Affairs and Human Rights discussed the matter again in the light of the observations of the three Baltic states at its meeting in Munich on 23 March 1998. However, before taking any further action, it decided to ask the three other delegations once more for their comments. The reply from Mr Shokhin, Chairperson of the Russian Parliamentary Delegation, is appended, but the delegations of the two other countries concerned did not reply. The Committee on Legal Affairs and Human Rights then decided to proceed with the matter.

B.       Premises of the Estonian Embassy in France, 4 rue du Général Appert,

Paris 16e4

5. On 7 January 1936 the Estonian Ambassador in France, acting on behalf of the Republic of Estonia, purchased the building and land situated at 8 rue du Général Appert, Paris 16e. The full price of 1,000,000 French Francs was paid by the Ambassador on signing the contract. In the spring of 1937 reconstruction and refurbishment operations costing 500,000 French Francs were carried out. The entry in the Paris property register still names the Estonian legation as owner.

6.        In August 1940 when Paris was under German occupation and Estonia was annexed by the USSR, the Estonian Ambassador, at the request of the Vichy Government, handed over the keys of the Embassy at the Paris police headquarters. As from 24 August 1940, the Embassy of the USSR was already in possession of the building. In 1941 after war broke out between Germany and the USSR, the building was requisitioned by the German Embassy. Following the liberation of Paris, the Estonian legation building was returned to the Soviet Embassy in September 1944 by the French Ministry of Foreign Affairs.

7. The municipality of Paris issued the Embassy of the USSR with a demolition permit in 1978 and a building permit in 1979, and on the basis of the latter permit the trade delegation of the Soviet Embassy constructed a new residential block for its staff. In 1979 the Foreign Affairs Minister of the Estonian Government in exile lodged an official protest with his French counterpart. The Consul General of Estonia in the United States also sent an official memorandum in the same terms to the French Ambassador in Washington.

8. In 1990 a French member of parliament asked the French Foreign Affairs Minister to state his position regarding the Estonian Embassy. According to the Minister's reply given in 1991 (Journal Officiel 18.04.91, art. 13095), no transfer of ownership to the Embassy of the USSR had ever occurred in respect of the Estonian legation. Consequently, the demolition and building permits issued by the municipality of Paris entailed no change in the title to the land, which remained Estonian State property. The Minister also said in the aforementioned reply that the Estonian State authorities might claim compensation for the building.

9. The lawyers representing Estonia instituted court proceedings (in 1991) to demand the return of the building and have the occupancy of the Soviet Embassy services declared unlawful. The French courts refused jurisdiction and dismissed the case in 1994, invoking the immunity of the building in question from legal proceedings.

C. The building of the Latvian Embassy in Paris at 8 rue Prony

10. After World War II, the French Ministry of Foreign Affairs granted use of the Latvian Embassy Building at 8 rue Prony in Paris to the Soviet Union. There was no formal transfer of ownership. The Ministry of Foreign Affairs of the USSR attempted to sell the building or to give it away, but the French authorities blocked these transactions since the USSR, and later the Russian Federation, could not provide documents to prove ownership rights. Yet the USSR succeeded, in 1967, in having the property registered in the Paris cadastre as the property of the USSR. It is not clear how this could have been done without the required documents. In a letter dated 24 November 1994, to the Latvian Minster of Foreign Affairs, Mr Alain Juppé, who was then the French Minister of Foreign Affairs, wrote that "today Russia, like the USSR before her, can in no way rely upon a valid property title to the building of the former Latvian diplomatic mission." Since 1990, the building has been sublet several times and presently it houses the permanent mission of the Russian Federation to UNESCO and the archives of the Consulate.

11.        At the end of October 1995, during a meeting with President Yeltsin of Russia, President Chirac of France asked that this long-standing issue be resolved. Promises were made to resolve the issue. Whilst admitting that Russia does not have any ownership rights to this building, the French Ministry of Foreign Affairs holds the view that this issue should be resolved between the Republic of Latvia and the Russian Federation.

D.       The building of the Lithuanian Embassy in France, at 14 place du Général Catroux, Paris 17e

12.        On 27 July 1925, the Lithuanian Ambassador in France purchased the building at 14 place Malesherbes (now place du Général Catroux) and opened an embassy there. The purchasing contract of 1,500,000 French Francs was duly registered in the mortgage register in Paris. Lithuania paid the full price in four instalments, completing its payment in 1928.

13.        In August 1940, at the request of the Vichy Government, the keys of the Lithuanian Embassy were handed over to the municipality of Paris, which passed them on to the Embassy of the USSR. It was first used as a consulate and later as the office of ITAR-TASS press agency. In April 1994, the agricultural and food section of the Embassy of the Russian Federation was opened on the premises. Currently the building houses the information centre of the press agency “Ria Novosty” and the information service of the Russian Embassy.

14.        The USSR tried to sell the building in 1955, but failed since it did not have the necessary documents certifying its title thereto. In 1979, the General Tax Department of Paris notified it that payments for the use of the building should be paid by the institution which occupied the premises (ie the Soviet Consulate), yet it also confirmed that the last owner of the building registered in the mortgage books was the State of Lithuania and that the last entry was dated 27 July 1925.

15.        The Republic of Lithuania started legal proceedings claiming the property back on the basis of the existing documentation attesting its property rights. However, in his decision of 21 November 1994, the President of the Court of Appeal in Paris dismissed the case since a Russian diplomat who benefited from diplomatic immunity was in charge of the office located in the building.

E.        The Embassy of the Republic of Lithuania in Rome

16.        The Republic of Lithuania acquired the Villa Maria Luisa at 116 via Nomentana, in 1937. It paid part of the purchasing price directly to the vendors and borrowed the rest from a bank. In 1940, 44.6% of the full price had been paid. When Lithuania was occupied it was, of course, prevented from completing the payment and, following pressure from the Italian Government, the building was relinquished to the Italian Ministry of Foreign Affairs in 1940. There was no formal transfer. The building was then turned over to the Soviet Union, which paid two instalments to the bank, amounting to 4.3% of the purchasing price. In 1943, when further payments were suspended, a court in Rome ruled, at the request of the bank, that the building was to be sold to a real estate company. Then, in 1945, the Italian Government purchased the Villa Maria Luisa from this real estate company, after which the Ministry of Foreign Affairs of Italy gave the villa to the Soviet Union as “the successor State of the Republic of Lithuania”. The Soviet Union had to pay the outstanding mortgage sum. Apparently the Villa Maria Luisa is presently housing the consular section of the Russian Embassy.

17.        Since 1991, Lithuania has addressed the USSR and later the Russian Federation, concerning the ownership question of its embassy buildings in Paris and Rome. The issue has been repeatedly raised at meetings between the top officials of the two countries and in 1993 their prime ministers agreed to establish a special commission to resolve the issue. Regrettably, there has been no substantial outcome of these negotiations. Apparently, Russia maintains that Lithuanian property in Paris and Rome is subject to negotiations and makes its resolution conditional on other issues.

F. Some observations of a legal nature

18.        Legally speaking, there seems to be little doubt that the Baltic Republics remained proprietors of the buildings concerned. The inscriptions in the mortgage register in Paris clearly show who are the owners of the buildings and when they acquired them. Counterproof to such inscriptions in the mortgage register is only exceptionally admitted. Thus the ownership situation for the buildings in Paris is abundantly clear. In Rome, the legal situation of the Villa Maria Luisa is somewhat more complicated since the building was sold by a court order in 1943 and subsequently bought by the Italian State and given to the Soviet Union.

19.        One may regret that the President of the Paris Court of Appeal considered himself incompetent to deal with the matter, invoking the Vienna Conventions of 1961 and 1963 on diplomatic and consular relations, which grant legal immunity to buildings used for diplomatic or consular purposes. Admittedly, it would have been difficult for him to order the expulsion of a diplomatic mission, but he might at least have declared who is the rightful owner of the building. There is a problem here since it clearly shows that diplomatic immunity may run counter to the very fundamental rights of individuals and of institutions which our member States are bound to respect, not only in accordance with their own legislation, but also with the European Convention on Human Rights. In fact, the Convention, in its Article 1, provides that the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in the Convention. This Article applies to the protocols to the Convention as well. Thus, Article 1 of the First Protocol provides that

20.        The problem may exist with property rights, but also in respect of other fundamental rights and freedoms. Not so long ago, a foreign diplomat accredited in France exceeded speed limits at the Sea boulevard in Nice and killed two children. No criminal proceedings and no civil suit could be brought against the diplomat as long as he enjoyed diplomatic immunity. One had to wait for a decision of his government to waive his immunity before any legal action was possible. Of course, it seems unsatisfactory that one depends on the goodwill of a foreign State before anything can be done against diplomatic personnel who break the law. This is a problem which the Council of Europe may wish to tackle in the future.

G.       Other observations

21.        Although this report clearly expresses itself in favour of the return of the buildings to Estonia, Latvia and Lithuania, I am also convinced that the best way to do so would be in negotiations between each of these countries and the Russian Federation. There are practical and financial matters to be resolved. Given the fact that the Baltic Republics have regained their independence in 1991, it does not seem unfair if the Russian Federation were to pay a certain amount of rent over the years since then. On the other hand, the Baltic states might be asked to reimburse any substantial improvements which may have been made to the buildings by the Russian Federation.

22.        Lithuania only paid 44.6% of the sale price of its embassy in Rome. Should it pay the remainder to the Russian Federation? I do not think this would be fair in view of the fact that the Villa Maria Luisa was given to the Soviet Union by the Italian authorities and that it did not pay a single lira for the building. The principle that there should not be unjustified enrichment would apply.

23.        It is not up to the Assembly to prescribe how the negotiations we recommend should take place, but it seems desirable that they should deal with the return of the buildings and not include other questions which are still to be settled by the Baltic Republics and their eastern neighbour. If, by any chance, it were difficult to arrive at an agreement on any financial matter, the solution would be to ask for independent experts or to submit the case to arbitration.

24.        Bilateral negotiations timidly started between each of the three Baltic states and the Russian Federation, but, until now, very little progress was made. It would be useful if Russia were to show a little bit more goodwill in reaching satisfactory solutions. However, this report is of the opinion that France and Italy should also assume their responsibility in this matter and take an active part in finding solutions. Each of these countries has a certain responsibility in this matter, not only because the former embassies are situated on their territory, but also because of their interventions in handing the buildings over to the former Soviet Union. In this respect, it may be recalled that the French provisional government, in September 1944, took the decision to hand the Latvian Embassy to the USSR, even though it had been informed that its allies, the United Kingdom and the United States, were not prepared to hand over the properties of the Baltic states to the USSR. In this respect, France and Italy may be inspired by the solutions found by Finland, Germany, Poland and Estonia itself (in respect of a Latvian Embassy), which apparently found satisfactory solutions for the return of the former Baltic diplomatic property.5

H.        Conclusions

25.        This report arrives at the conclusion that the former embassies of Estonia, Latvia and Lithuania in Paris and Rome are still – legally speaking at least – the property of these three Baltic states, but that they cannot obtain the return of these embassies through legal means because the argument of diplomatic immunity was invoked for those who occupy the buildings. This argument was accepted by the courts and used by the authorities as an excuse for not intervening. However, these embassies should now be returned to their rightful owners. To this end, effective negotiations between the parties concerned should be conducted to arrange for the return of these embassies. The Committee of Ministers of the Council of Europe should play an active role in promoting these negotiations and offer its good offices in this respect.

26.        In the Assembly's Opinion 193 (1996) on Russia's request for membership of the Council of Europe it is stated:

Moreover, Mr Muehlemann, the Rapporteur of the Political Affairs Committee, in his explanatory report (Doc 7443, paragraph 99) wrote:

This is, of course, the aim of the present report.

APPENDIX I

Letter, dated 20 March 1998, from Mr Shokhin, Chairperson of the Russian parliamentary delegation to the Parliamentary Assembly of the Council of Europe,

to the Chairperson of the Committee on Legal Affairs and Human Rights

(unofficial translation)

…

Having familiarised myself with your letter and the memorandum of the Committee on Legal Affairs and Human Rights, I would like to share some considerations with you.

The problems related to diplomatic property of the Baltic states have been inherited by Russia from our common past with these countries and, as you will understand, are bilateral by character, In my view, such issues should be considered together with all the other financial and property issues within the relationship between Russia and the above-mentioned States.

Negotiations have started recently between Russia and Lithuania and other Baltic states, that may help bring positions together and find mutually acceptable solutions. We hope that the negotiation process will eventually succeed and that the solutions reached will be given an appropriate legal form by concluding inter-governmental agreements.

1.       Switzerland

On 14 June 1938, the Latvian Government bought a property in Switzerland at 5, avenue de la Paix in Geneva.

The Latvian Ambassador and Delegate to the League of Nations, Julijs Feldmans continued to serve in Switzerland until 31 December 1947. Switzerland only gave the USSR the property concerned in usufruct on 15 December 1947. In the early 1980s, the canton of Geneva authorised the Soviet Representation to build two additional buildings partially occupying the land belonging to Latvia. Thus, after Latvia became independent, it was impossible to recover the property.

Negotiations between Latvia and Switzerland on compensation started as early as 1991. Following lengthy negotiations, Switzerland agreed to buy back the building of the former Latvian Diplomatic Mission as compensation for the loss suffered by Latvia. In 1993, a group of independent experts valued Latvia’s property at CHF9,000,000.

On 16 February 1993, the Latvian Council of Ministers adopted Decree n°81 authorising the Latvian Ministry of Foreign Affairs to sell the property in Switzerland, in accordance with the agreement between the Latvian Ministry of Foreign Affairs and the Swiss Department of Foreign Affairs (protocol of the meeting of 28 January 1993). The contract of sale was signed in 1994.

Following the signature of the contract and in accordance with the said Decree of the Council of Ministers, Latvia received the following sums from the Swiss Government:

On 23 August 1993 – CHF2,500,000

On 10 June 1994 – CHF6,481,152,50 (after tax).

2.        Finland

In 1934, the Republic of Latvia bought a property in Helsinki at Armfeltintie 10 with a view to establishing its embassy there.

After the Second World War, the Finnish Government handed the building over to the USSR Embassy. In the 1960s, the USSR exchanged the building for land on which it built its economic mission. After this exchange, the building was used to house the Finnish Ministry of Education's Research Institute on Russian which vacated the premises in 1994.

On 18 November 1993 in Helsinki, the Finnish Minister for Foreign Affairs, Heikki Haavisto and the Latvian Minister for the Environment, Girts Lukins, signed a protocol of intent concerning the restitution of the building at Armfeltintie 10 to Latvia. This Protocol established that the Finnish Government would renovate the building at its own expense.

On 28 August 1995, the Finnish Minister for Foreign Affairs, Ms Tarja Halonen and the Latvian Minister for Foreign Affairs Mr Valdis Birkavs signed an Instrument restituting the building, which provided that the property would be restituted to Latvia without compensation or restrictions on use.

3.       Estonia

In 1930, the Republic of Latvia bought a property in Tallinn at Tonismagi 10, with a view to establishing its embassy there.

Following the restoration of independence, the Latvian and Estonian Ministries of Foreign Affairs signed an agreement on 2 December 1992 on the mutual renewal of property rights over their former buildings in Riga and Tallinn.

On 29 December 1992, the Estonian Government legally transferred the building in Tallinn at Tonismagi 10 to the Latvian Republic. The last tenants vacated the building in June 1994.

4.       Germany

After the First World War, the Republic of Latvia purchased land in Berlin at Burggrafenstrasse 13.

PROPERTIES CURRENTLY BEING RECOVERED

1.       Poland

On 21 March 1923, the Republic of Latvia bought a property in Warsaw, with a view to establishing its Embassy there. Following Latvia’s incorporation into the USSR, this property was re-registered in the name of the USSR on 13 January 1940. In 1944, during the Warsaw uprising, the Latvian Embassy building was destroyed but in 1945 the land concerned was nationalised. In the 1950s, this land belonging to Latvia was built on.

In its Memorandum n° 15 of March 1994, the Ministry of Foreign Affairs announced that the municipality of the city of Warsaw had granted the Republic of Latvia land in compensation for the building on the former Embassy site.

Attribution of this land is currently under way.

Reporting committee: Committee on Legal Affairs and Human Rights

Budgetary implications for the Assembly: none

Reference to committee: Doc 7119, Reference No 1961 of 5 September 1994

Draft recommendation adopted unanimously by the Committee on 23 June 1998 with one abstention

Members of the Committee: MM Hagĺrd (Chairperson), MM Schwimmer, Bindig, Jansson (Vice-Chairpersons), Mrs Aguiar, MM Akçali, Arzilli, Bartumeu Cassany, Besostri, Bulic, Clerfayt, Columberg, Contestabile, Dees (alternate: Jurgens), Demetriou, Mrs Dumont, MM Enright, Eörsi, Fogaš, Forni (alternate: Bordas), Mrs Frimansdóttir, MM Frunda, Fuhrmann, Fyodorov, Mrs Gelderblom-Lankhout, Ms Jäätteenmäki, MM Jaskiernia, Jeambrun, Kelam, Kelemen, Lord Kirkhill (alternate: Ms Cryer), MM Kostytsky, Mrs Krzyzanowska, MM Loutfi, Magnusson, de Marco, Martins, Marty, McNamara, Micheloyiannis, Moeller, Mozetic, Nastase, Pantelejevs, Pavlov, Mrs Plechatá, Mrs Pobedinskaya, MM Pollo, Polydoras, Poppe, Rippinger, Robles Fraga, Rodeghiero, Simonsen, Solé Tura, Solonari, Staciokas, Lord Steel, MM Sungur, Symonenko, Tahiri, Vishnyakov, Vyvadil, Weyts, Wittmann, Mrs Wohlwend.

N.B. The names of those members who took part in the vote are printed in italics.

Secretaries to the Committee: Mr Plate, Ms Coin and Ms Kleinsorge

1 AS/Jur (1998) 14.

2 AS/Jur (1998) 13 and 21.

3 AS/Jur (1998) 28.

4 This information was taken entirely from the comments by the Estonian parliamentary delegation on the introductory memorandum which was reproduced as AS/Jur (1997) 52.

5 See Appendix II on information provided by the Ministry of Foreign Affairs of Latvia on the recovery of property belonging to the Republic of Latvia abroad.