General List No. 49 and 55

 4 February 1933

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Twenty-Sixth (Extraordinary) Session

 

Case concerning the Administration of the Prince Von Pless (Preliminary Objection)

 

Germany v. Poland

Order

 

BEFORE:

President:

Adatci

Vice-President:

Guerrero

Judges:

Baron Rolin-Jaequemyns, Count Rostworowski, Fromageot, Anzilotti, Urrutia, Sir Cecil Hurst, Schücking, Negulesco, Jhr. Van Eysinga, Wang

    

Perm. Link:

http://www.worldcourts.com/pcij/eng/decisions/1933.02.04_prince_von_pless.htm

  

Citation:

Administration of the Prince Von Pless (Germ. v. Pol.), 1933 P.C.I.J. (ser. A/B) No. 52 (Order of Feb. 4)

Publication:

Publications of the Permanent Court of International Justice Series A./B. No. 52; Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1933.

  

 


  

[p11] The Permanent Court of International Justice,

composed as above,
after deliberation,
having regard to Articles 40 and 48 of the Statute,
having regard to Articles 33, 35, 38 and 40 of the Rules of Court,

Makes the following Order:

WITH REGARD TO THE PRESENT POSITION OF THE PROCEEDINGS:

[1] Whereas, by an Application dated May 18th, 1932, and transmitted to the Registrar of the Court in a letter from the German Minister at The Hague of the same day, the Government of the German Reich brought before the Permanent Court of International Justice a suit against the Government [p12] of the Republic of Poland, founded on an alleged violation by the Polish Government of certain obligations incumbent upon that Government under the Geneva Convention of May 15th, 1922, concerning Upper Silesia, in regard to the Administration of the Prince von Pless, a Polish national belonging to the German minority in Polish Upper Silesia

[2] Whereas in its Application, to which various annexes were appended, the German Government formulates the subject of the dispute in the following submissions:

"May the Court be pleased .... to give judgment....

(1) that the attitude of the Polish Government and authorities towards the Pless Administration in the matter of income taxes for the fiscal years 1925-1930 - especially as regards the application of the procedure by default, the accumulation of the amounts due over several fiscal years, the interpretation and application of the provisions concerning depreciation and the non-taxation of charges relating to the acquisition, maintenance and security of revenue, together with the revaluation of items in the balance sheets - is in conflict with Articles 67 and 68 of the Geneva Convention;
(2) that acts of the fiscal authorities in conflict with the aforementioned provisions are, according to Article 65 of the Geneva Convention, null and void;
(3) that the Polish Government is bound to indemnify the Prince von Pless for the damage resulting from the attitude referred to in (2) above, and that the applicant Government shall subsequently be given an opportunity of stating the figure claimed for this indemnity;
(4) that the Pless Administration enjoys full liberty to appoint its employees and workmen, regardless of race and language, without being exposed in this connection to any pressure whatever from the Polish Government and authorities";

[3] Whereas the time-limits for the presentation of the documents of the written proceedings were, after successive extensions, fixed so that the period allowed to the German Government for the presentation of its Case expired on July 22nd, 1932, and the period allowed to the Polish Government for the presentation of its Counter-Case expired on October 10th, 1932;

[4] Whereas the German Government duly filed its Case within the prescribed time ; and whereas, at the request of the Court, it also submitted a series of additional documents in support of the Case; but whereas the said Case merely refers back to the Application and does not, as required by Article 40 of the Rules, formulate the submissions of the German Government;

[5] Whereas, by a document, accompanied by a Preliminary Counter-Case, filed with the Registry on October 8th, 1932, [p13] the Government of the Polish Republic raised, under Article 38 of the Rules, a preliminary objection to the German Government's Application, submitting that the Court should "declare the German Government's Application inadmissible";

[6] Whereas, in view of the preliminary objection of the Polish Government, the Court fixed October 31st, 1932, as the date by which the German Government might present its observations and conclusions in writing in regard to the said objection ;

[7] Whereas, on October 31st, 1932, the German Government filed a statement, asking the Court to "overrule the objection raised by the Polish Government; to declare the Application admissible ; and to retain it for judgment on the merits" ;

[8] Whereas, on November 7th, 9th, 10th and nth, 1932, at public sittings of the Court, Professor Dr. Erich Kaufmann, the Agent appointed by the German Government, M. Th. Sobolewski, Principal Legal Adviser to the Polish Department of State Litigation, Agent appointed by the Polish Government, and Professor Gaston Jéze, Counsel for the Polish Government, presented oral arguments on behalf of the respective Parties upon the above-mentioned preliminary objection;

AS REGARDS THE PRELIMINARY OBJECTION:

[9] Whereas the German Government, in instituting the present proceedings, has founded itself on Article 72, paragraph 3, of the Convention of Geneva, by which Poland agrees that any difference of opinion as to questions of law or of fact arising out of the preceding articles between the Polish Government and any one of the Principal Allied and Associated Powers, or any other Power, a Member of the Council of the League of Nations, shall be held to be a dispute of an international character under Article 14 of the Covenant of the League of Nations; and agrees that any such dispute shall, if the other Party thereto demands, be referred to the Permanent Court of International Justice;

[10] Whereas the preliminary objection filed by the Polish Government under Article 38 of the Rules of Court, submitting that the Court should declare the German Government's Application inadmissible, is based on the reasons set forth in the Preliminary Counter-Case which accompanied the said objection;

[11] Whereas the Polish Government maintains, in the first place, that between the German and Polish Governments there exists no difference of opinion within the meaning of Article 72, paragraph 3, of the Geneva Convention;

[12] Whereas, in order to determine whether such a difference does or does not exist, it is necessary to determine what is [p14] the subject of the dispute ; whereas, under Article 40 of the Statute, it is the Application which sets out the subject of the dispute, and the Case, though it may elucidate the terms of the Application, must not go beyond the limits of the claim as set out therein;

[13] Whereas, in submission No. 1 of its Application instituting proceedings, the German Government enumerates certain acts for which it alleges that the Polish Government is responsible, and which, in the German Government's view, constitute an attitude on the part of the Polish Government and authorities towards the Administration of the Prince von Pless inconsistent with Articles 67 and 68 of the Geneva Convention ; whereas, however, the said enumeration, which is prefaced by the word "especially", is not exhaustive in character, and does not purport to be complete;

[14] Whereas, on the other hand, in submission No. 4 of the Application, no specific act is indicated as constituting a violation of the Geneva Convention ; whereas an examination of the German Application raises the question what is the relation between submission No. 4 and submissions Nos. 1 to 3 of the Application, and, in particular, whether the said submission No. 4 is intended to refer to the same acts as those envisaged in submission No. 1 ; and whereas this point may be of considerable importance in determining the existence and scope of a difference of opinion between the two Governments within the meaning of Article 72, paragraph 3, of the Geneva Convention ;

[15] Whereas, moreover, the Polish Government maintains that the acts mentioned in submission No. 1 of the Application relate only to a dispute between the Polish Treasury and the Prince von Pless as a tax-payer; whereas it states that it is in agreement with the German Government as regards the principle enunciated in submission No. 4 and denies that that principle has been violated or disregarded by it; whereas, on the other hand, the German Government appears to regard the acts mentioned in submission No. 1 as means used by the Polish Government of bringing unlawful pressure to bear upon the Prince von Pless ; and as, accordingly, the question whether there is a difference of opinion, within the meaning of Article 72, paragraph 3, of the Geneva Convention, appears to be inextricably bound up with the facts adduced by the Applicant and can only be decided on the basis of a full knowledge of these facts, such as can only be obtained from the proceedings on the merits;

[16] Whereas the German Government, in submission No. 3 of its Application, asks the Court to decide that the Polish Government is bound to indemnify the Prince von Pless for the [p15] damage resulting from the attitude referred to in submission No. 2 and asks to be given at a later date an opportunity of stating the figure claimed for this indemnity;

[17] Whereas the claim thus made raises a question regarding the Court's jurisdiction, and as this question is connected with another, namely, whether, on the basis of Article 72, paragraph 3, of the Geneva Convention, a State, in its capacity as a Member of the Council, may claim that an indemnity be awarded to a national of the respondent State, who is a member of a minority; and as the latter question— which the Court feels called upon to raise proprio motu - concerns the merits, the Court cannot pass upon the question of jurisdiction until the case has been argued upon the merits;

[18] Whereas the Polish Government maintains, in the second place, that the Application is inadmissible so long as the Prince von Pless has not exhausted the means of redress open to him under Polish law;

[19] Whereas, in support of the complaints lodged by the German Government against the Polish Government, a number of decisions given by the Polish authorities against the Prince von Pless relating to taxes payable by him are cited;

[20] But whereas no final decisions have been given;

[21] Whereas, in fact, on February 3rd and 4th and May 10th, 12th and 14th, 1930, the Prince von Pless appealed to the "Revising Commission" against the amounts of tax for which he had been assessed for the years 1925-1929 by the authority of first instance (the "Assessment Commission"); and as the decisions of the Revising Commission were given on July nth and 14th, November 14th and 15th, and December 20th, 1930;

[22] Whereas, by a decree of August 21st, 1931, the Polish Minister of Finance "annulled the decisions of the Revising Commission whose duty it was to examine the question of the Prince von Pless's income-tax for the years 1925-1929"1 and "ordered a further enquiry with a view to modifying certain figures which had previously been included in the list of taxable income";

[23] Whereas new decisions by the Revising Commission upon the appeals of the Prince von Pless against his assessments by the Assessment Commission for 1925-1929 were given on March 10th, 1932 ; whereas, on April 19th, 20th, 26th and May 9th and 10th, 1932, the Prince von Pless appealed to the Supreme Polish Administrative Tribunal against these decisions; [p16]

[24] Whereas the German Government maintains that the rule as to the exhaustion of internal means of redress does not apply in this case;

[25] Whereas the German Government intends to rely on certain alleged violations of the Polish fiscal laws, and as it is these violations which have caused the Prince von Pless to bring the appeals above mentioned;

[26] Whereas the Court does not consider it necessary to pass upon the question of the applicability of the principle as to the exhaustion of internal means of redress in the present Order since, in any event, it will certainly be an advantage to the Court, as regards the points which have to be established in the case, to be acquainted with the final decisions of the Supreme Polish Administrative Tribunal upon the appeals brought by the Prince von Pless and now pending before that Tribunal; and as the Court must therefore arrange its procedure so as to ensure that this will be possible;

[27] Whereas it is desirable that the Agent for the Polish Government should be enabled, when preparing his Counter-Case on the merits, to take these final decisions into account;

[28] Whereas, however, the foregoing must not be allowed to interfere with the operation of the provisions of Part III, Head I, of the Geneva Convention;

[29] Whereas, accordingly, the German Government - the Applicant - must be given an opportunity of submitting to the Court that there has been an unwarrantable delay by the Supreme Polish Administrative Tribunal in rendering these decisions - though the Court will reserve judgment upon this point until after it has heard argument by the two Parties;

[30] THE COURT,

(1) joins the preliminary objection raised by the Polish Government to the merits of the suit concerning the Administration of the Prince von Pless in order to pass upon the objection and, if the latter is overruled, upon the merits, by means of a single judgment;
(2) raises proprio motu the question whether the Court has jurisdiction to entertain a claim for an indemnity put forward by a State, in its capacity as Member of the Council, on the basis of Article 72, paragraph 3, of the Geneva Convention, on behalf of a national of the respondent State who is a member of a minority;
(3) fixes as follows the time-limits for the filing of the documents of the written proceedings on the merits:

(a) for the filing of the Counter-Case by the Polish Government : August 15th, 1933; [p17]
(b) for the filing of the Reply by the German Government: September 15th, 1933;
(c) for the filing of the Rejoinder by the Polish Government : October 15th, 1933;

(4) decides that, should the Agent for the Polish Government ask - in conformity with Article 33 of the Rules - for an extension of the time-limits fixed under (3), on the ground that the Supreme Polish Administrative Tribunal has not, by July 1st, 1933, pronounced judgment upon the appeals of the Prince von Pless filed on April 19th, 20th and 26th and May 9th and 10th, 1932, it will give effect to such request and fix new time-limits;
(5) decides that, should the Agent for the German Government, after July 1st, 1933, and having regard to any request for an extension made by the Polish Government's Agent, submit a request for the fixing of time-limits based on the contention that there has been an unwarrantable delay in the delivery of the said decisions by the said Supreme Tribunal, and that this is calculated to prejudice the proper operation of the provisions of Part III, Head I, of the Geneva Convention, it will, notwithstanding the decision recorded under (4) above, consider such request after duly hearing both Parties.

[31] Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this fourth day of February, one thousand nine hundred and thirty-three, in three copies, one of which shall be deposited in the archives of the Court and the others transmitted to the Government of the German Reich and to the Government of the Polish Republic respectively.

(Signed) M. Adatci,
President of the Court.
(Signed) Å. Hammarskjöld,
Registrar of the Court.


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