The Contemporary Right to Property Restitution in the Context of Transitional Justice.
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Written by Rhodri C. Williams for the International Center for Transitional Justice
May 2007
OCCASIONAL PAPER SERIES
 
Contents
The Contemporary Right to Property Restitution in the Context of Transitional Justice
Executive Summary
I.  Introduction                                                                          1
II. Evolving Understandings of Property Restitution in International Law                  1
    A.  Human Rights and the Obligation to Provide Remedies to Individuals                3
    B. Property Restitution as a Remedy for Displacement                                  5
III. Contemporary Restitution Practice                                                   11
    A. The Czech Republic                                                                11
    B. South Africa                                                                      23
    C.                                                                                   33
    D.                                                                                   41
IV. Conclusions                                                                          47
    A. Relationship of Restitution to Transitional Reparations and Land Reform           47
    B. Rationalizing Restitution—Remedies and Durable Solutions                          49
    C. Procedural Considerations                                                         51
    D. Substantive Considerations                                                        52

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III.CONTEMPORARY RESTITUTION PRACTICE
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A. The Czech Republic (case study)
 
Czechoslovakia was one of a number of states in the former Soviet Bloc that chose property restitution  programs  as  integral  components  of  their  transition  from  socialism  and  planned economies to liberal democracy and market capitalism. While the process began prior to the peaceful dissolution of the Czech and Slovak Federal Republic (CSFR) in 1992, its two successorstates—the  Czech   Republic  and   Slovakia—both arried on with restitution   programs. Restitution in the Czech Republic has been greatly complicated by a number of factors, including a high number of potential claimant groups, the passage of time since the bulk of the impugned confiscations, and the sensitive political considerations that have, far more than any concept of individual rights, dictated which groups have benefited and which groups have been excluded. Restitution in the Czech Republic has been largely successful in terms of its domestic political symbolism, as a redistribution of societal goods concretizing rejection of the communist past through the partial reconstitution of the property relations that preceded it. However, the selective nature of this process dictated that actual remedies were not provided on an equal basis to all similarly situated victims of displacement. Phrased in the language of justice (if not rights) and deeply ideological at heart, Czech restitution represents a transition between old concepts of restitution as a discretionary option of sovereign states and the new concept of restitution as an individual remedy.
 
At the time of the collapse of communism in 1989, at least three significant groups of victims existed with cognizable restitution claims derived from different periods of the Czech Republic’s prior history. The earliest claims in time belong to the Jewish victims of persecution under Nazi Germany’s 1939–1945 occupation of the  Czech lands. During this period, Czech Jews  were placed under German jurisdiction, and their homes, businesses, and communal property were confiscated and turned over to ethnic Germans. As a result, Jewish properties would later be lumped in with the bulk of German properties confiscated by the Czechoslovak state in the course of  its  expulsion  of  German  minority  communities  at  the  end  of  World  War  II. With  the communist  takeover  of  Czechoslovakia  in  February  1948,  the  trend  towards  nationalization increased and the confiscation of Jewish properties became effectively permanent.
 
The second set of restitution claims against the Czech Republic stem from its post-war expulsion of long-settled German minority communities, collectively referred to as the Sudeten Germans. During a three-year period in the wake of World War II, nearly three million Sudeten Germans were  systematically  expelled  from  Czechoslovakia,  losing  their  land  and  property  without compensation. The Sudeten German territories had been involuntarily incorporated in the new state of Czechoslovakia after World War I. Resulting grievances were exploited by Adolf Hitler in  securing  the  1938  Munich  Agreement,  which  shifted  Czechoslovakia’s  borders  to  place Sudeten German areas within the German Reich and set the stage for Hitler’s 1939 occupation of the remaining Czech lands. Although the Sudeten Germans by no means uniformly supported Hitler  or  union  with  Nazi  Germany,  they  were  perceived  as  a  fifth  column  by  the  Czech government-in-exile, which successfully lobbied during the war for revocation of the Munich Agreement and the eventual expulsion of the Sudeten Germans.
 
At the end of the war, the Allied powers requested the Czechoslovak authorities to allow the “orderly  and  humane”  transfer  of  ethnic  Germans  to  Germany. Initially,  however,  tens  of thousands  of  “wild  expulsions”  of  Germans  took  place  in  conditions  of  chaos  and  frequent brutality. By 1946,   “orderly   resettlement” procedures were instituted, with   German communities forced to leave all but a small allowance of personal baggage behind and transported by freight train to Germany. The Sudeten expulsions appeared to violate the international law prohibitions against deportations that were contemporaneously enforced against Nazi officials during the Nuremburg Trials. Nevertheless, they were undertaken with the blessing of the Allies and in accordance with a series of decrees issued by post-war President Edvard Beneš. With the communist takeover of Czechoslovakia in 1948, all hope of redress for the Sudeten Germans would recede for four decades, until the “Velvet Revolution” of 1989 created a new opportunity for the assertion of their historical claims.
 
A  third category of  restitution claims  derives  from  extensive  expropriations  of  property undertaken by the communist authorities after their takeover of Czechoslovakia in 1948. The first and most familiar group of claims in this category involves property transferred from individual to state ownership as part of post-war nationalization policies. Czechoslovakia was generally seen as going farthest among the Soviet bloc states in terms of nationalizing property and restricting private ownership. As a result, by 1989, the state owned or controlled nearly all real property. In practice, nationalization tended to be undertaken against inadequate compensation or none at all, and with little recourse available to those affected. In many cases, property was expropriated in violation of existing law at the time. However, even under these circumstances, such acts of nationalization were not necessarily prohibited by international law. As discussed above, the traditional  rules  on expropriation  focused  on the  protection  of  non-nationals, allowing  states broad  discretion  to  take  their  own  citizens’  property  as  they  saw  fit.  Even  from  a  moral perspective, absent persecutory intent, nationalization was not a categorical wrong:
 
For such great historical wrongs as slavery and genocide, the normative premises are clear—these acts were profound violations of the dignity of persons—and the appropriate response a generation later…must include a dose of moral horror. The same is true for some  particular  expropriations, those  punishing the  exercise of  basic  rights that any legitimate regime must respect.  But  responding  to  the  systematic  expropriations undertaken as part of the socialist project has to involve a different tone and set of premises,  seeing  them  as  failed  and  humanly  costly  political  mistakes,  but  not  as crimes.
 
A second category of property takings carried out by the communist authorities did have a more obviously persecutory or at least punitive intent. These involved the confiscation of the homes and  possessions  of  expatriates.  Prior  to  1989,  defectors  from  the  CSFR  faced  in  absentia prosecution, with penalties including jail terms and the confiscation and sale of their properties. Nevertheless,  between  1948  and  1989,  some  500,000  people  illegally  left  Czechoslovakia. Unlike nationalization programs, the bulk of which were implemented in the decades after World War II, punitive confiscations of property continued to be exacted against expatriates through the end of the communist period.
Although  there  are  important  distinctions  between  the  above  four  categories  of  restitution claimants—Jewish  victims  of  the  Nazis,  expelled  Sudeten  Germans,  Czechs  impacted  by nationalization and expatriates—a  common thread uniting most of their claims has  been  the passage of time. By 1989, the bulk of claims for property taken through nationalizations and punitive confiscations related to events that had occurred as long as twenty years ago. Meanwhile, the Sudeten German claims were over forty years old and most Jewish claims up to fifty years old. In other words, most property claims were related to consequences of actions that either predated forty years of communism or that had occurred during the first half of the communist period, a generation prior to the Velvet Revolution. In this sense, restitution claims on the post-communist Czech regime represented a demand for “intergenerational” redress, as distinguished by Steinberg from conventional transitional justice in the immediate aftermath of human rights violations.
 
As a result of the passage of time, the assertion of intergenerational restitution claims presents particular  challenges.  First,  parties  and  witnesses  to  such  proceedings  may  have  died  and evidence been lost or obscured. Second, giving effect to such claims inherently gives rise to legal uncertainty by revisiting long-settled acts. In the case of restitution, even where the original expropriation may have been unjust, the fact that others have used or even owned the property for decades gives rise to legal interests on their part that must be taken into account. Finally, in the Czech Republic, the specific time period when many of the impugned property takings occurred was prior to the general acceptance of international human rights law. As a result, such takings did not clearly breach Czechoslovakia’s international obligations at the time and do not clearly oblige  reparation  now.  The  only  area  of  intergenerational  restitution  clearly  governed  by contemporary  human  rights  law  is  the  requirement  of  fairness  and  equal  treatment  in  any contemporary restitution procedures that governments voluntarily provide.
 
In the case of the Czech Republic, this dynamic is illustrated by the approach taken by the pre-eminent regional adjudicator of human rights, the European Court of Human Rights, to restitution complaints. One of the fundamental jurisdictional rules of the Court is that it may only consider complaints regarding acts or omissions of a respondent state that took place or continued after the date upon which that state acceded to the ECHR. This rule of jurisdiction “rationae temporis” reflects  the  Court’s  obligation  not  to apply the  ECHR  retroactively.  As  the  Czech  Republic acceded  to  the  ECHR  in  1992,  direct  challenges  to  any  property  takings  before  1989  are presumptively inadmissible. The Czech Republic is, of course, bound by broader provisions of international law than the ECHR alone. However, most questionable confiscations in the Czech Republic also predated jurisdiction of bodies such as the UN Human Rights Committee, which hears  individual  complaints  under  the  ICCPR. As  a  result,  the  Committee  does  not  have jurisdiction to examine past confiscations of property, but has issued a number of “views,” or decisions, finding that the exclusion of certain classes of claimants from restitution programs violates the right to equal protection of the law under Article 26 of the ICCPR. However, because Czech constitutional law only recognizes the European Court of Human Rights as an “international court” whose decisions must be given effect, Czech courts have considered the Committee’s views but often rejected its findings.
 
The uncertain applicability of contemporary human rights standards to intergenerational property takings left the Czech authorities with a great deal of discretion to define restitution according to political criteria. The choices ultimately made reflect the shift in power relations and ideology brought about by the 1989 Velvet Revolution. This transitional moment began with the sudden collapse of a widely reviled communist regime.
As in the rest of the region at the time, the absolute rejection of communism created a chance for a prospective redefinition of the Czech political community in the guise of a “return” to bourgeois nationalism, democracy, and market capitalism:
 
The similar political developments…in the region pointed to a regional historical revival aimed at recovering Communist expropriations in the name of the “people” rather than at rectifying  human  rights  abuses….[Resulting  restitution  policies]  privileged  a  specific ethnic group or rewrote the “traditional” national composition of the region so as to reflect the current middle class as liberating the “people” and “returning” the country to its historical pre-Communist status quo ante, its idealized past.
 
The redistributive aspect of restitution in this context is significant. As Barkan points out, the process involved taking property from many people who felt they had acquired it legitimately and restoring it to the pre-communist elite, rather than distributing it evenly for the good of all. On the other hand, restitution did promise to keep property out of the hands of discredited former communists  and  mistrusted  diaspora  groups  abroad. In  a  similar  vein,  Eastern  European restitution  also  tended  to  be  implemented  in  a  manner  that  consolidated  ethnic  identity  by excluding minorities. Finally, restitution was often cast as “re-privatization” and treated as a component  of  the  liberal  economic  reforms  espoused  by  most  East  European  countries. However,  credible economic arguments against  restitution existed  as  well,  reinforcing  the primacy of politics in the decisions ultimately taken in many Eastern  European  countries to restitute.
 
Against  this  background, restitution  proceeded in the Czech Republic on an extensive  scale relative to other Eastern European states. The most important restitution laws were passed prior to the dissolution of the CSFR, beginning with the October 1990 “Small Restitution Law,” a limited intervention that reversed a particularly lawless wave of early nationalizations. The substance of the Czech restitution program came with the “Large Restitution Law” and the “Federal Land Law,”  both  passed  in  1991. The  Large  Restitution  Law  permitted  claims  to  real  property appropriated by the communists, amounting to as much as ten percent of overall state property. The Land Law created a similar cause of action for rights in agricultural and forest land alienated by the communists, affecting as many as 3.5 million titleholders. Both laws swept widely, allowing restitution in cases of both formal nationalizations in accordance with then-valid law and less formal confiscations.
 
In defining the scope of Czech restitution, these two laws set two important parameters. First, both laws included a “cut-off date” of February 25, 1948, the date the communists formally took power. As a result, all claims related to confiscations before this date were excluded, including those of the expelled Sudeten Germans and Jewish victims of Nazi persecution. A second important limitation was the requirement that claimants be both citizens and permanent residents of the Czech Republic, a provision that excluded virtually all expatriate victims of communist confiscations. In the context of their time, these laws were notable both for their generosity to the many eligible claimants they admitted, and for their harshness to the large classes of potential claimants they excluded. However, the CSFR Parliament left little in the way of reasoning for the choices it had made, noting blandly that the laws represented their “attempt to redress the results of certain property and other injustices arising in the period from 1948 to 1989, aware that these injustices cannot ever be fully compensated for….”
 
The  laws  balanced  the  relationship  between  former  and  subsequent  owners,  with  claimants entitled to either restitution or compensation depending on the nature of subsequent use of the property. Subsequent  purchasers  were  protected  from  loss  of  claimed  property  unless demonstrated to have acquired the property illegally or through personal involvement in the persecution of the former owners. Other properties exempt from in-kind restitution include those substantially altered or destroyed, those owned by foreign states or companies, and those used for public purposes. In addition, tenants living in restituted apartment buildings were protected from eviction or rent increases.
The procedures for Czech restitution were highly decentralized and informal, with claims initially made in writing to the current occupants of claimed properties and referred to local courts if terms could not be agreed. As a result, lack of accurate aggregate information about the process was a problem from the beginning. Nevertheless, restitution was deemed largely completed by 1993, having  affected  “roughly  10  percent  of  the  dwelling  stock,  mainly  in  the  central  parts  of towns.” However, several  hundred  disputed  cases  endured  ten  years  later, with  the  Czech authorities  still  unable  to  provide  reliable  statistics  regarding  the  overall  outcome  of  the process. As  a  result,  public  perceptions  of  Czech  restitution  have  often  been  formed  by controversies related to the groups excluded from restitution, rather than the progress of those entitled to claim. The  most rancorous of these debates has been that over the claims of the Sudeten Germans.
 
A distinctive feature of the Sudeten German claims is their explicit articulation of restitution as a means of facilitating their own intended mass return. Their claim is explicitly to “restore the pre-war situation.” On the other hand, Sudeten German organizations have shown insensitivity to  Czech  grievances  arising  from  the  complicity  of  many  Sudeten  Germans  in  the  Nazi occupation.
These missteps have aggravated a Czech tendency to view the proposed return of Sudeten Germans as a re-imposition of the dangerously unstable conditions of ethno-political conflict that resulted in World War II. These arguments invert the corrective justice rationale typically given in favor of mass return by implying that the pre-expulsion status quo (of what we would  today  call  multi-ethnicity)  was  too  dangerous  to  risk  reinstating. This  viewpoint  was perhaps best expressed in a 1995 speech by then-Czech President Vaclav Havel. While Havel acknowledged the expulsions as a historical wrong, the Sudeten Germans who supported union with Nazi Germany are described as having “turned not only against their fellow citizens, against Czechoslovakia as a state…they turned against humanity itself.” Having established the threat to the past Czechoslovak state from nationalist minorities, Havel goes on to rule out any form of redress by the modern Czech state on the basis that it would risk opening itself up to the same dangers again:
 
If we were to transplant ourselves into our past history forever and existentially identify ourselves with it, we would lose the ability to look at it from a distance, to judge it with the due sense of responsibility and to learn from it. In the end, such a complete self-transplantation  into  the  past  would  amount  to  a  specific  way  of  restoring  the  tribal concept of nation….We know full well what the ultimate product of this concept is: the principle  of  a  never-ending  circle  of  blood  feuds  which  again  and  again  drives generations  of  grandchildren  to  punish  other  grandchildren  for  wrongs  done  by  the grandfathers of the latter to the grandfathers of the former.
 
Havel  concludes  by  welcoming  expellees  to  return  as  “guests  who  esteem  the  lands  where generations of their forefathers once lived,” but rejects their restitution claims as “an effort to set the vicious circle of tribal retaliation in motion again.” The terms of President Havel’s political rejection of restitution are mirrored in a Czech Constitutional Court judgment, adopted one month later, which legally dispensed with Sudeten German claims once and for all. In addressing a challenge  to  the  post-war  “Beneš  decree”  on  confiscation  of  German  property,  the  Court attributes  collective  responsibility  to  the  Sudeten  German  minority  for  having  by  and  large supported  union  with  Nazi  Germany  in  the  1930s  despite  “its  already  overt  totalitarian character.” Referring  to  the  extraordinary  threat  of  totalitarianism,  the  Court  justifies “extraordinary legislative measures,” such as the expulsions as a defence of human rights:
 
[The decree] is a sanction aimed at ensuring the function and purpose of human rights and freedoms, their constructive contribution to society, and the deepening of the sense of responsibility. After the Nazi occupation had ended, it was necessary to restrict the rights of the then Czechoslovak citizens, not due to the fact that they championed a differing position,  rather  due  to  the  fact  that…their  position  was  hostile  to  the  essence  of democracy and its system of values….
 
In this context, the Court implicitly rules out contemporary restitution for the Sudeten Germans on the same basis as President Havel, namely the Czech Republic’s “interest in doing away with further  possible  recurrences  of  analogous  historical  situations…” to those that led  to  Nazi occupation. In  the  final  paragraphs  of  its  judgment,  the  Court  refers  to  the  least  legally disputable argument in defence of the confiscations, namely that international law at the time of these acts placed few restrictions on the discretion of states to appropriate private property, and that  the  confiscations  were  instantaneous  acts  rather  than  continuing  violations  subject  to contemporary scrutiny. While this argument is morally debatable but legally well founded, the Court’s more central inference that the return of Sudeten Germans might trigger a recurrence of totalitarianism is less convincing. As such, the Court’s decision does little to dispel accusations that the maintenance of  ethnic purity achieved in the  wake of  World  War II had become a “formative political consideration” for post-communist Eastern European countries such as the Czech  Republic. Perhaps  most  damaging,  attempts  to  exalt  the  post-war  confiscations  as morally imperative conduct (instead of simply accomplished legal facts) have perpetuated the demonization of the Sudeten Germans, reducing the political space for reconciliation through symbolic acts such as nominal compensation or prospective repeal of the Beneš Decrees.
 
The fear of real or imagined threats to the integrity of the Beneš Decrees has cast a shadow over other claimants than the Sudeten Germans. The most obvious example has been with regard to Jewish  claims  for  restitution  of  property  expropriated  by  the  Nazis  which,  like  the  Sudeten German claims, were pre-empted by the 1948 restitution cut-off dates. In this case, returning the relatively small number of claimed Jewish properties promised to yield a high anticipated “moral payoff” in terms of international public opinion. A legal formula was arrived at by April 1994 allowing a limited exception to the cut-off date for “claimants who lost property under the racial laws enacted by Nazi Germany between 1939 and 1945.” The Beneš Decrees have also been invoked with regard to the restitution claims of the traditional Czech nobility. The confiscation of aristocratic estates after World War II often included elements of both nationalization and expulsion, as segments of the aristocracy were accused of having collaborated with the Nazi occupiers. However, in a number of cases, property claims by former nobles have been decried at the highest levels of Czech politics as undermining the Beneš Decrees, when, from a legal perspective, they represented no such threat.
 
With regard to the restitution claims of the bulk of expatriates from the CSFR, the Beneš Decrees have received less emphasis and the Czech Republic’s interest in investment in and protection of property has been more overt. However, pragmatic reasons to exclude expatriates were reinforced by  the  fact  that  their  absence  rendered  them  unable  to  participate  in  the  formative  political debates  on  restitution, underscoring  a  tendency  throughout  Eastern  Europe  to  view  them as opportunistic  outsiders. In  this  light,  the  citizenship  and  residency  requirements  of  the restitution laws could implicitly be read as conditioning restitution of property on willingness to return and live there. Return satisfied not only the pragmatic concern that restituted property be properly maintained but also the ideological concern that property not be alienated to outsiders.
In 1994, the Constitutional Court abolished the residency requirement, but left the citizenship requirement intact. One year later, the UN Human Rights Committee issued its “views,” or decision, in the Simunek case, a challenge brought to the citizenship and residency requirements by four Czech expatriates who had fled the country, lost their Czechoslovak citizenship, and been denied restitution on this basis. The Committee found both requirements to be unreasonable in light of the fact that the claimants’ original entitlements to the claimed properties had not been conditioned on citizenship or residency. The Committee also found that the disputed conditions constituted a requirement that claimants return in order to be entitled to benefit from restitution, a condition that was held to be discriminatory in effect (if not intent) with regard to the claimants, given the circumstances under which they had left Czechoslovakia:
 
Taking into account that the State party itself is responsible for the departure of the authors, it would be incompatible with the Covenant to require them permanently to return to the country as a prerequisite for the restitution of their property or for the payment of appropriate  compensation.
 
The Committee concluded that the Czech Republic should not only provide effective remedies to the claimants but also review the restitution laws “to ensure that neither the law itself nor its application  is  discriminatory.” However, as  set  out above, the  Committee’s  views  are  not considered binding in the Czech Republic and were not given effect. The European Court of Human Rights’ decisions are deemed binding, however, and in 2002, the Court issued a decision on a claim brought by expatriates who challenged the citizenship requirement under the ECHR in explicit reliance on the Human Rights Committee’s views in Simunek. Although the case was ultimately found inadmissible on technical grounds, it forced the Czech Republic to set out its justification  for  the  citizenship  requirement  more  explicitly.  In  its  submissions,  the  Czech Republic underscored the financial interest of the state, “which was in danger of running into debt by rectifying mistakes that had occurred in the past.” As a result, the old equitable objective for the laws (“mitigating the effects of certain wrongs”) was supplemented with the new pragmatic goal of “returning property to those  who could best  look after it.” The inference that the privilege of restitution should be conditioned on the duty to return and care for restituted property was made even more explicit in the course of a subsequent complaint to the UN Human Rights Committee:
 
[T]he [Czech Republic] indicates that its restitution laws…were designed to achieve two objectives. The first was to mitigate the consequences of injustices which occurred during the   communist   regime….The other was to enable a rapid implementation of comprehensive  economic  reform, in  the  interest  of establishing a  functioning market economy. The citizenship condition was included in the law to incite owners to take good care of the property after the privatisation process.
 
Although the Committee observed that this argument had not been substantiated and found a further violation of the ICCPR by the Czech Republic, it also noted that its earlier views on the topic remained unimplemented ten years on. Despite conciliatory steps to permit expatriates to regain Czech citizenship, the confiscation of their property has by and large stood. However, the confirmation of return as a background requirement highlights the contradictions in Czech restitution as it has come to be implemented. For instance, while expatriates are excluded for failure to return, Sudeten Germans are excluded despite their stated intent to return and care for their property. Jewish victims of Nazi confiscations are provided restitution by the Czech state while Sudeten German victims of Czech confiscations are not. And among those whose property was expropriated by the communists, victims of generally applicable nationalization policies are entitled to redress, while victims of individualized punitive confiscations generally are not.
 
The apparent arbitrariness of Czech restitution highlights the challenges posed by intergenerational  restitution,  particularly  where  the  unclear  legal  status  of  the  underlying confiscations invites political criteria for the admissibility of claims. One observer has noted that the lack of clear procedures and political consensus around restitution “enable restitutions and denial of claims to be based on truly flexible readings of the laws, or even upon no laws at all.” This perception is supported by a number of European Court of Human Rights decisions finding violations of the ECHR arising from the restitution process. Far from promoting individual rights or restoring all victims as equal citizens, Czech restitution differentiated between similarly placed individuals in pre-empting remedies for some. Meanwhile, the overtly political process of integration  in  Europe  appears  to  present  a  more  hopeful  engine  for  reconciliation  and  even symbolic redress than the restitution process. For example, Germany’s political renunciation of Sudeten German claims and support for the Czech Republic’s May 1, 2004 accession to the EU have contributed to a new and less defensive atmosphere in which Czechs have taken their first concrete steps toward making symbolic reparation for the unjustified suffering of many Sudeten Germans.
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