European restitution in a nutshell

by Rhodri C. Williams

NB: This text is actually an opportunistic reposting of a rather lengthy response I did to a comment on my previous post on displacement and transitional justice. The writing of it proceeded too quickly and smoothly to be true, so I thought I’d better put it out there for discriminating TN readers to pick apart. 

The rule in Europe is that redressing ‘historical’ property claims is generally a matter of political discretion. The bottom line is that property confiscations undertaken after a country has acceded to the European Convention of Human Rights (ECHR) will be reviewed by the Strasbourg Court for compliance with the rights to property and the home, but those taken beforehand are not subject to retroactive review.

Only in cases where a state has voluntarily adopted a remedy for historical takings will the Court review its application in order to address claims of discrimination or procedural unfairness – as in the ‘Bug River’ line of cases that involved Poland:

http://echrblog.blogspot.se/2008/10/pilot-has-landed.html

Controversially however, these rules have not always been consistently applied, for instance in the Blecic v. Croatia case discussed in the below post (which describes resulting efforts to ensure that past wrongful confiscations are at least taken into account in political decisions related to European integration):

https://terra0nullius.wordpress.com/2010/02/10/the-pace-poulsen-principles-can-the-coe-shake-up-europes-restitution-debate/

The ultimate failure of European institutions to politically or legally address these issues in candidate countries such as Croatia has been underscored by findings that they constituted acts of persecution amounting to crimes against humanity by the ICTY:

https://terra0nullius.wordpress.com/2011/04/15/yugoslavia-tribunal-issues-gotovina-judgment-discriminatory-property-laws-deemed-persecution/

However, these concerns have more force in relatively recent and clearly wrongful confiscations related to the wars in the former Yugoslavia. Earlier nationalizations and other confiscations may have actually been fully permissible under human rights law at the time, at least insofar as they were not punitive or discriminatory (if you are really interested see my 2007 piece comparing Czech de-nationalization with post-conflict and Apartheid restitution processes):

http://ictj.org/publication/contemporary-right-property-restitution-context-transitional-justice

Nevertheless, some critics have maintained that the Court has gone to excessive lengths to dodge considering such cases. These critiques are described in a bit more detail in a recent paper I co-wrote on the Court’s approach to the Cyprus property issue:

https://terra0nullius.wordpress.com/2011/10/19/when-do-home-and-property-part-ways-new-report-on-the-echr-and-the-cyprus-property-question/

Finally, a good example of historical takings that are clearly wrongful is confiscations of Jewish property by the Nazis. It has been a long time coming, but there is now recognition that such property should in principle be restituted:

https://terra0nullius.wordpress.com/2010/05/23/the-terezin-declaration-and-new-guidelines-on-inter-generational-restitution/

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