'IMPERFECT JUSTICE'

The Nazi as well as the Communist regimes were responsible for looting and confiscating vast amounts of private property, not only in Germany, but also in every country which was allied with or occupied by those regimes, e.g. Austria, Belgium, Czechoslovakia, France, Hungary, Italy, Luxembourg, the Netherlands, Norway, Poland, Romania and the former Soviet Republics (the Baltic Republics, Russia, Ukraine and Belarus). Under international law, these seizures were illegal.

During the war the United Nations made it clear that looted property recovered by States was to be restored to its original owner. Looted and confiscated private property were granted a special status by the Nuremberg Tribunal; it constitutes a crime under international law. There is no doubt that the restitution of confiscated property not only is a political problem but also a legal one.

The systematic and discriminatory seizure of private property by totalitarian regimes was and remains a serious violation of human rights. Deciding how the rights of those affected by these violations should be addressed raises distinctly legal issues.

Recently the Court declared the test cases, von Maltzan and others (No. 7191/01), regarding the German Bodenreform inadmissible. The Grand Chamber found that it lacked competence to examine the circumstances in which the expropriations had been carried out or the continuing effects produced by them up to the present date.

Contrary to the findings of the Court many Jurists believe that the ECHR as a modern Court of Human Rights is in all respects competent to consider past human rights violations, otherwise the Court would enshrine crimes against humanity and unjustly enrich Governments. Past ECHR decisions support this line of reasoning (cf. Krenz v Germany; Loizidou v Turkey; Agrotexim v Greece; Malama v Greece etc.). However the Court decided to ignore these decisions.

Unfortunately, the decision in the von Maltzan and others case creates an important precedent which no doubt will bar all future communist property confiscation cases from being heard.

Should indeed the European Court of Human Rights ratione temporis not be competent to hear these claims, then the international community has an obligation to immediately install a forum which is competent to try them. It cannot be that in this day and age crimes against international law are not able to be prosecuted due to the lack of jurisdiction of an international court.

Passing the resolution condemning totalitarian communism (Council of Europe Doc.9875 rev) with no further delay or expressly conceding the European Court of Human Rights jurisdiction over past violations would certainly be a step towards justice and finally terminate the ongoing debate on whether the ECHR has jurisdiction or not.

Alexandra Mareschi

August 2005