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Throughout much of the past century, individuals and religious communities in Central and Eastern Europe were despoiled of their private property by fascist and communist regimes.

As a consequence of the ruthlessness of these regimes over 30 million European civilians left their own countries or were evicted by force. Most of the victims lost everything they and their families had onerously built up over many generations.

Since the fall of the Berlin Wall, hope has inspired those who have lost so much to believe that the aforesaid crimes against humanity would be redressed according to international laws. In contrast to the exemplary efforts to prosecute war criminals (cf. Nuremberg and Tokyo Trials) the international community has done very little to address restitution claims, even though these mass confiscations and evictions likewise fall under the category of crimes against humanity (c.f. Hague Convention 1907, the Versailles Treaty 1919 and the Kellog-Briand Pact 1928). Indeed the aforementioned customary international laws obligate belligerent States to assume responsibility for their acts. The fact that national law does not impose penalty for an act which constitutes a crime under international law does not relieve from responsibility under international law (c.f. Nuremberg Trials).

Passing sundry resolutions such as No.40/34 (1985) and 1998/43 of the United Nations, No. 1096 of the Parliamentary Assembly of the Council of Europe, No. B4-1493/95 of the European Parliament, No.19 of the U.S. House of Congress, No. 73 Senate Concurrent Resolution and No. 562 of the U.S. House of Representatives is by no means enough, because they only express a recommendation; they are unfortunately not enforceable. It is not just a question of returning property, but of granting those millions of people who died, were tortured, expelled and stripped from their identity and belongings a measure of justice for their sufferings. It is time that the European Union acts upon its resolutions and incorporates them in its treaties.

Today’s governments and international institutions cannot wash their hands in innocence by raising the objection of ratione temporis, whilst they still cling on to unlawfully seized properties. This is in itself an unlawful act, because the latter are unable to justify their actions under international law. Ius cogens infringements do not suddenly become legal through the passage of time, subsequent treaties, laws nor constitutions.

In order to appear democratic and sustain economic aid from the international community and ultimately aspire a swift entry in the European Union most of the former communist countries have per forma adopted restitution or compensation laws. However, these laws often do not resolve property claims in a satisfactory manner, mainly due to insufficient political interest and prejudiced legislation. Instead of restituting unlawfully confiscated properties several countries (e.g. Croatia, the Czech Republic, Slovenia etc. [including Germany, member of EU] ) have preferred to continue the unjust practices of the previous governments by selling those properties under state control, bypassing the original owners with norms containing discriminatory provisions regarding residency and citizenship requirements or explicitly precluding the restitution of properties which were confiscated during a certain period of time or restricting rights of inheritance. Even in the event that an indemnification in lieu of restitution is envisaged a derisory sum (frequently only 1% of the actual value of the chattels) is payable in 10 to 20 years.

The basic rule that wrongfully expropriated property should be restituted or compensated, however, as seen above, applies to them all and the implementation of this criterion will no doubt be a measure of the extent to which they have successfully adopted democratic principles such as the rule of law with respect to property rights.

The failure to amend past injustices not only violates customary international law, but also threatens universal values.

One would assume that the World has finally understood that that, “the system of private property is the most important guaranty to freedom”, F. A. Hayek.

History bluntly demonstrated that private ownership is not compatible with socialism or communism. Stalin, Hitler, Mao – all took steps to forcefully nationalise the land as a vital step towards controlling their citizens, which lead to the death of millions of people and the socio-economic disaster of their countries.

The insufficient protection of basic rights in the name of achieving some social goal which its proponents see as desirable, diminishes the respect a constitutional government has for fundamental principles and individual rights. With time it becomes easier to justify ever greater intrusions into other civil rights in the name of attaining desirable social goals based on the same rationale. It is only when individual intrusions are accomplished that the magnitude of the erosion becomes apparent. By the time the full extent of the erosion is known, it far too late to stop the adverse tendency.

Europe is heading in this direction if it does not adequately redress past crimes against humanity. This would allow communism to reappear!

Lamentably, Germany, the very heart of the European Union, has already laid the foundations for such a development. The recent High Court’s political decision not to grant extra aid to people who lost property in the Soviet occupation Zone (1945-1949) will become a yardstick for the rest of Europe, just like the, contra legem (c.f. Hague Convention1907 etc.), far-reaching principle not to restitute these properties was throughout Europe after the fall of the Berlin Wall.

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