UN Pinheiro Principles - restorative justice

Forced evictions and property confiscations are not just only related to World War I and World War II (lone due to WW II 60-80 Mio. people were driven out of their homes). Unfortunately, every year many millions of people are still left with no other option than to flee from their homes. This is either due to armed conflict, genocide, ‘ethnic cleansing’ or large-scale violations of land and property rights, which are mainly carried out by governments or rebels.

One of the most serious problems displaced people face, apart from struggle to survive, is the loss of property rights.

 Nonetheless, people displaced by forces beyond their control should never have to face the prospect of losing their house or property rights simply because they were violently forced to leave their homes or homeland.

Displacement and loss of property rights must always be treated as a phenomenon in need of remedy and redress.

And yet, inadequate legal protection and legal remedies are still a major problem today.

States and international institutions should constantly bear in mind that the concept of restitution provides a source of hope and potential justice. Restitution offers those who were forcefully evicted the promise that past injustices, and if only those concerning the property aspect of the suffered harassment and abuse of rights, can actually be amended. The aspiration to recover and repossess land or property has emerged in recent years as a distinct and claimable right applicable to all displaced persons who wish to invoke it. The broader right to voluntary, safe and dignified return is now understood to encompass not merely returning to one’s country of origin, but to one’s original home as well. This is one reason, for instance, why the UNHCR are now paying greater attention to the restitution elements of return than ever before.

 At the normative level, the Sub-Commission on the Promotion and Protection of Human Rights in August 2005 endorsed the Principles on Housing and Property Restitution for Refugees and Displaced Persons presented by the Special Rapporteur, Sergio Paulo Pinheiro. the 'Pinheiro Principles' provide the first consolidated global standard on the housing, land and property rights of the displaced.

Guiding Principles on property restitution:
The Guiding Principles clearly recognise that restitution plays an essential role in the resolution of conflict and post-conflict peace-building, the establishment of the rule of law (Preamble), the right not to be arbitrarily deprived of property and possessions (principle 21). These rules also reiterate the necessity of compatibility of property restitution procedures with international rights and humanitarian law (principle 11) as well as the enforceability of restitution decisions and judgements (principle 20). Further the guiding principles emphasise the responsibility of the international community to promote and protect property restitution (principle 22).

 However, not all nations or institutions are inclined to apply these principles.

Apparently, the Council of Europe, the European Court of Human Rights and the European Union are not aware of such a responsibility and are not even familiar with restorative justice or with the ‘Pinheiro Principles’ in general, especially with regard to the resolution of World War II related property restitution claims. In fact the latter appear to be way out of touch with principles of international human rights and humanitarian law.

Recently, the Parliamentary Assembly of the Council of Europe issued two resolutions, regarding the effects of World War II and Communist crimes (Pace Resolution 1481 (2006) and Pace Resolution 1522 (2006)). However, both resolutions do not even make an effort to amend open property questions, more still they consciously exclude this issue.

 The European Court of Human Rights on the other hand claims it is ratione temporis (cf. von Maltzan and othersRegina v. Bartle ex parte Pinochet, House of Lords, 24 March 1999) and under these circumstances in order for Justice to be served one ought to consider making an exception from the rule of non-retroactive applicability of laws, in particular laws regarding the Court’s jurisdiction (cf. Supreme Court of the United States No.: 542 US 2004 – Republic of Austria v. Maria von Altmann). Further the Court has established a unique case-law which actually contends that the deprivation of ownership or of another right in rem is in principle an instantaneous act and does not produce a continuing situation of “deprivation of a right” (cf. Sirc v Slovenia 44580/98, Malhous v. the Czech Republic ,no. 33071/96, ECHR 2000-XII ). This principle is not only legally absurd and unheard of, but stands in open contradiction to the ‘Pinheiro principles’. Instead of restorative Justice it perpetuates the effects of crimes against humanity. The latter can hardly be the objective of a modern Court of Human Rights. No. 7191/01) not competent to hear such claims. Hereby the Court fails to realise that it lies in the nature of abusive regimes not to be party of Human Rights Conventions; but this does not make their acts legal nor their crimes non-prosecutable. Crimes against humanity underlie universal jurisdiction (Regina v. Bartle ex parte Pinochet, House of Lords, 24 March 1999)  and under these circumstances in order for Justice to be served one ought to consider making an exception from the rule of non-retroactive applicability of laws, in particular laws regarding the Court’s jurisdiction (cf. Supreme Court of the United States No.: 542 US 2004 – Republic of Austria v. Maria von Altmann). Further the Court has established a unique case-law which actually contends that the deprivation of ownership or of another right in rem is in principle an instantaneous act and does not produce a continuing situation of “deprivation of a right” (cf. Sirc v Slovenia 44580/98, Malhous v. the Czech Republic ,no. 33071/96, ECHR 2000-XII ). This principle is not only legally absurd and unheard of, but stands in open contradiction to the ‘Pinheiro principles’. Instead of restorative Justice it perpetuates the effects of crimes against humanity. The latter can hardly be the objective of a modern Court of Human Rights.

The European Union in contrast maintains that according to art 295 EC Treaty the European Community shall in no way prejudice the rules in Members States governing the system of property ownership; questions of property restitution fall exclusively under the relevant national law.

Contrary to common belief, post-communist countries continue to withhold confiscated property and have implemented pro forma restitution and compensation laws, which are riddled with discriminatory provisions. Germany even changed its Constitution due to misrepresentations made by the Government regarding the German re-unification precondition (the so-called precondition lie) in order to hang on to the confiscated properties for its own purposes.

This kind of approach on behalf of the European institutions and nations undermines any possible legal or political means of redress. Calls for the establishment of a competent forum capable to deal with such claims have so far been ignored by the latter; yet another blow for the victims -.

This has to stop. It is time that World War II and Communist eviction victims receive some measure of Justice. These people still suffer from the consequences of their loss. Symbolic gestures maybe important for the after-world, but in the eyes of the victims acts such as the establishment of centres of remembrance are cynical if they only serve the purpose to remind them of their loss and suffering and do not conduce to the redress of still open property issues.

The international community should be adamant in demanding that the ‘Pinheiro Principles’ apply to all nations and to all institutions and not be blinded by misrepresentations by those who desperately try to cling on to the forbidden fruits of illegal takings.

Written by Alexandra Mareschi

Secretary-General

November 2006