Monday, 13 October 2008

Another Echo of WW II

Two large scale problems arising from World War II were dealt with by the Court in the same month. Last week, I already reported about the finalisation of the Court's pilot case procedrue in the so-called Bug river cases, concerning Poles who had to leave their homes at the end of the War when parts of Eastern Poland were incorporated into the Soviet Union. As a form of compensation for its lost territories Poland was given parts of Eastern Germany. Thus Poland in effect moved to the West. Many of the Polish refugees from the East settled in these territories. The Germans living in those regions were, in turn forced to flee further Westwards, having to leave behind most of their properties.

Last week the Court declared an application concerning the last group inadmissible. The complainants, united in the legal person Preussische Treuhand Gmbh & Co. KG, had lodged a complaint against Poland. Their main claim was that Poland had violated Article 1 of the Convention's First Protocol (property protection) since the taking of the applicants' properties had no legal basis under international law. The depossessions were, according to the applicants, undertaken in a context of ethnic cleansing. They claimed that this crime against humanity was part of a continuing violation of their rights under the Convention. They had never received any compensation.

The application was declared inadmissible on several grounds. As to the Court's jurisdiction ratione personae, it held that the complained acts (the expulsions) could not be attributed to Poland. As the Court noted, large groups of Germans had been forcibly evacuated by the Nazis towards the end of the War and many others had been forced to flee the approaching Soviet Army. During this period the state of Poland had no de facto or de iure control over the territories involved. In addition the Court held that the situation could not be seen as a continuining violation, as for example in Loizidou v. Turkey (concerning Northern Cyprus), since in this case the formal expropriations were legally valid Polish laws of 1946. Since Poland ratified the ECHR only in 1994, the impugned acts fell outside the Court's jurisdiction. No Polish restitution laws existed on this point. As the Convention does not include a duty to enact restitution laws, the application was also inadmissible ratione materiae.

Although I find the Court's argumentation on the separate points convincing, a small internal incongruency struck me: why does the Court on the one hand hold that Poland cannot be held accountable for the loss of property (since the areas were Nazi or Soviet occupied) and on the other hand consider the Polish expropriation laws of 1946 as defining for its temporal jurisdiction? Are we talking about two different sets of legal facts: the ethnic cleansing and loss of property in practice and the loss of property de iure? Only in that case does the Court's argumentation make sense. If so, then the applicant's lawyers did not have a lucky hand in the construction of their case and its presentation, it seems...

The leading case on the Court's temporal jurisdiction is the Grand Chamber judgment in Blecic v. Croatia (2006). For an analysis of the Court's case law preceding that case and the problem of continuing violations, see my own: A Lifeline in Time - Non-Retroactivity and Continuing Violations under the ECHR, published in the Nordic Journal of International Law, vol. 75 (2006) pp. 63-88 (available at IngentaConnect for subscribers and academic institutions).