13 Colum. J. Eur. L. 1 (2006)

Tom Allen. Professor of Law, University of Durham, United Kingdom.

This Article examines the response of the European Court of Human Rights to claims for the restitution of property that was unlawfully or unjustly taken during a period of authoritarian rule. It demonstrates that, with some exceptions, it has not supported restitution. In some circumstances, this reflects different visions of the rule of law and its function in maintaining stability of entitlements. Is the rule of law furthered by allowing individuals to challenge legality of old takings and confiscations, or by ensuring the titles of current owners are upheld? In other cases, it is apparent that there are different beliefs on the relevance of principles of “ordinary” justice in transitional cases. In “ordinary” cases, states have a wide discretion to adjust property titles in pursuit of social and economic justice. However, many (but not all) judges doubt that the principles derived from “ordinary” cases are relevant to transitional cases, with the result that they give states much less discretion in restitution cases. These differences can be explained in terms of different visions of the institutional function of the Court itself. In most cases, the Court implicitly accepts the modernist faith that new legal institutions are sufficient to prevent a recurrence of the past. The creation of the Court, in particular, provides closure for the international community, the state, and especially for individuals who suffered under the old regime. There is no need for the Court to provide a forum for a further hearing of individual complaints of past injustice.

INTRODUCTION

Emergence from authoritarian rule is often accompanied by sweeping changes in systems of governance. New institutional structures are put in place to ensure that the rule of law and the protection of human rights acquire a firm foundation. It is the memory of the past that inspires the creation of these new structures, but do they provide closure? Should they provide a continuing forum for individuals to come to terms with the past? Put simply, can a new institutional order secure the rule of law and human rights without giving a voice to individual stories of past injustice?

This Article focuses on one institution-the European Court of Human Rights (Court of Human Rights or Court)-and how it deals with these issues in connection with claims for the restitution of property. The question of restitution came to prominence with the collapse of the communist states, although it has also been an issue in other transitions. At the national level, there has been no uniformity in the approach to restitution, except that to the limited extent that none of the European states has attempted to entitle everyone who unlawfully or unjustly lost property under the old regime to restitution of their property. Some states have resisted restitution: Poland has yet to determine whether, or how, it will provide restitution, and Turkey has dragged its feet on implementing judgments of the European Court of Human Rights regarding property in northern Cyprus held by Greek Cypriots who fled after the 1974 conflict. Those states that did enable restitution have varied in the degree of their commitment to their own programs. In Romania, for example, restitution has proceeded in fits and starts, with the courts and administrative authorities often issuing conflicting orders regarding the same property. On the other hand, Czechoslovakia, and later the separate Czech and Slovak Republics, embarked on an ambitious program of restitution. However, in order to make it economically feasible, and in order to limit restitution to resident citizens, Czechoslovakia imposed restrictions based on nationality, the current use or ownership of the property, and the timing and circumstances of the original loss. Hungary’s program was broader, but it only offered compensation rather than restitution. Other states have provided substitute land as compensation. Germany offered a combination of restitution and compensation, but eventually gave privatization priority over both; in addition, it denied restitution to anyone expropriated during the Soviet occupation of 1945-49.

This diversity is not surprising, given the different circumstances of these states. In the ex-communist states, the practical difficulties of restitution depend partly on the extent and depth of nationalization, which varied from state to state. In addition, post-World War resettlements of refugees affected states differently, and these differences have had an impact on restitution policies. In the Czech Republic and Poland, for example, restitution policies were designed partly to prevent ethnic Germans who were expelled at the end of the War from returning, or at least from recovering title. In any case, leaving aside these differences, there is no general consensus on the desirability of restitution. For example, it is not clear that restitution either advances or retards economic growth. The effect of restitution on the rule of law is also disputed. It has been argued that restitution demonstrates a commitment to the rule of law, by distinguishing the present regime from its predecessor and by providing a positive signal that property rights will be respected in future; but this is countered by concerns that the rule of law would be undermined by restitution programs that upset titles that were acquired in good faith during the pre-transitional era.

There is also no common ground on the possibility of achieving greater justice through restitution. There are ethical arguments that restitution demonstrates a commitment to human rights and property that spans generations, and that restitution is necessary to restore the individual’s dignity and reinstate them in social and economic life. But even if confiscations and uncompensated takings do infringe human rights, they are certainly not the only kinds of human rights violations. This begs the question: victims of other violations of human rights – such as torture, detention, or the denial of freedom of religion or association – generally cannot be fully restored to their pre-injury status, so why should one expect the new institutional order to achieve full restoration only with respect to loss of property? There is even a vigorous debate concerning the relevance of principles of “ordinary” justice to societies emerging from transition. Eric A. Posner and Adrian Vermeule have argued that transitional justice does not raise different issues from “ordinary” justice: liberal democracies regularly manage change, even radical change, during their “ordinary” lives, and the issues that they confront in managing this change are not different in kind to those of transitional justice. Others argue, however, that transitional justice works in a radically different context; for example, the threat that a carefully-brokered peace may break down presents issues that do not arise in the ordinary situation. There may be parallels with ordinary justice, but only in the abstract; once the full context is considered, the problems of transitional justice take on a different aspect.

These developments have been the subject of many scholarly examinations, but without a focus on their treatment by the Court of Human Rights in Strasbourg. This might suggest that there has been very little activity at the international level, but in fact the Court has decided hundreds of cases on different aspects of restitution and transitional justice. However, its judgments follow a prescribed form that leaves little room for a discussion of the deeper questions regarding the value of human rights. Nevertheless, a close study of the cases does reveal a fundamental conflict between two schools of thought, which manifests itself most clearly in cases where titles held on the date of ratification are subsequently challenged by a former owner.

One school of thought favors the present owner over the former owner. Judges in this school seem to have two main concerns over restitution. The first relates to the rule of law and the value of stability, as these judges believe that restitution threatens to undermine the foundations of the new market economies. For these judges, the primary value of the rule of law in post-communist states is the stability of expectations. Accordingly, they doubt the benefit of re-opening old disputes over the legality of confiscations or other takings. The second concerns the relevance of the principles developed in “ordinary,” non-transitional cases in the resolution of cases dealing with transitional issues. This relates to, for example, the level of scrutiny of national decisions relating to social and economic programs that affect property rights.  In “ordinary” cases, the Court normally defers to the judgments of national authorities; however, the judges who are reluctant to allow restitution often take a different view in transitional cases.

Judges in the opposing school believe that the threat that restitution poses to stability and rule of law is overstated. Indeed, there are a handful of cases that suggest that judges believe that the rule of law is strengthened by using past abuses of power as examples for future standards. These judges are also far more willing to apply the principles of “ordinary” cases to restitution cases; like Posner and Vermeule, they do not accept that the issues are different in kind.

These differences reveal a deeper split in perceptions concerning the Court’s role as an institution. The judges in the first school implicitly accept the modernist faith that new institutions and new legal ideas are sufficient to prevent a recurrence of the past. The creation of new institutions, such as the Court, provides closure for the international community, the state itself, and especially for individuals who suffered under the old regime. Individual complaints of past injustice are resolved and remedied by the creation of the new institution. These points are not so readily accepted by other judges. For them, it is neither desirable, nor perhaps even possible, to draw a clear line between the past and future of human rights.

The first part of the Article provides a brief description of the genesis of the Court of Human Rights. Since the Court has jurisdiction to interpret the European Convention on Human Rights, this Part will provide the background to the Convention and the right to property that is contained in the First Protocol to the Convention.

Part II considers cases where victims of the old regime have found it impossible to recover property. In these cases, the Court has gone out of its way to develop a set of jurisdictional rules that deny the victims a hearing on the merits. Indeed, the Court has gone as far as declaring that property rights that were not legally extinguished, but became impossible to exercise under the old regime, are no longer worthy of recognition under human rights law. The emphasis is on stability of current entitlements, to the exclusion of complaints concerning injustice in the pre- transitional era.

Part III examines cases where the current occupant relies on human rights law to contest claims for restitution. In general, the Court has accepted that it is legitimate for states to enact laws allowing restitution, and so the narrow issue is whether current owners can claim that the terms of restitution are unfair to the point that their human rights have been violated. This point comes up because some restitution laws permit former owners to recover property for less than its present value. States often justify such rules on the basis that the current owner obtained the property at a favorable price, possibly as a result of connections with the old regime. The narrow legal issue is whether the current owners are entitled to full compensation, but the broader question is whether human rights law recognizes that there are some titles that are less deserving of protection than others. On this point, the Court also tends to come down on the side of the current occupants.