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Legitimate Heirs of the Deported Polish Citizens are Threatening Ukraine with Lawsuits. Is There a Cause to Be Afraid of Restitution?

18.11.2015

Iryna Kuzina,  Attorney at law, Head of Kharkiv office at Ilyashev & Partners Law Firm
Ivan Bozhko, Attorney at Law, Dnipropetrovsk office of Ilyashev & Partners Law Firm
Source: Dzerkalo Tyzhnia

A recently established organization named “Restitution Kresy” is threatening to lodge lawsuits against Ukraine. The organization (which declares that it represents the interests of the Polish families deported from the territory of the Western Ukraine) intends to seek reimbursement of Polish assets located at the territory of Western Ukraine or compensations for real estate left by Polish citizens. Representatives of “Restitution Kresy” announced that shortly the heirs of the former real property owners at the territory of Galicia and Volyn will file first lawsuits to the courts of Kyiv and Lutsk.

This declaration was most extensively highlighted by Russian mass media. In their turn Polish media draw attention that “Restitution Kresy” was founded by pro-Russian political party “Zmiana”.

EU Association Agreement defines only general points of cooperation in the sphere of justice, as well as stipulates adaptation of Ukrainian laws with EU legislation. According to Article 114 of the Agreement: “Within cooperation in the sphere of justice, freedom and safety the Parties place special importance to establishment of rule of law and strengthening institutions of all levels in the sphere of management in general, and law enforcement and judicial authorities, in particular. Cooperation will generally be directed at consolidation of power, improvement of its effectiveness, guarantees of its independence and impartiality, as well as fighting corruption. Cooperation in the sphere of justice, freedom and safety shall be carried out on the basis of principle of respect towards personal rights and fundamental freedoms”.

Thus, it goes only about procedural and institutional aspects of protecting rights of citizens living in the countries – the Parties to the Association Agreement. Pursuant to Article 471: “Within the scope of this Agreement, each Party undertakes to ensure that natural and legal persons of the other Party have access that is free of discrimination in relation to its own nationals to its competent courts and administrative organs, to defend their individual rights and property rights”. This Article also describes only the procedural aspect of access of the nationals of the countries (Parties to the Association Agreement) to court protection and administrative organs with the aim of avoiding discrimination of such persons.

For Ukraine such non-discrimination is not new. Valid and effective Law of Ukraine “On international private law”, the Civil Procedural and Economic Procedural Codes of Ukraine by no means limit access of foreign citizens and foreign companies to protection of their rights by Ukrainian courts. Ukraine also entered into an Agreement with Poland on legal assistance and legal relations related to civil and criminal cases as of May 24, 1993 (hereinafter – the “Agreement on legal assistance”) according to which natural and legal persons of the Parties will be to freely apply to the judicial institution of the other Party to the Agreement (Article 1(1) and 1(4)).

Statements that “economic part of the Association Agreement refers to the standards of protection of the rights pertaining to the heirs of real property” are not based on the text of the Agreement. To settle the rights of Polish citizens for the real property in Ukraine the Association Agreement was to contain norms of material (but not procedural) law, or, at least, provisions referring to other foreign agreements. But, there are no such references. The aforesaid only shows that those who connect activities of Polish heirs and the Association Agreement are stirring an information campaign against the Agreement.

To properly understand the prospects of the claims advanced by the “Polish heirs” we will firstly need to get round to facts. As early as in 1936 the Council of People’s Commissars passed a confidential decree “On relocation of Polish people from Ukrainian SSR to Kazakh SSR as being politically insecure”. In December 1939 from former Polish territories –Western parts of Ukraine and Belarus – 400 thous of Polish people were forcefully relocated to Povolzhye, Siberia, Komi ASSR etc. After annexation of the Western Ukraine to the USSR by the end of 1939 arrested and forcefully detained (under different acts of legislation, including the criminal code) were 18 260 people (among them 5 406 Polish, 2 779 Ukrainians and 1 439 Jews).

Starting from 1940 the state authorities started “cleaning-up the territories from unreliable members”; first and most multiple was relocation of February 1940 – 88 385 people (overwhelming majority of whom were Poles) followed by mass removals in April 1940 – 29 012 people. In the course of 1940-1941 there were four waves of mass deportation of Poles, Ukrainians, Byelorussians, Jews, Germans, Russians, Czech, Armenians and others from Eastern voivodeships of the Polish Republic (Western Regions of USSR and BSSR). NKVD deported nearly 335 thous. Polish citizens to North-Eastern regions of the European part of RSFSR, Kazakhstan, Siberia and Russia’s Far East.

At least 198 536 people were deported from western regions of USSR. Concurrently the authorities resorted to expropriation of estates of Polish landowners and started the land reform. Confiscated were land assets owned by landowners, monasteries and state officials. The land was transferred to peasants’ committees which distributed it among landless and land-poor peasants. By the end of 1939 confiscated were 2 753 mln hectares of all agricultural lands. Near half of these lands were distributed among peasants and the rest was intended to become a basis for collective and state-owned farms etc. Big and medium-sized industrial and trade companies (as well as the banks) were nationalized. The state destroyed an extensive network of cooperative and consumer societies, confiscated farmers’ land plots and carried out so-called “dekulakization” of rich farmers. It needs to be noted that in the course of 1939-1940 the proprietary right pertaining to the Polish and Ukrainians, as well as representatives of other national groups, residing at the territory of the Western Ukraine suffered considerably.

Apart from that it must be said that not all Polish people left their homes or were deprived of their property under the influence of force. On September 09, 1944 the government of the USSR and Polish Committee of National Liberation entered into Agreement about evacuation of Ukrainian population from Polish territory and Polish citizens from the territory of the USSR.  It stipulated allocation of land plots by the peasants at the new place of residence. The period of evacuation was established from October 15, 1994 till February 01, 1945 and later was extended by an Additional Agreement. People were allowed to take their personal belongings and tools of their professional activities with certain limitations. It was forbidden to take any valuables (sums in cash were restricted to a certain amount). The remaining movable and immovable property was subject to inventory taking and its cost was compensated to the evacuees under the “insurance” cost following the end of evacuation under the calculations approved by the Parties to the Agreement. Under the results of execution of this Agreement the Parties signed a Protocols and evacuation acts on May 06, 1947.

It means that in case of any judicial proceedings each concrete situation will require identification of the exact date and procedure under which certain Polish citizen left the territory of the USSR and was deprived of citizenship.  The matter is that in case of voluntary evacuation of people from Ukrainian side there will be no guilt in inflicting material or moral harm. It is also evident that potential judicial proceedings will require engagement of professional historians, conduct of research in archives of Poland, Ukraine and the Russian Federation as soon as the authors of this article give only a superficial analysis of the mentioned historical facts, legal documents and international agreements.

Pursuant to Articles 32, 35 and 37 of the Agreement on legal assistance the disputes in question must be reviewed under the legislation of Ukraine, but not legislation of Poland, and lawsuits must be lodged to the courts of Ukraine. The effective Civil Code of Ukraine entered into legal force on January 01, 2004 and has no retroactive effect as to infliction of material and moral harm back in 1930-1940 as soon as obligations on indemnification of damage had not originated at that time because of absence of such law (see Article 5(4) of the Transitional provisions).

So, there are no practicable civil law grounds for Ukraine to recover damage to the heirs of deported Polish people. One could refer to the human rights stipulated by the Convention for the protection of human rights and fundamental freedoms but its provisions started to become valid in Ukraine only since 1997 when Ukraine joined the Convention. It means that the right for a fair trial (Article 6) will be applicable as soon as judicial proceedings at the national level will be carried out after the moment when the Convention entered into force. But the rights stipulated by Article 1 of the First Protocol to the Convention (“Protection of property”) violated in 1939-1940 will not be subject to protection under the Convention at the European Court of Human Rights. The said corresponds to the general principle under which international agreements have no retroactivity effect (Article 28 of Vienna Convention on the law of treaties).

European Court on Human Rights had similar disputes under its consideration, in particular the case Zvolsky and Zvolska v. the Czech Republic, №46129/99, Viasu v. Romania, No. 75951/01The former king of Greece and others v. Greece), Maria Atanasiu and Others v. Romania, No. 30767/05 и 33800/06. Based on the mentioned decisions the European Court on Human Rights established violation of the First Protocol of the Convention on convention on human rights. However, the court indicated that matters of just satisfaction depend on the legislative regulation at the level of a certain state. In the mentioned decisions upheld by the ECHR the claimants’ violated proprietary rights originated on the basis of current local legislation related to return of such property. Such practice plays no role for Ukraine.

World experience shows that matters of restitution and its implementation are established at the legislative level of each particular country. As an example of such corresponding regulation one may take the Law of Latvian Republic “On the denationalization of buildings in the Republic of Latvia” and “On return of real estate to lawful owners” as of October 30, 1991. The laws stipulated return to the former owners and their heirs of the title for buildings which were confiscated in favor of the state and legal persons free of charge in the course of 1940-1980 under the policies of ignoring the owners’ rights and exerting administrative lawlessness. The state also provided legislative guarantees to persons residing in the denationalized properties by extending the terms of validity of Residential Property Lease Agreements and establishing the maximum amount of lease payments. At the same time the Constitutional Court of the Republic of Latvia in its decisions No. 2002-12-01 as of March 25, 2003 established that “the Latvian state shall not be held responsible for violation of human rights, including nationalization of property, committed by the occupational authorities in the course of fifty-year period. Latvian Republic has neither the possibility nor obligation to fully compensate the damages inflicted to persons as a result of actions committed by occupation authorities”.

The Lithuanian Republic settled the similar problem by passing the Law “On the procedure and terms of restoring the title right for the existing property” as of June 18, 1991 which later was replaced by the Law “On restoring the title rights for the existing property” which stipulated restoring the title rights pertaining to the citizens of Lithuanian Republic which had been ceased pursuant to the laws of the USSR. Pursuant to the mentioned laws subject to restitution were the title rights for land plots area of which depended on their location – not more than 150 hectares in the rural areas and not more than 0.4 hectare at the urban territory (Article 5 of the Law). The law also stipulated restitution of commercial and residential properties (Articles 7 and 8). In addition the legislators had established the deadline for submitting corresponding applications for restoring the title rights, i.e. December 31, 2001.

In 1991 the Federal Assembly of the Czech Republic passed the Laws “On out-of-court rehabilitations” and “On change in relations of title to land and other agricultural property”.  Pursuant to the said laws the property which had been transferred to legal entities as a result of nationalization and expropriation shall be subject to restitution. Return of title under theses laws is carried out in favor of citizens of Czechoslovakia, and later of the Czech Republic. In addition to return of property the legislators stipulated monetary compensation in cases when the claimant did not insist on return of property or if the cost of such property essentially increased after its unlawful alienation.

In 2001 the Polish Parliament passed the Law “On re-privatization” which stipulates return of the property and title rights to Polish citizens. The President vetoed the Law which never came into force and settlement of restitution matters was vested in the courts. The return is mainly carried out in the form of compensation – securities issued for acquisition of land or shares of privatized companies.

Thus, the practices of neighboring countries show that settlement of restitution matters is regulated at the national level. Legislative authorities have the right to independently define specific procedure of restitution, the deadline for lodging corresponding claims, as well as the scope of persons to whom such norms shall apply.

Approximately the same was made in Ukraine as well. In particular, the Parliament passed the Law “On rehabilitation of victims of political repressions in Ukraine” as of April 17, 1991 according to which such rehabilitation was to apply to the whole period commencing from 1917 till the moment when such Law came into force and applies to persons who were (among other things) groundlessly relocated by force, expelled and exiled out of the republic, deprived of or limited in their rights and freedoms on political, social, class, national and religious nature (Preamble of the law). However, this Law applies only to the citizens of Ukraine (or citizens of former Ukrainian Soviet Socialist Republic). By its Decree No. 48 as of June 24, 1991 the Cabinet of Ministers of Ukraine approved a corresponding Regulation section 3 of which stipulated that return of confiscated buildings and other property or reimbursement of their value is actually made only for the benefit of the citizens if Ukraine. There are no regulatory legal acts in Ukraine related to rehabilitation and making compensations to victims of repressions who hold citizenship of other countries.

Ukrainian legislators undertook efforts to legislatively settle the matter of restitution: in October 21, 2005 a draft Law “On restoring the title of individual persons for the property forcefully alienated by the official bodies of the USSR” was submitted for review of Verkhovna Rada of Ukraine. The said Law meant to provide the right for restitution of property not only to the citizens of Ukraine, but also to foreigners and persons without citizenship. At that time the Law was not approved because in its conclusions the Cabinet of Ministers of Ukraine reasonably stated that the document, which defines procedure of return of the property to former owners (unilateral restitution), does not, however, stipulate return of the property to other titleholders (reciprocal restitution), which does not conform with provisions of Chapter IV(16)(2) of the Civil Code of Ukraine as well as the grounds for dismissing such lawsuits.

So, nowadays there are no lawful grounds for satisfaction of possible potential claims lodged by representatives of heirs of the Polish citizens who had been forcefully relocated from their homes in the past. However, as lawyers always say, it will be possible to make any final conclusions only after analysis of lawsuits, as well as facts and other pieces of evidence. And Polish official authorities should not forget about internationally-recognized principle of reciprocity according to which lawsuits of the same nature may be lodged by Ukraine and its citizens against Poland.

 
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