Recently, an organization called āRestitution of Bordersā was created in Poland, the purpose of which is supposedly to represent the interests of Poles deported from territories occupied by the Soviet Union in 1939.
According to the statements of its representatives, lawsuits will be filed with the courts of Ukraine demanding the return of property or compensation for property that they were forcibly deprived of. In this regard, it became necessary to clarify what restitution is and how it relates to Ukraineās accession to the EU.
Who is behind the "Restitution of Borders"
This news was actively picked up by the Russian media. And the Polish media managed to establish that the pro-Kremlin Smena party is the founder of this organization.
In Ukraine, the question of restitution is raised by the former head of the Yanukovych administration, the head of the pro-Russian organization Ukrainian Choice, Viktor Medvedchuk. In 2015, he stated that an organization had been established in Lublin that seeks to return to Polish citizens the property that they owned in the former Polish territories or their compensation.
According to Medvedchuk, the Association Agreement created the legal basis for restitution - the return of real estate to former owners. As an example, he cited the eviction of Vija Artmane from a room in the center of Riga, carried out without compensation. By substituting the facts and applying the classic manipulation technique, the politician creates a ārealā threat that will come when the Agreement is adopted.
Medvedchuk and representatives of the deportees insist that the restitution of Ukraine after signing the association agreement with the EU will have all legal grounds. This is actually not the case.
Ukraine + restitution = EU?
The agreement defines only the basic principles of interaction in the legal sphere. In addition, it provides for the adjustment of Ukrainian legislation to European one.
According to article 14, cooperation in the field of justice, security and freedom of the parties should contribute to the strengthening of the rule of law and the strengthening of institutions at all levels of government - both law enforcement agencies and the courts. Interaction will be aimed, among other things, at strengthening the court system, increasing their efficiency, independence and impartiality, as well as combating corruption. Cooperation in the field of justice, security and freedom is based on respect for human rights and fundamental freedoms.
That is, we are talking about the procedural and institutional aspects of protecting citizens, and the restitution of Ukraine after joining the EU is not mentioned.
Freedom of access
According to Article 471 of the Agreement, both countries must provide their citizens and companies with free access to judicial and administrative authorities without discrimination in order to protect their personal and property rights.
It also mentions only the procedural aspect of citizens' access to judicial and administrative bodies to exclude discrimination, and Ukraineās restitution after signing with the EU is not provided.
There are no restrictions for foreigners
Freedom from discrimination of citizens of other countries for Ukraine is not something new. Civil and Commercial Procedural Codes, the Law on Private International Law, the access of foreign citizens and companies to the protection of their rights in Ukrainian courts does not restrict anything. In addition, the Polish-Ukrainian agreement of 1993 on legal relations and assistance in criminal and civil cases is in force, according to which, citizens and companies of the two countries can appeal to each other's courts.
Allegations of references to legislation protecting the rights of deportees and their heirs to property are not confirmed in the text of the Agreement.
Restitution of lands of Ukraine and other property requires the inclusion in the contract with the EU of substantive rather than procedural law. We need at least references to any other international agreements. But there is none of this.
Therefore, referring to the EU-Ukraine Association Agreement, Restitution of Borders is conducting a campaign against it.
Mass deportations of 1939-40
What is restitution and how is it related to Ukraineās accession to the EU can be illustrated by historical facts.
In 1936, the Soviet government adopted a decree on the resettlement of Poles from the Ukrainian SSR to Kazakhstan. In the first year of occupation, up to half a million citizens of Polish nationality were deported from the former Polish territories to Siberia, the Komi Autonomous Soviet Socialist Republic and the Volga Region.
After the annexation, by the beginning of 1940, the NKVD authorities arrested and brought under various articles, including criminal, 18.3 thousand people (2.8 thousand Ukrainians, 5.4 thousand Poles and 1.4 thousand Jews) . At the beginning of 1940, āthe cleaning of the territory from a socially alien elementā was begun ā 88.4 thousand people of Polish nationality were evicted in the winter of 1940, and 29 thousand people in the spring of 1940.
For 2 years, the NKVD authorities carried out 4 mass deportations from annexed territories. In total, 335 thousand people were deported to the Kazakh SSR, Siberia, the North and the Far East, of which no less than 198 thousand were from the occupied territories.
Confiscation of property
Together with the deportation, the following was carried out:
- Expropriation of estates.
- Confiscation of land in favor of the poor peasants. In the first year of annexation, 2.75 billion ha were confiscated - 1/3 of all land. Of these, half were distributed to the peasants, and the rest was transferred to state farms and collective farms.
- Nationalization of banks, trade enterprises and industry.
A wide network of credit consumer cooperation was liquidated, wealthy peasants "dispossessed".
During the two years of occupation, property rights of Ukrainians, Poles, Jews and representatives of other nationalities were violated.
Resettlement 1944-47
In 1944, on September 9, an agreement was signed between the government of the Ukrainian SSR and the Polish Committee for National Liberation on the evacuation of Poles from Ukraine and Ukrainians from Poland. The contract stipulated the provision of land in places of resettlement.
The time frame for the evacuation was established from 10/15/44 to 02/01/45 and was extended by an additional agreement. It was allowed to take out a limited number of personal items and tools. It was impossible to take out valuables, with the exception of a small amount of cash. The rest of the property was described and compensated at the āinsuranceā value upon completion of the relocation according to the agreements. After the completion of the evacuation, May 6, 477, the relevant acts were signed in the Polish capital .
Therefore, in the case of a court, in each particular dispute, it is necessary to find out how and when the relocation of the Pole deprived of property was carried out. In the case of voluntary relocation, any claims for causing moral and material harm, i.e., the restitution of Ukraine after the signing of the Association Agreement with the EU, will be groundless.
Most likely, historians should be involved in probable courts, and archives of Ukraine, Poland and Russia should be studied.
The last word is for local laws
According to the agreement on legal assistance, when resolving such disputes, not Polish laws will be applied, but Ukrainian ones. Requirements must be filed with Ukrainian courts.
The Civil Code of Ukraine entered into force on 01.01.04. It does not have retroactive effect on the events of 1939-40, since then there was no obligation to compensate for the damage due to the absence of a corresponding law. It follows that the civil law reasons to compensate the losses to the deportees and their heirs (which implies the restitution of Ukraine) after the signing of the Association Agreement with the EU, the state does not have.
There are precedents
A reference to human rights that are enshrined in the Convention for their Protection will not produce a result - obligations on it only began to act on it from the date of its accession in 1997. The right to a trial will be, since the lawsuit is filed after the Convention enters into force, however, a violation property rights that occurred at the beginning of World War II are not subject to protection at the ECHR.
This situation is fully consistent with the principle stipulated in article 28 of the Vienna Convention on the Law of Treaties, according to which such treaties are not retroactive. The ECHR has already considered similar disputes, including decisions on lawsuits against the Czech Republic, Romania, and Greece. In its decisions, the court found violations of the Convention, but the satisfaction of a claim depends on the country. These decisions were made in cases in which property rights were violated on the basis of modern legislation of these countries. This practice has no relation to the state of Ukraine.
Latvian experience
The permission of restitution and its order are determined at the level of legislation of a particular state. An example is the laws of Latvia on the return and denationalization of housing, which returned property rights to real estate confiscated in 1940ā80 by the state and persons who pursued a policy of arbitrariness and neglect of property rights.
The legislation provided guarantees to those living in such housing, extending the term of employment and setting the maximum amount of rent. The Constitutional Court confirmed the lack of responsibility of the country for the nationalization of property committed by the occupation authorities.
Denationalization in Lithuania
In Lithuania, this issue is regulated by the law on the restoration of property rights, which were interrupted by the laws of the Soviet Union. The rights to plots of 150 hectares in the villages and 0.4 hectares in the cities, houses and real estate of enterprises returned. The application period was limited to 2001.
Restitution in Czechoslovakia
The Parliament of Czechoslovakia in 1991 passed legislation on extrajudicial rehabilitation and return of expropriated and nationalized real estate. Restitution was carried out to citizens of Czechoslovakia. Material compensation was also provided for applicants who did not insist on the return of real estate, or if the price of this property increased significantly after an unlawful alienation.
Polish version
In 2001, a law was passed by the Polish Sejm that provided for the return of property and rights to it to Polish citizens. He was vetoed by the president, which did not allow him to enter into force. Courts began to deal with restitution disputes. The return of property, as a rule, was carried out in the form of securities with the right to acquire land or shares of enterprises.
The experience of the former countries of the socialist bloc shows that Ukraineās restitution after signing an agreement with the EU is regulated at the state level. Parliament has the right to determine the procedure for conducting it, the deadlines for submitting claims, and the circle of persons to whom these norms will apply. It was also done in Ukraine.
Ukrainian legislation
The Verkhovna Rada in 1991 adopted a law on the rehabilitation of victims of political repression, according to which, rehabilitation extends for the period from 1917 until the beginning of this law to persons deported outside Ukraine. These include forcibly resettled, fully or partially deprived of the rights and freedoms of a citizen for class, social, national, political and religious reasons.
But this law does not apply to foreigners. A government decree provided for the return of seized structures and other property or compensation for their cost, but only for citizens of Ukraine. The legislation does not provide for compensation for damage to foreigners.
Unilateral or bilateral restitution?
In Ukraine, attempts were made to resolve this issue at the level of the law: in 2005 a draft was submitted on the restoration of rights to alienated property, which proposed to allow property to be returned not only to Ukrainians, but also to foreigners. The law on restitution for Ukraine was not adopted then - at the conclusion of the government, in determining the mechanism for the return of property to former owners (unilateral restitution), property was not returned to the other party (bilateral restitution). This is contrary to the provisions of the Civil Code.
Summing up the above, it can be argued that at this time the restitution of property in Ukraine has no legal basis. Final conclusions are possible only after a thorough analysis of each specific claim, available evidence and facts.
And foreign authorities should remember the international principle of reciprocity, according to which, the restitution of Ukraine to the EU may be the reason for making such claims against Poland.