Recently in Poland there was created an organization called “Restitution borders”, the purpose of which allegedly is the representation of the poles deported from the occupied Soviet Union in 1939 territories.
According to the statements of its representatives, in the courts of Ukraine will be filed lawsuits demanding the return of property or compensation for the property, which they were expelled forcibly deprived. In this regard, there is a need to understand what restitution is and how it is linked to the accession of Ukraine to the EU.
The news was actively picked up by the Russian media. And the media of Poland failed to establish that the founder of this organization is Pro-Kremlin party “Change”.
In Ukraine, the issue of restitution raises the former head of administration of Yanukovych, the Pro-Russian head of the organization «Ukrainian choice”, Viktor Medvedchuk. In 2015, he said that in Lublin established the organization, seeking the return of Polish citizens property which they owned in the former Polish territories, or its compensation.
According to Medvedchuk, the Association Agreement created the legal basis for restitution – the return of real property to the former owners. As an example, he cited the eviction of Vija Artmane from the premises in the centre of Riga, carried out without compensation. Replacing the facts and applying classic manipulative technique, the politician creates a “real” the threat that will come in the adoption Agreement.
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Medvedchuk and representatives of the deported insist that restitution of Ukraine after the signing of the EU Association agreement will have all legal grounds. In fact it is not.
The Agreement defines the principles of cooperation in the legal field. In addition, it provides for adjustment of the Ukrainian legislation to the European one.
According to article 14 cooperation in the field of justice, security and freedom of the parties should contribute to strengthening the rule of law and strengthening institutions at all levels of governance – and law enforcement agencies, and courts. The interaction will focus in particular on the strengthening of the court system, enhancing their effectiveness, independence and impartiality and to fight corruption. Cooperation in the area of justice, security and freedom based on respect for human rights and fundamental freedoms.
We are talking about procedural and institutional aspects of the protection of citizens, and the restitution of Ukraine after joining the EU is not mentioned.
According to article 471 of the Agreement, both countries should ensure that their own citizens and companies free from discrimination access to judicial and administrative organs to protect personal rights and property rights.
Here is also referred to only procedural aspects of the access of citizens to judicial and administrative bodies for elimination of discrimination against women, and restitution of Ukraine after the signing of the EU is not provided.
Freedom from discrimination of citizens of other countries to Ukraine is not something new. Civil and Economic procedural codes, the law “On international private law" access to foreign citizens and companies to protect their rights in the Ukrainian courts does not limit. In addition, there is the Polish-Ukrainian agreement of 1993 on legal relations and assistance in criminal and civil cases, according to which nationals and companies of the two countries can apply to the courts to each other.
Allegations of links to legislation protecting the rights of deportees and their heirs on the property in the Agreement do not have confirmation.
The Restitution of land of Ukraine and other property requires the inclusion in the agreement with the EU substantive and not procedural law. Need at least references to any other international agreement. But nothing.
So, referring to the Association Agreement EU – Ukraine, “Restitution borders” leads a campaign against him.
What is restitution and how is it linked with Ukraine's accession to the EU, can be explained on the example of historical facts.
In 1936, the Soviet government adopted a decree on the resettlement of poles from the USSR to Kazakhstan. In the first year of the occupation of the former Polish territories in Siberia, the Komi Republic and the Volga region were deported to half a million citizens of Polish nationality.
After the annexation, by early 1940, the NKVD had arrested and brought in various articles, including criminal, 18.3 thousand people (2.8 thousand Ukrainians, poles 5.4 million and 1.4 thousand of Jews). In the beginning of 1940 was launched the “clear the area of socially alien elements” — was carried out the eviction in the winter of 1940 88,4 thousand people of Polish nationality, and in the spring of 1940 – 29 thousand.
For 2 years, the NKVD made 4 mass deportations from the annexed territories. In the Kazakh SSR, Siberia, North and far East all were sent to 335 thousand people, of which not less than 198 thousand from the occupied territories.
Together with the deportation were carried out:
Was eliminated a wide network of credit consumer cooperatives, "the dispossessed” wealthy peasants.
Two years of the occupation had violated the property rights of the Ukrainians, poles, Jews and representatives of other nationalities.
In 1944, September 9, between the government of the Ukrainian SSR and the Polish Committee of national liberation signed an agreement on the evacuation of poles from Ukraine and Ukrainians from Poland. The contract stipulated the allocation of land in relocation sites.
The time frame of the evacuation were established at 15.10.44 01.02.45 and were extended for an additional contract. Were allowed to export a limited amount of personal belongings and tools. You can't take values, except for a small amount of cash. The rest of the property described and compensated for “insurance” cost for completion of resettlement in accordance with the agreements. After evacuation is complete, 06.05.47 city, the capital of Poland was signed by the relevant acts.
Therefore, in the case of the court, in each particular dispute need to figure out how and when were the resettlement deprived of property pole. In the case of voluntary relocation of any claim for causing moral and material harm, i.e., the restitution of Ukraine after the signing of the EU Association Agreement will be groundless.
Most Likely, to the probable courts should attract historians to study the archives of Ukraine, Poland and Russia.
According to the agreement on legal assistance in addressing such disputes will not be applied to Polish legislation, and Ukrainian. Requirements must be submitted to the Ukrainian courts.
The Civil code of Ukraine began to act 01.01.04., retroactive to the events of 1939-40 he has not, as the obligation to compensate the damage then was not due to the absence of the relevant law. From this it follows that civil legal reason to compensate the loss of the deportees and their heirs (which implies restitution of Ukraine) after the signing of the EU Association Agreement from the state do not exist.
Reference to the human rights enshrined in the Convention on their protection, does not give results – for her commitment to Ukraine began to operate only from the date of its accession in 1997, the Right to a trial, as the claim is filed after the Convention entered into force, but the violation of property rights that took place in the beginning of the Second world war, the protection of the ECHR is not subject.
This situation is fully consistent with the principle set out in article 28 of the Vienna Convention on the law of treaties, according to which such treaties are not retroactive. The ECtHR has already examined a similar controversy, including decisions on claims against the Czech Republic, Romania, and Greece. In its judgments the court found violations of the Convention, but questions the claim vary by country. These decisions taken on cases in which the rights of ownership were violated on the basis of the modern legislation of these countries. To the state of Ukraine, this practice is not relevant.
The Resolution of restitution and its order are determined in law of a particular state. An example is the laws of Latvia on the return and denationalization of housing, which returned ownership rights to immovable property confiscated in 1940—80 years of government and persons carrying on a policy of tyranny and disregard for the rights of the owners.
The Legislation provided guarantees living in such housing, extending the term of employment and setting maximum amount of rent. The constitutional court confirmed the lack of responsibility of the country for the nationalization of property by the occupying authorities.
In Lithuania, this issue is regulated by the law on restoration of property rights, which was interrupted by the laws of the Soviet Union. Returned rights on plots of 150 hectares in the villages and 0.4 hectares – in the cities, houses and real estate businesses. The application period was limited to 2001.
The Czechoslovak Parliament in 1991 enacted legislation on extra-judicial rehabilitation and the return of expropriated and nationalized property. Restitution was carried out for the citizens of Czechoslovakia. Was also provided for financial compensation to the claimants, not insisting on the return of real property, or if the price of the property increased significantly after improper disposal.
In 2001, the Polish Sejm adopted a law, which provided for the return of property and rights to it to the citizens of Poland. He had imposed President's veto, which did not allow him to come into force.By resolving disputes about restitution became a matter for the courts. The return of property, generally took the form of securities with the right to purchase land or shares of the company.
The Experience of former socialist block shows that the restitution of Ukraine after signing the agreement with the EU is regulated at the state level. The Parliament has the right to determine the procedure, terms for submission of claims, the persons to whom the rules will apply. The same was done in Ukraine.
The Verkhovna Rada in 1991, adopted the law on rehabilitation of victims of political repression, according to which rehabilitation covers the period from 1917 up to the commencement of this act to persons deported outside Ukraine. These include forcibly displaced, wholly or partly deprived of the rights and freedoms of the citizen class, social, national, political and religious motives.
But this law is not applicable to foreigners. Government decree provided for the return of expropriated structures and other property or payment of their value, but only for citizens of Ukraine. Compensation to aliens legislation does not provide.
In Ukraine, attempts were made to resolve the matter at the level of law: in 2005 submitted a project on restoration of the rights of alienated property, which is proposed to allow to return the property, not only Ukrainians, but also foreigners. The law on the restitution of Ukraine adopted was not — at the conclusion of the government, in determining the mechanism of return of property to former owners (unilateral restitution) return of property to another party (bilateral restitution) was not provided. This is contrary to the provisions of the Civil code.
To summarize, it can be argued that at this time, the property restitution in Ukraine the legal basis has not. Final conclusions are possible only after careful analysis of each specific claim, the evidence and the facts.
And foreign governments must be mindful of the international principle of reciprocity, according to which, the restitution of Ukraine in the EU can be a reason for bringing such claims against Poland.
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