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Please send in any articles note worthy on the subject illegal
property seizures.
Further information, please contact:
Ms. Alexandra Mareschi
Email: alexandra.mareschi(at)projusticia.net
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Subject: Autumn-Winter 2001
Sender: Vlado Bevc
The South Slav Journal, Vol. 22, No. 3-4
Contact: www.projusticia.net
Via ProJusticia-Email
Nationalization of private property after World War II in the People’s Republic of Slovenia, at the time one of the constituent republics of Yugoslavia, had a clear purpose: the destruction of private property and initiative and the expropriation of all large owners and the Roman Catholic Church as an introduction to total abolition of private property and economic independence of individuals. To attain these goals all means in the repertory of a totalitarian communist regime were used by the political state administration and the judiciary. At that time human rights, as we understand them today, were flagrantly violated. The regime used the most brutal Bolshevik methods.
In 1991, at a time when under the influence of the Slovenian democratic parties (Slovenian People’s Party, Slovenian Christian Democrats, and Slovenian Social Democrats) Slovenia was breaking away from Yugposlavia and seemed to be formally ending the totalitarian communist rule, the Denationalization (Restitution) Law was enacted by the Slovenian Parliament. The legislation was intended to correct to some extent the plundering of private property in the aftermath of World War II. The communists did not dare to oppose the law too vigorously in the Parliament because of concerns as to what the future had in store for them and because they thought they might be able to avoid implementing it.
In the first year following the enactment of the Denationalization (Restitution) Law some property was indeed returned to the original owners or their heirs. The communists and their political and ideological successors who were never purged from the government?s apparat ensured that preference was given to persons loyal to the former communist regime and members of the nomenclatura.
It did not take long for the communists to regroup and defeat the democratic parties in the Parliament. The government reverted to the ideological successors of the communists who are now appearing as several political parties, viz., the Liberal Democracy of Slovenia, Party of the Retired Persons, Slovenian Nationalist Party, The United List of Social Democrats and, of course, the Communist Party renamed the Party of Democratic Renewal.
With the advent of the regime of Janez Drnovšek at the end of 1992, the implementation of the Denationalization (Restitution) Act was slowed down. Instructions apparently went out to the authorities processing restitution claims directing them to delay and obstruct the resolution of these claims. Only anecdotal evidence of such instructions exists, such as, for instance, off-guard comments of officials that they were directed to give low priority to restitution claims. It is not known whether the instructions were actually given in writing or transmitted orally through the communist party channels. The fact that the process came to a virtual standstill, however, is documented in the annual reports to the Parliament and cannot be denied.
Official records and reports show that to this date barely one-half of all restitution claims have been resolved. This does not mean, of course, that the resolution was always in favor of the claimants. In many cases restitution was denied or compensation reduced to an insignificant amount.
The Slovenian political nomenclatura never repudiated the expropriations of the post-war period, nor has it apologized to the victims and their families for the systematic destruction of their homes, property, good name, nationality, subsistence, personal freedom and -- often -- their lives. While the Republic of Slovenia may now be making feeble statements attributing its past wrongdoings to the excesses of the former communist regime, its leaders -- former communists and their ideological successors -- remain in power and continue their former practices under the guise of a constitutional democracy. Therefore, it is not surprising that there is no political will to carry out a fair and equitable restitution of seized property. At present the government of Slovenia controls over 70 percent of all property and it is difficult to see how a country with such economic makeup can be expected to evolve into a democratic society.
The implementation of restitution is bogged down in unreasonably long and complicated processes, administrative obstruction and amendments to the Denationalization Law designed to thwart its implementation. At the same time, the government controlled media (newspapers Delo, Dnevnik, Vecer, etc., and Radiotelevision Ljubljana) are demonizing the original owners by representing them to be greedy and undeserving individuals who place their own personal interests above those of the country.
Underlying these arguments is the view, inculcated into the population by fifty-five years of communist brainwashing, that private ownership is undesirable and that the government should manage and distribute the nation’s wealth as its leaders see fit. The objective of this propaganda campaign is to secure public support of continued withholding of unjustly seized property from the original owners. Such views are widespread in the administration, the Ministry of Jurisprudencee, the legislature, the leading news media and, of course, among those favored supporters of the communist regime who at present hold and use the confiscated property.
The Slovenian Association of Former Owners of Expropriated Property (SAFOEP), an organization of the Civil Society, that has since 1990 advocated a speedy, fair and equitable return of expropriated property, initiated a campaign to inform the European Union and North Atlantic Treaty Organization of the property restitution problems in Slovenia.
Noting that denial of property rights is a violation of Article 17 of the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948, the Slovenian Association of Former Owners of Expropriated Property (SAFOEP) appealed to the public opinion of the democratic world.
Restitution of property seized by the communists is now indeed one of the criteria for evaluating Slovenia’s readiness for admisison to the EU and NATO. The question is being raised by member states of the European Union whose nationals were expropriated for the sole reason that they were nationals of Germany, including Austrians of German nationality, and Italy. Slovenian representatives attempt to justify the confiscations by making representations to the effect that in accordance with the decrees of AVNOJ only the property of persons who actively collaborated with the Nazis was confiscated. The truth, however, is that targeted private property and all production resources were confiscated, irrespective of the owners’ political persuasion. The communist regime established at the end of World War II intended to set up a Soviet republic and do away with private property as had been done in the Soviet Union.
In addition to the questions raised by members of the European Union, the United States, a leading and most influential member of NATO, has on numerous occasions told Slovenian officials at the highest level that it considers settlement of American citizen property restitution claims a key bilateral issue between the two countries and that it expects that American claims will be settled fairly and at an early time. In fact, the United States went even further than that by suggesting to the Slovenian government that all property seized by the communists should be returned to the original owners in accordance with the Slovenian law. From information presented below, however, it appears that as far as restitution of property to American citizens is concerned, the only effective action would be a demand that Slovenia settle those claims directly with the United States and then distribute the proceeds through the U.S. Foreign Claims Settlements Commission. This would probably not cover restitution in kind.
Coincident with the visit of President Bush to Ljubljana in June of this year (2001), the Slovenian Ministry of Jurisprudence issued a memorandum on the status of United States citizen claims intended for persuading any visiting American diplomats that Slovenia is making a good faith effort to solve the problem.
The memorandum states that on April 30, 2001, out of the 469 claims of American citizens 47 percent have been resolved and that in the last year the number of resolved claims increased by 25.7 percent. The fact that a total of 404 decisions have already been issued should be an indication that the government is working hard to settle those claims. The value of the property involved in the resolved claims amounts to 54.3 million Deutschmark (US$ 27.1 million). Of this amount, property valued at 49.2 million Deutschmark (US$ 24.4 million) have been returned.
There still remain 249 outstanding claims estimated at a total of 62.7 million Deutschmark (US$ 31.3 million). The valuations of the remaining claims are at best estimates , which are reviewed in the course of the process. The memorandum also states that 36 additional positions have been created for persons who will work on property restitution. An additional 100 million SIT (US$ 400,000) has been appropriated to pay for related expenses. Moreover, all the ministers committed themselves to do everything in their power to expedite the property restitution proceedings within their respective areas of jurisdiction.
The Slovenian government is well aware that its handling the property restitution may jeopardize its chances to become a member of the European Union and the North Atlantic Treaty organization. About one hundred complaints have already been filed with the European Court of Human Rights by persons whose property claims simply were not acted upon by the government.
Those complaints will in all likelihood result in fines imposed on Slovenia because of “the law’s delays” but will not result in a direct adjudication of claims by the European Court of Human Rights. Although the fines imposed will only amount to about $10,000 in each case, they will damage the image of Slovenian jurisprudence. Slovenia, sensitive to appearances, would like to avoid such outcome. An outright denial of claims would at least remove the complaint that the claimants were subjected to undue delays which violated their rights to the due process.
Slovenia is caught in the dillemma of being committed to the Marxist precepts still embraced by the ruling parties which demand government control of the nation’s assets and the demands for giving up a significant part of those assets which are now in the hands of communist heirs and their organizations to gain acceptance as a member of EU and NATO. Membership in these two political entities remains a primary objective of Slovenian foreign policy because it would enhance the prestige of its regime both at home and abroad. Therefore Slovenia is trying to gain acceptance by improving its image without making substantial concessions. To this end the government of Slovenia recently issued several resolutions designed to create an impression that, after nine years of delays and chicanery, it is finally making a good faith effort to implement the Denationalization (Restitution) Law.
Based on these resolutions formal instructions for processing denationalization claims were issued by the Slovenian Ministry for Environment and Space. As noted above, it has previously not been possible to obtain copies of government instructions issued to the administrative authorities processing restitution claims. This time, however, the instructions were released to the public domain. From the released instructions it is possible to see that the Slovenian government intends to expedite the resolution of the outstanding claims by denying as many as possible.
Following are some examples on how certain types of claims will be treated under the new instructions.
It is well known, for example, that many properties were confiscated simply by armed local communists showing up and telling the owners that they are seizing the property. In such cases no decisions were issued giving grounds for confiscation and there was no recourse to an appeal.
The only evidence that the property was confiscated is a change of the title in government records. For example, a store would be seized and its name changed to a government vending enterprise. In some cases lists of confiscated businesses were prepared which can be retrieved from the archives. Although the businesses in question are listed as confiscated there may be no record of a court decree or other decree of confiscation.
Article 4 of the Denationalization (Restitution) Law provides for restitution of properties seized in this way. The instructions effectively annul Article 4 of the Denationalization (Restitution) Law by requiring that all claims for restitution of property that was seized without proper legal authority existing at the time of confiscation be summarily rejected if the victim cannot produce documentary evidence of such confiscation. In other words, documentary evidence is required in cases where none ever existed.
Article 5 of the Denationalization (Restitution) Law provides for restitution of property that came into government possession because of duress, threat, or subterfuge exercised on the victim by a government entity. The instructions require that all claims under Article 5 of the Denationalization (Restitution) Law are to be transferred to a court. Except for the declaration of the victim that he gave up his property under duress and the improbability that valuable property would be surrendered to the government for no compensation no other evidence is available in cases of this nature. As a rule such evidence is not adequate in a court that considers government records, if any exist, as conclusive evidence of a proper transaction. This instruction effectively annuls Article 5 of the Denationalization (Restitution) Law.
Claims for restitution of property , which the victim was allowed to use for some time after the confiscation, are to be summarily rejected. This includes claims for restitution of property from which the owners were evicted and relocated elsewhere because their property was too close to the national border or some other sensitive facility of the communist government. Persons evicted in this way were usually deported to the interior and may have been given the use, but not the title, of property seized from other persons.
Article 63 of the Denationalization (Restitution) Law requires the claim processing authorities to seek and discover relevant records required substantiating the claim as part of their official duties. The instructions, on the other hand, direct the administrative units processing restitution claims to reach for any conceivable technicality, no matter how far-fetched, on the basis of which the claim can be rejected. The instructions effectively annul Article 63 of the Denationalization (Restitution) Law.
In 1998, Article 9 of the Denationalization (Restitution) Law was amended to read: “If a natural person as defined in Articles 3, 4 and 5 of the Denationalization Law was on May 9, 1945 a citizen of Yugoslavia, a foreign national is entitled to restitution only if a like right is, by virtue of an international treaty, accorded to citizens of Slovenia by the state of which the claimant-recoverer is a national.”
“Foreign national” in the above context means a person who on May 9, 1945 had dual citizenship, that is, he was citizen of Yugoslavia and another country, or a person who on May 9, 1945 was a citizen of Yugoslavia and who later acquired citizenship of another country. The Constitutional Court struck out the text “by virtue of an international treaty” October 14, 1998. That wording was put in principally to exclude citizens of the United States of America and other countries from claiming property restitution.
As there never was a nationalization of property in the United States there could be no international treaty on reciprocity in restitution matters between the United States and the Republic of Slovenia. An officer of the United States Embassy has reportedly discussed this issue with Lovro Sturm, then Justice of the Constitutional Court, whereupon the Constitutional Court struck out the said wording.
Notwithstanding the decision of the Constitutional Court, the instructions specifically require that reciprocity treaties for restitution of property must be established between Slovenia and the other successor republics of former Yugoslavia. Because no such treaties exist, victims who are now citizens of other successor republics of Yugoslavia will have their claims rejected or postponed indefinitely. This instruction is in contravention of the Slovenian constitution because it discriminates against claimants who are not citizens of the Republic of Slovenia and annuls Article 9 of the Denationalization (Restitution) Law which provides that all persons who were citizens of Yugoslavia on and after May 9, 1945 are entitled to claim restitution under the law.
The instructions insist that a bilateral agreement between Slovenia and a foreign national’s country is a prerequisite for a foreign national to qualify for restitution. However, as mentioned above, the Constitutional Court in its decision of September 14, 1998 expressly voided the wording requiring an international treaty as a requirement for foreign nationals to qualify as claimants.
The instructions thus discriminate against persons who have dual citizenship. Subjects of specific discrimination are nationals of countries, which were compensated by the former Yugoslavia for property of their nationals that was confiscated or nationalized in Yugoslavia. Yugoslavia paid some compensation to those countries which presumably distributed the proceeds to their nationals. The instructions require rejection of claims by such dual citizens and their heirs whether their governments compensated them or not.
The already existing practice of delaying claims of foreign nationals, including citizens of the United States, and the practice to treat such claimants in a discriminatory manner is also reinforced.
The instructions direct the administrative units to raise the question of potential foreign nationality whenever possible. Thus persons who were citizens of Yugoslavia on May 9, 1945 but who left Yugoslavia to avoid the communist rule, were sometimes stripped of their Yugoslav citizenship at a later date, often several years after 1945. The sanction was imposed most frequently on persons of German ethnic origin.
However, because these persons were citizens of Yugoslavia on May 9, 1945 they are still entitled to claim restitution of their property under the law. The instruction puts the burden on them to prove in lengthy court proceedings that they were citizens of Yugoslavia on May 9, 1945 although the very fact that they were deprived of their citizenship at a later date is clear evidence that they were citizens of Yugoslavia before the date on which they lost their citizenship.
An even more egregious situation applies to Slovenian nationals who lived in the territory ceded to Yugoslavia by Italy after the end of World War II. Most of those persons left the territory rather than live under communist rule and their property was immediately confiscated because of that. Those persons, although of Slovenian national origin, never were citizens of Yugoslavia and thus cannot claim restitution of their property under the Denationalization (Restitution) Law.
Rather than making the property restitution process timely, equitable transparent, and non-discriminatory as United States Secretary of State Madeleine Albright and Under Secretary of State Stuart Eizenstat recommended to Slovenian Prime Minister Drnovšek in November 1998, the present instructions on implementation of the Denationalization (Restitution) Law make the process exactly the opposite. The instructions reveal the full panoply of difficulties and chicanery that persons claiming restitution are subjected to by the Slovenian authorities. The tenor of the instructions is that whenever possible restitution claims are to be denied or tied up in courts by prolonged, convoluted and expensive litigation. This has already been the observed practice but now we also have evidence that such practice is based on government instructions.
Slovenia remains obdurate in clinging to its legacy of communism which endures as its characteristic socio-economic and political trait. By deceit and dissembling that small communist enclave seeks to gain admission to the European Union and the North Atalntic Treaty Organization with which it has nothing in common. Members of the NATO alliance will have to decide whether any putative strategic advantages that Slovenia may offer outweigh the liabilities of being associated with a nation that does not share their commitment to the defense of democracy, individual liberty, free market economy, and the rule of law.
Acknowledgment: Valuable discussions with Professor Inka Stritar and information provided by Zdenka Gorjup and Peter Logar of the Slovenian Association of Former Owners of Expropriated Property are gratefully acknowledged.
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