„Restitutio in integrum“ or „fair and just“ compensation

March 18, 2011
By HRL

COMPARING INTERNATIONAL AND LITHUANIAN DOMESTIC LAW

On the one hand Lithuania has ratified the “Vienna Convention on the Right of Treaties” and Article 27 stipulates: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”, on the other hand Part 1 of article 135 of the Constitution of the Republic of Lithuania stipulates that the Lithuanian Republic is guided by the generally acknowledged principles and norms of international law. One of those generally acknowledged principles of international law is the principle of priority of international law (superiority) towards domestic (national) law, which means that the stipulations of international conventions have to be applied, whenever any collisions between an international convention and the stipulations of domestic law should arise.

– However, the Lithuanian regime is systematically violating all international treaties, as far as “restitutio in integrum” is concerned

International Law Legal commentaries and decisions by International Courts Lithuanian Domestic Law Legal Conclusion Lithuanian Courts’ Decisions
Peremptory norm:  All legal acts, declarations, decisions etc. made by organs of an unlawful occupational regime are null and void from the beginning. International Law Court (ILC):

The International Tribunal in The Hague makes it absolutely clear that all states of the world must not recognize the validity of any acts adopted or performed by organs of an unlawful occupational regime in, for or on behalf of an illegally occupied country [(in this connection Namibia), and to consider  such acts null and void from the beginning.

(Source: ICJ-Reports 1971, 16)].

German Constitutional Court:

October 25, 2004, Nr. 2 BvR 955/00 and 1038/01) of the German Constitutional Court stressing that „a land-owner does only then forfeit his proprietary rights, if a state, which is sovereign in accordance with international law, abolishes the land-owner‘s  proprietary rights legitimately and for a longer time in accordance with international law“ (Source: JURIS, marginal number 78). According to these two decisions the land-owners‘ right to „restitutio in integrum“ is protected by article 14 of the German Constitution („Property and right of inheritance are guaranteed“). That is why article 1 of the first protocol does also protect the property of Lithuanian land-owners, as their proprietary rights have never been abolished and continue to exist [please compare the wording of article 17 (2) of the Universal Declaration of Human Rights: „No one shall be arbitrarily deprived of his property”].

US Department of State:

The United States did not recognize the legality of any acts or decrees passed by an unlawful occupational regime (Hyde, Ch. Ch.: International Law. Chiefly as Interpreted and Applied by the United States, Boston 19472, vol. II, p. 1534)

Council of Europe’s Parliamentary Assembly resolution 1481 (2006) regarding the need for international condemnation of crimes of totalitarian communist regimes

European Court of Human  Rights

Loizidou v. Turkey

(“It notes, however, that international law recognises the legitimacy of certain legal arrangements and transactions in such a situation, for instance as regards the registration of births, deaths and marriages, “the effects

of which can be ignored only to the detriment of the inhabitants of the

[t]erritory” (see, in this context, Advisory Opinion on

Legal Consequences for States of the Continued Presence of South Africa

in Namibia (South West Africa) Notwithstanding

Security Council Resolution 276 (1970),

[1971] International Court of Justice Reports 16, p. 56, para. 125)”.

Accordingly, the applicant cannot be deemed to have lost title to her property as a result of Article 159 of the 1985 Constitution of

the “TRNC”.

It follows that the applicant, for the purposes of Article 1

of Protocol No. 1 (P1-1) and Article 8 of the Convention (art. 8), must

still be regarded to be the legal owner of the landThe objection “ratione temporis” therefore fails.

Acts of “nationalization” of real estate are considered to be valid, although “unlawful”. (Responsible persons: Former (1977-1991) minister of justice  of the unlawful occupational regime, Pranas Kuris, member of the politburo of the communist party of the unlawful occupational regime, Vilenas Vadapalas-Vodopolov), “expert” for international law of Moscow understanding Systematic and serious violation of a peremptory norm of general international law Accordingly
Property rights of lawful owners of Lithuanian real estate continue to exist, as all “nationalization” acts and/or declarations are null and void from the beginning, which is why property rights were not abolished and continue to exist: Pre-occupation lawful owners of real-estate remain lawful owners after the end of the occupational regime European Court of Human rights – Grand Chamber decision:

Loizidou v. Turkey

(Application No. 15318/89)

Over 1 Million dollars compensation awarded.

The U.S. Department of State commented on this case:

“The ruling reaffirmed the validity of property deeds issued prior to 1974” (although the confiscation of property occurred before the coming into force of the Convention for Turkey – no refusal by the ECHR to deal with this case “ratione temporis”).

Vasilescu v. Romania, 22 May 1998 No. 27053/95

European Human Right Court decision in the Vasilescu v. Romania case in which the Court stated that the circumstance that the property of the applicant – several decades before – was de facto confiscated did not take away from him the right to defend his violated ownership right and the ownership right as one of the principal civil rights must be protected in the court.

German Constitutional Court:

October 25, 2004, Nr. 2 BvR 955/00 and 1038/01) of the German Constitutional Court stressing that „a land-owner does only then forfeit his proprietary rights, if a state, which is sovereign in accordance with international law, abolishes the land-owner‘s  proprietary rights legitimately and for a longer time in accordance with international law“ (Source: JURIS, marginal number 78). According to these two decisions the land-owners‘ right to „restitutio in integrum“ is protected by article 14 of the German Constitution („Property and right of inheritance are guaranteed“). That is why article 1 of the first protocol does also protect the property of Lithuanian land-owners, as their proprietary rights have never been abolished and continue to exist [please compare the wording of article 17 (2) of the Universal Declaration of Human Rights: „No one shall be arbitrarily deprived of his property”].

The same according to the preamble to the “Law for the restoration of citizens’ proprietary rights to their still existing real estate”.

Considered and treated, however, by the following provisions of this law as having been abolished by “unlawful, although valid” acts of the occupational regime

According to the provisions of this law
Right to a “restitutio in integrum” after the collapse of the unlawful occupational regime Amsterdam International Law Clinic (April 2000):

The competence of the European Court of Human Rights to order restitutio in integrum“

(„The arguments supporting this conclusion are as follows. Foremost, the proposed remedial

measures mirror well-established principles of general international law. The principle of

restitutio in integrum – restoring the situation as it existed prior to the breach – is

acknowledged by the Court, but never put to practice. The Court has found itself competent

to rule on matters of ‘just satisfaction’ in an increasing number of situations, but has

refrained from developing the content of that very ‘just satisfaction’. This non-development is

seriously undermining the institutional balance and legitimacy of the European human rights

system. Comparably, interim measures – while lacking an explicit treaty basis – have been ruled by the Court for the benefit of the parties and as inherent to the judicial task of any court. It is also significant that two other human rights (quasi-)judicial bodies, the United

Nations Human Rights Committee and the Inter-American Court of Human Rights, do rule on remedial measures according to the principles of general international law. These bodies

have ruled restitutio in integrum and specific orders on several occasions. Furthermore, any

objections invoking provisions of the domestic legal order are not of any relevance for

determining the competence of the Court“.

Any problems arising at the domestic level, should be seen as mere de facto problems, incapable of derogating from the international legal obligations- The Permanent Court of Arbitration, the Permanent Court of International Justice, and the International Court of Justice have produced a consistent jurisprudence in this respect”

UN Resolution E/CN.4/Sub/17 June 18. 2005 on Housing and Property Restitution for Refugees and Displaced Persons

No right to “restitutio in integrum” according to the above law. A so-called “restitutio in integrum in part”  (partial reparation) is being carried through, which is, in fact, a denial of “restitutio in integrum” Violation of a peremptory norm of general international law Accordingly
Holder of proprietary right after the end of the unlawful occupational regime is the prior lawful owner. In accordance with a peremptory norm of general international law. In accordance with the preamble to the Lithuanian “Law for the restoration of citizens’ proprietary rights to their still existing real estate”, not with the provisions of the law itself!

Preamble: “The proprietary rights of the lawful land-owners have not been abolished and continue to exist

Decisions by the ECHR:

Vasilescu v. Romania, 22 May 1998 No. 27053/95

(“European Human Right Court decision in the Vasilescu v. Romania case in which the Court stated that the circumstance that the property of the applicant – several decades before – was de facto confiscated did not take away from him the right to defend his violated ownership right and the ownership right as one of the principal civil rights must be protected in the court“).

Vlasia Grigore Vasilescu v. Romania 6. August 2006 (No. 60868/00)

(“The applicant alleged that his right of access to a court had been violated on account of the dismissal of his action to recover possession of the property without any analysis by the courts of the validity of the State’s alleged property title. He relied on Article 6 § 1 (right to a fair hearing). He further complained that his rights under Article 1 of Protocol No. 1 (protection of property) had been infringed”. …

It was impossible to establish whether those courts had simply omitted to address that argument or whether they had intended to dismiss it, in which case the reasons remained unstated. Accordingly, the Court considered that the applicant’s case had not been given a fair hearing. It therefore held unanimously that there had been a violation of Article 6 § 1”)

Unsettled. Although according to the decision by the Lithuanian Supreme Court of … “ex iniuria ius non oritur”. The “state” is considered to be only the trustee of this land, until the proprietary rights of the “former owners” have not been restored. The representatives of the state are not allowed to sell, give away, rent this land, as long as the state is only the trustee. Partly in accordance  with international law, provided that the state carries through  a “restitutio in integrum” or (in extremely rare cases) pays the lawful owner a “fair and just” financial compensation (which, however, the state is not willing to carry through respectively to pay). Courts (with hardly any exceptions) treat the state as the lawful owner, confirming so-called “sale-contracts” by representatives of the state, even prior to “restoring” the proprietary rights of the lawful owners:

Systematic violation not only of international law, but also of domestic law, the latter meaning a perversion of justice (which is why both the ECHR and the UN HRC are obliged to acknowledge a violation of article 6 of the ECHR respectively of article 14 of the ICCPR)

The Lithuanian courts’ practice is violating the decision of May 27, 1994, Nr. 12/93 by the Lithuanian Constitutional Court: „ … No lawful state property arose and could not arise on grounds of such  arbitrary acts by the occupational regime, as ‚ex iniuria ius non oritur‘.. (1994 m. gegužės 27 d. bylos Nr. 12/93 nutarime LR Konstitucinis Teismas konstatavo, kad: „…okupacinės valdžios savivalės aktų pagrindu negalėjo atsirasti ir neatsirado teisėta valstybinė nuosavybė, nes neteisės pagrindu negali atsirasti teisė. Todėl ir tokiu būdu iš žmonių atimtas turtas laikytinas tik faktiškai valstybės valdomu turtu)

The Lithuanian Courts‘ practice is also violating the decision of … by the Supreme court of Lithuania of September 6,

1999 m. Nr. 3k-3-384/99:

as long as the question of restoring a person‘s proprietary rights to a concrete and still existing real estate has not finally been solved, this property remains an object of dispute and accordingly – this property must not be assigned to other persons …“

Right to a “fair and just” financial compensation, should “restitutio in integrum” be impossible “de facto” in extremely rare cases (public buildings having been erected on owners’ land) Decisions by the ECHR:

Sporrong and Lönnroth v. Sweden

According to the Court’s judgment in the case of Sporrong and Lönnroth v. Sweden of September 23rd, 1982, § 63 (Application no. 7151/75; 7152/75), there is no need for a formal expropriation, even a de facto expropriation is constituting a violation of Article 1 of the First Protocol

James v. UK

the Grand Chamber of the Court, in the case of James and Others v. United Kingdom of February 21st, 1986 (no. 8793/79) § 54, had established that “As far as Art. 1 is concerned, the protection of the right of property it affords would be largely illusory and ineffective in the absence of any equivalent principle“.

Lithgow v. UK

Hentrich v. France

28 June 1995 no. 23/1993/418/497

(“In its principal judgment the Court held that, failing return of the land in question, the calculation of pecuniary damage must be based on the current market value of the land”)

Serghides v. Cyprus

Kehaya et alii v. Bulgaria

(47797/99 ; 68698/01 [2006] ECHR 12 January 2006 –

“(FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Holds that there has been a violation of Article 6 of the Convention in respect of the civil proceedings that ended on 10 October 2000;

2.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention in that the applicants were deprived of their land”)

Beyeler v. Italy

(„The applicability of Article 1

The Court considered that this provision was applicable in this case. A series of findings of law and fact proved that the applicant had had a proprietary interest recognised under Italian law – even if it was revocable in certain circumstances“)

Broniowski v. Poland

31443/96

(„that there was no cogent reason why such an insignificant amount [namely the 2% of compensation already received by the applicant’s family] should per se deprive him of the possibility of obtaining at least a proportion of his entitlement on an equal basis with other Bug River claimants„ … “Also, he remains free to seek and recover compensation over and above the current 20% ceiling on compensation fixed by the July 2005 Act in so far as Polish law allows that in the future and there is nothing to prevent a future challenge of that 20% ceiling before either the Polish Constitutional Court or ultimately this Court (see clauses 6 and 10 of the agreement in paragraph 31 above”).

Zwierzynski v. Poland

Popov v. Moldova

Brumarescu v. Romania

(“FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Holds that the respondent State is to return to the applicant, within six months, the house in issue and the land on which it is situated, except for the flat and the corresponding part of the land already returned”)

Vasilescu v. Romania, 22 May 1998 No. 27053/95

(“European Human Right Court decision, in which the Court stated that the circumstance that the property of the applicant – several decades before – was de facto confiscated did not take away from him the right to defend his violated ownership right and the ownership right as one of the principal civil rights must be protected in the court“).

Papamichalopoulos et alii v. Greece 31 October 1995 no. 14556/89

(“FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that the expert report is valid;

2. Holds that the respondent State is to return to the applicants, within six months, the land in issue of an area of 104,018 sq. m, including the buildings on it”)

Loizidou v. Turkey

Jasiuniene v. Lithuania

Vlasia Grigore Vasilescu v. Romania

6. August 2006 (No. 60868/00)

(„The applicant alleged that his right of access to a court had been violated on account of the dismissal of his action to recover possession of the property without any analysis by the courts of the validity of the State’s alleged property title. He relied on Article 6 § 1 (right to a fair hearing). He further complained that his rights under Article 1 of Protocol No. 1 (protection of property) had been infringed“)

(“It was impossible to establish whether those courts had simply omitted to address that argument or whether they had intended to dismiss it, in which case the reasons remained unstated. Accordingly, the Court considered that the applicant’s case had not been given a fair hearing. It therefore held unanimously that there had been a violation of Article 6 § 1”)

Kopecky v. Slovakia

Nr. 44912/98 28.9.2004 Grand Chamber

(„On the other hand, once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement. The same may apply in respect of arrangements for restitution or compensation established under pre-ratification legislation, if such legislation remained in force after the Contracting State’s ratification of Protocol No. 1 (see Broniowski v. Poland [GC], no. 31443/96, § 125, ECHR 2004-V“).

Anheuser-Busch Inc. v. Portugal (no. 73049/01) January 11th, 2007 Grand Chamber

(“The applicant company therefore owned a set of proprietary rights – linked to its application for the registration of a trade mark – that were recognised under Portuguese law, even though they could be revoked under certain conditions. This suffices to make Article 1 of Protocol No 1 applicable in the instant case and to make it unnecessary for the Court to examine whether the applicant company could claim to have had a “legitimate expectation”).

Decisions by the Permanent International Court of Justice:

Chorzów case, PCIJ (1928) Series A, No. 17, S. 47 f.,

The essential principle contained in the actual notion of an illegal act – a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals – is that the reparation must as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.”

“… a sum corresponding to the value which a restitution in kind would bear” as well as “… damages for loss sustained which would not be covered by restitution in kind or payment in place of it.”

Temple of Preah Vihear (Cambodia v. Thailand), 1962 ICJ 6

The Court found that Thailand had to leave the

unlawfully occupied temple area and restore any religious objects, which it had removed

Decisions by the UN Human Rights Committee:

Kriz v. Czech Republic

Petzold v. Czech Republic

Czernin v. Czech Republic

Josef Adam v. Czech Republic

Simunek et alii v. Czech Republic

Blazek et alii v. Czech Republic

Desfours-Walderode v. Czech Republic

Schäfer, Martin: „Entschädigungsstandard und Unternehmens-bewertung bei Enteignungen im allgemeinen Völkerrecht, Heidelberg 1997

Bei völkerrechtswidrigen staatlichen Akten besteht eine völkerrechtliche Verpflichtung, alle schädigenden Folgen aus der Welt zu schaffen und Wiedergutmachung zu leisten83 . Dieser Grundsatz ist auf rechtswidrige Enteignungen anzuwenden84 . Zwei Formen der Wiedergutmachung lassen sich unterscheiden: Die restitutio in integrum in Form der Naturalrestitution. Danach hat der schädigende Staat den Zustand wiederherzustellen, der bestehen würde, wenn das schädigende Ereignis nicht eingetreten wäre85 . Nur wenn eine Naturalrestitution faktisch nicht möglich ist, ist der Staat zur Leistung von Schadensersatz in Geld verpflichtet86 .

Definition des fairen Marktpreises im Urteil Starett Housing Corporation, Iran-US Claims Tribunal Reports, 16 (1987 III), 112 ff:, 221, para. 277: “[The] price that a willing buyer would pay to a willing seller in circumstances in which each had good information, each desired to maximize its financial gain, and neither was under duress of threat, (…) assuming that the willing buyer was a reasonable business man”.

86) Schüle, in: Strupp/Schlochauer, Wiedergutmachung, S. 844. Mit Bezug auf rechtswidrige Enteignungen führt der Ständiger Internationale Gerichtshof in Chorzów, PCIJ (1928) Series A, No. 17, S. 47 f., aus: Zu leisten sei “… a sum corresponding to the value which a restitution in kind would bear” sowie “… damages for loss sustained which would not be covered by restitution in kind or payment in place of it.”

Article 17 EU Charter of Fundamental Rights, which requires “fair compensation being paid in good time for loss” of property

EP Resolution B6 –0251/2007 which considers that the obligation to cede legitimately acquired private property without due process and proper compensation constitute a violation of an individual’s fundamental rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms

UN ‘Pinheiro Principles’ – ‘Restorative Justice’, UN Resolution E/CN.4/Sub/17 June 18. 2005 on Housing and Property Restitution for Refugees and Displaced Persons

EP-Petition No.0853-10

Theoretically the same, even according to the Lithuanian Constitution, the above law, however, stipulates that the government decides what a “fair and just” compensation is,

according to the provisions of the above law  no the market price is the equivalent, but a so-called “nominal value” manipulated by the government to from about 0,1% to at the most 5% of the market value

Violation of general international law. Violation of article 26 of the International Covenant of Civil and Political Rights

(discrimination on grounds of status)

Decisions by “people’s courts” being organs of an unlawful occupational regime, awarding third persons the real estate (including houses) of lawful owners, violating also the legal principle “Superficies solo cedit”, valid in pre-occupational Lithuania, never having been abolished by invalid acts of the unlawful occupational regime, are null and void from the beginning.

Sole exemption: Decisions concerning “Births, deaths and marriages”

International Law Court (ILC):

ECHR: „It notes, however, that international law recognises the legitimacy of certain legal arrangements and transactions in such a situation, for instance as regards the registration of births, deaths and marriages, “the effects of which can be ignored only to the detriment of the inhabitants of the [t]erritory

Loizidou v. Turkey § 45

Considered to have been valid and to be still valid.

Sole exemption, if the lawful owners was not a party to such proceedings, in such cases such decisions were not “res judicata” for respective lawful owner, he can apply to the courts to have his violated proprietary right protected

Violation of a peremptory norm of general international law Normally Accordingly.

Part 2 of article 14 of the Lithuanian Code of Civil Procedure (1964)

“The binding nature of a judgment, decision or ruling does not take away from third persons the possibility to turn to the court for having their rights and interests, protected by law, secured, with regard to which the law suit has neither been examined nor decided”).

(Further, the chamber for civil cases of the Supreme court of the Lithuanian Republic, as early as February 21, 2000, had decided in case Nr. 3K-3-203/2000 that “ … for those, who were not a party to the proceedings, the court decision has neither a res judicata nor a precedent effect …”.  This decision was announced in “Teismų Praktika” (Nr. 14, p. 21-27) and thus became the established practice of the Supreme Court of Lithuania for applying and interpreting the law (according to item 2 of part 2 of article 346 of the current Code of Civil Procedure; according to article 12 of the Code of Civil Procedure valid in 2000.

However, Lithuanian courts

refuse to apply this provision nor do they come up to the decision by the Lithuanian Supreme court.

Contrary to its obligations arising from article 6 of the ECHR the ECHR (Lithuanian reporter having been suggested for election by the Lithuanian regime) refuses to

examine, whether Article 6 of the ECHR is systematically being violated by the systematic refusal of Lithuanian courts to carry through rei-vindicatio proceedings, to say nothing of complying with the legal principle existing in pre-occupation Lithuania “Superficies solo cedit” (the owner of the land is automatically also the owner of buildings having been erected on his land.

2 Responses to „Restitutio in integrum“ or „fair and just“ compensation

  1. HRL on September 1, 2014 at 3:31 am

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