The U.S. Helsinki Commission
Attention: Representative Christopher H. Smith, Chairman

234 Ford House Office Building
Washington, D.C. 20515 - 6460

Mrs. Elisabeth Pryor

Representative Christopher H. Smith

Senator Ben Nighthorse

via e-mail: csce@mail.house.gov

Berlin, September 10th, 2003

vr/sb

Aktenzeichen: Verf.i.d.USA

-bitte stets angeben-

Dear Mrs. Pryor,

Dear Mr. Smith,

Dear Senator Nighthorse,

a large number of victims of unlawful expropietations and political persecution in the 1940th in Germany asked me to send you a legal statement to the political and legal situation of those victims in Germany, what I do now by the attached documentation. You can reach me any time for further information.

Yours sincerely

Stefan von Raumer

– Attorney at law –

The treatment in German politics and case-law of problems of ownership and political persecution as legacies of the Soviet occupation of East German Länder

Berlin, September 26, 2002

Stefan von Raumer, Attorney, Meinekestraße 13, 10719 Berlin

I. Mission and aim of the author

I am a German attorney specialized in the law of restitution and have represented clients before the Bundesverwaltungsgericht (Federal Administrative Court) in a number of important cases in the area. For example, the case oftenly mentioned in German press which established that a Russian declaration that a person has been rehabilitated can now be used as grounds for the return of property. I also acted in the "Höfig" case, mentioned in German TV-news, winning both at first-instance before the Weimar Administrative Court and, very recently on 25 September 2002, on appeal before the Federal Administrative Court. As well as acting in some of the most important German cases dealing with return of property, I have also acted as legal advisor to, and drawn up expert opinions for, not only some of the largest international law firms, but also, from time to time, German parties in such cases and - as was recently the case - the German Parliamentary Committee on Petitions.

I am currently representing a client in the only test-case now pending before the Bundesverfassungsgericht (German Constitutional Court), which will resolve the question of whether the provisions of the Verwaltungsrechtliche Rehabilitierungsgesetz (German Law on administrative rehabilitation) require the Republic of Germany or its Länder to return most of the property confiscated from victims of persecution during the Soviet occupation. In the same area, I am currently involved in a number of cases pending before the European Court of Human Rights in Strasbourg, in which the Federal Republic of Germany is accused of acting in breach of the European Convention on Human Rights.

II. Additional information on the historical background to the negotiations leading up to the Unification Treaty on which German reunification was based

Further to the well known comments in German literature to the astonish phenomenon that the Republic of Germany still refuses any kind of rehabilitation of victims in den period after world war II., it should be noted that there is now a lot of documentation available on the negotiations leading up to the Unification Treaty, in particular as regards the confiscation of property in connection with blatant political persecution (which was the standard case under Soviet occupation). It has now been established that the German and Soviet authorities, acting through the medium German-Russian working party on co-operation in humanitarian matters, set up in 1988, reached a number of agreements that blatant cases of political persecution and the associated confiscation of property were to "rehabilitated" and the consequences of that persecution were to be rectified by the return of confiscated property.

For example, The "Kohl Gorbachev Declaration" of 13 August 1990 contains the following passage:

"... All repressive acts against farmers at the time of the collectivization and against all other citizens on political, social, national, religious or other grounds which were carried out between the 1920s and the 1950s, must be regarded as unlawful and contrary to fundamental political and socio-economic human rights. The rights of those citizens must be fully reinstated..."

The “Kohl Jeltzin Declaration” states as follows:

"... justice must be done for the innocent victims of arbitrary acts and oppression … we declare that those people who have been unlawfully condemned and persecuted without cause are morally rehabilitated ... People who seek individual rehabilitation beyond that granted by this declaration, can do so by bringing individual proceedings ..."

The preamble to the DDR-Rehabilitierungsgesetz (Law on the rehabilitation of persons in German Democratic Republic), which was already in force at the time of reunification negotiations and was only repealed later by the Federal legislature, states:

"... The rehabilitation of this class of people reflects a strong political and moral imperative. Rehabilitation is not only rightly called for by the people concerned but is also a concept widely supported amongst the population at large... this law intends to provide these people with the same rights as people rehabilitated under the criminal law...".

On the basis of those negotiations a new Paragraph 1(7) was incorporated into the Vermögensgesetz (German Law on property) which expressly provides that rehabilitated victims of political persecution also have a right to the return of property confiscated in connection with that political persecution. The second clause in Paragraph 1(8)(a) of the Law on property expressly provides that that right is also shared by people who were subject to political persecution under Soviet occupation.

On the basis of those legal provisions, and after many years of political and legal wrangling, I have finally succeeded in obtaining the first court ruling (Judgment of the Federal Administrative Court of 25 February 1999, -7 C 8.98-) that victims of political persecution under Soviet occupation, rehabilitated under the Russian law on rehabilitation, are entitled to the return of their property in cases where the property was directly seized by the occupying power in connection with that persecution. Then we were faced with a further battle for recognition that the (much larger) class of people whose property, while confiscated under Soviet occupation, was confiscated by the German authorities, are entitled to its return on the basis of rehabilitation under German law. That entitlement is recognized in the German case-law only in one very specific case, which unfortunately benefits only very few of the many people seeking restitution. Property will only be returned where, under Soviet occupation, it was confiscated as part of a punishment meted out by the German criminal courts in cases brought on wrongful political grounds. That entitlement could not be countered by the German Government's statement, quoted by Leon Mangasarian, that the Soviet Union had made the non-return of property a precondition for German reunification since the documents mentioned above prove that in cases where seizure of real estate was not the "mere" confiscation of property but instead a side-effect of much more serious political persecution, both the Soviet Union and the former GDR had expressly called for full rehabilitation and restitution.

On that front, I have been fighting for many years to have the two large groups of victims who formerly owned substantial estates - the victims of the so-called "industrial confiscations" and the victims of the "Land Reform" - rehabilitated by the German authorities, and to have their property returned. This is a basic desire shared by all those affected.

I, and more recently other German legal academics and attorneys, base our (newer) line of argument on the fact that the seizure of property as part of the "industrial confiscation" and the "Land Reform" was not, in fact, mere confiscation but was instead, directly related to wrongful political persecution. There is now a substantial amount of reliable evidence for this. A lot of eyewitness accounts of that period document the manner in which the property owners were dealt with: It is now generally accepted that a shockingly large number of people died in the implementation of those measures. The legal documents now available concerning the seizure of property at that time show that a very large number of citizens with untarnished reputations, many of whom had even been active in the resistance movement against the Nazi regime, were completely deprived of their rights, shot, persecuted or imprisoned, and relieved of all their property on the trumped-up, manufactured grounds that they were "active Nazis and war criminals". The underlying rational for those measures was always the desire to politically disempower and liquidate all the members of the property-owning classes. A typical example of this can be found in the work of the former East German historian Wilhelm "Die Rolle von Partei und Staat bei der Durchführung der Enteignungen der Nazi- und Kriegsverbrecher" ("The Role of the Party and the State in the Expropriation of Property from Nazi and War Criminals"):

"... The immediate task of the newly-formed, free Government of the people was to call all the Nazi leaders, war criminals, the Hitler Government and the German financial capitalists to account, with their person and their property, for serious war damage and crimes. The aim was to immediately disempower the haute bourgeoisie and place key State and economic positions in the hands of the people ... It was therefore imperative to punish war criminals, debtors and profiteers. That punishment was to be carried out both through the legal system and by seizure of their assets. Punishment of Nazis and war criminals was coupled with expropriation without compensation of their property as retribution for their unlawful actions ... which were so self-evident in the cases of the monopolists (the feudal land owners and the Junkers) that they were all to be treated as war criminals."

That retrospective analysis by a GDR historian makes clear the extent to which the thinking of the time was seeped in ideology and how all members of the property owning classes were indiscriminately condemned as war criminals and stripped of their property, their freedom, and often, also their lives.

Professor Edzard Schmidt-Jortzig, the former German Justice Minister, made the following observations on the matter:

"... In legal terms, it is simply no longer accurate to talk of "confiscation" rather than "expropriation", since the property was not confiscated in the public interest, following a proper procedure and in return for compensation, but instead was intended as punishment, practiced on specific persons and carried out without compensation ... It must now be generally accepted that the confiscations carried out at that time were unlawful. Even in terms of procedure the confiscations lacked all measure of legal legitimacy, i.e., those confiscations were sometimes tantamount to raids on the property of the persons concerned, they were accompanied by brutality and humiliation, there was frequently no rational justification and there was absolutely no possibility to appeal or seek judicial redress... The first wave of confiscations, at least, was only peripherally concerned with [the restructuring of property and ownership relationships]. The driving forces were instead often the desire for retribution, personal revenge, class psychosis and the venting of aggressions for which, even in the revolutionary phases, in the constitutional vacuum which existed 50 years ago, no justification can be found. ..."

Against that background, a case was referred to the Constitutional Court by the Dresden Administrative Court (by Order of 14 December 1999 - 2 K 1726/99 -) which considered the complete failure to rehabilitate any of the victims of the so-called Land Reform to be unconstitutional. The Constitutional Court held as follows:

"... The court which referred the case has explained in detail that the Land Reform and the industrial confiscations served the end of the political persecution of the persons concerned and violated their human dignity, and is thus irreconcilable with the fundamental principles of a state under the rule of law. That view is in line with the Constitutional Court's evaluation of those measures ..." (Judgment of the Constitutional Court of 9 January 2001, - 1BvL 6/00, 7/00 -)

However, the Constitutional court nevertheless declared the reference from the Dresden Administrative Court inadmissible and pointed out that the Administrative Court had failed to examine a number of straightforward preliminary legal questions. It held that the relevant court must first deal with those matters before the question can be answered as to whether, under the Law on Administrative rehabilitation, compensation should be paid and the property in question should be returned.

I subsequently brought a new test-case before the Federal Administrative Court to further clarify the matter. It is interesting to note that in that case, the Federal Government, which sent an official representative, once again expressly argued that the confiscation of property in cases such as the one in question could not be classified as political persecution. That position was particularly incomprehensible to the person bringing the constitutional complaint since, at the time of the confiscation, and on the basis of unjustified denunciations, his father had been imprisoned in a camp and intentionally starved to death. The express reason for the confiscation of his father's - and subsequently his mother's - property was said to be the same as the reason for his imprisonment and death, namely that he was allegedly an "active Nazi and war criminal". Following an appeal by his widow, the sequestration officials of the time heard all the witnesses in the local community, initially reaching a unanimous decision that he was "politically harmless [and there was] no evidence against him" and consequently decided to return his property. However, as a result of a new denunciation from a dairyman in the farm which wanted to take over his farm, all his assets were seized and his widow immediately expelled from the farm and forbidden to return. Against that background, it was incomprehensible to all the parties to the proceedings before the Federal Administrative Court on what grounds the Federal Government could claim that the confiscation of his assets was not a form of political persecution. It became clear that the Government's sole motive was to protect the German treasury from claims for return of property.

In its Judgment of 21 February 2002 (- BVerwG 3 C 16.01 -, ZOV 2002, p. 178 ff.), the third chamber of the Federal Administrative Court finally rejected the Federal Government's interpretation of the law, albeit only after my persistence in the oral hearings in the case, and made a binding declaration that the confiscation of property in that case was indeed a form of political persecution. It also held that the Law on administrative rehabilitation, which requires that victims are to be compensated for political persecution, was generally applicable in this case. However, it then stated that the plaintiff was nevertheless not entitled to return of the property, overtly arguing that the grounds given by the Government as justification for the Law on administrative rehabilitation made it clear that, even in such crass and unlawful cases of political persecution during the Soviet occupation, the Federal Government did not intend for people to be entitled to restitution of their property, not even to any moral rehabilitation, arguing that the USSR had interdicted this in the negotiations on the FRG's Unification Treaty.

The findings of the Federal Administrative Court are completely incompatible with the guidelines established in the German negotiations with the Soviet Union and the documents held by the GDR, as well as blatantly inconsistent with the long-standing judicial recognition that property must be returned in cases where the victims of political persecution have been the subject of Russian rehabilitation. Consequently, I have already lodged a constitutional complaint against that judgment with the German Constitutional Court. However, I fear that there is a strong likelihood that the Constitutional Court will reject the complaint merely to avoid the enormous financial consequences of the return of property expropriated in connection with political persecution.

It should also be pointed out that a large number of cases dealing with that issue have since been filed with the European Court of Human Rights in Strasbourg, a number of which have been brought by me.

In summary, it should be noted that notwithstanding the debate as to whether there was in fact any "Soviet precondition" of any kind for reunification, it is clear from the historical documents now available that both the Soviet and GDR negotiating positions on the Unification Treaty, in any case so far as they concern political persecution, were clearly in favor of rehabilitation and return of property, and that in some cases (albeit in only the smallest and therefore "cheapest" group of cases) of political persecution, the right to return of property has even been recognized by the German courts. However, in precisely those cases which concern large areas of land, the German courts still refuse to recognize a right to restitution and even moral rehabilitation although the third chamber of the Federal Administrative Court has held that the large class of "industrial confiscations" and "Land Reform expropriations" were also forms of unlawful political persecution (as regards the Land Reform cases, this has so far only been implied by the third chamber of the Federal Administrative Court (in its Judgment of 11 April 2002 - BVerwG 3 B 16.01 -, VIZ 2002, p. 461 ff.) which has yet to issue a binding judgment on the matter. However, as regards the industrial confiscation cases, it reached a binding decision in its Judgment of 21 February 2002, cited above). The fact that the Federal Government is nevertheless still refusing to return the property at issue also contradicts the fundamental legal principle, enshrined in German case-law, that German Courts may not recognize any legal acts which blatantly conflict with the rule of law and serve the purpose of political persecution. That principle was established by the Bundesgerichtshof (Supreme Court) in the 1950s and 1960s.

Now that the third chamber of the Federal Administrative Court has acknowledged that cases involving the large group of industrial and Land Reform expropriations do in fact fall within the general scope of rehabilitation law, i.e., the law on compensation for acts of political persecution, the following points are particularly relevant:

For cases of that kind of political persecution, the third chamber has ruled, in another more recent judgment, that rehabilitation must always be carried out without taking into account any interests of the public or private entitles which now own the land in question. The reason given by the third chamber for that ruling was that the primary purpose of the law on rehabilitation is to provide compensation for political persecution and, consequently, the interests of the current owners of the land, e.g. the public sector, cannot be taken into consideration. (Judgment of the third chamber of 14 June 2001 -BVerwG 3 C 32.00-; however, within the framework of subsequent restitution proceedings following rehabilitation,

§ 4 para. 2 Vermögensgesetz provides protection to private bona fide purchasers while § 5 Vermögensgesetz offers protection to particularly important public uses.)

That is of particular relevance since the Federal Government has always raised financial objections to providing complete compensation to the victims of political persecution. For example, the Federal Finance Minister, Hans Eichel, expressly and personally submitted - in the oral hearing preceding the Constitutional Court Judgment of 22 November 2000 (also cited by Leon Mangasarian) - that there was no question of any more substantial compensation since it would impose too high a burden on the public purse. Finance Minster Eichel stated as follows:

"... When making such rules - which are necessarily associated substantial costs -, the legislature must above all take into account the imperatives of the general common good, which given the pressing tasks ahead of us, do not permit a vast part of the Federal budget to be set aside for the compensation of damage which was not caused by the Federal Republic. ..."

However, in the light of the case-law on rehabilitation set out above, it is clear that the Federal Republic of Germany, which at the time of reunification simply took over the ownership of properties which had been blatantly unlawfully expropriated as a form of political persecution, is not entitled to take possession of those properties in order to protect its financial interests. That would be in breach of the fundamental principle of the law on rehabilitation, which provides that the interests of the current owners of the properties in question cannot be grounds for refusing compensation for blatantly unlawful acts of political persecution. That clearly shows that the Federal Republic of Germany has simply unlawfully decided to regard those illegitimately obtained properties as assets in the Federal balance sheet.

Even today, that approach is incomprehensible to the victims, who cannot see what gives the Federal Republic of Germany the right to treat the land unlawfully expropriated from them as its own property and then to argue in compensation proceedings that the land cannot be returned because it would put too much strain on the public purse. In the victims' opinion, this boils down to an argument that the bigger the estate confiscated on the basis of grave political persecution, the more they are forced to contribute directly to the coffers of the German state and thus to use their private property to assume a significant part of the responsibility for public expenditure which should lie with the Federal budget. This is particularly incomprehensible since, despite suffering huge losses as a result of the expropriation they are also expected to contribute to the public purse with their taxes. On what legal basis the Federal Republic of Germany can accept this substantial additional contribution to the federal coffers from the owners of large estates, particularly where the property retained by the Federal Republic of Germany is essentially a "profit" from blatantly unlawful political persecution, is as yet still unclear. The victims consider that the Federal Government's position seriously undermines fundamental rights, in particular the right to private property, in the Federal Republic of Germany and they wonder whether, if this manipulation of the law is allowed to go unchallenged, Germany will not eventually arrive at a situation where private property is no longer safe. Those victims often share with me their hopes that citizens and political institutions in the United States of America, in which a very high value is placed on the guarantee and protection of private property, could, through policy channels, play a role in improving the current situation in Germany.

[signature]

Stefan von Raumer

Attorney