ESLI’s Latest Project on Restitution and Compensation for Immovable Property – Comparative Analysis on Restitutions of Immovable Property

In 2015, as part of its international monitoring and advocacy mandate, ESLI commissioned the creation of a comparative study relating to immovable property confiscated or otherwise misappropriated during the Holocaust era, 1939-1945. The study initiative is headed by Professor Michael J. Bazyler (1939 Scholar in Holocaust and Human Rights Studies, Chapman University Fowler School of Law) and Lee Crawford Boyd (Shareholder, Brownstein Hyatt Farber & Schreck, LLP).  Separately the project has been supported by, over 50 pro bono attorneys from major global law firms including White & Case, O’Melveny & Myers, Morgan Lewis, Fried Frank, and Brownstein Hyatt Farber & Schreck. These pro bono attorneys, under the guidance of the directors and their associates, completed research reports addressing the status of restitution legislation in a particular Terezin Declaration country.

ESLI would like to express its deep gratitude to the above mentioned law firms, for their incredible research and for generous support of the database project by their dedicated pro bono work!

The next step in preparing the study is collecting Questionnaires completed by Terezin governments and verifying them with local attorneys. Research and Questionnaire responses are then converted into a comprehensive country report, which will appear on the online database. The final step is for independent scholars, local and international organizations, and domestic lawyers with restitution practices, to review and check the reports for accuracy.

When completed, the study will be turned into online user-friendly database , public-access comparative repository of legislation and international and domestic case law (both past and present) from every country that has endorsed the Terezin Declaration. The database will be the first and only compilation of this type of information. It will also be dynamic, meaning that it can be updated and modified to reflect legal changes relating to the ongoing restitution and compensation efforts in each of the 47 Terezin Declaration countries.

Core components of a country’s entry in the database will include restitution and/or compensation-related information falling into four broad categories: commitments made in post-war armistices and agreements, private property restitution, communal property restitution, and heirless property restitution.

For each country’s restitution regime (historical and current), the goal is to: catalogue the scope of restitution and/or compensation legislation and its associated regulations; identify the time period covered by the legislation and what kind of property (private, communal, heirless) is covered; ascertain whether eligibility is contingent upon citizenship in the legislating country; clearly list claim filing deadlines; describe how the claims process works (including who decides the claims, standard of proof, necessary documentation, associated costs, appeals procedures); and describe notable judicial decisions interpreting the legislation (including national court decisions and decisions of the European Court of Human Rights). Where available, statistical information concerning the status of claims, value of restituted property, length of claims process, etc. will be included.

Another important component to the database will be to place a country’s legislation and restitution regime into its proper historical context. A casual user of the database may, for example, have limited awareness that property confiscated from Jews and other targeted groups during World War II in central and eastern Europe was confiscated for a second time during widespread nationalization efforts by emerging post-war Communist regimes (confiscations which this time affected the entire population). Including information about these so-called double confiscations helps to explain why restitution efforts faltered or failed to come to fruition for decades following the end of World War II. In addition, such context explains why restitution in these countries is often not merely a question of returning property confiscated during the Holocaust but is also a matter of unwinding subsequent Communist nationalizations of that same property.