Restitution of Household Effects Belonging to Jews Deported from Hungary

CourtCourt of Appeal of Berlin (Germany)
Federal Republic of Germany, Kammergericht [Court of Appeal] of Berlin
Restitution of Household Effects Belonging to Jews Deported from Hungary (Germany) Case.
STATES AS INTERNATIONAL PERSONS

States as international persons Sovereignty and independence Occupation of territory of allied country without its consent in time of war Effect of such occupation on independence of the State Occupation of Hungary by German Army The law of Germany.

State succession Succession of Federal Republic of Germany to German Reich Whether German Reich can be sued for wrongs committed by the Reich The law of Germany.

State responsibility Responsibility for measures carried out under foreign pressure State occupied without its consent by forces of ally in war Whether Hungary responsible for measures of persecution of Jews during German occupation The law of Germany.

The individual in international law Right of State to dispose of nationals' private rights by treaty Whether there is obligation to pay reparation to own nationals Waiver clause in Hungarian Peace Treaty The law of Germany.

Treaties Interpretation of Principles and rules of Interpretation of treaty in original language Logical interpretation Interpretation of treaty as a whole Interpretation in light of other treaties Intention of Parties Relevance of text of treaty Peace Treaty with Hungary, 1947 The law of Germany.

Treaties Special kinds of Treaties of peace Treaty of Peace with Hungary, 1947 Provision in favour of third State Waiver of all claims against Germany by Hungary Waiver on own behalf and on behalf of Hungarian nationals Right of State to dispose of nationals' private rights Whether any obligation to pay reparation to nationals for such waiver Responsibility of Hungary for measures of persecution of Jews during German occupation Effect of German occupation upon independence of Hungary Succession of Federal Republic of Germany to German Reich The law of Germany.

Summary: The facts.Shortly after the occupation of Hungary by German troops on 19 March 1944, the plaintiff, a Hungarian citizen of Jewish religion, was taken into a Hungarian ghetto and subsequently deported to the extermination camp of Auschwitz, from which she was freed in April 1945. In the course of these events she lost her entire belongings, including household effects left behind in her home. Her action against the German Reich, represented by the authorities of the Federal Republic of Germany and Berlin, was dismissed by the two lower courts. Upon appeal to the Court of Appeal in Berlin,

Held: that the appeal must be dismissed. The waiver of claims by Hungary in favour of Germany contained in Article 30, paragraph 4, of the Treaty of Peace with Hungary of 10 February 1947 covered the applicant's claim should it exist.1

(1) This result was reached by detailed examination of the relevant provisions in the original English version by way of logical and grammatical interpretation of the relevant articles in the light of the Treaty as a whole. The declared will of the contracting parties as expressed in the wording of the Treaty was decisive. The waiver clause, which had its parallel in the Peace Treaties with Germany's other former Allies, was a genuine pactum in favorem tertium aimed at the maintenance of Germany's economic capacity for the benefit of the Principal Allied Powers themselves. Hungary was entitled to waive its own nationals' claims against Germany. In agreeing that the reparations for all damage arising from persecution for reasons of discrimination should be borne by Hungary, the Allied Powers and Hungary complied with the generally recognized principle of international law that the national, who is bound to give up his individual claim if it is waived by his State, has to be adequately compensated by the latter. The waiver contained in the Peace Treaty was not a temporary bar to the proceedings but would have extinguished the claim had it existed (see (4) below). The German legislation for restitution of illegally confiscated property did not re-create extinguished claims, but only regulated the application of the limited exceptions to the waiver clauses.

(2) Neither the Convention on the Settlement of Matters Arising out of the War and the Occupation concluded between Germany and the Western Principal Allied Powers on 26 May 1952 nor the London Agreement on German External Debts of 27 February 1953 abrogated the waiver clause of the Peace Treaty with Hungary. Nor had any agreement to this effect been concluded with Hungary.

(3) The German Reich, party to restitution proceedings, had not ceased to exist either by the unconditional surrender or by the subsequent measures. It continued to exist as a juristic entity capable of being a party to legal proceedings.

(4) Quite apart from the question of waiver, the legal requirements for restitution were not fulfilled. A detailed examination of Hungarian legislation and of historical documents on the actual events revealed that seizure and confiscation of Jewish goods was regularly carried out by Hungarian authorities and in favour of Hungary. At no time was the Hungarian Government a mere tool of the German Reich. It did not even lose its independence and freedom of action after the occupation of Hungary by German troops on 19 March 1944, since this was not the intention of the politicians concerned. The same applied to the time after the revolutionary change of Government on 16 October 1944, which was carried out with strong German assistance and led to the installation of a strongly pro-German and pro-Nazi orientated Government. This event did not destroy the Hungarian State. Hungary therefore remained fully responsible for the measures of persecution against Jews even if they may have been strongly influenced by Germany. This corresponded to legal opinion on the liability for more recent measures of expropriation in Eastern Europe.

Apart from that, no evidence had been produced to prove, or even make appear likely, the removal of the household effects into what is today the Federal Republic of Germany and Berlin.1

The following is the text of the judgment:

Decision

In the restitution case X. (applicant) v. Y. (opponent to the application) the 18th Civil Senate of the Kammergericht in Berlin in its session of 2 July 1965 has decided upon the present appeal of the applicant against the decision of Civil Chamber 144 (Reparations Chamber) of the Landgericht Berlin of 16 December 1963:

1. The appeal is dismissed.

2. Costs of the court will not be levied. Other costs are not to be refunded.

Reasons
I.

The applicant pursues claims for damages based on titles to restitution on her own behalf against the German Reich for unjustified confiscation of clothes and valuables as well as for the household effects left behind in Son the occasion of her deportation on racial grounds in April 1944.

The proceedings are based on the letter of the Regional Organisation for the Safeguarding of Interests of Persons Persecuted by National-Socialism, addressed on 24 March 1959 to the Principal Trustee for Restituted Property, which arrived on 31 March 1959. This letter, in the opinion of the applicant, contains a global notification of the restitution claims of the 62,022 members of the organization in accordance with 27 to 29 of the Federal Restitution Act [Bundesrckerstattungsgesetz].

The letter runs as follows:

The applicant has furthermore relied on the collective notification referred to in this letter and submitted in time to the President of Government in Cologne of the respective 62,022 claims for restitution and on the list of persons entitled which is annexed to the notification for restitution, in particular on the remark to 31494643 registered there which concerns X. herself, in addition to the pertinent questionnaire. This questionnaire, signed on 25 September 1957 by the applicant in Szeged, is contained in the restitution records kept for the applicant by the President of Government in Cologne under Reg. No. 431494643, which have been consulted. There the applicant has substantiated her claims, pointing out that she was persecuted on racial grounds, was kept in the ghetto Y. from April to June 1944 and was from there taken as a detainee first into the extermination camp at Auschwitz and then into the concentration camp of Bergen-Belsen, where she was liberated on 22 April 1945. On page C of the questionnaire, the applicant has stated under the heading Damage suffered in personal goods an estimated amount of damages of 60,000 Forint and has requested the compensation of this damage on page D.

In these proceedings for restitution the applicant has claimed the following compensation for damage resulting from her deportation, as follows from her statutory declaration of 13 December 1960 submitted to the Office for Restitution for the substantiation of her claim:

for the clothes, jewellery, fountain-pen and camera taken on 6 July 1944 in Auschwitz to the value, estimated by her, of together

9,600 DM

for the furniture left behind in the flat in Sof two rooms plus a kitchen to the value, estimated by her, of together

4,500 DM

altogether

14,100 DM

The Regional Commission existing with the Regional Organization for the Safeguarding of Interests of Persons Persecuted by National-Socialism in Hungary in Budapest, in a report of 19 December 1960,

has estimated the value of the goods taken from the applicant in the concentration camp as 5,460 DM. It has reserved the right to enquire into the value of the goods left behind in Hungary.

The Office for Reparation in its decision of 24 February 1967 (Bl. 7a d.A.) has separated the proceedings on all the goods taken outside Hungary as well as on the gold, sliver and jewellery possibly taken in Hungary and has formed separate proceedings on the basis of these claims to file Z.9 WGA/Ung. 2488 a/59.

The present proceedings are concerned only with the household effects left behind by the applicant. The Office for...

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