Restitution of Ukraine after the signing of the Agreement with the EU. What is restitution and how is it related to Ukraine's accession to the EU?

Recently an organization called "Restitution of Borders" was created in Poland, whose purpose is to represent the interests of the Poles deported from the territories occupied by the Soviet Union in 1939.

According to the statements of its representatives, claims will be filed in the courts of Ukraine with the demand to return property or receive compensation for real estate, to which the deportees were forcibly deprived. In this connection, it became necessary to understand what restitution is and how it relates to Ukraine's accession to the EU.

Who is behind the Restitution of Borders

This news was actively picked up by the Russian media. And the Polish media managed to establish that the founder of this organization is the pro-Kremlin party "Smena".

In Ukraine, the question of restitution is raised by the former head of the Yanukovych administration, the head of the pro-Russian organization "Ukrainian Choice", Viktor Medvedchuk. In 2015, he stated that an organization was being established in Lublin, seeking to return to the citizens of Poland the property they owned in the former Polish territories, or its compensation.

According to Medvedchuk, the Association Agreement created the legal grounds for restitution - the return of real estate to the previous owners. As an example, he cited the eviction of Viia Artmane from a room in the center of Riga, conducted without compensation. By substituting facts and applying a classical manipulation technique, the politician creates a "real" threat, which will come when the Agreement is adopted.

Medvedchuk and representatives of the deportees insist that the restitution of Ukraine after the signing of the association agreement with the EU will have all legal grounds. In fact, this is not so.

Ukraine + restitution = the European Union?

The agreement defines only the basic principles of cooperation in the legal sphere. In addition, they foresee the adjustment of Ukrainian legislation to the European one.

According to article 14, cooperation in the field of justice, security and freedom of the parties should contribute to strengthening the rule of law and strengthening institutions at all levels of government - law enforcement agencies and courts. Cooperation will be directed, among other things, to strengthening the system of courts, increasing their effectiveness, independence and impartiality, as well as fighting corruption. The cooperation in the field of justice, security and freedom is based on respect for human rights and fundamental freedoms.

That is, it is a procedural and institutional aspect of the protection of citizens, and Ukraine's restitution after accession to the EU is not mentioned.

Freedom of access

According to Article 471 of the Agreement, both countries must provide their own citizens and companies with non-discriminatory access to judicial and administrative authorities in order to protect their personal rights and property rights.

It also mentions only the procedural side of citizens' access to judicial and administrative bodies in order to exclude their discrimination, and Ukraine's restitution after signing with the EU is not envisaged.

There are no restrictions for foreigners

Freedom from discrimination of citizens of other countries for Ukraine is not something new. Civil and Economic Procedural Codes, the law "On International Private Law" does not restrict the access of foreign citizens and companies to the protection of their rights in Ukrainian courts. In addition, the Polish-Ukrainian agreement of 1993 on legal relations and assistance in criminal and civil cases is in effect, according to which citizens and companies of the two countries can apply to each other's courts.

Claims about the existence of references to legislation protecting the rights of deportees and their heirs to property in the text of the Agreement are not confirmed.

The restitution of the lands of Ukraine and other property requires the inclusion in the agreement with the EU of material, rather than procedural, norms. We need at least references to any other international agreements. But there is nothing of this.

Therefore, referring to the EU-Ukraine Association Agreement, Restitution of Borders conducts a campaign directed against him.

Mass deportations of 1939-40

What is restitution and how it is related to Ukraine's accession to the EU can be explained by the example of historical facts.

In 1936, the Soviet government adopted a resolution on the resettlement of Poles from the Ukrainian SSR to Kazakhstan. In the first year of the occupation, up to half a million citizens of Polish nationality were deported from the former Polish territories to Siberia, the Komi ASSR and the Volga region.

After annexation, by the beginning of 1940, NKVD authorities arrested and attracted 18.3 thousand people (2.8 thousand Ukrainians, 5.4 thousand Poles and 1.4 thousand Jews) in different articles, including criminal ones, . At the beginning of 1940, "the cleaning up of the territory from a socially alien element" was started - in the winter of 1940, 88.4 thousand people of Polish nationality were evicted, and in the spring of 1940 - 29 thousand people.

For 2 years, the NKVD organs produced 4 mass deportations from annexed territories. In the Kazakh SSR, Siberia, the North and the Far East, a total of 335,000 people were deported, of which no less than 198,000 were from the occupied territories.

Confiscation of property

Along with the deportation, the following was carried out:

• Expropriation of estates.
• Confiscation of land in favor of poor peasants. In the first year of annexation, 2.75 billion hectares - 1/3 of all land was confiscated. Half of them were distributed to peasants, and the rest was transferred to state farms and collective farms.
• Nationalization of banks, trade enterprises and industry.

A wide network of consumer credit cooperatives was liquidated, "wealthy peasants" were "dekulakized."

During the two years of occupation, the property rights of Ukrainians, Poles, Jews and representatives of other nationalities were violated.

Resettlement of 1944-47 years

In 1944, September 9, an agreement was signed between the Ukrainian SSR government and the Polish National Liberation Committee on the evacuation of Poles from Ukraine and Ukrainians from Poland. The treaty stipulated the provision of land in the places of resettlement.

The time frame for the evacuation was established from 15.10.44 to 01.02.45 and was extended by an additional agreement. It was possible to take out a limited number of personal belongings and tools. You could not take out the valuables, except for a small amount of cash. The rest of the property was described and compensated for by the "insurance" cost upon completion of the resettlement according to the arrangements. After the evacuation, on 06.05.47, the corresponding acts were signed in the capital of Poland .

Therefore, in the case of a court, in each particular dispute it is necessary to find out how and when the resettlement of the deprived property of the Pole was carried out. In case of voluntary relocation, any claims for moral and material harm, i.e. restitution of Ukraine after signing the Association Agreement with the EU, will be groundless.

Most likely, the probable courts should involve historians, study the archives of Ukraine, Poland and Russia.

The final word is due to local laws

According to the agreement on legal assistance, when resolving such disputes, not Polish laws will be applied, but Ukrainian ones. The requirements must be submitted to the Ukrainian courts.

The Civil Code of Ukraine began to act on 01.01.04., It has no retroactive effect on the events of 1939-40, as the obligation to compensate for the damage was not then due to the absence of a corresponding law. From this it follows that civil reasons for reimbursing losses to deportees and their heirs (which implies the restitution of Ukraine) after signing with the EU Association Agreement with the state are absent.

Precedents are

The reference to human rights, which are enshrined in the Convention on their protection, will not give a result - on it, the obligations for Ukraine began to operate only from the date of its accession in 1997. The right to a trial will be, as the claim is submitted after the entry into force of the Convention, Property rights, which occurred at the beginning of the Second World War, protection in the ECHR is not subject.

This situation fully corresponds to the principle stipulated in Article 28 of the Vienna Convention on the Law of Treaties, according to which such contracts are not retroactive. The ECtHR has already considered similar disputes, including judgments against the Czech Republic, Romania and Greece. In their decisions, the court found violations of the Convention, but the issues of satisfaction of the claim depend on the country. These decisions were taken in cases in which property rights were violated based on the current legislation of these countries. This practice has nothing to do with the state of Ukraine.

The experience of Latvia

The resolution of restitution and its order are determined at the level of the legislation of the concrete state. An example is the laws of Latvia on the return and denationalization of housing, which returned property rights to immovable property, confiscated in 1940-80 by the state and persons who pursued a policy of arbitrariness and disregard for the rights of owners.

Legislation provided guarantees to those living in such housing, extending the term of employment and setting the maximum amount of rent. The Constitutional Court confirmed the lack of responsibility of the country for the nationalization of property carried out by the occupation authorities.

Denationalization in Lithuania

In Lithuania, this issue is regulated by the law on the restoration of property rights, which were interrupted by the laws of the Soviet Union. Rights were returned to plots of 150 hectares in villages and 0.4 hectares in cities, residential buildings and real estate enterprises. The filing period was limited to 2001.

Restitution in Czechoslovakia

The Parliament of Czechoslovakia in 1991 adopted legislation on extrajudicial rehabilitation and the return of expropriated and nationalized real estate. The restitution was carried out to the citizens of Czechoslovakia. Also, material compensation was provided for applicants who did not insist on the return of real property, or if the price of this property increased significantly after the unlawful alienation.

Polish version

In 2001, the Polish Sejm passed a law that provided for the return of property and rights to it to Polish citizens. He was vetoed by the president, which did not allow him to enter into force. The courts began to deal with the settlement of disputes over restitution. The return of property, as a rule, was carried out in the form of securities with the right to purchase land or shares of enterprises.

The experience of the former countries of the socialist bloc shows that the restitution of Ukraine after the signing of the agreement with the EU is regulated at the state level. Parliament has the right to determine the procedure for its conduct, the deadlines for submitting claims, the circle of persons, on which these norms will be distributed. It was also done in Ukraine.

Ukrainian legislation

The Verkhovna Rada in 1991 adopted a law on the rehabilitation of victims of political repressions, according to which, the rehabilitation extends from 1917 until the beginning of this law to persons deported from Ukraine. These include forcibly resettled, completely or partially deprived of the rights and freedoms of a citizen for class, social, national, political and religious reasons.

But this law does not apply to foreigners. The government decree provided for the return of the abandoned buildings and other property or compensation for their value, but only for citizens of Ukraine. The legislation does not provide for compensation for damage to foreigners.

Unilateral or bilateral restitution?

In Ukraine, attempts were made to resolve this issue at the level of law: in 2005, a project was submitted on restoring rights to alienated property, which offered to allow the property to be returned not only to Ukrainians, but also to foreigners. The law on restitution was not adopted for Ukraine at the time - according to the government's conclusion, in order to determine the mechanism for returning property to former owners (unilateral restitution), the return of property to the other party (bilateral restitution) was not provided. This is contrary to the provisions of the Civil Code.

Summarizing the foregoing, it can be argued that at this time restitution of property in Ukraine has no legal basis. Final conclusions are possible only after a thorough analysis of each specific claim, available evidence and facts.

And foreign authorities should remember the international principle of reciprocity, according to which, restitution of Ukraine in the EU can be a reason for making such claims to Poland.