INTERNATIONAL LEGAL ISSUES IN THE CASE OF THE PRUSSIAN TRUST (PREUSSISCHE TREUHAND) AGAINST THE REPUBLIC OF POLAND BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS
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On 7th October 2008 the ECHR declared inadmissible an application submitted by the 'Preußische Treuhand GmbH & Co. KG a. A.' against Poland. The applicant company claimed - on behalf of 23 individual applicants - that Poland violated Article 1 of the Protocol No 1 to ECHR by illegal expropriation of German property located within the former German territories east from the Oder-Neisse line which after the WW II were transferred to Poland. The individual applicants maintained that they themselves, or their legal predecessors, were victims of acts conducted by Polish authorities between 1944 and 1948 including deprivation of property, expulsion from homeland, persecution etc.Furthermore, prohibition of genocide and crimes against humanity had been in force as ius cogens of international law already at the time of the events, so Poland by its conduct had committed serious breaches of peremptory norms in the meaning of Chapter III of the ILC Draft. Accordingly, the applicants argued that all these acts were ab initio null and void, and incapable to produce any legal effects then and now. As to the admissibility ratione personae, the ECHR rightly pointed out that the alleged acts could not be attributed to Poland in respect of these applicants, who had left the former German territories before Poland had taken over any de facto or de iure control over them. Consequently, the Court excluded its jurisdiction with regard to these persons.. Unfortunately, the same cannot be sustained as to the position of the ECHR on admissibility ratione temporis. Although the final conclusion – declaring inadmissibility - is fully correct, it was reached on the basis of false premises which the authoress discusses in detail. Although, by this occasion the ECHR confirmed legality of Polish jurisdiction over the former German territories on the basis of the Potsdam Agreement. Deeper analysis of the applicants' position proves their reasoning a complete failure. She points out, among others, that the alleged violations constitute neither genocide nor crimes against humanity; leaving other arguments aside, it is enough to state that they lack one constitutive characteristic of these crimes - intent to commit a crime as element of State's policy. The purpose of Poland's actions after the WW II was not extermination of Germans, but fulfilment of provisions of the Potsdam Agreement and other undertakings concerning reparations for Poland and transfer of German population; the latter was also stated in the Court's decision. The omission of the ECHR to respond to the applicants' arguments based on the problems of international law, as discussed in this paper, is not understandable and thus subject to serious critique. However, the clear and consequent position of the Court, rejecting its competence to adjudicate cases originating in events that took place before the entry into force of the ECHR, especially as consequences of WW II, deserves appreciation and full support.
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