The Restitution of Jewish Propriety in Ukraine
The recognition of property rights is one of the most important components of social relations. What self-evidence is there that the inviolability of property rights in the sense of biblical heritage is very important for the entire history of Judaist-Christian civilization?
In the 20-th century, as a result of the wars, revolutions, mass repressions and genocides, the major part of the private and communal Jewish ownership in the territory of Ukraine has been destroyed, looted, or confiscated illegally. Thus, it was lost for the owners.
In the present article, the author tries to examine the different aspects of the theme of ex-Jewish property in Ukraine, and the problem of its restitution, i.e. the restitution to the rightful owners or, what is more relevant, to Jewish and Jewish Communities which represent their heirs and successors.
Types of property
It is possible to classify all illegally seized Jewish property that could be an object of restitution by its different characteristics, the most important of which are listed below.
· Valuables and real estate property
The real estate which belonged to Jews which represents now potential categories for restitution are not only synagogues and dwelling houses, but also buildings in which were housed different public institutions, such as: shelters, hospitals, educational institutions, libraries, archives, theatres, clubs, cemeteries and so on. The problem of land ownership must be mentioned separately, which becomes complicated in Ukraine with the absence of the full legislative basis on land property.
As for the movable property, it is necessary to distinguish:
- Scrolls of Torah required for religious purposes;
- documents, kept in the Communities’ buildings and archives, and also by individuals;
- works of art, ritual categories, museum exhibits, musical instruments, furniture, utensils;
- money, precious metals, jewels and semiprecious stones;
- shares, bonds and other securities, insurance policies;
- books, newspapers, magazines and other library belongings.
Private property and communal ownership
Private property is personal property of Jews and the members of their families which were bought, created by, received by right of succession or given as a gift.
In this context under the categories of communal property we mean plots of land, buildings and constructions which have been lawfully bought and/or constructed by Jewish communities, and also received as inheritance or gift, or rented.
Concerning Jewish communal heritage, the following can be also added: iconic objects, furniture and other property located in communal buildings, pieces of art, books and archival materials, and also other property which belonged to communities.
The purpose of this article is, first of all, to assess a situation with regards to communal property, e.g. in the situation of modern Ukraine, the restitution of private property is much more of a complicated task than the restitution of communal property.
Property which has or has not a line of heirs
In the context we are interested in, such division does not seem to be important, since it is implied that a conventional heir of any communal property is the Jewish community of the state, and also Jews native to the country represented by a community of the country, or by any other similar association. Certainly, in practice such approach causes many problems, first of all connected to the problem of legitimacy of numerous modern Jewish organizations. Which of them can apply for property confiscated from the Jewish community in beginning of the XX century?
The question on private property which has no lineal heirs is even more confusing.
· The property discarded as a result of flight or expropriated on the basis of Soviet decisions about confiscation and nationalization.
This section, due to the abovementioned thesis, does not seem important for us.
The history of the question
At the end of the Second World War, even before the end of military operations in Europe, the World Jewish Congress (WJC) raised a question on the restitution of illegal confiscations of Jewish property by the Nazis and their allies. In November 1944 the first president the WJC and the co-chairman of the Board of the Jewish agency of Israel (Sokhnut) Nahum Goldman presented the research of Dr. N.Robinzon on the subject at the conference in Atlantic City.
After the negotiations of some Jewish organizations and the State of Israel with the government of Federal Republic of Germany, in September 1951, Chancellor Konrad Adenauer addressed the Bundestag with the offer to create an international structure for the consideration and solution of the problem of indemnifications for Jewish property lost during the Second World War.
A month later after K. Adenauer's speech in the German parliament, Dr. N. Goldman a organised a meeting which held in New York, of representatives of 23 basic Jewish national and interstate organizations, during which the decision on the creation of the Conference for Jewish material claims to Germany (“Claim Conference”) was made.
The founders of the Conference have become the following organizations: Agudath-Israel, the American Jewish committee, the American Jewish congress, the American Jewish incorporated distributive committee (Joint), the American Zionist movement, International Bnei Brit, the Canadian Jewish congress, the Israeli centre of associations of Holocaust survivors, Executive Council of Australian Jews, Sokhnut, the World Jewish congress, the World committee of progressive Judaism, and other organizations.
Dr. N.Goldman was elected as a president of the new organization; Sol Keigan became an executive secretary.
On 10th of September, 1952, the protocol #1 regarding allocation to Jews who had been through the Holocaust was signed between the Claim Conference and the government of Germany, for the first part of indemnification for DM 450 million. The same year the government of Israel signed a separate contract with the government of Germany for DM 3 billion.
For 50 years of its activity, the Claim Conference received from Germany and subsequently distributed between Jews and members of their families, and also between Jewish organizations, the sum of more than DM 100 billion in the form of disposable indemnifications for approximately 300 thousand people, and in the form of monthly "pensions" for 130 thousand others who had been through the Holocaust.
The government of the USSR has refused to make any indemnifications in favour of East Germany. The decision of the government of the USSR does not allow yet to pay disposable indemnifications in DM to 5000 Jews who have been through the Holocaust and who now live in the territory of the former USSR. Jews who have emigrated from the post-Soviet states receive the specified indemnifications in the countries of their emigration.
In 1992 at the Conference of Jewish material claims to Germany, the All-World Jewish restitution organization (WJRO) was formed, the purpose of which is the coordination of claims about restitution of the property on behalf of the world Jewry and local Jewish communities in different countries, and also negotiation with government bodies. The founders of WJRO are leading Jewish organizations: WJC, Joint, Sokhnut, the World Zionist organization, Bnei Brit, the American society of the Jews who have gone through the catastrophe, and the Israeli centre of associations of Holocaust survivors. WJRO has been registered in Israel as a non-commercial organization and officially began its activity in April, 1993. It is especially important to emphasize the representation of natives from Eastern European countries among the WJRO founders, as they, alongside the local community, possess the contingent right to receive property and indemnifications.
The president of WJC Edgar Bronfman was elected as Chairman of the WJRO Council. Later, in 1997, Dr. Avraam Burg, who at that time was Chairman of Board of the Jewish agency, was elected as Co-chairman of WJRO.
In November, 1992, E.Bronfman signed the memorandum with the Minister of Finance of Israel, Avraam Shohat. The memorandum emphasized the interest of the State Israel in the restitution of Jewish property. It has been noted that Israel considers itself as the one and only legitimate heir of Jewish property in Central and Eastern Europe, both communal and private. The specified document completely ignored lineal heirs of property - modern local Jewish communities. Despite of this, WJRO has also concluded contracts with local Jewish communities to coordinate the restitution activity.
Efforts undertaken for the restitution have got official support of the United States of America and Israeli governments. From the American side, Warren M. Christopher, the state secretary, declared this at a meeting with the directors of WJC on the 7th of February 1994.
The position of the State Israel on this question has been established in the resolution accepted by Knesset on the 21st of December 1994.
In April 1995, the representatives of the US Congress appealed to the governments of Eastern European states to consider the requirements Jewish communities. In the letter written by eight senators to Warren M. Christopher dated April the 10th, 1995, it was stated that the policy of the USA was to pave the way for a legal framework in Eastern European states, sufficient to guarantee the restitution of the property confiscated by Nazi and communist regimes, or indemnification for lost property. "It is necessary to explain to the interested states, - it says in the letter, - that their answer on the issue will be considered as a test of their attitude to fundamental human rights and the leading role of the law, and also can have practical consequences for their relations with our country ".
Even before this appeal, the legislative acts related with the restitution of lost property had been accepted in some Eastern European countries. In 1991, Czech Republic passed the law on the restitution of personal property (in 1994 some amendments to it were added).
The government of Bulgaria decreed their regulations (passed by three laws during the period of December 1991 and February, 1992) in 1992.
In 1993, the decision of the Constitutional court which stipulated the reimbursement fulfilment for confiscated Jewish property in Hungary, and also the law on the restitution of Jewish and other religious communal property in Slovakia, was accepted.
The legislation of Latvia and Lithuania provides restitution only of iconic buildings. Citizenship of applicants became an obstacle for claims settlement on restitution of private property in some countries. The law allows to demand restitution of the property only by persons who are citizens of these countries, or, at least live there.
A special situation has arisen in Poland because of the huge quantity of categories which are subjects for restitution. After long discussions with the participation of WJRO and the international associations of Jews native to Poland, the law on restitution nevertheless was accepted in 1999.
WJRO has a somewhat clouded relationship with many Jewish communities in Eastern Europe. During negotiations with the state bodies concerning the restitution, WJRO developed and suggested to the communities in post-communist countries the following model of interaction. The fund should be created, and its founders, on one hand, should be a local community, represented by a "protection racket" organization, and on the other hand - WJRO. In the issues of restitution, this organization represents the Jewish world as a whole and, in particular, the organization of natives of the above-mentioned countries. Furthermore, this fund should negotiate with the government of a certain country, to lobby acceptance of the law of restitution, to sign contracts, to approve schedules of property restitution, to finance preparatory work from funds of the international organizations and, subsequently, to finance repair and restoration of the retrieved property.
It is obvious that after the conclusion of agreements with WJRO, both parties have disagreements and different interpretations. Besides, not all the communities of Eastern European countries have signed corresponding agreements with WJRO. For example, the community of Czech Republic has not signed such a document and refused the law on the communal property restitution. Instead, it concluded an agreement with the government of Czech Republic on the restitution of 200 buildings previously belonging to the Jewish communities. The conflict between the Czech community and WJRO is still going on, thus the government of Czech Republic has not executed its obligations for 10 years, and WJRO, not having the agreement with a local community, cannot put adequate pressure upon the Czech authorities concerning this problem.
In September 1995, the Head of WJRO E.Bronfman received a letter from the president of the United States, Bill Clinton, testifying that the government of the USA gave a lot of significance to the restitution process, which was treated as a rectification of an injustice. It was also said in the letter that the American ambassador Stewart Ajzenshtadt is entrusted to aid the resolution of the problem.
At the tenth plenary assembly of WJC which took place in January, 1996 in Jerusalem, S. Ajzenshtadt made a report on the results of his trip to Eastern European countries, during which he had meetings with many officials. Within the framework of the mission, S. Ajzenshtadt also visited Ukraine where he held a number of negotiations. The main attention in his report was paid to the restitution of communal property. There, some success was achieved in this area. The resolution of the issue of private property has been recognized as a much more difficult case.
On December 11th, 1995, The European Parliament accepted the resolution (Â4-1493/954) on the restitution of plundered property to Jewish communities. The document contained an appeal “to all countries of Central and Eastern Europe which yet have not done this, to accept the corresponding legislation on restitution of property plundered by communists or the Nazis and their accomplices, to its legal owners". The resolution has been directed to the Council of Europe, the governments and parliaments of the countries participating in the Council of Europe, and the countries which submitted the application to enter into the European Union.
On September 1st, 1997, in Basel during a session of the General Consul of the European Jewish congress, the resolution in support of the Euro Parliament decision was made.
The history of the question in Ukraine
In the summer of 1993, in Kiev, during a meeting with Leonid Kravchuk, the Head of the Ukrainian state, and E.Bronfman, the president of WJC, the preliminary arrangement on the beginning of the restitution process in exchange for investments into Ukraine were reached. The agreements have not been fulfilled.
Within the same visit on July 1st, 1993, the Memorandum-agreement between WJRO and the representatives of the Jewish organizations and communities of Ukraine on joint actions relating to restitutions were concluded. Israel Singer and Avi Beker signed the memorandum on behalf of WJRO, Ilya Levitas, the chairman of the Jewish council of Ukraine and Joseph Zissels, the chairman of the Association of the Jewish organizations and communities of Ukraine (Vaad of Ukraine) signed it on behalf of the Ukrainian side.
In continuation of the specified agreement, at the beginning of 1994 WJRO and Vaad of Ukraine signed a currently operating contract about joint activity on the definition and restitution of Jewish communal property. The contract stipulates that in case of property restitution, a special fund will be created, and in the board of directors of latter, the Jewish community of Ukraine will have the right to put a veto on a decision of the future of the restituted property. Actually, Vaad is a current representative of WJRO in Ukraine.
In 1995-1996 the negotiations about restitution of Jewish communal property were held between the Ukrainian vice-premier Ivan Kuras and the representative of WJRO, the ambassador Naftali Lavi. On the available data, in January 1996, I. Kuras was ready to declare the eagerness of Ukraine for property restitution at the Assembly of WJC in Jerusalem, but at the last minute he refused to go on the trip under a pretext of illness.
During the last ten years, Vaad of Ukraine and other organizations a few times addressed in writing a point about property restitution to the Administration of the president of Ukraine, the commissions of the Parliament of Ukraine, the Cabinet of Ministers of Ukraine, the Fund of the State Property of Ukraine, and the Ministry of Culture and Arts of Ukraine. The answers to these letters were either negative, or have not been received at all.
In the spring and autumn of 1997, during his private meetings, the president of Ukraine Leonid Kuchma promised to the leaders of the Jewish organizations of the USA (Israel Singer and others) to create a joint commission of representatives of the Ukrainian government and the Jewish community for studying the problem of restitution. The promise has not been kept.
The legal aspect
The list of statutory acts of Ukraine referring to the restitution of various properties to privates and religious communities, and the corresponding comments include the following:
- the Decision of the Ministerial Council of USSR # 83 from April 5th, 1991, "On the register of listed building which are not subjects for restitution for permanent use by religious organizations" (with amendments and appendixes) - became invalid on 14.02.02;
- the Law of Ukraine "On rehabilitation of victims of political reprisals” from 17.04.91 (with amendments and appendixes);
- the Law of Ukraine «On freedom of worship and religious organizations» from 23.04.91 (with amendments and appendixes), article17;
- the Decree of the President of Ukraine # 125 from 04.03.92 "On measures for restitution of iconic property to religious organizations»;
- «Regulations on the indemnification payment order, restitution of property or indemnification of its costs to rehabilitated people» in the edition approved by the Decree of the Cabinet of the Ministers of Ukraine ¹ 112 from 18.02.93;
- the Ordinance of the President of Ukraine # 53/94-rp “On restitution of iconic property to religious organizations » from 22.06.94;
- the Order of the Cabinet of Ministers Ukraine # 357-r from 16.06.95 "On passage of iconic constructions where the states archives are, to religious organizations»;
- the Order of the Cabinet of Ministers Ukraine # 290-rp from 07.05.98 "Providing of stage-by-stage restitution of iconic constructions to religious organizations which are not used or being misused»;
- the Order of the Cabinet of Ministers of Ukraine # 137 from 14.02.02 "On conditions of passage of iconic constructions – outstanding monuments of architecture to religious organizations».
In March1992, the president of Ukraine Leonid Kravchuk published the decree on restitution of iconic property which was being misused. Such property should have been passed over to religious communities by local authorities, in whose possession or under whose management the property was, until December 31st 1997. The transferred property could be used only for its direct purpose, i.e., for holding religious practices and cults. The decree has been prolonged twice and valid until the present day; however, local authorities practically paid no attention to it, did not provide restitution of iconic property being misused to religious communities, nor even made the necessary list of religious buildings and the constructions which were being misused.
For fifteen years of the statutory acts validation, the religious Jewish communities of Ukraine have been given about fifty buildings of former synagogues out of several hundreds known to us now, which is less than 10 %. Together with the synagogues open during Soviet times they total about 60 buildings. At the same time, according to the Law of Ukraine "On freedom of worship and religious organizations" more than two hundred religious Jewish organizations have been registered in the country, which means, that about 150 communities do not own or use any iconic buildings. Transfer of iconic constructions to Judaist communities is being carried out even more slowly than transfers to representatives of other faiths who also retrieve buildings of their temples or mosques with great difficulties. We live in the country of legal nihilism, and we constantly collide with a situation where execution of the law on privatization is supervised by the Office of the Public Prosecutor, and restitution of iconic property, even in such minimized variant, is not supervised by anybody; hence, anyone can force municipal authorities to transfer such property.
Meanwhile, the process of privatization of the property which was in the hands of the state before, threatens the restitution fulfilment. In1995 when the Law of Ukraine "On privatization" went into effect, there was an opportunity for privatization by commercial enterprises of the buildings which had previously belonged to Jewish communities, including synagogues. Since during Soviet times there were various state organizations, enterprises, sports halls and so on carrying out activities in buildings of former synagogues, during privatization the abovementioned establishments were transferred into private hands and buildings. Local councils or executive agents, in giving their authorization for privatization of property, did not trouble themselves with archival searches for the ownership title of the buildings to a religious community in the past.
We know about a number of categories of former Jewish communal property (for example, the building of the oldest synagogue in Chernovtsy, on Barbjus Street) which are already privatized, and now there are serious additional problems to face in case of attempts to restitute them to Jewish communities. Despite of the fact that privatization has been accomplished in contradiction with the above-stated statutory acts, the procedure of judicial consideration concerning the change of ownership pattern of these categories seems very complicated to us, if not unrealistic. The legislation in effect does not provide an opportunity to raise questions on gratuitous restitution of iconic constructions which have been privatized, to religious communities. The statement of the corresponding statutory act would contradict the Constitution of Ukraine, the Law of Ukraine "On the property ", to the Civil code and a number of the international agreements which have been ratified by Verkhovna Rada, and are a part of the national legislation, because new owners are considered to be diligent purchasers.
Legislation, registered in Verkhovna Rada of Ukraine for the present moment, does not provide either a direct opportunity for restitution of the property nationalized during the Soviet era to national communities now. Neither are there any changes being planned concerning an order of property restitution to citizens persecuted for political reasons during those times.
It is possible to make certain changes concerning the order of iconic property restitution to religious organizations. So, in the Verkhovna Rada there are four legislations which are registered "On alterations to the Law of Ukraine "On freedom of worship and the religious organizations". Actually all of them are completely new editions of the above mentioned law, and in particular, differ on the procedure of iconic property restitution to religious organizations.
It is even more difficult in reference to non-religious communal property, the restitution of which is not regulated at all by any statutory acts nowadays. In 1998 on initiative of Vaad of Ukraine, the heads of 17 national communities addressed the president of the country Leonid Kuchma, and to the chairman of the Commission of Verkhovna Rada on human rights, national minorities and interethnic attitudes Gennady Udovenko with the request to work on, and put into effect, the moratorium on privatization of property which belonged to national communities before. As a result, the corresponding document came out only in 2000, and forbids the privatization of categories of building of iconic character only.
Thus, neither the statutory acts on effect, nor the registered legislations do not give an opportunity to guarantee the fair right of restitution in full of previously expropriated property to a national community. For this it is necessary to develop a separate general legislation directed towards restitution of all nationalized property to a community, regardless of its modern status. As examples it is reasonable to mention the laws approved in Eastern European countries over the last decade. With the purpose of the coordination of a necessary procedure within the Constitution of Ukraine and principles of justice, it is suggested to put two key amendments in the legislation under development:
the property which is in the state or municipal hands, should be retrieved gratuitously;
the state is obliged to redeem the property, which has been privatized, from present owners under a price agreeable to both parties (or at the cost at the moment of privatization), and gratuitously pass it over to a community, i.e. the state bears the responsibility for lawless actions committed before.
Objectively speaking, it is practically impossible to get indemnification for citizens or communities from the state for destroyed property.
However, with some Foreign Policy pressure from international organizations and lobbyists’ activities inside a parliament, the acceptance of such legislation seems quite possible.
Inclusion of the restitution question into the range of issues concerning human rights
For the last 15 years, the concept of human rights formulated originally in the General declaration of human rights, was essentially elaborated. The specified declaration accepted in General assembly of the United Nations in 1948, was developed on the concept of individual human rights and did not mention corporate rights, in particular the right of religious and national groups. After the downfall of communist regimes and the disintegration of the Soviet empire, the concept of human rights was essentially expanded upon. In the 90s a number of the international documents regulating the rights of national and religious groups were accepted. Naturally, founders of the new expanded concept of human rights could not have paid any attention to such an essential factor as the right of national and religious groups to their property. The American senators, the president of the USA and the European Parliament all base their appeals to the countries of East Europe and the former USSR referring the property restitution, on the new concept of human rights, including the right of a community to the restitution of illegally expropriated property.
With reference to the countries of the former USSR, recently the problem has been concentrated around the well-known, but frequently partially understood “Jackson-Vanik amendment", which was accepted by the Congress of the USA in 1975. According to this document, the countries of the communist block have lost the status of most-favoured nations in trading with the USA because of numerous infringements of human rights, in particular the right for freedom of movement, i.e. referring to the USSR - for freedom of emigration and repatriation. It is clear that at that time it was mostly referring to Jews, though the amendment had a universal characteristic then. For the past more than thirty years, even among many diplomats and lawyers of foreign affairs (basically, in the post-Soviet countries), there was a steady and rather widespread stereotype that the given amendment is referring exclusively to Jewish emigration, which is incorrect by definition.
As the "Jackson-Vanik amendment" connected the granting of the most-favored-nation trading status with the observance of human rights in a number of countries, it is quite logical that, since the expansion of the human rights concept, nowadays the amendment is connected with a wider spectrum of rights than 32 years ago.
Since the beginning of the 1990-s, the specified amendment does not apply anymore to many countries of the former USSR, but also it has not been cancelled completely. The moratorium on its application is valid for a year, and consequently authorities of the post-Soviet countries should apply to the American authorities every year with the request for prolonging the action of the moratorium for another year.
The desire to liberate oneself from the amendment is not an end in itself, but serves as means for the countries to enter into the World trading organization which entails a lot of tax and customs reliefs. All countries aspire to it, including post-Soviet ones.
Thus, it becomes clear to any unprejudiced person that the cancelling of the "Jackson-Vanik amendment" nowadays is connected not with the right to freedom of movement at all, thank God, this right is not limited in the post-Soviet countries by anything, and has resulted for last 18 years in reduction of number of the Jewish communities in our region in 4-5 times. Today the White house, the Department of state of the USA, and Congress, at least, theoretically, connect a cancelling of the amendment exclusively with communal property restitution and with displays of antisemitism.
However, in practice the USA policy can vary. So, concerning Ukraine in March, 2006 the amendment was cancelled. The promise of the present president of Ukraine Victor Yushchenko to promote restitution of Jewish communal property, which was made during his visit to the USA in 2005, preceded it. However, as far as we can we can judge, political reasons (the necessity to support the new country authorities which came to power after Orange revolution, facing the parliamentary elections 2006) more likely served this purpose. Thus, concerning the Ukrainian government, one of the major external stimuli for the real actions directed towards restitution is no longer in force, and in fact authorities always react more actively to pressure rendered from the outside, than upon pressure of their own civil society, the integral part of which is national communities.
Certainly, the Jewish community of Ukraine was interested in a cancelling of the «Jackson-Vanik amendment», but it is interested in the restitution of communal property just as much.
Restitution is not only an act of historical justice, but is a way to the self-sufficiency of a community, to its independence and the sovereignty in the widest sense of this word. Through the examples of Czech Republic, Hungary and Slovakia, we see how a community literally blossoms, the one, to which even a part of the property has been transferred. The community ceases to be a "beggar" in front of the international Jewish organizations which finance and thus control up to 70–80 % of communal activity in the post-Soviet countries nowadays, including such prominent aspects of a community life, as education, social welfare, youth programs, scientific researches and so on. Our Jewish leaders cannot even imagine that in Eastern Europe Joint and Sokhnut in practice are not working yet, and all the necessary work is being carried out by a community and using their own means.
Restitution of property leads to the revitalizing of the moral atmosphere in a community, to the birth of a new generation of leaders, not applicants or dependents, but active and independent managers with self-respect.
And what is even more important is that the restitution of communal property leads to improvement of moral atmosphere in the state and its society, aligning with the natural and all-encompassing system of universal values.
And, at last, restitution of property restores trust in the country which shares the attitude of the modern civilized world towards property, and by doing that incurs the obligation not to henceforth break the sacred right of its inviolability. Only thus the investment climate in the country improves, and it starts to dynamically participate in international economic activities. The example of our neighbours in Eastern Europe, where foreign investments per each citizen is exponentially one or two times more than in our country, unequivocally testifies to the salutary influence of property restitution on the economy and the moral atmosphere in a society.
From a purely legal point of view, legitimate inheritance of modern religious and national communities by consideration of the problem of the restitution of property, which was illegally confiscated or lost during evacuation or flight, is disputable enough. Indisputable exceptions in the legal sense are rare enough cases of direct relationship of modern applicants with those individuals who possessed the specified property. But even in such obvious cases there are a lot of technical, documentary and moral problems from the legal point of view.
On the other hand, it is absolutely clear that such phenomena as the revolution or the Second World War, reprisals of totalitarian regimes and the genocide during the Holocaust, cannot be stipulated by any state legal system. In such cases, mankind should search for solutions of many arisen problems, including legal ones, on the basis of universal values and civil consensus.
Only in the western regions of Ukraine and there infrequently, there are revived religious communities which accepted people who used iconic property in a similar religious community before it had been violently abolished by the Soviet authorities. In such cases, under the condition of the preservation of sub-confessional courses of religious activity by a new community, it is possible to speak more or less concretely about the fact of direct communal inheritance.
In the majority of cases synagogues have been transferred to new communities which have no connection with their former owners in any way. For example, it is known that before the beginning of the Second World War reformist communities existed only in the territory of Western Ukraine. Lately, nevertheless, some native reformist communities were granted buildings of former synagogues for use from local authorities (for example, in Kerch and Evpatoria), though the archival documents do not state that any of the reformist communities ever existed in these synagogues before. Similarly, the issue of communal legitimate inheritance arises as well when a Chassid community is formed in place of a Misnaged one, not to mention that there are non less than a hundred Chassid lineages in Judaism.
In some cases, there are claims for the same premise from different communities, which have nothing to do with former ones, and in such cases conflicts arise among communities, for the solution of which no normative base exists. The factor of "friendship" with local authorities solves everything, which in conditions of almost total corruption of officials can be solved in the well-known way.
It is known that the problem of legitimate inheritance has also arisen in the case of the fund opened by the banks and the government of Switzerland under pressure from Jewish people and the world’s general public. The New York court which considered claims of 500 thousand people who had gone through the Holocaust, having come up against similar difficulties, treated the case as a class action suit. In such an approach individual claims are not considered, otherwise it would be simply impossible. The persons applying for indemnifications are divided into a limited quantity of groups, and each group receives a certain kind of individual indemnifications. In the case regarding the second Swiss fund, there were four of such Jewish groups:
- heirs of "dormant accounts” in Swiss banks (more than 50 thousand possible accounts);
- people could not escape to Switzerland during fascist occupation because of a corresponding position of the Swiss authorities, including descendants of such people;
- prisoners of ghettos and concentration camps;
- people who lost their property during flight in the face of the coming German army or armies of German allies;
Despite plenty of people who were displeased with the decision of New York court, the resulting approach, despite of its "doubtful" legal character, seems as the only possible one, especially considering present resources. It is necessary to notice that the problem of the Swiss fund means distribution has been transferred to New York just because in the legislation of the USA there is the opportunity to consider class action suits.
Thus, the decision of the New York court has created the international precedent of «relative legitimate inheritance» when there is no direct communication between those who lost their property, the property itself, and those who apply for its restitution or corresponding indemnifications.
Similarly, but not so very obviously, the Claim Conference, acting for nearly fifty years, has been allocating means not only to the people who went through the Holocaust, but also to various Jewish organizations which carry on research or educational projects, directly or indirectly connected with Holocaust topics.
There are also other examples of «relative legitimate inheritance». Thus, more than 100 million dollars recently received by Joint from Claim Conference for developing and maintaining the system of «Hesed» charity centres, have been allocated by the government of Germany as indemnification for Jewish communal property allocation in Eastern Germany. More than 200 thousand clients of the "Hesed" system, naturally, neither in the past nor in the present, have anything to do with the specified property in East Germany; nevertheless, they are entitled to this kind of indemnification.
Thus, despite a series of problems concerning legitimate inheritance of lost property, the basic recipient of property and indemnifications is the Jewish world on behalf of several interstate organizations. Yet the specified organizations distribute immense amounts quite randomly, practically without any public control. It is notable that lately in the Jewish press there were a number of articles criticizing the general and private aspects of such distribution and employment of means.
Highlights of the situation of restitution of Jewish property in Ukraine
The problem of restitution in Ukraine is very complex in many ways. First of all, it is a question of a significant number of categories. For many years within the frameworks of activity of Vaad of Ukraine and Eurasian Jewish committee on restitution, founded by EAJC, we have been able to conduct laborious work on the assessment of Jewish property. If we are not only to count synagogues, but also other buildings which belonged to a community and are being misused as well, for the moment there are 2500 of such categories in our list, among which almost 1400 have been fully inventoried. Thus, we have not started the assessment of land plots yet, which also belonged to the Jewish community of Ukraine. The number of such sites, by our calculations, vary from 10 to15 thousand.
But the point is not only numbers. In Eastern Europe the process of restitution was not easy either, and in the Baltic countries it was very complicated. As to the CIS countries, they do not seem to be ready to have a dialogue with the civilized world concerning the restitution of the property. The Ukrainian legislators and the population as a whole negatively perceive the idea of restitution for many reasons. It took a long time and much effort to destroy moral universal categories in these countries, including the category of property. There, the worst kind of «small village mentality" is dominating society: what is lost is lost. New owners do not wish to recognize that they are using someone else’s property, taken away from its lawful owners during reprisals and genocide, therefore is stolen property, and it is an equal crime to direct larceny by all civilized norms. And in this case, we are not talking about the "concepts" of some marginal elements, but about the dominating psychology in the whole society, including the political "elite".
Unlike some Eastern European countries, where the property of the Jewish communities was expropriated during the Holocaust, and the modern governments are not the successors of governments allied to Hitler, on the post-Soviet territory the major part of communal property was confiscated by the Soviet authorities in the 20 and 30-s of the XX century (in Western Ukraine, Western Belarus, Moldova and the Baltic countries in the 40-s). In the CIS countries, the present authorities and the society as a whole are the successors of Soviet ones. Many of those who served the Soviet system in good faith and fidelity, or their lineal heirs, still govern the post-Soviet countries. These circumstances are capable of confusing even those who have won over the Swiss banks.
Thinking about the specifics of the destiny of communal property in the territory of the former USSR, it is difficult to refrain from the temptation to put forward the following thesis as a working hypothesis. Many international documents operate with the term «the lost property during the time of the Holocaust», and the fault for the loss of Jewish communal property is assigned not only to Nazi Germany, but also to the countries which were its allies during the Second World War. In this context, it is possible to recollect that the Molotov-Ribbentrop pact and its confidential minutes as an appendix to it, have placed on record the allied attitudes between Germany and the USSR within the period of August of 1939 and June, 22nd, 1941. If it had not been for this pact and the corresponding attitudes and agreements, European history of those years would have looked absolutely different. The fact of the alliance between two totalitarian empires during the specified period is beyond doubt. The rest is a question of international legal theory and practice. In our opinion, there is good reason to assign to the USSR the part of the responsibility for the destiny of Jewish communal property of the time of the Holocaust, lost in the specified period of the Second World War.
Another aspect of complex problems is an informal position of the Israeli establishment playing a significant role in WJRO. There is a point of view which seems to us ridiculous, but, nevertheless, influences on the position of WJRO. In Zionist circles there is the opinion that the process of restitution in the post-Soviet countries can essentially limit, if not stop, repatriation of Jews from these countries to Israel. It will happen not because, having received the communal property, Jews will change their minds from emigrating, but because, in opinion of some Israelis, the attempts to retrieve the lost property will inevitably cause outbreaks of antisemitism, among authorities as well, and they in their antisemitic impulse, will limit the right of Jewish people to emigrate. It is difficult to refute this point of view, because it is based not on logic, but on emotions. Now that repatriation to Israel has decreased to a critical minimum, the absurdity of such assumptions is especially obvious. The other point of view is closer to that of the author of the article: Antisemitism, however, as well as emigration, depends on fundamental factors of development of the system of the state and society. Antisemitism was, is and will always exist while there are Jews, so it is necessary to make a choice between two possible realities: antisemitism without restitution of the property, or antisemitism and restitution of the property. The example of East Europe shows, that even in more civilized countries, the process of restitution carries with it many problems, and is accompanied by some revival of antisemitism, but the state and a strong community (and the community with property is a strong community) are quite capable of dealing with the abovementioned problems.
There is one more circumstance complicating the problem of communal property restitution: Soviet authorities illegally confiscated the property not only from Jews and the Jewish communities. In Ukraine, by initial estimates, property was confiscated from sixteen communities. The situation of restitution in Western Ukraine is especially dramatic - a huge part of the property, alongside Jewish, has Polish, Hungarian, Czech, Romanian and Slovak roots. This fact essentially influences on the solution of the restitution problem, but should not discourage it at all. Certainly, tactics of restitution, corresponding to concrete circumstances, should be developed and applied. The coordinated action of lobbying the moratorium on privatization of communal property, which had been crowned with partial success, was mentioned above. Ahead there should be a similar action of lobbying the moratorium on privatization of the land plots which belonged to national and religious communities before.
During the restitution process it is necessary to consider that legitimate inheritance of communal property, which is the subject for restitution, are not only communities revived on the territory of Ukraine, but also communities and other organizations uniting Jews who emigrated from Ukraine. The Jewish communities of Eastern Europe faced similar problems in the 1990-s, and in each case it was necessary to search for an uneasy conciliatory decision. For example, in Poland, the agreement between the not-so-numerous local community and the organizations uniting native Jews from Poland, whose number counts one million people worldwide, has been signed after the acceptance of the law on communal property restitution.
The absence of a unified coordinated point of view on the restitution of communal property in a Jewish community complicates the problem of restitution in Ukraine. So, some religious associations declare that they need 20–50 synagogues, and they would be satisfied with that. At the same time in the country, as it was already mentioned, there are more than 200 religious communities, three quarters of which practically have no premises of their own, and nobody acts on their behalf. And besides, there are 400 non-religious organizations which also need premises of their own. Moreover, a number of the international organizations supervising these structures in Ukraine, before the revolution or before the Second World War, owned the property in Western Ukraine which is subject for restitution. For example, ORT had a significant number of property categories before the revolution and the Second World War; Joint was a proprietor of various charity establishments, schools and non-iconic buildings.
The problem of the coordination of an all-Jewish point of view on the issue of restitution is very serious. Therefore, at the moment of writing the article, during the last working visit of the WJRO delegation to Ukraine in March, 2007, the attempt to create a special committee for developing a common point of view on the problem of the restitution in Ukraine was made. The delegation which consisted of co-director of WJRO Haim Chesler (Sokhnut), Andrew Bejker (the American Jewish committee) and Arje Buhaister (Claims Conference) offered the Memorandum of mutual understanding to the Ukrainian Jewish organizations for their consideration. It consists of five items and is presented to all interested «parent» and "umbrella" Jewish associations – religious and non-religious.
The essence of the Memorandum is the following. The Jewish community of Ukraine will take the most active part in the destiny-shaping decision on the requisitioned property; the committee, consisting of representatives of the Jewish community of Ukraine (considering the principle of parity representation – 50/50) and the international Jewish organizations, will be formed. This committee will become the structure, called upon to coordinate the existing points of view on the restitution problem. Subsequently, the committee will start a fund, the members of which will be representatives of the Jewish community of Ukraine and international Jewish organizations.
It is also stated in the Memorandum that, unlike in Eastern Europe, WJRO in Ukraine does not apply for any part of the retrieved property, though formally has such a right to do so, as some natives from the countries of the former USSR are members of the organization, nowadays living in the West. Actually they, their fathers and grandfathers developed this property, and they could apply for it. But, considering that there is a big and active Jewish community in Ukraine, WJRO has made a decision not to apply for this property, but to pass it over for the disposal of the Jewish community of Ukraine. Besides, WJRO is ready to provide the means necessary for property assessment and functional operation of the one already retrieved (repair, etc.).
This simple and clear memorandum has caused, nevertheless, resistance from some organizations. Some people have declared that the restitution cannot concern only the Jewish community. It is impossible to disagree with it, but it would be strange to demand from the World Jewish restitution organization to lobby the interests of other national communities. Furthermore, the organizations, which cannot count on serious decisional weight in the created committee or their influence on the distribution of this property, talk about the necessity of property restitution only to the religious organizations. But there is no unity in the religious Jewish life in Ukraine either: there are some religious orthodox associations, associations of reformist and conservative communities.
It is obvious that the Jewish community of Ukraine should try, at least, to guard the interests of all these groups during the distribution of retrieved synagogues, as it is a common problem, and not only for religious communities. Another matter is that non-religious organizations without the consent of religious ones cannot apply for the religious property. Legitimacy of claims of non-religious modern Jewish organizations on the property of pre-revolution religious communities is admitted by both WJRO and the Ukrainian Jewish organizations; however, this problem should undoubtedly be solved together.
The majority of the heads of the Jewish organizations, with whom the representatives of WJRO met, have agreed to sign the Memorandum of mutual understanding that became the first step towards the achievement of a compromise strategy in the field of restitution. WJRO understands of the fact that some organizations are still deciding whether to sign the document or not. We hope that the majority of Jewish organizations, including religious, will sign the Memorandum in the near future, and then it will be possible to form a committee.