Beneš decrees – when the past catches up with the present

Then first, in May of this year, the European Court of Human Rights in Strasbourg ruled in Bosits v. Slovakia that the applicant’s right to a fair trial had been violated in a confiscation proceeding that started in 2009 and was based on the decrees. Later Új Szó, the Hungarian-language daily in Slovakia, reported on cases in Pozsonypüspöki, where the state wants to acquire plots of land for the construction of D4 motorway on the basis of the decrees. Many were shocked, and wondered: how is this possible? According to the state’s official position the decrees are already ‘dead law’, they can no longer be applied. Below I will describe the legal background of the current problems, and the possible solutions.

It is far from clear how confiscation can take place today, in the 21st century, on the basis of the Beneš decrees of 1945. According to the official position of the Slovak government, the decrees are historical documents, they no longer have legal effect, so they cannot amend (create or abolish) property rights. This is formally true - yet it is not. The decrees have indeed been repealed - yet they continue to have legal effect. This legal absurdity also confuses legal professionals. And the key to understanding it is the phenomenon called “disorder in property titles”.

The most important law for confiscation of property is Decree No. 104/1945 of the Slovak National Council on the confiscation and swift distribution of agricultural land of Germans, Hungarians, and traitors and enemies of the Slovak nation. Based on this decree, all persons of Hungarian ethnicity lost their land with effect from 1 January 1945. The decree was implemented with individual decisions: the authorities individually examined who was of Hungarian ethnicity, and issued confiscation orders, which were entered into the land registry. The ownership of the confiscated land passed to the state; part of it was given to Slovak settlers. In 1948, with the communist takeover, the state's policy towards the Hungarian minority and private property changed. The decrees were repealed and Government Decree No. 26/1948 allowed anyone who remained a Czechoslovak citizen (i.e. not expelled to Hungary) to get back their land up to the size of 50 hectares if it had not been distributed to settlers by then. Shortly after, collectivization took place: the state took control of all land. Private ownership of land ceased to exist. The state exercised ownership rights: in practice, state-owned enterprises and cooperatives owned the land.

The above description shows how the process looked in theory. This is how it should have happened. But life, as always, is much more complicated than the political planning table. Between 1945 and 1948, the chaotic times often produced inaccurate, erroneous individual decisions. There were cases when not all land of a person was confiscated; or cases when land was taken from a wrong person. Some spent this time in captivity or were otherwise inaccessible, and the confiscation order was not delivered to them properly. Many proceedings were burdened with other procedural errors, often carried out by officials without legal training. After the confiscations took place, they were sometimes not entered into the land registry; or the land was transferred to the settlers before it was legally confiscated from the original owner. There were those who got their land back under Decree No. 26/1948, and this was registered in the land registry – and there were others who no longer had time to reclaim their land or restitution was not registered. Overall, ownership status to land was very chaotic in 1948 when nationalization took place. Property titles were not put in order after that, as ownership lost its significance – now everything was controlled by the state.

This chaotic legal situation was inherited by the newly formed Slovakia in 1993. The owners registered in the land registers are often not the same as those who should be the owners according to the law. There is a significant number of persons from whom the state confiscated their property between 1945 and 1948 in principle, but in practice this was done incorrectly or it was not carried out at all. There are many whose land was confiscated, but the confiscation was not entered in the land register, therefore they remain owners. Some reclaimed their land in 1948 but did not register it before it was lost again upon nationalization. The real situation and records differ in many respects.

This messy situation causes the current problems, and leaves room for abuse. According to Minister of Justice Kolíková, the current court procedures are simply corrections of errors. In practice, however, this means that the courts take away property from the current owners registered in the land registry on the ground that their titles are based on a mistake: the land should have been taken away from their ancestors before 1948. Since this was not done at the time, the state is now correcting this error by retroactively declaring the land state property. And it does so on the basis of the Hungarian or German ethnicity of the former owners (ancestors of the current owners).

What can be done about this situation? From the point of view of the state, the simplest solution would be to stop the current confiscations, but without amends for past confiscations. However, it is unclear whether such a legal solution exists. Indeed, as long as the decrees are still valid for the period of 1945-48, the courts will always have the possibility of subsequent deprivations of property rights which could have occurred at that time, but did not take place due to some omission.

The state’s goal could be achieved in two ways. One is the solution of the Ministry of Justice: put our heads in the sand, pretend that what is happening is not confiscation, only ‘correcting mistakes’. The problem with this approach is that since this ‘correction’ is taking place today, it is subject to current human rights standards. And according to current human rights norms, this ‘correction’ of mistakes is a serious interference with the right to private property, on the basis of collective guilt based on ethnicity. It is similar to a situation as if the state had not repealed the laws of the Nazi era after World War II and would be now confiscating the house of a man of Jewish descent, claiming that a confiscation decision was made in 1942, but was unenforced then due to some omission. One does not have to be a lawyer to see how absurd such a ‘correction’ would be. Therefore, this solution will work until an international organization such as the European Union or the European Court of Human Rights takes a closer look at the issue. Then it could lead to a serious condemnation of Slovakia.

The other solution is to oblige the courts by law that if they find a property which should have been confiscated between 1945-48, but it is still in the ownership of the original owner, leave it in their possession. The problem with this approach is that it would create an even bigger legal uncertainty than the present situation. First, it requires tolerance of legal inaccuracies, which is difficult for lawyers to accept. Also, many different types of errors can lead to a discrepancy between registered and actual ownership. The state should only tolerate errors whose correction would require the subsequent application of the decrees. I do not see a solution that could regulate this with sufficient precision and prevent abuse. In any case, it would take a tool out of the hands of the courts to remedy faulty property relations, including those that might need to be repaired (think, for example, of owners mixed up due to similar names). This can also create space for fraud.

The only effective solution is the abolition of the confiscation decrees for the period of 1945-48 as well. This could ensure that the courts would no longer apply them retroactively. This abolition, in turn, would mean that the confiscations already completed by 1948 would also be annulled. And this would require individual compensation for the damage suffered at the time - either full or symbolic. This could be handled by law. It is a question whether politics could handle it.

One of the main obstacles to this solution is that nobody knows exactly how much land is affected. There is no inventory of the economic effects of a possible annulment: how many former land owners would file for damages for how much land. Therefore, as a first step, the state should set up a committee of inquiry to assess the size of each category of land and estimate the amount of compensation. Without knowing how much money is involved, it will be difficult to have the political will to settle this issue. No responsible political leader will issue a blank check. A specific amount, on the other hand, is always more digestible than unfounded fears.

The proposed settlement would solve the most serious rule of law problem related to the decrees, which are the current confiscations. Without this, not only will further deprivations take place, but Slovakia's international prestige will also be severely damaged. The issue of current confiscations is a good illustration of how the shadows of past injustices are cast on today's generations, and how we cannot get over the past without putting it in order, no matter how much Prime Minister Matovič wants us to look forward.

Nevertheless, individual confiscations are only a small part of the damage caused by the decrees. The decrees caused many other problems, whose connection to the present is even less known, but all the more important. The past defines the current Slovak-Hungarian relationship in other ways as well.

The Beneš decrees do not only have an effect on property ownership. Based on them, the Hungarian population in Slovakia was also affected by other retaliations. With few exceptions, the whole community had been deprived of its citizenship, many of their jobs and pensions. About forty thousand people were deported as forced labour to the Czech Republic. Hungarian associations and institutions were abolished, schools were closed, and the use of the Hungarian language, cultural and religious life was restricted in various ways. What impact do these restrictions have that has lasted to this day? And, perhaps more importantly, how can this be remedied, how can the situation created by the decrees be overcome?

To answer this, we need to understand the aim of the decrees. The usual explanation, taught in schools, is that the Czechoslovak government reacted in this way to the horrors of World War II, thus punishing those who turned against it, who participated in the destruction of the Czechoslovak Republic in 1938-39. However, this is a false answer. Ordinary Hungarians living in Czechoslovakia had no personal responsibility for the disintegration of the state. No one asked them to which state they want to belong, just as the Slovaks were not asked, similarly to the earlier break-up of historic Hungary. They can be held accountable in one sense only: if their very existence, a culture different from the majority, is incompatible with the state and presents a threat to it. The Beneš decrees were inspired exactly by this ideology.

The decrees were a reaction to the failure of the first Czechoslovak Republic to solve the minority question. After the First World War, the state over-extended itself, annexing areas whose population did not want to belong to it. And the Republic later failed to win over these masses, failing to make the minority fate attractive. The decrees are therefore based on the recognition that neither democracy, nor relative prosperity has been able to solve the minority issue. The leaders of the state gave up on the possibility of developing a fair minority system that is also acceptable to the ethnic masses.

World War II was thus not a cause but an excuse for the decrees. In no other time could such a grave ethnic cleansing be carried out with the approval of democratic great powers, and for one reason: the victims could be associated with Nazi Germany and its allies, which at that time and ever since meant the bottom of the moral scale. The fact that this argument stood on a weak footing already at the time is well illustrated by the hysterical reactions to date to any questioning of the decrees.

In the case of the Hungarian minority, this approach had its limitations. The great powers did not approve their deportation and referred the matter to Czechoslovak-Hungarian interstate agreement. The decrees had a very practical purpose here: Prague, using the Hungarians in Slovakia as hostages, wanted to force Budapest to agree to the expulsion of all Hungarians. When this did not happen, the decrees were revoked, but this was by no means a break with the approach mentioned above. Minorities were still seen as a foreign element, a dangerous group for the majority and the state. When the failure of the re-Slovakization policy became apparent, making clear that the country will have to count with a half million strong Hungarian community in the long run, their position was not settled based on fairness, a constitutional order treating minorities as equals. Rather, it was an inequality-based, bottom-up relationship where minorities constituted a tolerated category. The guiding principle was that members of the majority should be able to live in the country as if it were completely monolingual. Certain manifestations of minority existence (mother tongue education, cultural life) and the Hungarian speech could not be banned, but in the public sector they were so restricted that the members of the majority did not have to adapt to their fellow Hungarian citizens at all. Hungarian as an official language, the organized teaching of the Hungarian language to Slovak native speakers, co-national status, Hungarians as an equal party at any level could not be considered at all.

This is the legacy of the decrees today. This is the basis of the current constitutional system. It manifests features like the state language law, an unfair administrative division, an asymmetrical attitude to culture, and all the shortcomings of the minority education system. This has not only influenced the attitudes of Slovaks. It does not occur to most Hungarians anymore that they could be equal, or if that is not possible, they could at least dare to ask for equality. It does not seem like an extreme demand, but we are content with making our merely tolerated status more comfortable. Anyone who wants to rethink minority rights here on the basis of equality will first find himself confronted with resistance from within the Hungarian community. We are so used to the fact that this country is not ours, but that of the Slovaks, that we can gain here as much as it does not harm their perceived or real national interests at all, that a good Hungarian is one who has a minority dimension that does not bother the Slovaks at all (preferably they do not speak Hungarian in front of them, do not demand Hungarian signs or schools), that our further tolerance in the country depends on being satisfied with the crumbs thrown in front of us (Hungarian municipal signs) and celebrating the bigger bites (also on the railway!) that most of us no longer notice the absurdity of this. And that 75 years after the events, under democratic conditions, in the process of European integration, this could perhaps be different, and it depends on our will as well. The Beneš bargain, of which we were not subjects but objects, continues to bind the majority and the minority with an iron fist, defining political processes more strongly than a constitution.

I do not know whether the Beneš decrees can be eliminated. But I do think that by eliminating them we should understand mainly the confrontation and breaking with the above ideology. I would not focus on the formal repeal of former legislation, but on what is called a ‘symbolic apology’. If it is honest, not just an empty gesture, it includes the reason why someone apologizes, that they not only regret what happened, but also realize it was a mistake, understand why it happened, disagree with the reasons that led to it, and they now see it differently. And this ‘see differently’ needs to be given substance with a new national policy based on equality. An apology is sincere if it not only expresses a break with the past, but breaks with it also with deeds. What happened between 1945 and 1948 is not the fault of the present generations, Slovaks or Hungarians. But it is their fault if they hold the same views that led to the tragic events of that time.

Anyone who is serious about overcoming the Beneš decrees should not primarily be talking about “abolishing” them. This general goal is difficult to interpret. Instead, you need to take stock of what damage the decrees have done and how it could be compensated. For example, individual compensation may be awarded for property confiscated from individuals. The community could be compensated for the assets of Hungarian organizations with a financial fund that would support Hungarian educational and cultural organizations. Those deported as forced labour are entitled to individual rehabilitation (in my opinion also posthumously) and at least a symbolic amount of individual compensation. All Hungarians who lost their citizenship, income, assets, etc. on the basis of collective guilt should be entitled to symbolic individual rehabilitation in which the state expresses its regret that they were treated as war criminals. To this day, I often come across views by Slovaks that the deported Hungarians were indeed war criminals, even if they denied it, as otherwise they would not have been punished. Iron logic. It would be time for the state to finally take a clear position on this issue, helping, not hindering, teachers and civil society working on understanding and processing the past.

The above elements are separable, independent of each other. Similarly, the ‘settlement of World War II’ would not be undermined by the abolition of the decrees in the above sense; let's not fall for this pseudo-argument, which unfortunately is sometimes repeated by Hungarian experts as well. Each element may, but need not have, financial components. If they do, however, the one making the proposal must quantify them. For my part, for example, I would accept a purely symbolic rehabilitation for those forced into forced labour, but I was not taken for forced labour to the Czech Republic (I was born in ’79), so my opinion is not really relevant in this question. However, anyone who proposed monetary compensation should indicate a fair amount and quantify how many people may be affected (e.g. only those who live today, or their descendants too?), so that the proposal can be negotiated at all. No blank check will be signed by anyone, such a suggestion is frivolous.

The above list could be continued, but it is also worth noting that some of the disadvantages of the decrees cannot be remedied. For example, most of our cities lost their Hungarian character at that time, but the ‘restoration’ of ethnic proportions is not only impossible, but also incomprehensible in the framework of an act of reconciliation. In the same way, lost years and ruined lives, disrupted careers and broken families cannot be put whole. But it can be expressed that this was not right, today’s generations would disagree with this and would not do it again.

In my opinion, the aim of the whole "abolition" is not to settle a historic grievance, but to finally close the era in the history of the Hungarian minority in Slovakia, which is based on inequality, compromise and vulnerability. The Beneš decrees are not only the starting point and symbol of this era, but for the above reasons they remain their central determining element. Eliminating them could give a boost to new equality-based cooperation with the Slovak majority. I would prefer to be a member of a Hungarian community that considers itself equal and behaves as such, and thus accepts the state and takes responsibility for it, and I think that the Slovak majority would also be better off with such a partner than with the current permanent threat imagined to be a fifth column undermining the state. The question is whether we can convince them of this.

Someone might oppose me arguing that a new Slovak-Hungarian relationship can be built without facing the past, since if we were to achieve co-national status, Hungarian official language, etc. it would also achieve the above goal, overcoming the spirit of the decrees. This is true. But the experience of the past thirty years shows us that the policy of small steps has not been able to expand the mental barriers of majority-minority relations sufficiently so that such equality-based solutions could fit into it. This is probably a chicken or egg issue - a co-national relationship will be acceptable if we manage to go beyond the spirit of the Beneš decrees, and vice versa.

János Fiala-Butora
Lawyer, human rights expert