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Auschwitz Case Against Hungary Advanced

(CN) - The United States' peace treaty with Hungary after World War II does not bar Holocaust survivors from seeking the return of property taken from them when they were sent to Auschwitz, the D.C. Circuit ruled.

Fourteen Holocaust survivors sued Hungary, claiming that nowhere was the Holocaust "executed with such speed and ferocity as it was in Hungary, where in 1944, over a half a million souls were dispatched to their deaths within a period of less than three months."

Four of the survivors are U.S. nationals; the other 10 live in Canada, Australia and Israel. Most "of the Hungarian atrocities occurred near the end of the war in 1944, when the Nazis and Hungary, knowing they had lost, raced to complete their eradication of the Jews before the Axis surrendered," according to the complaint.

The Hungarian government and rail companies were responsible for transporting hundreds of thousands of Jews to killing fields and concentration camps, where many were tortured and most died quickly, Rosalie Simon et al. said in the original complaint.

All but two of the 14 survivors were transported in the spring of 1944. They were sent to Auschwitz by Hungary's two rail companies, Magyar Allamvasutak Zrt (MAV) and Rail Cargo Hungaria's (RCH) predecessor.

They say the rail companies took their possessions from their bodies and homes, then sold or liquidated it, generating cash for the treasury that Hungarian government commingled with other revenue.

Only one of the named plaintiffs received a payment, of $5,000, from the Hungarian company to compensate for losses.

The survivors sought to represent a class of Hungarian Holocaust survivors and immediate family members, under the Foreign Sovereign Immunities Act (FSIA) and the Alien Tort Statute.

In May 2014, U.S. District Judge Beryl Howell, in the District of Columbia, ruled against the survivors on jurisdictional grounds.

"There is no doubt that the plaintiffs were wronged, atrociously so, and that they believe defendant Hungary, assisted by its railway, has not atoned adequately for its genocidal actions. Nevertheless, there are limits to the reach of the United States courts to provide redress where the Constitution and relevant laws and treaties say otherwise," Howell wrote.

The D.C. Circuit reversed on Friday.

"We hold that the peace treaty poses no bar to the plaintiffs' lawsuit," Judge Sri Srinivasan wrote for the three-judge panel. "While the treaty secures an obligation by Hungary to provide compensation for property interests confiscated from Hungarian Jews during the War, that obligation is not exclusive of other, extra-treaty means of recovery like the causes of action asserted in this case."

Because the property confiscations were part and parcel of the genocide of Hungarian Jews, "those expropriations themselves amount to genocide," and qualify as a violation of international law within the meaning of the FSIA's expropriation exception.

In a similar case, the Seventh Circuit concluded in January last year that Holocaust survivors' claims against Hungarian banks and railroads must first go through that country's courts before filing suit in the United States.

But Srinivasan said the exhaustion of remedies in Hungarian courts was not required in a case of genocide.

"The relevant international-law violation in this case is not the basic prohibition against an uncompensated expropriation of a foreign national's property. Rather, the takings of property in this case violate international law because they constitute genocide," Srinivasan wrote. "In the context of a genocidal taking, unlike a standard expropriation claim, the international-law violation does not derive from any failure to provide just compensation. The violation is the genocide itself, which occurs at the moment of the taking, whether or not a victim subsequently attempts to obtain relief through the violating sovereign's domestic laws."

Judge Karen LeCraft Henderson wrote in concurrence, "to emphasize the baselessness of Hungary's invocation of the Treaty Exception to the Foreign Sovereign Immunities Act."

Citing Article 27 of the U.S.-Hungary peace treaty of 1947, Henderson wrote: "Hungary asks this Court to trust that it in fact intended to restore expropriated property to its rightful owners within six months, or to pay them fair compensation, in 'all cases.'"

Henderson made it clear that she does not believe that. She concluded: "It revises history - and defies reality - to claim that Hungary had any intent or ability to effectuate Article 27 of the 1947 Peace Treaty. Accordingly, it would be unthinkable to conclude that the 1947 Peace Treaty fits within the FSIA's Treaty Exception."

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