WASHINGTON – The Supreme Court, wary in the past of cases involving conduct by and against foreigners that have taken place abroad, heard arguments on Monday over whether US courts have a role in deciding whether Hungary and Germany have to pay for allegedly stolen goods. Jews before and during World War II.
But the seriousness of the human rights violations described in the two trials persuaded a federal appeals court in Washington to let the two cases move forward. The Trump administration has challenged the rulings, filing briefs and making arguments supporting efforts to limit scrutiny in U.S. courts.
The Hungarian Republic of Hungary v. Simon case, No. 18-1447, was brought by 14 Holocaust survivors, including four US citizens, who said their property was stolen by Hungary and its railroad public, which had thousands of Jews in the Nazi death camps in the summer of 1944.
Sarah E. Harrington, lawyer for the plaintiffs, urged judges to take this historical context into account.
“Hungary took everything the plaintiffs possessed, including the goods necessary for survival, such as shelter, clothing and medicine, and the undisputed purpose of Hungary’s receipts was to bring about the physical destruction of the Jews in Hungary. ”She declared. “It’s genocide.”
The German case, Federal Republic of Germany v. Philip, No. 19-351, concerns the Guelph Treasure, a medieval religious art treasure that once belonged to a consortium of Jewish art dealers in Frankfurt and whose value is now estimated at $ 250 million. In 1935, say the merchant families, the consortium was forced by German authorities to sell the collection for much less than it was worth.
The 42 pieces of the collection are now in the Museum of Decorative Arts in Berlin. In 2014, a German commission determined that the museum had acquired the collection legitimately and did not need to return it.
The commission said the 1935 sale was voluntary and came after a year-long negotiation that resulted in a price halfway between the open positions of the two sides. The families said that the consortium was forced to sell in the face of continued persecution.
Panels of three judges from the United States Court of Appeals for the District of Columbia Circuit have ruled against Hungary and Germany, saying cases can go ahead.
The fundamental legal question for judges in both cases is whether the disputes should be resolved in US courts. A federal law, the Foreign Sovereign Immunities Act of 1976, generally prohibits the prosecution of foreign states. The law has a few exceptions, including one for the expropriation of property, and U.S. courts have sometimes refused to hear cases against other nations for fear that this would interfere with international comity.
Gregory Silbert, a lawyer from Hungary, said his courts should be allowed to deal with the matter.
“When a complaint alleges that foreign parties have harmed other foreign parties in a foreign country, a federal court may decline jurisdiction in favor of a foreign court,” he said. “Hungary should have the first opportunity to respond to these allegations.”
The same would be true, he said, if the shoe was on the other foot.
“We can all agree,” he said, “that remedies for America’s worst injustices in the United States should not be decided by a Hungarian judge applying Hungarian law from a courtroom. in Budapest. “
Benjamin W. Snyder, a federal government lawyer who argued for Hungary, took a position that frustrated several judges. He said the Supreme Court should leave open the possibility of the courts to defer to foreign courts in the interests of international comity and send the case back to the lower courts to decide whether Hungary is entitled to such deference. . But he wasn’t saying what they should do.
Chief Justice John G. Roberts Jr. said it was a curious position given the executive branch’s expertise in foreign affairs.
“Now is the perfect time for you to fill that void,” the chief justice told Mr Snyder, who declined.
Judge Samuel A. Alito Jr. said he was perplexed as to why judges rather than diplomats should weigh the international relations implications of allowing prosecutions against other nations in US courts. .
“There are almost 700 district judges,” he told Snyder. “Do you want each of them to assess whether a particular lawsuit raises external relations issues?”
Judge Elena Kagan also expressed doubts. “Some might say that what’s going on here,” she said, “is that the State Department expects the courts to do the tough and delicate things and some might say the dirty work. for you.
She questioned Ms Harrington, the plaintiffs’ attorney, on a similar case against Hungary in which an appeals court ruled that the potential damage could amount to 40 percent of its gross domestic product.
“So this is a lawsuit that could essentially bankrupt a foreign nation,” Justice Kagan said. “Now it seems to scream serious international friction.”
Ms Harrington responded that her case, a potential class action lawsuit, was at an early stage and that “it’s pure speculation at this point” to try to calculate her clients’ damages.
A supporting memoir from Hungarian Holocaust victims argued that it was pointless to try to prosecute in that country. He described a case brought there by a 92-year-old plaintiff whose prosecution was dismissed for lack of evidence beyond her sworn testimony and who was ordered to pay the government‘s legal fees.
“The Hungarian court demanded the impossible from the survivors, that the concentration camps deprived of the means to prove with written documents the goods which had been stolen from them”, indicates the brief.
In the German case, the judges focused on a different question: Does the exception allowing prosecution under the 1976 Act for expropriation of property apply when a foreign government is accused of taking property? of its own citizens?
Federal government attorney Edwin S. Kneedler said the expropriation exception only applied to “the taking of property from a foreign national”.
More generally, he urged judges to consider the consequences of a general decision.
“It would put the courts of the United States,” said Mr. Kneedler, “to make sensitive judgments on the conduct of foreign governments, including perhaps some of our closest allies, and would invite other countries to open up. their courts to claims based on situations in this country’s unfortunate past, where it committed acts that everyone would now consider violations of international law.