A case of limitation of the right to restitution in modern Serbian law: The Second World War that never ended
Authors: Stanković Miloš 
Published: March 2024

In 2011, the Republic of Serbia passed the Law on Restitution. The subject of research in this paper is a historical-legal, comparative-legal, normative and analysis of the application in Serbian judicial practice of Article 5, paragraph 3, point 3 of this Law, which stipulates that "the right to return property or compensation does not exist to a person who was a member of the occupation forces that operated on the territory of the Republic of Serbia during the Second World War, as well as his successors". In this sense, the rights to the return of confiscated property and compensation for members of the German, and to a lesser extent, the Hungarian nationality, are emphasised. The aim of the analysis is to try to determine whether such a restriction is justified and whether it contributes to the intention of the legislator when enacting the Serbian Law on Restitution, which implies the correction of historical injustices and the fair compensation of persons who, after the Second World War, were deprived of their property without their wishes and without (fair) compensation. In this sense, in the first part of the paper, historical and legal circumstances are investigated, i.e. the demographic structure of the German minority in Yugoslavia, estimates of the amount of property they owned and which was taken from them is made, as well as their attitude towards the Serbian population before and during the Second World War and the fate of the Germans in these areas after the end of the hostilities. In addition, the author stresses to a number of the most important post-war Yugoslav regulations, thanks to which the Volksdeutsche people were deprived of their property and according to which they were deprived of Yugoslav citizenship. In the second part of the paper, the provision of Art. 5 par. 3 point 3 of the Law on Restitution is analyzed, so a legal argumentation is presented about its inconsistency with basic legal-civilizational achievements and comparative-legal solutions. It is apostrophized that the legislator failed to make a distinction between members of the occupation forces against two relevant criteria: the moment when they acquired property and the way in which they acquired property that would be the subject of restitution. In the third part of the paper, the judicial practice of the Constitutional Court of Serbia and the Administrative Court, as well as practice of the Restitution Agency is investigated and the Law on Rehabilitation is analyzed. Based on this, it is indicated who is considered to be a member of the occupation forces and it is concluded that in this sense, contrary to the point of view of the Restitution Agency, it is necessary to rely on the Law on Rehabilitation and judicial practice. The author concludes that the prohibition of restitution to members of the occupation forces and their descendants is of an ideological and not a legal nature and that there is no legal argument for reflecting historical and criminal responsibility for the enjoyment of legally acquired property rights. Unfortunately, even the Restitution Agency does not contribute with its practice to alleviating this problem, because it selectively acts on the decisions of the Administrative Court, as it selectively applies the Law on Rehabilitation.