I have mentioned before that my father is a Holocaust survivor, and in this post I wanted to recognize some outstanding pro bono legal work performed on my father’s behalf in applying for and obtaining pension benefits from the German government. In particular, I want to recognize two lawyers for their tireless efforts: Phyllis Brochstein at the NYLAG’s Holocaust Compensation Assistance Project and Konstantin Hoppe of Weil Gotshal.
Under a German law enacted in 1997, and expanded in 2002, Holocaust survivors who were in the ghettos before the ghettos were liquidated are entitled to pensions from the German government for their “voluntary” work performed for the Nazis. At the time, able-bodied men in the ghetto could agree to perform manual day labor outside the ghetto for the Third Reich in exchange for benefits such as food. My father, then a teenager, was one of the people who did this work when he was in the Vilna ghetto from 1941-1943.
Although the German government expanded the law in 2002, most of the claims applications from survivors initially were denied, including my father’s. As I understand it, my father’s application was typical among those initially denied: the magistrate ruled that there was insufficient evidence that the work my father performed was “voluntary” rather than “forced.” (Because the new law expanded a pension statute designed to provide pensions for employees of the German government, it could not apply to forced laborers, and the initial ruling was that my father’s labor was forced, not voluntary.) Earlier this year, however, the German Federal Social Court issued a new ruling that took a broader view of such terms as “voluntary,” and thus overturned many of the earlier denials of the applications. With the benefit of the new court ruling, my father became eligible for the pension.
Ms. Brochstein of NYLAG and Mr. Hoppe of Weil Gotshal’s Munich office served as my father’s pro bono lawyers during the long road to obtaining these benefits, and I wanted to thank them publicly for their effort. It meant a lot to my dad.
Anon Y. Mous says:
Voluntary. That’s a nice little loophole they had going there. Technically, I suppose they were right: how voluntary is it when your very survival depends on “volunteering”. Congrats to your father for prevailing.
October 14, 2009, 3:40 pmMike says:
Outstanding. Thank you for sharing.
October 14, 2009, 3:41 pmChrisTS says:
Congratulations to your father.
How perverse, though: we only owe you if you volunteered to work for us but not if we forced you to?
October 14, 2009, 3:49 pmMalvolio says:
“Perverse” is putting it mildly. Isn’t there some rule of statutory construction to say that if one interpretation causes a result that is insane, bizarre, cruel, horrible, and risible all at once, pick a different interpretation?
October 14, 2009, 4:05 pmChrisTS says:
I don’t know anything about German law. Seems like the Natural Law must have such a rule.
October 14, 2009, 4:07 pmMartinned says:
If the work was forced, presumably there would be other ways to get indemnified. As a matter of German constitutional law, I suspect the Feds can give pensions to former “employees” of the German state, but lack the power to enact a general tort-like statute in order to indemnify former forced labourers.
October 14, 2009, 4:28 pmMartinned says:
Correction, there is a Bundesgesetz zur Entschädigung für Opfer der nationalsozialistischen Verfolgung, i.e. a Federal law for indemnification of the victims of nazi persecution.
October 14, 2009, 4:37 pmMartinned says:
So it’s not that these Holocaust survivors couldn’t claim indemnification, it’s just that they couldn’t do it as former “employees” of the state.
P.S. I forgot to add translation in the previous comment. “Zwangsaufenthalt in einem Ghetto” means “forced residence in a Ghetto” and “Zwangsarbeit” means “forced labor”. People in either category are eligible for indemnification under the BEG.
October 14, 2009, 4:41 pmLarryA says:
By whom? The government that did the forcing is long gone, and any individual high enough in it to be liable is either dead or in prison.
October 14, 2009, 4:41 pmMartinned says:
By the German state, obviously. (See above.) The German Basic Law explicitly states that “war damage and reparations” is a concurrent competence. (As noted earlier, the rights of federal employees are exclusively federal under art. 73.)
October 14, 2009, 4:49 pmathEIst says:
Quite likely to be dead, but in prison? Name one!
October 14, 2009, 4:51 pmMartinned says:
O, I forgot to mention: there’s no such thing as sovereign immunity in continental Europe. Theoretically, there’s no reason why a Holocaust survivor couldn’t sue the German state – as the legal heir of Nazi Germany – under normal tort law. (Except that the statute of limitation has presumably run out.)
October 14, 2009, 4:56 pmMalvolio says:
Is there a statute of limitation on war crimes? I mean, I know there isn’t one on the criminal matter, but what about the civil one.
I’m curious, is this pension in addition to any reparations payment or instead of it? It seems like most victims would have some mixture of “voluntary” (as in, I’ll volunteer to shovel snow if you’ll volunteer not to shoot me) and forced labor.
October 14, 2009, 5:01 pmPersonFromPorlock says:
Malvolio:
You’re thinking of the one that ends: “talk about the importance of stability and precedent.”
October 14, 2009, 5:21 pmJimbino says:
What happens if the person is already dead? Who gets the compensation?
what happens if the dead person left no spouse or kids? Do his heirs get the compensation?
October 14, 2009, 5:29 pmMartinned says:
No, but my hypothetical was about an ordinary wrongful death/detention suit. Under art. 195 BGB (the German Civil Code), the standard limitation period in civil law is three years.
None of this is important, though, since indemnity suits by Holocaust survivors and other victims of the Nazi regime are covered by the BEG aforementioned, which has no limitation periods.
October 14, 2009, 5:35 pmMartinned says:
Answer
Short translation: the claim becomes part of the estate of the deceased.
October 14, 2009, 5:37 pmChrisTS says:
martinned:
Thanks. At least that makes somewhat more sense.
Still, it seems to me one ought to get a pension for ‘work,’ whether it is coerced or voluntary (quite apart from compensation as war crimes victims).
October 14, 2009, 5:57 pmMartinned says:
Like I said, the Feds may not have the competence to do that. They can give a pension to (former) Federal employees, but a forced labourer isn’t an employee, no matter how you look at it. To the extent that former forced labourers deserve to be compensated, the BEG already takes care of that, based on the “reparations” legal basis in art. 74 GG. Essentially, this pension is extra, it is not legally part of the compensation for wrongdoing.
The law mentioned in the OP creates a legal fiction that the “employee” in question paid pension premiums during their labour, based on which they are now entitled to a pension.
Giving this pension also to people who were not “persons employed by the Federation and by federal corporations under public law” would be ultra vires.
Apart from the concurrent competence to take care of “war damage and reparations”, there is also a concurrent competence regarding “benefits for persons disabled by war and for dependents of deceased war victims as well as assistance to former prisoners of war”, which would allow them to give pensions to certain classes of people. In addition, there is art. 74a GG:
So the Feds have quite a bit of power to take care of their former employees, but there is a limit as to who can be considered such, a limit guarded by the legendary Bundesverfassungsgericht, the Federal Constitutional Court in Karlsruhe.
October 14, 2009, 6:28 pmEvilDave says:
If that were that case Con Law II would be a trivial course.
October 14, 2009, 8:14 pmwm13 says:
It’s interesting to me, as a psychological matter, that Prof. Kerr’s father wanted this sort of compensation. My wife’s family were refugees (though they were not Jewish, and thus not Holocaust survivors), and they wanted nothing except never to hear a German word or see a German person for the rest of their lives, nor would they have been capable of filing anything with the German government except eternal hatred.
October 14, 2009, 8:16 pmVisitor Again says:
Last Saturday night I had a three and a half hour telephone conversation with the lawyer who was my first mentor after I finished law school, way back in 1968. We hadn’t talked in a while, and we caught up on many things. He and his immediate family, Jews, escaped Germany just before the Second World War broke out, but he lost other family members and friends to the Holocaust. One of the things he touched on was how very much he enjoyed Quentin Tarantino’s latest film, Inglourious Basterds. He said the film fulfilled every fantasy he had ever had about that episode in his life.
While I am not a Jew, I am a native of England who lived there the first 10 years of my life and who lost several family members in World War II, and I must say I quite enjoyed it myself. I’ve never believed the claim that ordinary Germans didn’t know of the Holocaust–they all knew and nearly all of them approved–and I’ve always had bad feelings towards the Germans as a nation and as a people, notwithstanding having had German friends I was quite fond of. I heard a lot of hostility against the Germans while growing up in England, but I suppose my feelings could be termed bigotry at this point, although I’ve never taken any adverse action against anyone based on it and this is perhaps the first time I’ve publicly confessed to it (outside hoping the German national football team would lose). It wasn’t helped when, within a week or two of the reunification of Germany, Helmut Kohl was talking about readjusting the border between Germany and Poland.
October 15, 2009, 12:26 amneurodoc says:
I suppose if I ask how it can possibly be that more than 60 years later Germany has not long since finished paying restitution to those it failed to kill despite its determined and largely successful efforts to do so, someone will ask about the years that elapsed before the US passed legislation and paid those of Japanese ancestory it interned here during WWII. I won’t stop to distinguish those historical injustices, though I think they are not hard to distinguish; I will just express disgust that Germany has drawn it all out so incredibly long. And then I will add that while condemning Germany, we should not overlook how shameful has been the failure of other governments, e.g., France, to fully own up to their complicity in horrendous WWII crimes and make restitution, including return of stolen art and other property. (Of course, what country received a lesser amount of deserved blame than Austria, the self-styled victim, so notably complicitous in Nazi crimes.)
(Somewhat tangential – I would recommend the Baader Meinhof Complex as a truly engrossing movie. Striking how what was in part an abreaction on the part of some young Germans to their country’s Nazi relatively recent past a generation produced such murderous ugliness that only arguably differed in polarity from that which preceded it.)
October 15, 2009, 1:53 ambyomtov says:
Congratulations to Brochstein and Hoppe, and I commend your father for sticking with must have been a difficult and painful process.
October 15, 2009, 9:36 amEric Muller says:
Thanks for posting this, Orin.
My family has also had (at times bitter) experience with reparations from Germany.
One item that my grandparents were able to secure was a restoration of my grandfather’s pension as a civil servant. (He was a teacher in the German public schools until fired and stripped of his pension under the racial laws in the mid-1930s). The pension paid not only to my grandfather during his lifetime, but also to my grandmother during hers as his survivor. My Oma took great delight at each birthday (she lived to be 100!) in noting that by living, she was continuing to make Germany pay her.
October 15, 2009, 11:44 ambyomtov says:
Neurodoc,
And then I will add that while condemning Germany, we should not overlook how shameful has been the failure of other governments, e.g., France, to fully own up to their complicity in horrendous WWII crimes and make restitution, including return of stolen art and other property. (Of course, what country received a lesser amount of deserved blame than Austria, the self-styled victim, so notably complicitous in Nazi crimes.)
Whatever Germany’s problems along this line, I believe they are in fact far ahead of other countries in accepting guilt for WWII (and pre-war) crimes. Of course, in a sense that’s easy, since they have nothing to hide behind. Still, Japan, for example, has not really faced up to some of its atrocities. As you mention, other European countries have hedged considerably, not just France and Austria (the country that, as someone said, “is so clever they have managed to convince the world that Hitler was German, and Beethoven Austrian.”). Recall the behavior of the Swiss banks with respect to Holocaust era accounts.
The Germans aren’t perfect, but IMO as the son of Holocaust survivors myself, they haven’t done so bad.
October 15, 2009, 1:34 pmBZ says:
Just a couple of notes:
1) the income from such German and Axis country pensions and property returns are NOT taxable under U.S. law. Rev. Rul. 57-505, 1957-2 C.B. 50. The Holocaust Restitution Tax Fairness Act of 2002, Pub.L. 107-358, Dec. 17, 2002, 116 Stat. 3015, expressly provides that eligible restitution payments made to an eligible individual or their hers are (1) excluded from gross income, and (2) not taken into account for any similar tax provision (such as taxation of Social Security benefits). See the Blue Book, Jan 24, 2003, JCT-JCS-1-03. In addition, the basis of any such property is the fair market value of the property on the date of receipt, which, in our case was last year (a pittance, compared to what was taken). If there is interest, I can post more on the definitions and so forth.
2) On why people would accept this money: my mother and aunt are Holocaust survivors, who were put on a Kindertransport and lived through the generosity of kindly Englishwomen. They accept pensions because they need the money, and because money and property were stolen from them and their families. Most of these payments are couched in terms of returning assets wrongfully taken (which is why they are tax-free, just as you don’t pay taxes on the return of your stolen car). Less than a year ago, they, as the only surviving heirs, received back a very modest sum from what had been a substantial, thriving business in Germany and Austria.
October 15, 2009, 2:20 pmUbertrout says:
I did pro bono on this project also, and I’d just note that this isn’t the only payment available to survivors. The German government pays a yearly payment called BEG to survivors solely for their suffering. They also made a one-time payment to those who had worked as slave laborers. This is specifically seperate (and less money) than those who worked as slave laborers.
October 15, 2009, 3:50 pmMagicalMindz says:
Speaking of Jewish war victims, perhaps other pensioners receiving payment (as is my mother-in-law) have received a letter from the FinancAmt in NeuBrandenburg (SiA)~ dated early August~ announcing German tax law changes whereby pensioners living outside of Germany are now required to provide Germany with a tax declaration? I have done my best to read the letter and spent hours translating what I thought related to her on the website they provided but I’m stumped about what to do. It doesn’t appear that she fits into any taxable category and it’s not clear how to “declare” her reparation payment.
Millions of Jews live overseas and can’t read German. Many have dementia or Alzheimers, as does my mother-in-law, or are very ill and their caregivers cannot understand these documents.The FinancAmt has been extremely unhelpful. Has anyone else encountered this problem? Could you offer me your advice or solution? Many thanks.
September 1, 2010, 6:50 pm