Tom Easton CSB#109218                 ORIGINAL
Jonathan H. Levy CSB# 158032         FILED
Law Office of Thomas Dewey Easton JAN 21 2000
1335 Pebble Beach Drive
Crescent City, CA 95531

Telephone: 707-464-4513

Facsimile: 707-465-5389

Attorneys for Plaintiffs and the Class

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO

EMIL ALPERIN, JEWGENIJA ROMANOVA, MARIA DANKEWITSCH, VLADIMIR MORGUNOV, VLADIMIR BRODICH, WILLIAM DORICH, and IGOR NAJFELD on behalf of themselves and all other persons similarly situated; ORGANIZATION OF UKRAINIAN ANTIFASCIST RESISTANCE FIGHTERS; and UKRAINIAN UNION OF NAZI VICTIMS AND PRISONERS, on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

VATICAN BANK, a/k/a "INSTITUTE OF RELIGIOUS WORKS" or "ISTITUTO PER LE OPERE DI RELIGIONE" (IOR); THE FRANCISCAN ORDER (O.F.M..) a/k/a CROATIAN FRANCISCANS and CROATIAN COFRATERNITY OF THE COLLEGE of SAN GIROLAMO DEGLI ILLIRICI, UNKNOWN CATHOLIC RELIGIOUS ORDERS, and their successors, UNKNOWN RECIPIENTS OF NAZI AND USTASHA LOOT, AND SWISS, AUSTRIAN, ARGENTINE, SPANISH, ITALIAN, PORTUGUESE, VATICAN & GERMAN BANKING INSTITUTIONS AND CALIFORNIA AND OTHER UNITED STATES CORRESPONDENT BANKS AS DOES #1-100,

Defendants.

NO. C99-4941 MMC

FIRST AMENDED CLASS ACTION COMPLAINT FOR:

1. CONVERSION;

2. UNJUST ENRICHMENT;

3. RESTITUTION;

4. AN ACCOUNTING; and

5. HUMAN RIGHTS VIOLATIONS

AND VIOLATIONS OF

INTERNATIONAL LAW.

 

JURY TRIAL DEMANDED

INTRODUCTORY STATEMENT: NATURE OF ACTION

1. This is a civil action arising under customary international law and the laws of the United States of America on behalf of named Plaintiffs and a class of all Jews, Serbians, and former Soviet Union citizens (and their heirs and beneficiaries), who suffered physical, monetary and/or property losses including slave labor, due to the systematic and brutal extermination of Jews, Serbians, and Romani by the Nazi puppet Regime, The Independent State of Croatia (NDH) led by Pavelic’s Ustasha Regime, and as a result of the occupation of the former Soviet Union by Croatian military forces in concert with their German occupation forces. This is an action against the Vatican Bank, Franciscan Order and Unknown Catholic Religious Orders, and as yet unnamed recipients of Nazi and Ustasha Loot, Swiss, Austrian, Argentine, Spanish, Italian, Portuguese, and German banking institutions and California and other United States correspondent banks for their participation in and benefit from the Ustasha Regime’s acts of cruelty and violence.

2. Plaintiffs (their heirs and beneficiaries) seek an accounting, restitution, disgorgement and to recover damages arising out of the participation of Defendant, VATICAN BANK or Istituto Per Le Opere Di Religione (hereinafter referred to as IOR), the FRANCISCAN ORDER and Unknown Catholic Religious Orders, unknown recipients of Nazi and Ustasha loot, and other banking institutions and correspondent banks and religious orders and organizations in a common scheme and course of conduct: (a) to profit from, both directly and indirectly, the inhumane and genocidal system instituted by the Nazi-directed Ustasha Regime in Croatia and territories subject to Croatian civil or military occupation upon those peoples that it viewed, not as human beings, but as subhuman according to Nazi and Ustasha ideology; (b) to obtain, accept, conceal, convert and profit from assets looted by the Ustasha Regime and deposited in, or liquidated through, the IOR, unnamed Doe Defendant Banks, and Franciscan Order during the ascendancy of the Ustasha Regime and following the demise of the Regime at the behest of the former Ustasha and Nazi leaders through the offices of the Franciscan Order; and (c) to retain and convert assets deposited in their institutions by the Ustasha and/or the Franciscan Order and Unknown Catholic Religious Orders.

3. Defendants committed, conspired to commit, and aided and abetted others who committed crimes against peace, war crimes and crimes against humanity. Defendants assisted the Ustasha Regime and its leaders as well as prominent Nazis to successfully evade justice for their genocidal crimes by concealing and making available the considerable assets of the Ustasha Treasury.

4. Evidence of the extent of the Defendants’ participation in wrongdoing has only recently come to light as a result of the disclosure and declassification of archived documents in the United States, Great Britain, Germany and other countries, as well as from the reports of several commissions and/or task forces created in the United States, Germany and elsewhere and in particular the Supplemental Report of June 2, 1998 by the United States State Department: U.S. and Allied Efforts To Recover and Restore Gold and Other Assets Stolen or Hidden by Germany During World War II, "The Fate of the Wartime Ustasha Treasury," released under the auspices of Under Secretary of State, Stuart E. Eizenstat.

5. By the conclusion of the Second World War, all Defendants were advised by the international community that the knowing use and benefit from the Ustasha Treasury, and the knowing looting and plunder of assets and benefits therefrom, were violations of international law and various codes of criminal conduct. All Defendants nevertheless improperly retained and concealed illicit profits and withheld them from their rightful owners. Defendants have unlawfully and unfairly profited from these practices for more than half a century, thereby illegally and improperly strengthening their own economic position in California, the United States, and throughout the world.

JURISDICTION AND VENUE

6. This Court has jurisdiction pursuant to (a) 28 U.S.C. § 1350 in that certain Plaintiffs are foreign citizens who assert claims for torts in violation of the law of nations. Upon information and belief, the Franciscans and Unknown Catholic Religious Orders, with knowledge and support of Vatican representatives in Croatia and Croatian representatives in the Vatican Bank, were aware of, participated in and facilitated (a) torture; (b) plunder; (c) displacement; (d) slave labor; (e) conversion, screening and transfer of assets; (f) facilitation of escape from justice of the torturers and the assets plundered, using assets plundered to facilitate escape, secreting and benefitting from such plunder; and (g) conspiracy to publicly and privately support and encourage the above-mentioned acts. Further, Defendants may be found in this District and Plaintiffs are unable to exhaust remedies in the place where the transaction occurred in that no adequate or available remedies exist;

(b) 28 U.S.C. § 1331 in that Plaintiffs make claims against Defendants under federal common law as it incorporates customary international law and international treaties in that Defendants knowingly used and benefitted from plunder taken from Plaintiffs by the Ustasha Regime, in violation of international treaties;

(c) 28 U.S.C. §1332 in that the amount in controversy as to each claim asserted and sought to be asserted herein by certain Plaintiffs exceeds the sum of $75,000, exclusive of interest and costs and certain Plaintiffs herein are U.S. residents and thus diverse in state citizenship from Defendants, citizens of foreign states;

(d) 28 U.S.C. 1605 as to the Vatican Bank, in that (1) at the time of the filing of this suit, the Vatican, and perhaps institutions and facilities under its control, was a sovereign; (2) the actions Plaintiffs complain of involve an activity for which the law provides an exception to sovereign immunity under 1605(a)(3); (3) although the acts complained of occurred prior to 1952 when the exceptions to sovereign immunity were adopted, because the United States did not recognize the Vatican as a sovereign prior to 1952, the Vatican could not have expected immunity for its acts prior to that time; therefore, exercising jurisdiction would not offend due process principles or the Vatican’s expectation of immunity; (4) the profits which Defendants have incurred as a result of their plunder of Plaintiffs’ property have impacted Defendants’ commercial transactions in the United States; and

(e) 28 U.S.C. § 1367 for any claims not otherwise covered by the aforementioned jurisdictional bases.

7. Venue is proper in this Court because all Defendants are doing business and may be found in this District within the meaning of 28 U.S.C. § 1391(b) and/or, as aliens, may be sued in any district pursuant to 28 U.S.C. § 1391(d).

INTRADISTRICT ASSIGNMENT

8. Venue is proper in this Court pursuant to Code of Civil Procedure § 395 and Civil Code § 1780(c) because some of the acts and transactions complained of herein occurred within this county, some of the Class members are residents of this county and, upon information and belief, Defendant IOR does business, owns property in this county and functions as a merchant offshore bank and does business with correspondent banks in California.

PARTIES

9. Plaintiff Emil Alperin was born June 3, 1922. Prior to the German invasion of Ukraine, he resided in Odessa, Ukraine at 63 Sverdlova Street, Apt. 11. Germans and allied Fascists believed to be Croatians looted and destroyed all the household belongings and personal property of Alperin. Plaintiff was held prisoner at Buchenwald Concentration Camp from March 1944 until April 1945 where he was prisoner #34646. He currently resides in Kharkov, Ukraine. Emil Alperin is Jewish.

10. Plaintiff Jewgenija Romanova, formerly Petruchina, was born December 7, 1927. Before the German occupation, she resided in Nikolayev, Ukraine at 13 Kolodeznaya Street. Germans and allied Fascists, believed to be Croatians, looted and destroyed all the household belongings and personal property of Romanova. Romanova was held prisoner at Ravensbruck Concentration Camp from March 1944 until April 1945 where she was prisoner #33543. Romanova currently resides in Kharkov, Ukraine.

11. Plaintiff Maria Dankewitsch was born January 29, 1922. Before the German occupation, she resided in Sevastopol, Ukraine in the Fudolf District. Germans and allied Fascists believed to be Croatians looted and destroyed all the household belongings and personal property of Dankewitsch. Dankewitsch was held prisoner at Ravensbruck Concentration Camp from February 1943 until May 1945 where she was prisoner #17406. Dankewitsch currently resides in Kiev, Ukraine.

12. Plaintiff Vladimir Morgunov was born September 2, 1925. Before the German occupation, he resided in Mariupol, Ukraine in the 75 Kotovskoogo Street. Germans and allied Fascists believed to be Croatians looted and destroyed all the household belongings and personal property of Morgunov. Morgunov was held prisoner at Buchenwald Concentration Camp from March 1943 until April 1945 where he was prisoner #13341. Morgunov’s current address is in Kiev.

13. Plaintiff Vladimir Brodich was born March 1, 1931 in the Kingdom of Yugoslavia. As a young Serbian Orthodox boy, Vladimir resided in the town of Kostajnica, Krajina. In April 1941 a German officer came to his home, because both of his parents were fluent in German (his father having lived in Austria and his mother having received her high school education in Salzburg, Austria). The officer showed them photographs of Ustasha atrocities, warning them that they should leave immediately for Belgrade beyond the reach of the Ustasha. The German officer prepared documents for the escape of the whole family. Unfortunately, the town mayor persuaded his father to stay. In August 1941 the Ustasha took away his father Nickola, his 24 year old brother Dragomir, and his older sister to a detention center. Vladimir’s father and brother were tortured, then murdered. Before their death, his father asked to embrace his son, and thus they were shot together. Five years later, their bodies were exhumed and identified because still embracing one another. At the detention center Vladimir’s sister was gang raped by Ustasha; she only survived by the efforts of a Chetnik partisan (who was later captured, tortured, and thrown alive into an oven to die by the Ustasha), and died in 1997 without being able to bear children. Vladimir and his mother survived by escaping to Belgrade. Vladimir’s family lost their two homes, and because Vladimir’s bother was so wealthy, it took the Ustasha more than two years to auction all of his murdered brother’s property. Vladimir came to the United States in 1949, is the only surviving heir to the family property, and currently resides in Arizona.

14. Plaintiff, William Dorich was born July 17, 1939 in West Virginia. Plaintiff’s father, Samuel Todorovic Sr., came to the United States at the end of WWI as a "displaced person," (along with plaintiff’s brother George and their parents) from the village of Vojnic in the Krajina region, having been "ethnically cleansed" by Croatians who sided with Germany in WWI. Upon becoming a naturalized citizen Samuel Todorovic Sr., changed the family name to Dorich just prior to the birth of his two sons, Samuel Jr., and William. During WWII, the Ustasha burned to death 45 Serbian victims in the Orthodox Serbian church in the village of Vojnic, of which 17 victims were relatives of the Dorich family. Plaintiff has spent his lifetime speaking out against the Ustasha and is the author of numerous books on the Balkans. The only member of plaintiff’s family still alive is his 83 year-old Serbian-American mother, Mary Savage Dorich. Plaintiff resides in California.

15. Plaintiff Igor Najfeld was born June 28, 1944 in Yugoslavia, on the day that his mother, a Yugoslavian Jewish physician, and father, a Polish Jewish physician, escaped from years of slave labor by the Ustasha Regime beginning in 1941. Plaintiff’s parents had been living in Zagreb on April 10, 1941 when the Nazi’s invaded Yugoslavia, but by December 1941 the Ustasha Regime had imprisoned plaintiff’s parents as slave laborers in Bosnia. Plaintiff’s grandmother had a department store in Slavonskibrod that was looted by the Ustasha. At least 56 of plaintiff’s mother’s relatives were killed by the Ustasha, many of whom perished in the Jasenovac Concentration Camp. Many of plaintiff’s relatives were prosperous and all lost property to the Ustasha looting. Plaintiff grew up in Yugoslavia and eventually emigrated to the United States, where he now resides in Vermont.

16. Plaintiff Ukraine Organization of Ukrainian Antifascist Resistance Fighters is recognized by Ukrainian Ministry of Justice as an official representative of 8,500 former partisans and resistors of the Nazi occupation of Ukraine and concentration camp victims.

17. Plaintiff Ukrainian Union of Nazi Victims And Prisoners represents over 300,000 former slave and forced laborers, prisoners, concentration camp, and ghetto survivors.

18. Defendant Vatican Bank, also known by its official title "Istituto per le Opere di Religione" or Institute of Religious Works ("IOR") has its principal place of business in Vatican City Rome, Italy but conducts business and financial transactions worldwide on behalf of the Roman Catholic Church, including the United States and California, with total assets believed to be in excess of 3 billion dollars. Defendant, IOR, engages in for-profit merchant banking transactions in the United States, California, and elsewhere through its investments and transactions with other banks. The Vatican Bank is headed by a Bishop but also has an advisory panel consisting of prominent European and American bankers.

19. Defendant, Franciscan Order, also known as First Order of Franciscans (O.F.M.) includes and/or included several Croatian Franciscan Orders in California, the United States, Croatia, and Italy. Upon information and belief, it is the O.F.M. that owned, operated, and managed the affairs of the College of San Girolamo degli illirici and provided aid to former Ustasha after 1945.

20. Defendants, Does One through One Hundred inclusive, are unknown Catholic Religious Orders and private banking corporations who conduct business in, and who are also responsible for the acts complained of herein. Plaintiffs are unaware of the true names or capacities of the Defendants sued herein under the fictitious names of Does One through One Hundred inclusive, and after ascertaining the true identity of a Defendant sued as a "Doe," Plaintiffs will amend the Complaint accordingly.

DEFINITIONS

21. "Nazi Regime" is defined as the National Socialist government of Germany from 1933 through 1945, as more specifically defined in "the Accused Organizations and Individuals" in The Nuremberg Trial, 6 F.R.D. 69 (1946), and persons, organizations or entities which acted in furtherance of the interests of, on behalf of, or under the authority of, that government (including persons, organizations and/or entities of the European Axis countries).

22. The "Ustasha Regime" is defined as the German puppet, fascist government of Croatia under the direction of its leader, Ante Pavelic, known as the "Poglavnik" (Leader). The Ustasha Regime operated under German protectorate from 1941 through 1945 and included numerous members of the Franciscan Order as both military and civil functionaries.

23. "Looted Assets" is defined as any and all personal, commercial, real, and/or intangible property, including cash, securities, silver, gold, jewelry, businesses, art masterpieces, equipment and intellectual property, that was illegally and/or improperly taken from the ownership or control of an individual, organization or entity, by means including, but not limited to, theft, forced transfer and exploitation, during the period of 1941 through 1946 by any person, organization or entity acting on behalf of, or in furtherance of the acts of, the Nazi or Ustasha Regime, its officials or related entities, in connection with crimes against humanity, war crimes, crimes against peace, genocide, or any other violations of fundamental human rights.

24. "Croatian or Ustasha Treasury" refers to amounts of gold, silver, gems, currency, and other valuables plundered and looted from Serbs, Jews, Romani, and citizens of the former Soviet Union, including Ukraine. The treasury existed independent from the Nazi Regime in part as a reward for the Ustasha cooperation in the pursuit of Axis goals in the former Soviet Union.

FACTUAL ALLEGATIONS

25. The Nazi Regime maintained a policy of looting the assets of its persecution targets to finance its illegal war, collecting the looted assets in central depositories, and transferring the looted assets to the Doe Defendant Banks in return for currency needed to purchase war material. The Ustasha Regime mirrored the Nazi Regime in its financial policies. The Ustasha Regime, like the Nazi Regime, maintained concentration camps and confiscated the assets of its victims. More than 700,000 victims were "liquidated" by the Ustasha in their bloody campaign to clear "Greater Croatia" of Serbs, Romani, and Jews. The plundered and looted assets of the Ustasha victims were deposited in the Ustasha Treasury.

26. When Nazi Germany invaded Russia on June 22, 1941, the Ustasha leader, Ante Pavelic, met with the military and civilian leadership of Croatia to decide how best to support their German ally. All present were strongly in favor of the German attack, seeing the invasion as a battle between the progressive forces of Europe against the Communist forces in the East. All present agreed that Croatia should participate in the invasion alongside Germany. Pavelic prepared a letter the following day, on June 23, 1941. In his letter, Pavelic explained to Hitler the wishes of the Croatian people to join the battle of "all freedom loving nations against Communism." Pavelic offered ground, sea and air forces, to be committed "as soon as possible" to fight alongside Germany. Hitler responded to Pavelic's letter on July 1, 1941, accepting the Croatian offer and thanking them for their service.

27. Beginning in July 1941, Croatian ground, sea, and air forces invaded the Soviet Union including Ukraine, Belarus, and Russia. Croatian units wore German uniforms and provided front line and support units in Russian, Belarus, and Russia. Croatian air force and navy units patrolled the Black and Azov Seas. Croatian ground troops took part in battles in Kiev, Kharkov, and Stalingrad. In September 1942, Pavelic, on behalf of the Croatian government, visited Croatian troops outside Stalingrad.

28. Croatian troops assisted the German occupiers of Ukraine in their systematic plunder and looting of Ukrainian resources and individual property. In exchange for the Croatian assistance in Ukraine, the Ustasha were given a free hand in Croatia and Bosnia to loot, plunder and terrorize the non-Croatian populace. The Ustasha Treasury contained plunder from Ukraine and assets seized from the Ustasha victims in Yugoslavia.

29. In addition to the property crimes and Nazi collaboration committed in the former Soviet Union, the Ustasha engaged in atrocities against Serbs, Jews, and Roma in Croatia.

30. The Ustasha’s Minister of the Interior, Andrija Artukovic, ordered Jews and Serbs of Zagreb to leave their homes where they were liquidated immediately or sent to one of the many concentration camps. By late April 1941 Serbs were forced to wear a blue armband with the letter "P", the initial for Orthodox (Pravoslavac). The Jews had to wear the Star of David on their sleeves, and later, across their backs.

31. Serbians, Jews, and the Roma were slaughtered in their villages after unspeakable tortures or burned alive in their churches. Those that were not murdered were expelled to Serbia proper after being despoiled of all their property or forcibly converted to the Roman Catholic faith by Franciscan and Roman Catholic clergy. Many were used as slave laborers. The remaining people were taken to concentration camps where the majority perished.

32. Jasenovac Concentration Camp complex, termed by historians as the "Auschwitz of the Balkans," was the home of indescribable brutality against Jews, Serbs and Roma. Historians estimate that the Ustasha murdered between 700,000 to one million Serbs, Jews, and Roma in Croatia during this time.

33. Many high officials of the Ustasha government were Roman Catholic clergy and, in particular, Franciscans. Indeed, the Vatican maintained an "Apostolic visitor" in Zagreb, the Croatian capital from 1941 until the end of the War. Relations between the Vatican and the Ustasha were cordial. The Papal legate in Croatia was Mgr. Marcone, who openly blessed the Ustasha, publicly gave the Fascist salute, and transmitted instructions from Rome to the Croatian clergy and episcopacy, principally concerning the forced conversions of the Serbian Orthodox.

33. Upon the demise of the Ustasha Regime in 1945, all or a portion of the Ustasha Treasury was transferred to cooperative Roman Catholic clergyman and Franciscans for transport to Rome where Franciscans sympathetic to the Ustasha were based. Intelligence reports confirm that in their attempts to escape, the Ustasha were found at the British-occupied Austro-Swiss border with gold valued at 350 million Swiss francs. Intelligence reports also confirm that more than 200 million Swiss francs were eventually transferred to Vatican City and the IOR with the assistance of Roman Catholic clergy and the Franciscan Order.

34. In addition to the Bigelow Report, cited above, in 1948, U.S. Army Intelligence reports confirmed that 2,400 kilos of Ustasha stolen gold were moved from the Vatican to one of the Vatican’s secret Swiss bank accounts.

35. Many officials of the Ustasha government, including war criminals like Ante Pavelic, were secretly housed by the Franciscan Order in Vatican City or Rome. The College of San Girolamo degli illirici became the headquarters for the creation of the so-called "ratlines." With the transfer of the Ustasha Treasury to the IOR and the Franciscan Order, Ustasha and Nazi war criminals were given money and a means to escape to Spain, Argentina, the United States and other countries. By 1946, the former Ustasha Treasury was being used to finance the post war activities of the Ustasha government in exile and Nazi fugitives.

36. Transfer of funds and financial transactions were made by IOR. Ustasha Treasury assets were banked by IOR for use in Argentine, Spain and elsewhere. Not only were the IOR and the Franciscans aware of the origins of the Ustasha Treasury, but covert Ustasha activities, under the guise of religious orders, were officially tolerated at the highest levels in the Vatican.

37. IOR reaped a competitive advantage in the post World War II years through the Ustasha Treasury related transactions. The Ustasha Treasury provided substantial assets to IOR in form of gold, silver, cash, and gems. As the principal post war banker to the Ustasha Government in Exile, the IOR profited from Ustasha Treasury transactions involving banks in various European and South American countries. The Franciscan Order and unknown Catholic Religious Orders, reaped similar monetary benefits from their involvement with the Ustasha Treasury.

38. IOR has consistently refused requests for an accounting of the Ustasha Treasury, including recent queries by the United States State Department, the London Conference on Nazi Gold of December 2, 1997, and the Simon Wiesenthal Center.

CLASS ALLEGATIONS

39. This action is brought and may properly be maintained as a class action pursuant to the provisions of Federal Rule of Civil Procedure 23. Plaintiffs bring this action on behalf of themselves and a class of all Jews, Serbians, and former Soviet Union citizens (and their heirs and beneficiaries), who suffered monetary and/or property losses or forced into slave labor due to the systematic and brutal extermination of Jews, Serbians, and Romani by the Nazi puppet Regime, Ustasha, and as a result of the occupation of the Soviet Union by Croatian military forces in concert with their German occupation forces.

40. The exact number of the members of the class, as identified above, is not known to Plaintiffs, but it is estimated that members of the class number in the tens or hundreds of thousands and are so numerous that joinder of individual members herein is impracticable.

41. Questions of fact and law common to the class predominate over any questions affecting only individual members. Common questions of fact and law include:

a. Whether the IOR, Franciscan Order and Unknown Catholic Religious Orders and/or Defendant Banks improperly retained or converted looted assets of the Plaintiffs.

b. Whether Defendants were unjustly enriched by their wrongful conduct.

c. Whether Plaintiffs experienced irreparable harm by Defendants’ wrongful taking of Plaintiffs’ property and goods, supporting a claim for restitution.

d. Whether Defendants have failed to account for the Ustasha Treasury.

e. Whether Defendants were directly and/or indirectly involved with the torture, plundering and/or conversion of Plaintiffs and their property and Plaintiffs’ labor in violation of international law.

 

42. Plaintiffs’ claims are typical of the claims of the other members of the Class, since all such claims arise out of Defendants’ actions or the actions of its agents, which resulted in the deaths, torture, assault, plunder and the loss of Plaintiffs’ and their ancestors’ rightful property, which gives Plaintiffs the right to the relief sought.

43. There is no conflict as between the named Plaintiffs and the members of the class which they represent with respect to this action, or with respect to the claims for relief set forth herein.

44. Plaintiffs are committed to the vigorous prosecution of this action and will retain competent counsel experienced in the prosecution of class actions. Accordingly, Plaintiffs are adequate representatives of the Class and will fairly and adequately protect the interests of the Class.

45. The prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications, which would establish incompatible standards of conduct for the defendants in this action.

46. Plaintiffs anticipate that there will be no difficulty in the management of this litigation. A class action is superior to other available methods for fair and efficient adjudication of the controversy. Accordingly, Certification of the Plaintiff class is appropriate under Fed. R. Civ. P. 23(b)(1), (2) and/or (3).

LEGAL AND EQUITABLE TOLLING

47. Plaintiffs’ legal right to seek compensation for genocide, war crimes and crimes against humanity during the Second World War is preserved by the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (26 November 1968). Accordingly, there are no statutory limitations on claims of war crimes, crimes against humanity, or genocide.

48. Furthermore, Plaintiffs’ legal right to seek compensation for the deaths of their families during World War II was deferred by the London Debt Settlement Agreement of 1953, until the German court ruled, on November 7, 1997, that the Treaty on the Final Settlement with Germany had lifted the moratorium upon individual claims for compensation for World War II losses. Accordingly, statutes of limitation upon claims for compensation for World War II losses were tolled by operation of treaty from 1953 through November 7, 1997.

49. No statute of limitations has begun to run on the cause of action stated herein because Plaintiffs and Defendants’ victims have remained unaware of Defendants’ misconduct during World War II and have been denied access to vital information essential to pursue the stated claims as a result of Defendants' fraudulent concealment of their misconduct, without any fault or want of diligence or due care on the part of Plaintiffs or Defendants' victims.

50. Evidence of the extent of the Defendants’ participation in wrongdoing has more fully come to light in recent years as a result of the disclosure of archived and declassified documents in the United States, Germany and other countries, as well as from the reports of several commissions and/or task forces created in the United States, Germany and other countries, much of which information was not available prior to the reunification of Germany and the fall of the Soviet Union.

51. Moreover, knowing that its behavior violated the laws of humanity and international law, at no time since the end of World War II have Defendants made any reasonable attempt to compensate Plaintiffs and members of the Class for their injuries and losses. Such failure should estop Defendants from interposing any time bar defense to these claims.

52. Additionally, no statute of limitations has begun to run on the cause of action stated herein because Defendants' misconduct is continuing; Defendants have not made any reasonable attempt to disgorge their illicit profits or compensate victims of the Ustasha Regime or their Nazi supporters. Defendants have continued to reap profits as a result of their actions and have refused all requests by governments and international organizations for an accounting of the funds in question. Defendants are therefore estopped from interposing any type of time bar defense to these claims.

CAUSES OF ACTION

FIRST CAUSE OF ACTION

CONVERSION

53. Plaintiffs reallege and incorporate herein, as though fully set forth, the allegations of all preceding paragraphs of the Complaint.

54. As a result of Defendants’ failure and refusal to account for, acknowledge and pay to Plaintiffs the value of the property taken, Defendants, and each of them, have willfully and wrongfully misappropriated and converted the value of that property and its derivative profits into their own property.

55. As a result of Defendants’ wrongful acts and omissions, Plaintiffs have been injured and damaged and demand restitution and judgment against Defendants, in an amount to be determined at trial.

56. Defendants’ conduct described herein was undertaken by the Defendants’ officers or managing agents who were responsible for decisions. The aforesaid conduct of said managing agents and individuals was therefore undertaken for and on behalf of Defendants. Said Defendants further had advance knowledge of the actions and conduct of said individuals whose actions and conduct were ratified, authorized and approved by Defendants’ managing agents and by other officers, directors or managing agents.

SECOND CAUSE OF ACTION

UNJUST ENRICHMENT

57. Plaintiffs reallege and incorporate herein, as though fully set forth, the allegations of all preceding paragraphs of the Complaint.

58. Defendants received stolen property given to them by members of the Ustasha Regime, which rightfully belongs to Plaintiffs, as well as the value of slave labor performed.

59. Defendants have failed to account for and/or pay to Plaintiffs the value of their property and profits derived therefrom and the value of slave labor performed.

60. As a result of Defendants’ wrongful acts and omissions, Defendants have been unjustly enriched to the detriment of Plaintiffs.

61. Plaintiffs therefore demand restitution and judgment against Defendants in an amount to be determined at trial, together with interest, attorneys’ fees, and the costs of this action.

THIRD CAUSE OF ACTION

RESTITUTION

63. Plaintiffs reallege and incorporate herein, as though fully set forth, the allegations of all preceding paragraphs of the Complaint.

64. Plaintiffs’ goods and property have been taken, thus denying Plaintiffs the use and enjoyment thereof; Defendants have wrongfully used and profited from that property; and compensation in damages is inadequate in that the property taken cannot be replaced and the harm inflicted cannot be undone by mere compensation.

65. As a result of Defendants’ wrongful acts and omissions, Plaintiffs have been injured and damaged and demand equitable remedies.

FOURTH CAUSE OF ACTION

ACCOUNTING

66. Plaintiffs reallege and incorporate herein, as though fully set forth, the allegations of all preceding paragraphs of the Complaint.

67. Defendants have never accounted for or paid the value of Plaintiffs’ property or the profits which Defendants have derived from that property, either during World War II or since World War II ended.

68. As a result of the value of their property having been forcibly taken from them, against their will and without just payment by Defendants, Plaintiffs have been unable to use or invest those assets.

69. As a result of Defendants’ aforesaid wrongful acts and omissions, Plaintiffs have been injured and damaged and demand the equitable remedy of accounting.

FIFTH CAUSE OF ACTION

HUMAN RIGHTS VIOLATIONS AND VIOLATIONS OF INTERNATIONAL LAW

70. Plaintiffs reallege and incorporate herein, as though fully set forth, the allegations of all preceding paragraphs of the Complaint.

71. Defendants participated in the activities of the Ustasha Regime in furtherance of the commission of war crimes, crimes against humanity, crimes against peace, torture, rape, starvation, physical and mental abuse, summary execution and genocide. Specifically, the actions and conduct of Defendants, in addition to being profitable, actively assisted the war objectives of the Ustasha Regime.

72. Defendants knowingly facilitated and aided and abetted the activities of war criminals who had used torture and starvation in order to further obtain victims’ possessions and belongings. Defendants created a "ratline" or "pipeline" to help the war criminals flee from prosecution. By aiding and abetting of war criminals who had engaged in subjecting the Plaintiffs and the Plaintiff class to brutally inhumane conditions, physical abuse, torture, starvation and summary execution, violated international and federal law.

73. Defendants IOR and the Franciscan Order, by assisting the Nazi backed Ustasha Regime in preserving their Treasury for the purpose of continuing a Government in Exile and evading justice for genocidal war crimes thereby becoming joint venturers with the Ustasha with respect to these activities – committed war crimes, crimes against peace and crimes against humanity, and violated the laws of Yugoslavia and Soviet Union, state common law, and international treaties and customary international law enforceable in this Court as federal common law and the law of nations by purposeful and intentional Obstruction of Justice. The IOR abused its position as the central bank of Vatican City by a clear pattern of violation of diplomatic norms by protecting known war criminals and their assets from arrest and seizure.

74. Defendants’ actions were in violation of numerous international treaties and the fundamental human rights laws prohibiting genocide, war crimes, crimes against humanity and crimes against peace. Defendants’ actions violated customary international law, a law which "results from a general and consistent practice of states followed by them from a sense of legal obligation." Restatement (Third) of the Foreign Relations Law of the United States, § 102 (2)(1987). Plaintiffs cite numerous treaties, court decisions and the United Nations resolutions, not as a source of their substantive rights, but rather as evidence of the content of customary international law. In further support, Plaintiffs cite the Genocide Convention; the 1919 Paris Commission on Responsibility of Authors of the War; the United Nations Charter; the Universal Declaration of Human Rights; the Geneva Convention of 1929; the supplemental Geneva Convention of the Treatment of non-Combatants During World War Time; the principles of customary international law recognized by the Nuremberg Tribunals; the Covenant on Civil and Political Rights; and the Hague Convention of 1907.

75. Additionally, Defendants committed torts under the laws of the United States, requiring Defendants to pay Plaintiffs and the Class members appropriate compensatory and punitive damages for their injuries and losses.

WHEREFORE, Plaintiffs pray that the Court:

1. Certify this action as a class action pursuant to Federal Rule of Civil Procedure 23, and designating named Plaintiffs as the class representatives and counsel for Plaintiffs as Class counsel.

2. Declare that Defendants by trafficking in, retaining, disposing of and concealing assets looted from targets of the Ustasha Regime with knowledge that the assets had been obtained through the systematic persecution, torture, slave labor, force, and murder, violated international treaties and customary international law enforceable in this Court as federal common law, the law of the nations and international law.

3. Order Defendants to make available all information relating to the Ustasha Treasury in order that an accounting of assets may be realized.

4. Direct Defendants to return all identifiable property looted from Plaintiffs and received by Defendants.

5. Award Plaintiffs the value of any identified property deposited by, or looted from, Plaintiffs and received by Defendants plus interest compounded annually since 1941.

6. Award Plaintiffs compensatory and punitive damages arising out of Defendants’ unlawful behavior in trafficking in, retaining, disposing and concealing Looted Assets or profits of the Ustasha Regime with knowledge that the assets or profits were the fruits of Nazi-Ustasha violations of international law and were used to assist war criminals to evade justice.

7. Order Defendants to disgorge any profits earned by trafficking in, disposing of or concealing the Ustasha Treasury which was the fruits of violations of international law.

8. Grant Plaintiffs a jury trial on all issues so triable.

9. Award Plaintiffs the costs of this action, including reasonable attorneys’ fees and expert fees; and,

10. Grant such other and further relief as shall seem just to the Court.

DATED: January 20, 2000

Tom Easton CSB#109218

Jonathan H. Levy CSB# 158032

Law Office of Thomas Dewey Easton

1335 Pebble Beach Drive

Crescent City, CA 95531

Telephone: 707-464-4513

Facsimile: 707-465-5389

 

By: __________________________

Tom Easton

Attorneys for Plaintiffs and the Class






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VATICAN BANK SUED FOR ALLEGED WAR CRIMES