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Roadblocks to Jewish Restitution: Poland’s Unsettled Property
“Poland is the only major country in the former Soviet bloc that, in the 19 years since the fall of Communism has not taken any measures to help former property owners or heirs recover property stolen since 1939 within its own borders”
Conference on Jewish Material Claims against Germany
As of 2008, Poland, a country that endured many of the most prolific cases of Nazi genocide and thievery, and then much of the harshest effects of Communist property expropriation, has failed to enact a workable claims process for property stolen between 1939 and 1989. The debate surrounding this issue has invoked the ever growing voices of Jewish restitution claimants demanding full compensation, of Polish property owners and organizations stressing tempered reimbursement, and of an international community insisting on action. The Polish government, caught between an economy bearing the scars of the Communist “freezer” and a history of property rights injustice that clearly demands some form of reparation, has been painfully inept at enacting legislation dealing directly and efficiently with the issue.
The restitution system currently in place, which deals only with synagogues, cemeteries and other pre-WWII Jewish holdings (designated “communal” property) suffers from a host of systemic problems preventing claimants from attaining appropriate restitution in an appropriate amount of time. As such, of the 5,814 claims for communal property restitution that managed the narrow application window between March 1997 and September of 2002, only 22% have since received a ruling. Of these cases less than half have received some form of remonstration.
As of now no official claims system exists for individual assets including residences, business, and real estate expropriated from private owners between 1939 and 1962. A vetoed legislation attempt in 2001, as well as pledges from a succession of presidents, prime ministers, and political figures since 1989 has hinted at pockets of political will, while the failure to enact anything concrete speaks instead to pandering and empty promises. Victims of private property expropriation, without an official claims process to appeal to, are relegated to the Polish civil courts, where arguably over-stringent ownership and inheritance verification laws, processing times that can span many years, and the legislative residue of the Communist era are just a few of the obstacles they can expect to face.
In the meantime the number of Holocaust survivors and expropriated property owners continues to dwindle, many of their claims mired in the Polish civil courts, while rightful inheritors endure without rightful compensation and their stolen property remains, perhaps unconstitutionally, out of their hands.
Pre-WWII Poland contained one of the largest Jewish populations in Europe, roughly 10% of the nation, constituting a considerable minority of some 3.5 million. The property holdings of this population are estimated to have been substantial, as more than 10% of the Jewish community owned real estate (some 300,000 holdings), and a significant amount of private property proportional to the total population.
The joint German-Russian invasion of Poland in 1939 kicked off the nearly half-century of unjust expropriation, acquisition, and “nationalization” of private and communal property that left thousands of Jewish inheritors, and millions more Holocaust victims, deprived of their rightful holdings. Upon acquiring his Eastern share of Poland proper, Stalin initiated the wholesale “nationalization”, or governmental acquisition, of public and private property. In conjunction with the mass deportation of Ukrainians, Byelorussians, Poles, and Polish Jews to the Gulag, and the outright murder of tens of thousands of “enemies of the state”, the Soviet influence between 1940 and 1941 generated vast numbers of abandoned Jewish homes, synagogues, and businesses. Most of these holdings were immediately acquisitioned by the People’s Republic, and were often converted into storage facilities, barracks, and state-run housing.
In the Western part of Poland Hitler instated the racially driven policies of the Nazi regime, immediately seizing all Jewish property and possessions while summarily deporting roughly 1 million Jews to “Government General” in the central region of Poland. After Hitler’s 1941 acquisition of all Soviet territory in Poland, Nazi driven expropriation of property, coupled with the subsequent Holocaust of roughly three million Polish Jews, brought all Jewish holdings within what is modern day Poland under German control. The management of this real estate was carried out by the Reich’s Administration for Jewish Houses and Land which, after establishing control over all industrial, agricultural, and commercial Jewish holdings, proceeded to rent ex-Jewish homes and properties to the local population. Thus, what was once one the most extensive and vibrant networks of Jewish property holdings in Europe merged into the Nazi war machine and the local, non-Jewish population.
Following the fall of Nazism in 1944 and the establishment of the Stalinist puppet government, known as the Polish National Liberation Committee (PKWN), the newly coined People’s Republic of Poland seized control of former Nazi holdings, effectively obtaining all ex-Jewish property and real estate. With the exception of Warsaw, which remained entirely under Communist control, some small to mid-size business owners and entrepreneurs were able at this time to reclaim property lost during the war by literally moving back in, but the sheer lack of a local Jewish population exempted most ex-Jewish property from this possibility. These reclamations were rare however, and although Holocaust survivors and their relatives abroad began demanding restitution from Poland following its de-Nazification in 1945, the extreme Communist resistance to foreign capital and interaction of any kind meant that their requests were adamantly denied.
Because the fundamental Marxist emphasis on nationalized property ran counter to privatization of any kind, appeals for restitution, with the exception of several symbolic restorations for the sake of international appearances, were routinely denied to claimants throughout the Communist era in Poland. Indeed, Communist collectivism pulled dramatically in the other direction and fueled forceful government expropriation of property owners from every social strata, ethnicity, and religious or non-religious group. This included the miniature population of Jewish Holocaust survivors who remained in post-WWII Poland.
Thus from 1939 to 1989, virtually every piece of Jewish owned property in Poland was forcefully and often inhumanely expropriated, vacated, and by transference to an anti-restitution government held beyond the reach of rightful Jewish owners and inheritors. The processes of Nazification and Communization also involved the destruction of volumes of written documentation proving property ownership, line of inheritance, and birth certification that was directed, especially in the case of Nazism, specifically against the Jews. The loss of these forms of documentation was to prove one of the largest impediments to property restitution in the future, and has been responsible for much of the financial suffering that has accompanied the physical, mental, and emotional effects of WWII.
Communist Stamina: 1989
Considering the fervent property re-privatization and infusion of Western capital that followed the concurrent collapse of Soviet power in Russia and Communism in Poland, one might have hoped that restitution requests would have met with a considerably more amenable governmental response after 1989 – or at least a considerable response at all. Yet in the years after the establishment of the Republic of Poland in 1989, top-down restitution efforts progressed at a very slow pace. As Poland underwent its capitalist “shock-therapy” for post-Communist economic trauma, restitution struggled for footing. Under such circumstances, when the side effects riddling the nation included “social displacement, hyperinflation, unemployment and labor unrest” , demands for restitution asked yet more of a national economy struggling to stand on its own feet. The ensuing instability severely dampened public support for restitution efforts, although the outcry from expropriated owners both at home and abroad grew consistently louder.
This tumultuous climate allowed residual Polish Communists to dramatically impede restitution advocates and claimants. Anti-privatization pressure propagated by Communist factions in Poland in the early 90’s, exerted primarily through a strong but gradually abating control of Poland’s banking system, media, and mass industry, stalled even the initiation of restitution activity. Immediately after 1989, two political tendencies emerged concerning re-privatization. Left-wingers held that there should only be a compensation when a claim could demonstrate a violation of the property decrees (Communist decrees) in place at the time of the violation. In opposition, the political Right claimed that because the decrees governing Communist property acquisition were incompatible with the Constitution of March 1921, all governmental action taken between 1944 and 1962 concerning property ownership was unconstitutional. This position constitutes the prevailing political opinion today, and facilitates the frequent claim that all property ownership as a result of expropriation should be invalidated.
Public debate also erupted between restitution advocates and their opponents on the ground level, and pivoted on the tension between expropriated owners and those individuals who had acquired and resided in the expropriated property during the intervening years. Supported by post-1989 Communists and partly by the state, the owners in residence argued that years of maintenance and improvement of expropriated properties had, through a Polish adverse possession law and 10 years of residence, earned the right to claim those properties as their own. Expropriated owners replied that the free use and tenancy of their unjustly stolen property for nearly half a century constituted payment enough for any maintenance or improvements made on what, essentially, was still their property. These arguments are as yet unresolved and continue to influence the restitution issue.
Limping Restitution: Communal and Private Property
In the twilight of Communist influence, Jewish restitution in Poland has made a few, albeit small strides. In 1997 the Law on the Relation of the State to Jewish Communities was established, which allowed Jewish communities to apply for restitution of communal properties until the deadline in September of 2002. Once approved by the Regulatory Commission on Jewish Restitution, which has the final say on communal applications, restituted properties are designated “common heritage” and managed by the Foundation for the Preservation of Jewish Heritage in Poland. Monika Krawczyk, as member of the Regulatory Commission, understands well the reality and history of communal application. “After a difficult application process demanding lengthy research of state archives and substantial funds, this from local Jewish communities with very limited resources, only 22% of the 5,814 communal cases have been settled. Roughly half of this 22% have been historic cemeteries, half have been cash compensations.”
The private property front has gained even less ground. In March 2001, a liberal-conservative coalition in parliament passed a bill providing for 50% remonstration of private property, which was summarily vetoed by the President on the grounds that its requirement of Polish citizenship on December 31, 1999, excluded the large body of international claimants who fled Poland after WWII. Although sold as a beneficent and considerate decision, the veto has effectively deferred concrete restitution legislation indefinitely.
Important to note is that although an estimated 7-10% of restitution claimants thus far have been Jewish , the targeted destruction of Jewish property documentation during the Nazi era has prevented an untold number of specifically Jewish applicants from coming forward. Piotr Kadlčik, President of the Union of Jewish Religious Communities in Poland is all too familiar with this problem. “The number of Jewish families and claimants stripped of the documentation needed to prove property ownership is enormous.” Kadlčik himself is among those left without documentation enough even to apply for restitution. “My grandparents, the Koniński’s, undoubtedly owned an apartment near Plac Zbawiciela - “Savior’s Square.” However, as my mother was the only member of our family to have survived the ghetto in WWII, then was only seven years old, and she certainly could not retain the deed to her father’s apartment. As I am unable to prove even that I am a descendent of my own grandfather, much less that he owned the apartment on Plac Zbawiciela, I have no legal options.”
Nationalization Acts and Unconstitutionality
The infamous Nationalization Acts instated by the Polish National Liberation Committee (PKWN), whose unconstitutionality has since been widely established, continue to dominate the private property restitution arena as perhaps the most painful impediment to expropriated owners.
Passed between 1944 and 1962, the Nationalization Acts granted the State Treasury of the PKWN the right to acquire property without foreseeing or guaranteeing any compensation for that property, essentially allowing the Communist government to confiscate whatever it saw fit without reimbursing former owners—theft in legislative skin. The Nationalization Acts blatantly violated the Constitution in place in Poland at the time , and in Article 7 of a 1944 Treasury decree, even stipulated the bleak consequences of challenging the expropriations: “Whoever prevents or hinders enforcement of this acquisition…by the state treasury, or incites actions against that acquisition, or publicly condones such actions is subject to imprisonment or the death penalty” , a clear indication of the mindset and methods of the Communist regime in Poland.
This policy was the driving force behind the nationwide confiscation of private property between 1939 and 1989, and as a “legal” act passed by the Communist government, regardless of the illegitimacy and subsequent inhumanity of that government, was still a state action. On November 28, 2001, a Constitutional Tribunal convened to determine the applicability of the Nationalization Acts in current restitution cases, and proceeded to issue a controversial and arguably contradictory ruling. They held that despite the illegitimacy of the Communist regime in Poland, its organizations, and its policies, the subsequent influence of those activities on the formation of Polish society has been so extreme, that to overturn them now would unhinge the ownership infrastructure and legal framework of property relations in many spheres of Polish life. “The time that has passed cannot be ignored from the legal perspective”, the Tribunal held, “since it made these relations last, today they constitute the basis of the economic and social existence of a major part of Polish society.”
The effects of this decision have been tremendous. Today in Poland a claimant seeking restitution of private property stolen by an unconstitutionally established government (PKWN) by means of unconstitutional laws (Nationalization Acts), cannot appeal in court to the unconstitutionality of the theft, the government, or the acts, even though the unconstitutionality of all three are clearly established in the 2001 Tribunal declaration. Therefore, as the system stands, private property claimants who lost their property to the Communist State Treasury as a result of the Nationalization Acts have no legal defense against those Acts, and are thus forced to proceed through the established civil courts, a lengthy and costly process, without referencing the bevy of historical injustice doled out by the Polish government between 1944 and 1989.
The public outcry against the decision of the 2001 Constitutional Tribunal has been substantial. One of the more piercing voices belongs to the Polish Union of Real Estate Property Owners (UREPO), which maintain that, “The unconstitutionality of the nationalization acts, which violate the fundamental principles of the protection of civil rights and liberties…imposes on the current authorities, who explicitly dissociate from the actions of the authorities of the Polish People’s Republic, a legal and moral obligation to provide fair recompense for nationalized property.” As of yet, no such recompense has been provided. The tacit allowance of Communist legislation to dominate the private restitution arena, the UREPO maintains, despite acknowledging the unconstitutionality of that legislation, “is a failure to move beyond the injustices of the past, and an unwillingness to instigate the changes necessary to restore stolen property to its rightful owners.”
Appeal to Economy: An Empty Excuse?
Among other factors, The Constitutional Tribunal’s 2001 decision involved concerns for the condition of the national economy. Similarly, the Polish government has consistently claimed that current financial precariousness precludes the possibility either of near-100% reimbursement or of the significant restitution of private properties themselves, so called “natural” restitution. The Ministry of the Treasury officially establishes the reimbursement claim: “The State has the will to regulate the effects of nationalization even though the economic situation, as well as public obligations toward retirees, the homeless and foster families, does not allow for full compensation” , while the Ministry of Foreign Affairs firmly holds that “Most of the real estate nationalized between 1944 and 1962 underwent material and legal transformations which rule out its restitution in kind to former owners.”
Yet many find serious fault with this claim. “Scandalous!” shouts Mirosław Szypowski, Chairman of the Polish Union of Real Estate Property Owners (UREPO), “Scandalous that the government dares offer anything less than full restitution, natural restitution, after the blatant and inhumane theft that occurred during its Communist Era.” Szypowski and the UREPO vehemently support the direct return of expropriated properties to their rightful original owners, so called “natural” restitution, and claim that re-privatization of those holdings is not only financially feasible, but in fact in the best interest of private property owners, the Polish economy, and the state itself. “Much of the property still held by the government is in disrepair, and produces nothing for the national economy. Re-privatizing those properties would serve as an excellent source of economic stimulation.”
The Adam Smith Research Center, one of the most prominent socio-political think thanks in Poland, finds fault with the reimbursement component of the government’s financial excuse. “After extensive and costly market research,” states Vice President Andrzej Sadowski of the Adam Smith Center, “we have determined that if the government managed its contested and un-contested land holdings, which are expansive, in more efficient and lucrative ways it could feasibly cover a great portion of each reimbursement claim, certainly more than 15 or 20%.” The Center maintains that solving unjust expropriation depends not on the presence of funds, but on the effective management of those funds and current government land holdings. “Using the ‘lack of funding’ excuse as a smoke-screen is the short-sided and inaccurate perspective on the issue.”
Paweł Szałamacha, Secretary of State at the Ministry of the Treasury from 2006 to 2008, and the current Executive Director of the Sobieski Institute, a Polish socio-political think tank, advocates a more mediated position. “Because restitution of original properties is hardly conceivable, compensation must be paid in liquid form, as cash or government bonds at a reasonable proportion, between 15 and 20%.” Szałamacha also cites the severe difficulty inherent to estimating the true value of real estate often damaged or undocumented, referencing the rocky course of inflation rates as one confounding factor. He thus reinforces the governmental stance that Communist era influence precludes restoration of original holdings, yet he suggests an interesting addendum. “The millions of hectares of uncultivated, expropriated land still held by Agency for Agricultural Property could be distributed to restitution claimants proportional to the value of their lost property, providing a modified form of natural restoration.” Szałamacha suggests that successful claimants could have the ability to choose between liquid reimbursement and restitution of lucrative real estate, both of which would stimulate the economy as a whole. “Polish restitution is a Gordeon knot,” he says with open palms, “in which the government must try to balance its ethical, legal, and financial obligations. Restitution seekers need to understand this, and accept some form of compromise.”
Public Opinion Meets Fraud
Although restitution was aided by the decline of post-1989 Communist influence, which made restitution application considerably easier and more widely possible, controversy surrounding restitution seekers themselves has driven disapproval of the issue skyward. According to the Center for Public Opinion Research (CBOS), the years immediately following the formal fall of Communism in 1989 saw a 65% public support for private and communal property restitution. That number has since fallen dramatically, estimated now at only 34%, only 10% of whom believe that claimants should be reimbursed in full. “Restitution in Poland should have been dealt with 15 years ago,” claims Paweł Szałamacha, “when public approval of restitution was immense, instead it must fight in today’s dramatically less supportive climate.”
This drop in approval is due in part to the climactic and often ignoble face restitution efforts have since assumed. Cases of claimants who knowingly file fraudulent suits on abandoned properties have been seized upon and sensationalized by the Polish media, which subsequently degrades public support for restitution in general. False suits incite the tightening of property and inheritance verification procedures which, by squeezing legitimate and illegitimate claimants alike, pressure many with real claims out of the system. These fraudulent cases can derail individuals seeking rightful restitution, forcing them to rely on less credible eye-witness testimony, and has discouraged an untold number of expropriated owners from pursuing remonstration at all. Mirosław Szypowski, Chairman of the Polish Union of Real Estate Property Owners confirms, “many claimants and some true heirs do not behave lawfully, produce illegitimate documentation, and draw their cases out over unnecessarily long periods of time.” He continues with a sigh that “[fraudulent] cases are not too frequent, but the damage they cause to restitution efforts is extreme, and, especially when restitution advocates knowingly work for false claimants, has a dramatically negative effect on public opinion.”
In the case of private property claims the effects of increased stringency and negative public opinion have been sharply apparent. Monika Krawczyk calls the degree of ownership and inheritance verification currently required “an onerous burden of proof for victims of Nazi and Communist expropriation.” Current applicants must prove property ownership with written documentation in the year 1939 precisely – demonstrating ownership between brackets of time which encompass 1939 is insufficient. “A property owner with a tax certificate demonstrating ownership in 1918, and another in 1946 would not be able to use those certificates in the application process and hardly any property owners anywhere keep documents verifying ownership for every single year.”
Administrative confusion during emigration often led to misspelling and confusion of surnames which, compounded by the wholesale destruction of Jewish property documentation during the Nazi era, has made proving ownership, identity, and line of inheritance extremely difficult. “When a claimant presents documentation showing that over a 30 year period Goldstein, Goldsztain, and Goldschtein, owned the same property, the claims process often proves insensitive,” exclaims Monika Krawczyk. Procedural impediments such as these couple with the stringency of the current system, she says, to significantly slow the restitution process while preventing innumerable others from coming forward at all.
Szypowski tempers Monika Krawczyk’s criticism by noting that the increase in stringency improves the accuracy of the application process itself. He holds that the sacrifice in time is worth the stronger guarantee that claimants awarded remonstration truly deserve it. Krawczyk is less enthusiastic. “Time is one of the most damaging roadblocks to restitution,” she maintains, “the more time passes, the less will to proceed, the less verification documents remain available, the longer the deserving go without proper restitution.”
Promises, Proposals, and Pressing Forward
On March 10, 2008 Prime Minister Donald Tusk met with the President of the World Jewish Congress and Honorary President of the World Jewish Restitution Organization Ronald Lauder, and declared that legislation concerning the restitution of private property would be passed in Parliament by fall of 2008, later honing the deadline to September. Reactions to the Prime Minister’s promise have been mixed. “Taking into account the trivial things that the government cannot solve and continues to struggle with,” says Andrzej Sadowski of The Adam Smith Research Center, “I see little chance of tackling the restitution matter within the proposed time frame.” While more enthusiastic former Treasury Ministry member Paweł Szałamacha holds that “if the government makes restitution a real priority, legislation by September 2009 is certainly an aim within grasp” Monika Krawczyk stands by her 2002 position: “Restitution in Poland is a story without an end, a ‘fairytale on a iron wolf’ as we call empty promises.”
The proposed legislation, entitled the Re-privatization Act, stipulates a 15-20% reimbursement for properties expropriated between 1939 and 1962. These reimbursements would be issued in the form of government “coupons” redeemable either for non-contested real estate held by the State Treasury or for government bonds redeemable only after 20 years time. Although present Polish citizenship is not required, proof of citizenship on the day of property deprivation is mandatory. The Act in no way provides for the natural restitution of stolen properties themselves, and due to the 20 year delay would likely fail to aid the ageing Holocaust survivors and Communist expropriation victims most keenly impacted by the injustice.
As expected, the conditions of the Nationalization Acts have come under serious fire. Referencing fractional reimbursement and lack of natural restitution, the Polish Union of Real Estate and Property Owners has declared flatly that “15-20% reimbursement is unacceptable. It is scandalous and by no means should it be approved.” Senior Journalist Marek Wielgo of Gazeta Wyborcza, one of Poland’s most influential newspapers, disagrees, but stops short of outright endorsement. “Although the proposed 15% is a viable amount, stretching the reimbursement over 20 years will essentially deprive restitution recipients of the redress they deserve. Restitution in Poland is a political game,” he says, “and although the Jewish community has always pressured the Polish government for justice, resistance remains strong and little has ever been done.”
If passed, the Re-privatization Act would signal Poland’s most concrete and wide-reaching step toward restitution of private property wrongly expropriated from Poles and Jews over the last half century. Yet, with reimbursement at the percentages proposed, with natural restitution of stolen holdings painfully absent, and with a waiting period of two decades, the Re-privatization Act falls short of many long held hopes. The legislation also skirts the problems endemic to the current communal restitution system, makes no amendment to the constitutionality of the Communist Nationalization Acts, and fails to address the debate surrounding the stringency of ownership and inheritance verification procedures.
Until the legitimacy of the Prime Minister’s promise becomes clear in September of 2008, victims of expropriation and their families will continue to do what they have been doing for decades – wait. They will wait without an efficient and facilitative claims system, wait without the property stripped from them by a history of injustice, and wait without remonstration from a government well aware of its past. “We expect that a nation like Poland, which suffered so much during the Nazi and Communist eras, would understand the suffering of other people,” says Jehuda Evron, Chairman of the Holocaust Restitution Committee. “The passage of 15 years since Poland has achieved democracy without addressing the basic human right of ownership is inexcusable. Poland still doesn’t understand that for us, the survivors, restitution is not an issue of money, but of justice, and we have waited long enough.”
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Andrzej Sadowski Vice President of The Adam Smith Research Center: June 26, 2008
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Mirosław Szypowski, Chairman of the Polish Union of Real Estate and Property Owners: June
Marek Wielgo, Senior Journalist Gazeta Wyborcza: July 2, 2008
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