by Tom Cwiok
There are many reasons why Poland is not likely to pass an act to restore property to prewar owners or their heirs
Poland is occasionally vilified as the bully of the post Soviet neighborhood for failing to pass an act to restore property to prewar owners or their heirs. For instance, the Czech presidency of the European Union, which ended in June last year, culminated in a five-day international event in Prague and Terezín whose outcome reverberated throughout the Polish media.
The Holocaust Era Assets Conference was attended by representatives of 46 states, among them Christian Kennedy, the U.S. Special Envoy for Holocaust Issues; and Nobel Peace Prize winner Elie Wiesel. Stuart Eizenstat, chairman of the Jewish People Policy Planning Institute and a lawyer who served as under secretary of state under President Bill Clinton and is largely credited with getting Jewish property restitution started in the former Eastern bloc after the end of the Communist era, led the U.S. government delegation. The Polish delegation was led by Prof. Władysław Bartoszewski, a Nazi death-camp survivor, two-time foreign minister and highly-esteemed public figure.
With a focus on property restitution, education, and social programs for Holocaust survivors, the conference produced a declaration calling for speeding up the restitution process for property seized during and after the Holocaust and never returned to direct or collective heirs, with the money to be used to support the social needs of Holocaust survivors. The declaration suggested that where Jewish owners left no heirs, their property should be returned to Jewish organizations.
The declaration addresses all governments in Central & Eastern Europe, the U.S., and institutions and organizations involved. Although Poland signed the declaration, Bartoszewski opted out of one of the provisions, namely that when no heirs were found for Jewish property, it be turned over to Jewish organizations. Bartoszewski argued that under Polish law, when there are no heirs, ownership reverts to the state, and there is no way to pass a law that would treat Jewish property differently. As a result of the opt-out, although Poland has signed the declaration, it is not bound by it.
Valuable property is hard to get back
Restitution of valuable property with cloudy title is never an easy row to hoe. A prominent example is the Elgin Marbles, taken from the Parthenon 200 years ago and since then on display at the British Museum. Time moves on, but Greek claims to the property are more vociferous than ever.
Claims to property lost as a result of World War II and its communist aftermath are far more complex than the Greek-British dispute over the Elgin Marbles.
This makes property restitution also a very sensitive issue for the Polish government. Any property restitution legislation here would have far-reaching economic and social consequences, creating hundreds of thousands of litigants—Polish, Jewish, German and others—suing the country for staggering amounts (estimates range to the billions of PLN). Suffice it to say that when World War II started, Poland was home to the largest Jewish population in Europe, which had been accumulating its economic potential over centuries, fuelled by newcomers from other countries in Europe when Jews were expelled by punitive royal decrees.
With the exception of religious properties, Poland has not passed any special statute for restoration of property to pre-war owners or their heirs, but treats property claims on a case-by-case basis under the existing civil law.
Claimants succeed in some cases; for example, in 2005 the Hotel Europejski in Warsaw was restored to the company that owned it before the war. Some do not. The Branicki family has been trying for many years to get back its family seat—the royal palace in Warsaw’s Wilanów. The Czetwertyński family, similarly, have so far been unable to reclaim a property on posh Aleje Ujazdowskie in Warsaw that belonged to their family before World War II but was since acquired by the U.S. government as the site for the American Embassy.
When it comes to property restitution through a general act, Warsaw is a special case altogether. A growing number of lawyers have come to believe that there are no mechanisms in international civil law to force Poland to introduce an act to restore title to real estate nationalized in Warsaw by the communist government in 1945. Such a view was presented by Wiesław Szczepiński, a lawyer specializing in property restitution who is of counsel to Wardyński & Partners, who spoke at a meeting of with members of the American Chamber of Commerce in Poland in May.
Szczepiński stressed several of the arguments for this view. One is that when Poland ratified European regulations governing the protection of private property, the country had already enacted the legislation under which the nationalization was carried out.
Szczepiński explained that the nationalization of private real estate under the “Warsaw Decree” was consistent with other pieces of legislation which became law at the same time. Another act involved nationalization of abandoned property, and another laid down the ground rules for reconstruction of the city.
Nationalization was in line with socialist architectural principles, which advocated greater state control over city land for better architectural planning and urban development. Among all the major cities in Poland, Warsaw at that time had the lowest proportion of city-owned land, which impeded planning and development.
The Warsaw Decree was to be followed by another decree to govern the issue of compensation to owners or their heirs for loss of their property. But that decree was never published, and another act introduced in 1958 put to an end to any claims for compensation.
The manner in which the state claimed ownership of certain property in Warsaw poses legal problems down to this day. “There is one house in ul. Rozbrat,” Szczepiński mentioned, “which for some reason the Warsaw council omitted claiming ownership of. Because of that there are doubts whether this house can be legally returned to the heirs of its prewar owner, as there is no legal basis on which to determine that the house belongs to the City of Warsaw.”
The Warsaw Decree, which nationalized private property in Warsaw across the board, did give the owners of the nationalized property the right to apply for perpetual usufruct of the property they had owned. But exercise of that right poses legal problems today.
In the case of a site on ul. Szpitalna, Szczepiński noted, the owners of some properties submitted their applications before the Warsaw council actually claimed title to the property. Today, this poses the question of whether the applications were filed legally or not.
Another problem with applications for perpetual usufruct was that the Liquidation Office, a government institution charged with executing the nationalization of property, was also empowered to request that perpetual usufruct be granted to the owners of certain properties. This happened in the case of most of the property along ul. Krochmalna. The problem is that it is difficult to establish whether the motion by the Liquidation Office was legal or not, because it acted without the knowledge of the property owners. Without establishing the legal validity of such actions, there is no basis for any further enquiry into the status of the property, Szczepiński said. The Supreme Administrative Court will have to rule on that case, but so far the decision has been delayed.
Another problem is posed by properties that were nationalized and became assets of state-run companies, which were later privatized and then sold the property. This was the case of a state-owned hotel chain in Warsaw, which held several hotels that had been private property before the war. When the company was privatized it sold off some of its hotels. According to Szczepiński it is very unlikely that a court would find the sale of those hotels to be null and void, regardless of the legal circumstances under which they had been nationalized.
Similar problems arise when dealing with property that belonged to companies before the war, instead of private individuals.
Tom Cwiok is the Warsaw-based
editor of American Investor Magazine.
