Property restitution has been a frustrating process in Poland and the issue of restitution is analogous with the tragic injustices experienced by the Polish people in the not so distant past. As of August 2021, Poland remains the only former Communist state and the only EU state not to have implemented comprehensive legislation dealing with property nationalized under the Communist regime.(1) On 11 August 2021, a highly controversial bill was passed in the Sejm addressing the issue of property restitution and the measures proposed in the proposed bill have been met with international outcry.
In response to the passing of the bill, Israel withdrew its top diplomat in Poland and has indicated that the position will not be reinstated.(2) The US Secretary of State also voiced concern regarding the passing of the proposed bill and urged President Duda not to sign the bill into law.(3) The bill proposes to impose a 30-year statute of limitations upon claims for restitution and the ending of all currently ongoing proceedings for restitution that have not reached a conclusion. The changes proposed may seem sensible but it is important to consider the bill application of the bill within the context of the existing restitution legislation framework. In no short words, restitution has presented itself as an acutely difficult issue within Polish political culture and broader society.
Restitution in Poland can be categorized under two categories; restitutive measures that apply to property lost under the German occupation and property lost under the Communist occupation. Concerning the first category, restitution of property lost during German occupation occurred in two geographical locations; the City of Warsaw specifically and the remainder of Poland generally. To complicate matters of restitution further, Poland experienced a double occupation and experienced the theft of property not once, but twice and under excessively tragic circumstances.
German-era loses were primarily dealt with under two legislative measures adopted by the Communist government in Poland; the 1945 Decree, also known as the Bierut Decree, and the 1946 Decree. The 1945 Decree transferred all property within Warsaw to the municipality of the City of Warsaw. Under the decree owners of the property could apply for the right to hold their former property as a perpetual usufruct, or as a leasehold interest for a duration of 99 years. Where an application was rejected, the former owner became entitled to received compensation. An estimated 15,000 application were submitted and only 303 were approved.(4) The Communists approached the compensation provisions with equal enthusiasm and no compensation was ever issued.(5)
In post-Communism Poland restitution of pre-Second World war property in Warsaw was possible under Articles 214 and 215 of the 1997 Law on Real Property Management.(6) Under this process an application for restitution was submitted to the Mayor of Warsaw. It is unknown how many applications were successful under the 1997 Act however the procedure became a vehicle for corruption and exploitation.(7) The problematic nature of distributive
justice is observable under the 1997 Act. Under the act, applications for restitution were subject to discretion which imported an element of arbitrariness into the restitution process and provided an avenue for the phenomenon of "wild privatisation".
In 2016 an example of wild privatisation was exposed by Gazeta Wyborcza who published an expose on a deal that occurred in 2012. The deal related to Chmielna 70, a historical manor in the center of Warsaw worth an estimated $40 million.(8) Through an unfolding series of revelations, it was revealed that the claim in the property was purchased from a Danish national by a former official of the Ministry for Justice, a lawyer and former dean for the District Bar Council.(9) The scandal led to the firing of top Warsaw municipally officials and led to a political clash between the then Mayor of Warsaw, Hanna Gronkiewicz-Waltz, and PiS.
Up until 2015, the few examples of restitution that had occurred in Poland were largely overshadowed by countless accounts of systemic corruption and theft. They were also almost exclusively pre-Second World War properties and, with limited exceptions, all based in Warsaw. In 2015, legislative change was introduced through the Small Reprivatization Act aimed at pre-Second World War property in Warsaw.(10) The Act aimed to clamp down on the rampant profiteering made possible under the 1945 Decree and the 1997 Act but observers have noted that 2015 Act mostly succeeded in frustrating restitution in Poland.(11) Under the 2015 Act, all property under public use would be automatically excluded. In addition, where the property had been sold to a third-party restitution would also be precluded.(12)
The 2015 Act also introduced a number of admissibility constraints which made restitution impossible for the vast majority of potential claimants. Firstly, the Act introduced a 6-month deadline for the filing of all claims for property in Warsaw by potential heirs.(13) This deadline began once a notice was published publicly by the municipality of Warsaw. The announcement is only published on the City of Warsaw website, it receives no publicity and the timing of publication is entirely at random.(14) In addition, once a new notice is published all prior notices are removed regardless of whether or not the 6-month time limit has passed.(15) As noted by Bazyler and Gostynski, as of 2018 the City of Warsaw failed to publish notices for 210 properties.(16)
In the unlikely event that a potential claimant would even become aware of the existence of a notice within the 6-month timeframe, the potential claimant then has 3 months to secure a positive decision from an administrative tribunal confirming their identify and claims.(17) This requirement is a technical trap and impossible to satisfy.(18) An estimated 90% of all Polish Jews were killed during the Holocaust, and many Poles and Polish Jews alike emigrated almost immediately after the Second World War concluded. Potential claimants would have to track down the requisite documents from across the globe, translate these documents into Polish and then authenticate these documents in a manner prescribed under Polish law.(19)
In the extremely rare event that a potential claimant manages to achieve all of this within 3 months the potential claimant must then apply to a court to have his or her identify and claims verified. This process alone can take years and more often than not the process becomes Kafkaesque as the claimant may be required to provide a death certificate for a person who tragically died in a gas chamber some 70 years ago.(20) The restitution process has received criticism notably from the U.S. State Department Special Envoy on Holocaust Issues(21), the ECtHR (22), and the former Polish Minister for Justice Patryk Jaki.(23)
Moving from Warsaw specific property to Poland generally, under the 1946 Decree, all property in Poland whose owners could not be identified was either nationalized or transferred to occupiers.(24) A 10-year statute of limitations was imposed for owners to submit restitution claims for recovery. This restitution mechanism proved to be notably difficult for Polish Jewish owners to benefit from and many Polish Jews opted to forgo restitution proceedings entirely due to fears of returning to their former places of residence.(25)
With German-era property covered above, the next category up for discussion is property nationalized under the Communist regime. To reiterate; Poland remains the only EU country which has not enacted restitution measures within the context of property lost during Communist occupation.(26) While the loss of property under German occupation primarily affected Polish Jews, the Communist-era loses affected all Poles regardless of religion, race or ethnicity. This sadly does not imply restitution in this regard was equitable. Property lost outside of Warsaw under German occupation was long gone by the time Communist occupation ended. To make matters more difficult, restitution of Communist-era loses also only occurred in a limited capacity; the restitution of property located in Warsaw and the ‘Bug River cases’ which are properties that no longer exist within the jurisdiction of the current Polish state.(27)
Restitution concerns not just justice but economics. During their respective transitional periods, the former-Communist states shifted their economies from a state market to a free market. Restitution of nationalized property offered post-Communist states a mechanism through which they could the kick start private ownership and in turn a free market-based economy. Restitution was a difficult hurdle that the transitioning states needed to overcome as a prerequisite to a free market however this possesses in turn slowed down the initial economic reforms.(28) In Poland it was the economic concerns attached to restitution that resulted in the presidential vetoing of a 2001 restitution bill, and again in 2008 in relation to the Compensation Bill.(29)
An example of an alternative approach to the issue of restitution can be seen in how Czechia approached the problematic process. Czechia emulated the Polish “shock treatment” economic reforms however the issue of restitution was addressed promptly and comprehensively. Restitution was rolled out under a three-pronged approach; the Small Restitution Law, the Large Restitution Law, and the Land Law. All three of these measures were enacted between 1990 and 1991, and offered a robust restitutive landscape capable of addressing a multitude of injustices with a noticeable degree of certainty.(30) In addition, each of the restitutive measures addressed Communist-era injustices, a period of time that is largely absent under the Polish restitutive framework. In recognition of the particular issues faced by potential claimants of Jewish origin, the Czech government enacted the Jewish Restitution Law in 1994 which provided for the restitution of German-era loses of property that was unclaimed and subsequently nationalized under the Communist regime. In the event that an heir is not located, the Czech stated reverted the property to the Jewish community.
A frequent criticism used to justify the withholding of restitution is the injustice of moral debt.(31) To say that the modern Polish state and Polish people should remain in debt to unknown individuals, in unknown locations for an indefinite period of time is a valid response to restitution. Expecting present day Poles to carry the responsibility for past injustices is in of itself an injustice and would be intolerable given the tragedies experienced by Poles during the Second World War, and immediately again under Communist occupation. Once Communism ended, Poland entered a period of chaos and economic instability but this is where a line should be drawn. Poland’s past tragedies, and chaotic transition in no way justifies the poor levels of restitution that occurred in Poland. This is especially pronounced when restitution laws in Poland are compared with restitution laws enacted in other post-Communist states.
Restitution necessitates the prompt correcting of past injustice, in the present, and subject to strict statutory deadlines. It is essential that in implementing restitution that the state is not tied up in a never-ending obligation to redistribute property to any and all potential claimants. It is equally as essential that restitution occurs so as to provide injured parties a chance at realizing justice. The problematic nature of distributive justice is highlighted through the frustrated application of restitution in Poland. The importation of discretion without restriction and insufficient legislative guidelines has hindered the prompt execution of justice within the context of loses incurred by displaced peoples. Ending restitution is a sound policy and just but to end restitution without ever providing meaningful restitution is an injustice.
Footnotes:
Bazyler and Gostynski, Restitution of Private Propety in Postwar Poland: The Unfinished Legacy of the Second World War and Communism, Loyola of Las Angelos International and Comparative Law Review, Volume 41, No. 3, at pg 277 and 294
See communication of FM Lapik of 14 August 2021, available at https://mfa.gov.il/MFA/PressRoom/2021/Pages/FM-Lapid-s-response-to-signing-of-Polish-property-restitution-law-14-August-2021.aspx
See US Department of State communication of 11 August 2021, available at https://www.state.gov/polands-troubling-legislation/
Janucz Palicki, Warszawska reprywatyzacja w pigułce: Brutalnigracze, wielkiepieniądze, poważnezarzuty [Warsaw Reprivatization in a Nutshell: Brutal Players, Big Money, Serious Accusations], NEWSWEEK PL. (Aug. 23, 2016), http://www.newsweek.pl/polska/warszawska-reprywatyzacjanajwazniejsze-fakty-i-zarzuty,artykuly,387827,1.html.
Bazyler and Gostynski, Restitution of Private Propety in Postwar Poland: The Unfinished Legacy of the Second World War and Communism, Loyola of Las Angelos International and Comparative Law Review, Volume 41, No. 3, at pg 285
In Polish Ustawa z dnia 21 sierpnia 1997 r. o gospodarcenieruchomościami.
Bazyler and Gostynski, Restitution of Private Propety in Postwar Poland: The Unfinished Legacy of the Second World War and Communism, Loyola of Las Angelos International and Comparative Law Review, Volume 41, No. 3, at pg 286
Ustawa z dnia 25 czerwca 2015 r. o zmianieustawy o gospodarcenieruchomościamiorazustawy – Kodeksrodzinnyiopiekuńczy
Bazyler and Gostynski, Restitution of Private Propety in Postwar Poland: The Unfinished Legacy of the Second World War and Communism, Loyola of Las Angelos International and Comparative Law Review, Volume 41, No. 3, at pg 286 - 287
ibid
ibid at pg 287
ibid
ibid
ibid at pg 289
ibid at pg 288
ibid at pg 289
ibid
ibid
Letter from Nicholas Dean, Special Envoy on Holocaust Issues, U.S. State Dept., to Nowy Dziennik, Polish Daily News (Dec. 22, 2015)
Sierpiński v. Poland, App. No. 38016/07, Eur. Ct. H.R. (2009) at para 110
Deputy Justice Minister Announces Planned New Restitution Laws, RADIO POL. (Nov. 10, 2017), http://www.thenews.pl/1/9/Artykul/329962,Deputy-justice-minister-announces-plannednew-restitution-laws
Dekret z dnia 8 marca 1946 r. o majątkachopuszczonychiponiemieckich
Krawczyk, The Effect of the Legal Status of Jewish Property in Post-War Poland and Polish-Jewish Relations, published in Jewish Presence in Absence: The Aftermath of the Holocaust in Poland 1944 – 2010, at 814
Bazyler and Gostynski, Restitution of Private Propety in Postwar Poland: The Unfinished Legacy of the Second World War and Communism, Loyola of Las Angelos International and Comparative Law Review, Volume 41, No. 3, at pg 294
The Bug River represented the shifting of the borders by the Soviets. Portions of eastern Poland were incorporated into the Soviet Union and restitution was available in relation to properties lost during this border shift.
Francis, Who Owns What in Eastern Europe?, FINANCIAL POST, Sept. 8, 1993, pg 11
In Poland, with the exception of the 2021 bill, there has been 6 prior restitution bills all rejected at various stages of the legislative process; the 1999 Restitution Bill, 2001 Restitution Bill, the ‘2005 - 2007‘ Restitution bill, 2008 Compensation Bil, and the 2017 Large Reprivitization Draft Act
Crowder, Restitution in the Czech Republic; Problems and Prague-nosis, Indiana International & Comparative Law Review, Vol. 5 No 1 (1994), pg 240
See post of 30 June 2021, on The All-Polish Youth - Młodzież Wszechpolska official Facebook available at; https://www.facebook.com/TheAllPolishYouth
The themes of “paying” and “injustice” is frequently used in the sphere of Polish ultra-nationalistic politics.
