Poland Must Return Property Confiscated in Holocaust to Rightful Owners

Holocaust Restitution Victims Survivors
A red rose left in tribute to victims is attached to the barbed wire fence at the Auschwitz II Birkenau extermination camp, Oswiecim, Poland, November 12, 2014. On Holocaust Memorial Day, Jewish leaders have warned against anti-Semitism regaining a foothold with the rise of popularist politicians. Christopher Furlong/Getty Images

Poland is the only country in the European Union that has failed to establish a comprehensive program to address the issue of confiscated Holocaust, or Communist-era, private property. Rather than moving forward, Poland is about to make another wrong turn in confronting the continuing violation of property rights.

On hold for the last year has been a controversial law set to severely limit the rights of individuals to claim restitution of property seized by the Nazis or Communists in Warsaw. Passed by the Polish parliament in 2015, the law never took effect because the then-president refused to sign it. Instead, President Bronisław Komorowski sent the law for constitutional review to the Constitutional Tribunal. Just last week, the constitutional court upheld the law.

Formally an amendment to the Law on Real Estate Management and the Family and Guardianship Code, the 2015 legislation limits the ability of Holocaust survivors, their families, and other rightful Jewish and non-Jewish property owners to claim property in Warsaw under a 1945 decree that nationalized all land in the nation's capital but allowed owners to come forward to claim the seized properties. Eventually, the Polish People's Republic set a deadline for December 1988 to file claims under the 1945 Warsaw decree.

Poland was still under Communist rule when the 1988 deadline was set to expire. Since the deadline was little publicized outside of Poland, it meant that few claimants in the West ever filed claims. For those few who did, not many were ever resolved; even after the Communist regime fell in 1989. Many people who filed claims in the late 1940s and then left Communist Poland do not know of their opportunity to pursue their claims. For those who died in the decades since, their families are even less likely to know of this opportunity.

The Polish exception

In the 1990s, both Western and Eastern Europe began the process of coming to terms with its past by engaging in restitution to survivors and heirs for losses arising out of the Holocaust. One of the mechanisms through which restitution has been accomplished was the passage by national parliaments of new legal regimes focusing specifically on Holocaust-era laws losses. Every EU country has set up one or more national programs addressing the failure to return or compensate Jews and others for wartime losses and Communist-era nationalizations—except one. That country is Poland.

To this day, most cases for restitution continue to languish in Polish courts, some for decades. Outside of Warsaw, these cases typically fail unless a claimant can show that the Communist authorities failed to adhere to their own guidelines in nationalizing the property.

The just solution is for the Polish parliament to enact national legislation that once-and-for-all would deal with the long-festering issue of restitution throughout Poland. Instead, parliament passed a law on June 25, 2015 that made it even more difficult for former owners to pursue property claims in Warsaw under the 1945 decree. The law harms rightful former owners of Warsaw properties and their families, both Jewish and non-Jewish, in three ways.

First, it does not allow claims in Warsaw for former owners and their families who missed the 1988 Communist-era deadline, including those who fled abroad to escape Communist rule or anti-Semitism. This provision disproportionately harms Jewish and other families hailing from Poland, since these families, living abroad, were unlikely to even know that there was a deadline to file a claim application.

Second, for claims that were filed and have languished for decades, the law transfers the property to the State Treasury or the City of Warsaw unless all former owners of the property, or their families, come forward within six months—and prove their right to the property within the next three months. It thereby effectively extinguishes the rights of those who did not or could not come forward—because, for example, they do not know of their right to the property.

This provision also disproportionately impacts Jewish families. Before World War II, 350,000 Jews lived in Warsaw, comprising about 30 percent of the city's population. Many owned apartments, businesses and other land in Warsaw. Ninety percent of Poland's prewar Jewish population of approximately 3,300,000 people was murdered during the Holocaust. Of the 300,000 Polish Jews who survived, most left Poland soon after the war to start new lives in North America, Australia and other parts of the world. Few took with them prewar deeds showing them as owners of such properties.

To successfully claim a property, however, a claimant must first submit to a Polish court documentation proving prior ownership and then have the court issue a ruling accepting such documentation. So for the Jewish claimants, the documentation, if it exists at all, can only be found in the Polish archives. And since documentation requires time-consuming and costly archival research, Jewish former owners who survived the war or their heirs will usually be unable to obtain the necessary documentation within three months. In the end, therefore, the brief deadline will make it nearly impossible for Jewish claimants to succeed in court.

Third, the new 2015 law now takes away the right of a former owner to seek the return of large categories of properties, including those used by the government. Thus rightful former owners who did file claims may end up empty handed after waiting over 60 years for Poland to resolve their valid claims.

Poland joined 46 other countries in endorsing the 2009 Terezin Declaration, which calls for countries to address private property claims of Holocaust victims "in a fair, comprehensive and nondiscriminatory manner." Most recently, governments and parliamentarians across North America and Europe have urged Poland to pass a law to meet the standards of the Terezin Declaration, including letters from the United States Congress and state financial officers, the European Parliament, the British parliament and the Canadian government.

Poland, at long last, must do what all other countries in the former Soviet bloc have done: establish a national program to provide all Jewish and non-Jewish former owners and their families the opportunity to claim restitution or compensation for their property confiscated during the Holocaust or by the Communist authorities.

Gideon Taylor is chief of operations of the World Jewish Restitution Organization (WJRO), headquartered in Jerusalem. The WJRO represents Jews worldwide in seeking the recovery of property seized from the victims of the Holocaust. Michael Bazyler is a law professor and The 1939 Society Scholar in Holocaust and Human Rights Studies at Chapman University in Orange, California.