History lands in court
Andrzej Czerniewski's father, like 1.7 million other Poles expelled from their property at the end of World War II, was forced to leave his 30-hectare estate near Świźciany northeast of Vilnius, now in Lithuania. More than 50 years later, Czerniewski and his niece Ewa Bisewska are determined to receive zł. 488,626 in compensation for the estate, which became part of the Soviet Union after 1945. On July 11, they filed a lawsuit against the state treasury in the Gdańsk District Court. The final ruling is expected Aug. 1. The family members refused to talk about their claims, saying they fear that media attention might negatively affect the outcome of their case.
Dispensing justice But Czerniewski, who lost land when borders shifted under the Potsdam Agreement, is typical of people with property claims who have given up hope that Poland will ever adopt a restitution law ensuring the return of their assets. In March 2001, President Aleksander Kwaśniewski vetoed a restitution bill put together by the previous government - the last in a series of failed attempts to regulate ownership issues in Poland. Today, however, lawyers tell claimants they still have reason for optimism. Some of the plaintiffs, like Czerniewski and Bisewska, have already decided to seek the return of their property or other compensation in court, aware of the amount of time, money and uncertainly involved. Lawyers said that the hundreds of claims sitting in Polish courts are just the tip of the iceberg and that the legal system will soon be swamped with restitution claims. "Up to now, people hoped there would be a restitution law that would satisfy their claims, but since there is no such law and the president sent them (via the 2001 veto) to the courts to seek justice, they're starting to think there is no other way," said Roman Nowosielski, a legal representative for the Gdańsk plaintiffs and a partner in the Gdańsk-based law firm Nowosielski & Gotkowicz i Wspólnicy. "My clients claim that under the agreements signed between PKWN (a body set up in Moscow in 1944 for temporary administration in Poland) and the Soviet Republics in September 1944, the state treasury had to pay them compensation equal to the value of their property left in the former Soviet Union."
On the move Czerniewski's father was one of thousands duped by the communist regime, which promised them the equivalent value of their property on former German territories incorporated into Poland under the decisions made at 1945's Potsdam Conference. But Czerniewski's father and his heirs said thay never received equal value for their lost estate. Instead, Poles, who were moved westward from Lwów, Wilno, Łuck and other cities in eastern regions of prewar Poland only received the right to perpetual or temporary usufruct of apartments or small plots of land on the so-called "regained" territories in the West. Usufruct is a legal term indicating the right to use and enjoy property without destroying it. But according to lawyers, they've never become the real owners, and the value of what they got temporarily was never equal to what they had to leave behind. "Under the 1998 bill, they can change the right for perpetual or temporary usufruct into ownership rights (as an equivalent of what they left behind the new border), but in our opinion that doesn't rule out possible claims for financial or other kinds of compensation," said Nowosielski. "They (owners) also complain that there is no promised property in the treasury for them in exchange for their lost estates. So in this case, the plaintiffs are not after property, but they want money." Kwaśniewski said he vetoed the restitution bill last year because Poland couldn't afford it. He also criticized the bill's intention to exclude Poles who were deprived their citizenship after the war and no longer lived in Poland. But while the bill was the result of painful political compromise, it went as far as returning 50% of nationalized property in kind or other form of compensation.
At the time, the Treasury Ministry had expected 170,000 claims worth an estimated zł. 46 billion ($11.3 billion). The Sejm failed to overturn the president's veto. "One can clearly see that the restitution issue hasn't been resolved for such a long time because it's Polish society that is not especially interested in dealing with this problem," said Witold Daniłowicz, the executive partner at law firm White & Case in Warsaw. "It's very sad because from the moral point of view, those people (owners) all have the right to expect that their claims should be somehow satisfied. But it's those who actually benefited from nationalization that are in the majority in Poland and not the ones who lost something. There are people who got land from prewar estates and there are others who live in apartments in nationalized houses, so they can't see any reason to satisfy restitution claims with their taxes." Meanwhile, the problem of thousands of owners from eastern regions of prewar Poland, who moved to cities such as Wrocław or Szczecin after 1945, are not only financial. Some politicians are afraid of a situation where Poles living in former German territories would have no ownership rights to their land (currently owned by the state treasury) as well as the implications of property ownership rights once Poland joins the European Union. "Once we enter the EU, one can imagine a situation where there are two jurisdictions regulating ownership in western Poland: Polish and German," said Janusz Kowalski, the deputy chairman of the Opole branch of Law and Justice (PiS) party. "Because the formal approval of Poland's western border (by Germany) in 1991 didn't regulate restitution issues, until (the government does this), the question of claims to be made (at international tribunals) by expelled Germans might be still open."
Smoothing the way The Constitutional Tribunal and the Supreme Court have already spoken in favor of owners who lost their property east of the Bug river. What they need now, though, is a precedent-setting court ruling. That is why they are looking with hope at the Gdańsk case. "It may simply set the direction for the investigation of such cases for other courts," Nowosielski said. So far, there hasn't been a single court decision that has ruled in favor of financial compensation for plaintiffs who lost property in the former Soviet Union. According to Krzysztof Łaszkiewicz, a former deputy treasury minister in the previous government and currently a director of the Krajowe Centrum Reprywatyzacji (National Restitution Center), a victory for the Gdańsk plaintiffs might smooth the way for others. "Jurisdiction in Polish courts is subject to constant changes," he said. "Cases that several years ago seemed hopeless went all the way from district courts to the Constitutional Tribunal, and finally the rulings turned out to be favorable for the plaintiffs. So right now what counts is not even the number of claims, but their content. Many of them, if successful, can simply pave the way for thousands of other claims." And the ownership claims of those who lost their property beyond the Bug river account for more than 50% of possible reprivatization claims in Poland, he said. Potentially, there might be more than 90,000 such claims, according to Łaszkiewicz, and there might be another 70,000 claims based on the breach of the nationalization law. Meanwhile, even if the Gdańsk District Court rules in favor of the plaintiffs, Czerniewski and Biszewska still have to be prepared for a long battle. The state treasury has the right to appeal the ruling and eventually to apply for its annulment in the Supreme Court. "So, in my opinion it will be the Supreme Court that will decide this case," Nowosielski said.
New generation Once the majority of prewar owners seek the return of their property in courts, a lot will depend on Poland's judicial system, which is known for its inefficiency and corruption. In Warsaw alone, 83% of cases take more than a year to investigate. Meanwhile, each year the number of outstanding cases grows. In 2001, 2.2 million unresolved cases were pushed into this year compared to 1.8 million in 1999, according to the Justice Ministry. Supporters of individual restitution claims say that what counts most is that judges are beginning to understand the significance of the pending ownership problems. "There are more young judges these days whose attitudes toward restitution have become more positive," Łaszkiewicz said. "Years ago, one would never think certain rulings were possible, and now things have changed. Under a recent ruling by a Warsaw court, the owner of a returned house will had the right to compensation for apartments that have been sold (by the gmina) before the house was returned to him." Nowosielski agreed: "One can clearly see that from 1990 to 2002, Polish courts have been doing their best to secure the rights of plaintiffs (in restitution cases)." But according to Elżbieta Zawadzka, who has been trying for the past six years to get back a house on ulica Langiewicza in Warsaw, the court ruling didn't necessarily solve all the problems. "After several years of battling against Warsaw's Gmina Centrum, which denied me the right to perpetual usufruct of the house, I finally got a favorable decision from the Supreme Administration Court, which decided on a new investigation of my case, but the gmina ignored the ruling," Zawadzka said. "I couldn't even complain to the Strasbourg Tribunal because to do that, you need a negative ruling from the Supreme Court. I'm a perfect example of how court rulings are ignored by administrative bodies. And I'm pretty sure that if I had bribed someone, I would be moving into my house today." Antoni Feldon, the chairman of the Stowarzyszenie Przemysłowców Polskich (SPP), a prewar factory owners association, was more critical than Zawadzka. Feldon has a stake in the prewar Warsaw brewery Haberbusch & Schiele, a joint stock company, which was nationalized after 1945 and sold to Austrian brewery Brau Union in 2000. So far, his efforts to get his property back have failed. "People like myself will get nothing from Polish courts," he said. "All of Polish industry was originally private because there were few factories that the communists built from scratch. We don't want reprivatization because we've never stopped being owners. We simply want our ownership rights respected."
Class action Feldon's association and several other Polish restitution organizations have banded together with the Holocaust Restitution Committee (HRC), an organization that is seeking the return of property taken from Polish Jews. Earlier this month, Feldon gave a speech during a U.S. congressional hearing on restitution issues in Poland, the Czech Republic and Romania. He said that if political and diplomatic pressure was not effective, his organization wouldn't hesitate to sue individual companies, which bought property nationalized after 1945 with pending claims. "(The SPP) won't sue the Polish government because we are Polish, but we will sue the companies that purchased the stolen property in Poland," he said. "We've always informed foreign companies and even their embassies about pending claims to the property they're buying, but most would say it's our problem if our government allows for such situations. If the law is insecure, there is practically no law."
