NY court hears survivors' case
By : Juliet D. Golden
Holocaust survivors demanding the return of property confiscated during World War II or communism had their day in court last week when a U.S. Federal judge in Brooklyn heard arguments in a key property restitution case against the Polish government.
A year and a half after the class action lawsuit was first submitted, dozens of Holocaust survivors from around the world stood watch over the proceedings headed by District Judge Edward Korman.
"What we are looking for from this class action suit is justice," said Theo Garb, a U.S. and Irish citizen seeking compensation for property his family owned in Warsaw's Praga district.
For lawyers representing the plaintiffs, the hearing represented the launch of long-awaited legal proceedings. In June 1999, those lawyers filed a suit seeking compensation for Jewish property they claim was illegally confiscated by the Nazis during World War II or later by the communist government.
"It's the beginning of their day in court," said Edward Klein, a New York attorney with Klein & Solomon representing the plaintiffs in the case.
At the same time, lawyers for the Polish government said that the case does not belong in a U.S. court and should be called off. They said Poland is protected by sovereign immunity and cannot be sued in a foreign court of law.
"As far as the court case is concerned, it should clearly be thrown out," said Witold Danilowicz, executive partner at law firm White and Case representing the Polish government. "This issue should be settled by the Polish Parliament."
But unlike many other Central European countries, Poland has failed to pass a law on property restitution. The lack of resolution on the issue has not only stalled development and frustrated investors, but has also left the government exposed to an avalanche of restitution cases inside and outside the country. The filing of this class action case placed the issue squarely on Poland's international agenda.
U.S. politicians last week said that Poland risks political and economic isolation if it does not move fast to pass a restitution law and compensate former citizens who lost property.
"I want to say to those financial institutions and businesses in Poland, if you want to do business here, if you want our support and if you want to be a part of the global economy, then you should use your influence on your own government to make sure that this suit goes forward on behalf of the victims of the Holocaust in Poland," said Carl McCall, comptroller from the state of New York. McCall is a member of the Executive Monitoring Committee, which represents a network of about 900 state and local finance officers around the U.S. monitoring developments in Holocaust restitution cases.
For his part, Korman, who presided over the restitution case involving money deposited by Holocaust victims in Swiss banks, gave no signal as to how he was leaning in the case involving the Polish government. For two hours, Korman grilled lawyers on both sides over legal minutiae related to the case. "What was most important was that the judge had an opportunity to ask both sides questions directly," Danilowicz said. "The fact that it lasted nearly two hours attests to the fact that the judge is analyzing the issues thoroughly before he issues a ruling."
Early on, Korman honed in on the Polish government's claims that jurisdiction in this case should not be recognized. The debate centered on whether the Foreign Sovereignties Immunity Act (FSIA), passed by U.S. Congress in 1977, could be applied retroactively. With the passage of the FSIA, the U.S. government started taking a more restrictive approach to granting foreign governments immunity. Prior to 1977, governments were protected from actions in U.S. courts by absolute immunity. Lawyers for the Polish government argue that since the alleged confiscation of property by the Polish government occurred before 1952, Poland in this case is protected by absolute immunity.
"That is crucial because if the act is not retroactive, we fall into the absolute immunity doctrine," Danilowicz said. "If (Korman) finds that it was not retroactive, the case is closed."
Lawyers on both sides took a wait-and-see attitude regarding the outcome of the hearing. "The case is submitted," said Mel Urbach, a New Jersey-based lawyer representing the plaintiffs. "I thought it was encouraging, let's see what happens."
A concentration camp survivor seeking the return of property once owned by her family in Krakow said she was disheartened by the hearing. "I tell you, I don't hope to get (my property) back," said the woman, who requested anonymity.
After the hearing, other lawyers were pushing the Polish government to sit down at the negotiating table. "I am confident that Poland will come to its senses and solve this amicably," Klein said.
