Return of the native
Adam Branicki, the last owner of Wilanow Palace could never have predicted that in a free Poland his heirs would have to struggle for years to get his family's property back.
The Wilanow Palace, which was built in the 17th century for King Jan III Sobieski, belonged to a number of noble families. The Branicki's were the last of them. At the beginning of 19th century, part of the palace was turned into a private museum and after World War II it was nationalized, becoming part of the National Museum along with its park and art collection.
The first attempts to regain the art collection were made by descendents of the Branicki family in the early 1990s. Although former President Lech Walesa asked the National Museum to give the exhibits back, the museum refused. A complaint sent to the Superior Administration Court (NSA) resulted in a court order for the museum to return the family's art collection, but to date the museum has failed to do so.
Branicki's descendants are not intending to deprive people of the museum and its exhibits. "They will stay in the palace but belong to the family foundation," said Adam Rybinski, Branicki's grandson and one of his heirs.
"We would like to remove some things from the part of Wilanow Palace where the family used to live," Rybinski said. "Of course, the precious items would stay on deposit in the museum." He said that his family doesn't claim to have any rights to the palace itself.
After the museum refused to return the family's property, Rybinski said the family took the case to civil court, where it filed a lawsuit against the museum. "We know we will win," he said. "We don't know when and if not in Poland, maybe in Strasbourg."
The family is also looking to get back a few buildings on palace grounds and to receive compensation for property sold by the state treasury. In addition, Branicki's heirs are claiming rights to a palace in Natolin, in Warsaw's Ursynow's district, and to one building on ulica Smolna.
"If the bill on reprivatization isn't passed now, it will discredit Poland's authorities," Rybinski said. "It will also be a shame since a lot of former communist countries have already solved this problem."
Bring on the bill
But for the moment, it's a problem that's not about to be resolved in a hurry. At a time when the 2001 budget appears to have captured the undivided attention of every Polish politician, there is little chance that the debate over the restitution draft law, which is still waiting for its second reading in the Sejm, will start this year.
"The wrangling in AWS (Solidarity Election Action) hasn't stopped and the future of the government is not certain; everybody's attention is focused on the budget," said Kacper Krasicki, deputy president of Warsaw-based Reprywatyzacja, a property restitution agency. "The fact that the date of parliamentary elections is not known is much more absorbing for deputies than the future of the restitution law," he said. Krasicki added that the draft law, which was submitted by the government to the Sejm in September 1999, could be doomed to failure like several other projects prepared earlier in the 1990s.
The second reading of the draft was initially scheduled for Oct. 25, but was postponed. "I was informed that it would be read this Wednesday (last week), but it was postponed again," Krasicki said.
"If it's not read before the Christmas break, it might not be read at all if earlier spring elections are called.
"Poland, described as a leader among countries aspiring to join the European Union (EU), is the only country to not have enacted any restitution law. After 10 years there is still no comprehensive legislation in place."
Poland has been unable to pass a restitution law despite repeated attempts by several governments to create one in the past decade. AWS, which came to power after its victory in the 1997 elections, made a campaign promise to resolve the reprivatization issue. In September 1999, after several major rewrites of the draft law, the government finally accepted a version of the restitution bill. Under the bill, former owners would get back 50% of the value of their seized property and not 60% as stipulated in the draft's original version.
When possible, former owners would get their property back in-kind, according to the bill. If the property has already been sold or is in private hands, former owners would receive compensation coupons worth the estimated value of their assets. Those coupons could then be sold outright to third parties or redeemed in the purchase of land or real estate owned by the state treasury.
Owners are seeking compensation for property lost during 1944-1962. They include Poles who lost property under the agriculture reform of 1944 and the nationalization law of 1946, and Polish Jews, whose property was seized by the Nazis during the war or by the communist government after the war. A reprivatization law would address claims by owners of property in Warsaw, which was nationalized under a 1945 decree issued by the communist President Boleslaw Bierut. The decree, which covered 17,000 parcels of land, has never been annulled, and landowners have never received compensation for their lost property.
Last year, the Treasury Ministry estimated that the reprivatization bill would deal with claims by some 170,000 people.
At the same time, forests were excluded from the reprivatization bill last year. The Cabinet, the Treasury Ministry and the Sejm decided not to redistribute Poland's forested land to its pre-war owners, but instead adopted a plan proposed by Konrad Tomaszewski, director of the State Forests, a governmental agency regulating Poland's forests. Tomaszewski's proposal calls for buying out the claims in the form of compensation coupons, to be covered by the State Forests' budget.
While the present value of property seized as a result of nationalization after World War II is zl. 190 billion ($42.2 billion), potential claims aren't expected to exceed zl. 95 billion ($21.1 billion), the Treasury Ministry said. Under the restitution law, to satisfy claims the ministry plans to put aside real estate valued at about zl. 22.9 billion ($5.08 billion), 15% of expected privatization revenue from 2000-2005, and real estate owned by municipal authorities and gminas.
Dissenting voices
In a move to derail the government's plan for the restitution bill, the Peasants Party (PSL) and the Democratic Left Alliance (SLD), which oppose the bill, suggested that a referendum be held on reprivatization. Both parties said this would help give Poles a chance to express their views on the subject.
The motion to call a referendum was signed by 571,000 people. But in a crucial vote last week it did not receive the required political backing among parliamentarians. During the Thursday vote, the motion fell short of the necessary 211 votes for the referendum idea to come through.
Bogdan Pek, a PSL deputy, was disappointed.
"I deeply regret that there will be no referendum," Pek said. "The state can't afford a version (of reprivatization), under which almost zl. 50 billion ($11.1 billion) of the state treasury's assets are assigned to restitution."
SLD deputy Wieslaw Kaczmarek agreed.
"While the government estimates that claims can be settled for zl. 50 billion ($10.8 billion), I would ask how much it can really afford," he said. "And we can't afford to give away more than 5% of the state treasury's assets (about zl. 8 billion- zl. 9 billion $1.7 billion-$1.9 billion)." According to Kaczmarek, the government's estimates about the scope of the restitution law's costs are speculation. "The government has no solid information whatsoever," he said.
While the future of the bill in the Sejm and Senate is unclear, according to Pek, President Aleksander Kwasniewski's decision regarding restitution legislation also remains uncertain. "During the presidential campaign, Kwasniewski said that he would not support the bill in its current form," Pek said.
The bill's supporters are not optimistic.
"Due to the growing popularity of post-communists and populist and leftist trends, reprivatization is not a popular issue," said Reprywatyzacja's Krasicki.
According to Krzysztof Goralczyk, the legal representative of the Habsburg family, which is trying to regain its brewery in Zywiec, the only goal of PSL, which proposed the reprivatization referendum, was to cause a stir and present itself as defenders of the poor. "But they know perfectly well that we can't enter the European Union this way (without a restitution law)," he said.
Authors of the bill know that without a restitution law, the treasury would have to satisfy legal claims that are in courts or will be filed by owners in the future. The state can't afford to pay compensation, which is why the restitution process will not involve any cash payments. According to the ministry's estimates, direct financial compensation would reach zl. 170 billion ($37.7 billion). People claiming to be the rightful owners of property have filed lawsuits here and abroad. In the United States, 11 Jewish plaintiffs filed a lawsuit over property they allege was illegally seized after World War II and other landowners have also filed complaints in the Strasbourg Tribunal of Human Rights.
According to Krasicki, owners won't hesitate to turn to international courts if the treasury doesn't satisfy their claims. "It might not be 170,000 as (Deputy Treasury Minister Krzysztof) Laszkiewicz fears, but even several hundred hefty claims could shake the state treasury," he said, adding that a lawsuit in Strasbourg could cost up to $30,000. "But a lot is at stake, my family for instance wants to get back its medieval castle in Lesko, Bieszczady Mountains, which may be worth several million dollars. The biggest compensations, such as for the brewery in Okocim, claimed by the Getz-Okocimscy family, could reach $50 million."
The government has already spent a significant amount paying claims that resulted from lawsuits filed by former owners. In some 170 property claims that the Economy Ministry has had to deal with, the state had to pay zl. 700 million ($155.5 million) in compensation, according to the ministry's 1999 estimates.
Poland not alone
Meanwhile, the pressure in Poland and abroad to resolve the issue is mounting. The extraordinary parliamentary committee, which spent almost a year considering the draft bill, decided that the law would not include heirs of pre-war owners who didn't hold Polish citizenship in December 1999. That would exclude many Polish Jews and Poles living abroad. "We (former owners) are going to file a protest against that when meeting Prime Minister Jerzy Buzek," Krasicki said.
Former owners are also counting on yet another powerful ally. "We expect that Jewish communities abroad would also lobby to resolve that question," Krasicki said. In May, former owners held an international conference in Warsaw on restitution. "We also invited representatives of the Jewish community in Britain and in the U.S.," he said. "Jews are keeping an eye on the reprivatization issue. They are alert."
But Polish owners fear another possible problem in which the Jewish international community begins negotiations with the Polish government, along with former Polish owners, against the treasury. "They could push to create something like a fund for Holocaust victims," Krasicki said. "It could be a solution similar to the Swiss or German funds. This way there will be no reprivatization for individuals at all, the issue would be dealt with on a global level."
Meanwhile, Polish Jews and their heirs have been trying to resolve the issue by themselves. Last year lawsuits were filed in Chicago and New York against the Polish government. The plaintiffs were demanding compensation for property seized by the Nazis and nationalized after World War II. While the government asked that the lawsuit be dismissed, claiming that Poland cannot be sued under the jurisdiction of another country, further lawsuits are not out of question, Krasicki said.
Why a restitution law?
According to Treasury Ministry estimates, the bill in its present version will enable the government to escape having to pay cash in compensation claims, which could happen with every case that is currently in court or filed in the future. "The proposed regulations play a protection role for the state budget," read the justification enclosed with the restitution draft bill. The Treasury Ministry estimated that the current law would allow 80% of former owners to receive some sort of compensation.
Krzysztof Goralczyk, an attorney at Krakow-based law firm Forystek, Goralczyk, Rychlicki, said that restitution cases that would be winnable in Polish courts under the current law could be excluded from the reprivatization bill project. "But the Treasury Ministry included them on purpose to reduce (by 50%) the treasury's liabilities," he said.
According to Goralczyk, people who have legally justified property claims should file lawsuits. "If they wait for the reprivatization law, in my opinion, they are not reasonable people because they're renouncing a chance to regain 100% of their property," he said.
In Warsaw, the court has ruled in favor of owners in hundreds of cases. The 1945 decree, which nationalized the capital's real estate and land, has never been annulled. Owners, whose property was seized under the agriculture reform of 1944, can also claim their rights in the courts. "We are talking about property such as palaces, breweries, castles, mills, houses, art collections and books, which even under the reform shouldn't have been seized," Goralczyk said. "A lot of that is now being given back, but it's rarely covered by the media, unless something spectacular happens."
Forystek, Goralczyk, Rychlicki is the legal firm representing Joachim Badeni, a stepson of the last owner of Arcyksiazecy Browar in Zywiec, today's Browary Zywiec, in which Heineken, of the Netherlands, has a 43.33% stake. In 1998 Badeni filed a lawsuit against the state treasury and Browary Zywiec, claiming his family's rights to the brewery. At the same time, his step brother and step sisters (Karol Stefan Habsburg, Maria Krystyna Habsburg and Renata Habsburg) filed a lawsuit accusing Zywiec of infringing the family's rights through the use of their heraldic crown on the beer brand's label.
"They are demanding a return of something that has never ceased to be their property," Goralczyk said. "The treasury didn't have the right to seize the brewery even under the nationalization law of that time." The brewery was seized in 1945 without any compensation. "Then for 50 years it was run by the state and generated a hefty profit," he said. "The benefits to the state treasury are huge."
In 1991, Zywiec listed on the Warsaw Stock Exchange. Goralczyk estimated that the brewery is worth roughly zl. 1 billion ($218 million). "If the plaintiffs get it back, they already know the brewery they would sell it to," he said. "I think that Badeni wouldn't have filed that claim if restitution was implemented in the early 1990s like everywhere else. At that time he only wanted a portion of the shares for him and his family."
