Right to Restitution

For Poland to finally move past this delicate issue, the government must swiftly make good on promises to introduce a bill on re-privatization.

The tragedy of WWII left the surviving citizens of Poland deprived of most material assets. The end of the war brought only a temporary respite before further misery was launched on private owners by the communist regime imposed by the Soviet Union. Forced nationalization of real-estate properties - residential and industrial alike - was effected on massive scale as early as 1944.

When communism fell at the beginning of the 1990s, former private owners and their descendants saw a chance to get back properties that had been lost. "Citizens who had served the state in good faith were robbed," claimed Mirosław Szypowski, the president of the Polish Union of Real Estate Owners at last week's conference of Polish and Jewish organisations that represent those who say they bear the rights to the seized properties. "The loss of property brought about by the the state over several generations is a tragedy akin to death," added Szypowski. "The landowners were a target for the communist regime considered them an obstacle to their imposed tyranny," added Kazimierz Moes, president of Polish Landowners Association.

Legal lack

According to Aleksander Hetko, a real-estate expert from the Hogan and Hartson law firm, more and more properties are in the process of being restored to their original owners. "The conservative approach of the authorities and courts in that respect is undergoing a sort of liberalization," he claimed. He went on to call the assumption that those who regain their assets are getting special treatment "a biased understanding of social justice."

The only existing legal framework for compensating property losses after the war was established in 2005 for those affected by the shifting of borders. Under the 1945 Potsdam agreement, the map of Poland was substantially altered - large areas were taken up by the USSR in exchange for territories that were formerly German. Compensation for the Zabużanie, or people displaced from the lost eastern territories, was financed by the Polish state.

However, since 1989, successive governments have not managed to draw up a legal framework to regulate the issue of re-privatizing assets appropriated by the communist state between 1944 and 1962. One particular bill to that effect was put together in 2001, only to be vetoed by the incumbent president, Aleksander Kwaśniewski. Talk of drafting a new bill regulating the property has started up again and Prime Minister Jarosław Kaczyński recently announced the Polish government's readiness to accept a reasonable proposal. The question is: How much of the assets should be returned and in what form? The government's proposal in the bill is limited to around 15 percent of the total, regardless of the ethnic background of the claimant.

Indecent proposal?

This proposal does not appeal to everyone. "We want to get back a hundred percent of all that we lost," claimed Israel Singer, president of the World Jewish Restitution Organization at a conference on the issue last week. "We hope we won't get too much less than that," he added. He said he considers the 15-percent proposal unfair. "It's as if instead of a whole house, you would get the door or a window. You cannot live in a window," he explained. "We had a frank discussion, a constructive meeting with the government. We had the opportunity to explain why Jews should have their property back," said Singer.

However, the authorities say that it is impossible to provide compensation for everything the claimants lost during and after the war, as the state simply cannot afford to pay a sum that could be as great as zł.70 billion.

The claimants maintain their position. "[Don't you know] where to get the money for compensation from?" asked Szypowski. "The money is in the property which has been taken away. We will never claim the profits we could have gained if the property had not been lost, but we need to get the property itself back." Moes agrees, saying "No economic analysis that would demonstrate any threat to the economy in the case of re-privatisation has been presented," he said.

"We have not come here to make threats," Singer assured, but went on to say that if his organisation does not get the sufficient compensation he would be "unhappy. And it is not a good thing to be unhappy."

Complex caveats

However, many agree that granting 100 percent of the value of the property is simply unrealistic. "This is just the rumble of negotiation. There are no legal grounds for such demands," Rafał Tarnogórski, an analyst from the Polish Institute of International Affairs, told the WBJ. He stressed that the issue of compensation is extremely complicated. "It is impossible to account for all the claims as a whole. The only common factor is the fact that the property was lost," said Tarnogórski, explaining further that the claims for compensation are legally grounded only in cases of injustice under the law in power at that time.

Nevertheless, in spite of the former Soviet Union's role in the loss of property, there is no chance for compensation from Russia or other former republics of the Union. As for the property lost during the WWII, these are considered wartime losses so the Polish state does not claim responsibility for them. "To demand state compensation for a building lost during the Warsaw Uprising, for example, is complex, even peculiar," said Tarnogórski.

Moreover, it appears that not all those who claim the property are entitled to it. In the eyes of the law, some of them are related too distantly or not at all to the rightful owners, who are no longer living. Tarnogórski stressed that the group entitled to automatic inheritance, which does not follow from a will, is interpreted differently in Polish law.

He added that according to restitution agreements between Poland and certain countries, some heirs are not entitled to further compensation for properties nationalized between 1944-62, because Poland has already paid due compensation.

Eyes to the future

As for the claims of the German organization Preußische Treuhand, representing those requesting compensation for the loss of property owned by Germans as a result of the shifting of borders, the issue appears to have been resolved. The German government itself recognizes these claims as unfounded, Tarnogórski explained. The few claims that have been put forward in the European Court of Justice in Strasbourg are not likely to be successful. Tarnogórski emphasizes that the claimant groups - be they Jewish, German, or Polish - should avoid involving their governments in the disputes to keep them from becoming a political issue.

Both Tarnogórski and Hetko admit the issue of compensation and re-privatisation is extremely difficult and is likely to haunt Poland for some years to come. This is why proper legislation is so necessary, regardless of the limits the law might impose on the actual compensation amount. "It will serve as a common reference point for future compensation claims," said Tarnogórski. "It is vital that a solution is found, once and for all."