The idea that heirless property would go to foreign organizations is outrageous. If American or Israeli Jews believe that their claims have not been satisfied, then they should address the governments in Vienna or Berlin, not the Polish state, which suffered unimaginable losses at that time. I find Israel’s harsh reaction to the law passed in Poland, particularly the statement of Foreign Minister Yair Lapid, completely incomprehensible. I think he is doing it for the sake of domestic politics, thus building his political capital. Marcin Bogacz talks to Jan Śpiewak, social activist.
The Polish Sejm adopted changes to the Code of Administrative Procedure on re-privatization. Israeli diplomats are the ones to react most sharply to the new Polish law. Why do they accuse the Polish authorities of anti-Semitism, Holocaust denial and provocation? Are these accusations well-grounded?
Israel’s reaction, especially that of the Foreign Minister Yair Lapid, is incomprehensible to me. I think he is simply doing it for the sake of domestic politics, thus building his political capital. I do hope that both the Israeli Government and Lapid will back off from their heinous words.
I am a Polish Jew and a member of the Jewish Community in Warsaw. Most of my family died in the Holocaust; some emigrated to Israel before the war; my grandfather was hiding in a forest near Białystok; my grandmother survived because she was exiled to Central Asia by Stalin. To me, constantly invoking the victims of the Holocaust to secure political gains is a despicable disavowal of the victims’ memory. When international politics is completely subordinated to internal political controversy, the results are always negative to the extreme.
Did the Jews profit from re-privatization in Poland?
The law introduced in Poland is non-discriminatory. Israeli citizens were treated in the same way as all other citizens and very often managed to pursue their rights successfully. Notably, many heirs of Polish Jews who owned their property in Warsaw received enormous financial compensation or real estate in kind. In the case in which I was made a criminal in Poland – Joteyki 13, – half of this tenement house ended up in the hands of Israelis. In another famous story at ul. Poznańska 14, the huge tenement house finally ended up in the hands of… an American Jew. They were treated on par with Polish citizens and could participate in the privatization bonanza in Poland.
A real bonanza, indeed – over the last 30 years, Poland has given away 4.5 thousand properties in Warsaw and paid at least a billion dollars in compensation for re-privatization in the capital city alone. Moreover, the compensation was equal to 100% of the current value of the property – they either received 100 percent of the current value of the real estate, or even tenement houses rebuilt from the rubble of war with public money.
Although it must be admitted that the heirs probably also fell victim to the activities of criminal groups and were sometimes forced to cooperate. Of course, the question also remains, is there any sense in resisting this law after 32 years? How many properties are actually still to be returned?
Let’s move on to the details. What exactly does the new law imply? Could you please explain the context of these changes and assess whether they are needed?
It all started in May 2015, when the Constitutional Tribunal ruled that the previous practice of administrative courts invalidating administrative decisions was unconstitutional, as it breached the constitutional principle of legal certainty and violated the inherent rights of Polish citizens.
I’m referring to Article 156 item 2 of the Code of Administrative Procedure, which was created so that, in emergencies, a citizen has a chance to invalidate a decision that infringes their interests. However, no one expected that Polish courts would use this article to invalidate (i.e. eliminate from legal circulation) the nationalization decisions from the 1940s or 1950s issued based on three decrees: the decree on land reform, the decree on the nationalization of industry and the Bierut decree.
Of course, one may argue about their sense, but they were issued to adapt the law to the specifics of that time. So, first of all, to rebuild Warsaw from ruins, collectivize the economy and improve the living conditions of peasants living in poverty in the Second Polish Republic. Since the end of the 1990s, administrative courts began to apply this provision to return real estate. The authorities of the city, in this case, Warsaw, or the responsible ministry issued a new administrative decision based on the same decrees as from the late 1940s.
So there is currently no other law regulating these issues?
There is no general law in Poland that would solve the issue of re-privatization. So far, it has been carried out in either of two ways. The first one was the annulment of old decisions and issuing new ones as if we were in 1945 again, as if the PRL never existed, as if no transformation took place, and as if those buildings were never rebuilt, and the land was not distributed to farmers. Then re-privatization decisions were issued, although everything changed, the 21st century came, and schools, new residential buildings, etc. had already been built in these areas.
Another way involved inheritance proceedings where there was no post-war nationalization – one can hardly know whether this process can be called re-privatization. In Krakow, Lodz, Lublin, and smaller Polish cities, ownership was never interrupted. If someone was registered in the land and mortgage register in 1939, then they or their heir may apply for the property through ordinary inheritance proceedings. The new act does not change this – you will still be able to apply for your inheritance this way.
The 2015 judgment of the Constitutional Tribunal concerns the first case only. It says this practice of administrative courts is unacceptable and illegal. Besides, the role of administrative courts in this case is insufficiently emphasized in the public debate. By creating these absurd rules and opportunities to invalidate decisions that have been used for more than half a century, they have contributed to many outrageous actions.
One of the most important aspects of the case is the fact that the real estate subject to re-privatization very often did not go directly to the owners or their heirs.
Precisely. Cases are held individually in courts. In short, when we are talking about Warsaw, here’s what we see: first, the 1940s decision on nationalization is invalidated and a new one is implemented under Bierut’s decree. Each time the decisions are taken by officials on a case-by-case basis, their discretionary power is gigantic, which gives room for fraud and bribery. For instance, one decision in Warsaw to re-privatize real estate could be worth PLN 20-40 million. Such high amounts contribute to the spread of corruption and the formation of organized crime groups.
Most of all, however, these practices violated the acquired rights of tenants. I am mainly referring to people who entered into a lease relationship with the capital city of Warsaw. They signed long-term contracts that were primarily used for housing purposes, and the included rental prices were controlled. The buildings were nationalized decades ago (e.g. in 1948) and people had lived in them for many years, so they felt safe and secure. And suddenly a stranger would come, claiming to be the owner of the building. The lease agreements were then terminated and the tenants evicted from their apartments. We estimate that tens of thousands of people in Warsaw were deprived of their homes this way.
So the fact that claims to real estate can be freely acquired on the free market have been used extensively?
There were no restrictions. The real heirs were very often blocked from re-privatization. Their only option was to sell these claims to third parties and then – suddenly! – this re-privatization turned out to be possible. If there were no clear rules and regulations for these returns, officials could always think of a reason not to return the property or would postpone the case indefinitely.
An example of such a situation may be the Blue Palace on Bankowy Square (in the very center of Warsaw), which belonged to the Zamoyski family before the war; they tried to regain it for years to no avail. In the end, they sold the claims and the new owner recovered the palace worth tens of millions of zlotys in six months. This is not an isolated case – there were many similar ones in Warsaw alone.
Another tool of the reprivatization mafia was the fabrication of wills or the impersonation of heirs. It was much easier to steal post-Jewish property than the real estate which the heirs living on the spot were interested in. If 90% of Polish Jews were murdered by Nazi Germany, their descendants often did not know about the inheritance or did not survive the war and the property would be nationalized. The gang of tenement hunters that operated in Krakow would simply fabricate identities – its members pretended to be the grandsons of those Jews who had owned real estate before the war. Bribes would be paid in the land and mortgage register court and the judge would be bribed in inheritance proceedings. According to a crown witness who revealed the whole issue, bribes were very low – merely 5,000 PLN per tenement house. Thus, at least several hundred properties (mostly Jewish ones) have been stolen in Krakow. The gangster responsible for this was legally sentenced only to a suspended sentence and was released from prison almost immediately, then vanished into thin air.
By introducing this act, the Sejm of the Republic of Poland implements the judgment of the Constitutional Tribunal of 2015, which was then chaired by Andrzej Rzepliński. None of the MPs voted against this law, and the judgment of the Constitutional Tribunal has been supported from the very beginning by Adam Bodnar, the Ombudsman for Human Rights, who is also unfavorably viewed by the ruling party. So, is this matter exempt from Polish political disputes?
I believe so. This is a rare example where there the actual agreement spans numerous divisions. Although the first reaction of politicians from the Civic Platform (PO) and the liberal camp that supported it was maintained in the logic of the sectarian dispute between PO and PiS. The government was hit hard, deservedly to some extent, since the authorities could be criticized for not having prepared diplomatically to introduce this law. There was little effort on the part of our diplomatic services to explain to foreign partners what this amendment was about, to begin with. But I think that after that first blow, which was almost like a Pavlov’s reflex, there was time for reflection and there is no longer any criticism of the law itself.
Why has Poland been unable to implement the re-privatization act for so many years?
Such an act was adopted in 2000 by the AWS government and the Freedom Union. However, it was vetoed by President Aleksander Kwasniewski. It was very generous to the pre-war heirs. According to it, real estate could be recovered, and compensation for damages amounted to approx. 50% of their current value. While reading about it, I came across the words of President Kwasniewski, who said then that such matters should be dealt with by the courts… And so they were… After all, we are the only country in the former Eastern Bloc that has not adopted such a re-privatization act.
This is not a coincidence. This re-privatization can be considered a form of enfranchisement by the political nomenklatura associated with both the PRL and the new post-Solidarity elites. A very important role here was played by the chaos of the systemic transformation period, which was unfair and created opportunities for unfair earnings for members of the political elite and businessmen associated with them.
Is there a connection between this anti-re-privatization act and the famous Just Act 447 adopted by the US Congress?
In a statement by the Israeli Embassy, these two issues were mixed up, while the one has nothing to do with the other. The idea that heirless property would go to foreign organizations is outrageous. If American or Israeli Jews believe that their claims have not been satisfied, they should address the governments in Vienna or Berlin, not the Polish state, which suffered unimaginable losses at that time. Interestingly, for example, the Austrians somehow managed to avoid the claims, which are hardly mentioned in their context.
For almost a hundred years, there have been laws in Poland regulating the issues of heirless property. The problem is that very often these proceedings were not carried out on behalf of the state treasury. It often happened that real estate that should be transferred to the state treasury under these regulations ended up in private hands. This is also the fault of the Polish state and local governments, which during these 30 years failed to carry out these proceedings and make appropriate entries in the land and mortgage registers.
Polish version is available here.
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