Polish Constitutional Court Upholds Restrictive Restitution Law

Dear Friend,

Today we received disappointing news from the Polish Constitutional Tribunal. The Court affirmed the constitutionality of a law passed by the Polish Parliament that limits the rights of claimants to restitution for private property in Warsaw.

Please see the below article from today’s New York Times describing the law and its implications. This article, as well as other media stories, have highlighted our position. Hebrew speakers may also read this article on Ynet.

The World Jewish Restitution Organization wrote to then-President Bronisław Komorowski last year asking him not to sign the legislation. President Komorowski agreed, and sent the law to the Constitutional Tribunal. WJRO submitted a “friend of court” brief urging the Court to declare the law unconstitutional for violating former owners’ rights.

The law covers claims for property filed under the 1945 decree that nationalized property in Warsaw. The law does not enable former owners who missed the 1988 Communist-era deadline to file new claims. Instead, once the law takes effect, for properties that were claimed, all remaining entitled former owners or heirs will have only six months to come forward in the administrative proceeding before their claim is terminated. Of course, many of these entitled former owners or heirs may not even know of a claim filed decades ago.

WJRO will press the Polish government to make sure that all necessary assistance, including access to information and documentation, is given to those who might qualify.

Most importantly, this law highlights the need for Poland to establish a comprehensive program to address the issue of confiscated Holocaust- or Communist-era private property.

We were pleased to see the New York Times quote the Mayor of Warsaw as agreeing, calling the failure to pass such a program the “biggest sin of the Polish state.”

WJRO will continue to urge Poland to address this issue.

Best wishes,

Gideon Taylor
Chair of Operations

Polish Court Limits World War II-Era Restitution Claims in Warsaw
JULY 27, 2016

WARSAW — Poland’s constitutional court on Wednesday upheld a 2015 law that significantly limits the rights of people whose property in Warsaw was seized during or after World War II, and their descendants, to apply for restitution.

The decision effectively removes the ability of former owners who missed a December 1988 deadline, set by the former Communist government, to file claims. And for those who met the deadline — but whose cases have languished, in some cases, for decades — the law sets up hurdles that may be nearly impossible to clear.

“This is a very unjust decision,” said Gideon Taylor, chairman of operations at the World Jewish Restitution Organization, which is based in Jerusalem.

In a statement, he added: “This decision highlights the need for Poland, at long last, to do what all other countries in the former Soviet bloc have done: establish a national program to provide all Jewish and non-Jewish former owners, and their families, the opportunity to claim restitution or compensation for their property confiscated during the Holocaust or by the Communist authorities.”

Advocates of restitution objected to three provisions of the law that was upheld on Wednesday.

First, the law does not allow claims by property owners and their relatives who missed the 1988 deadline, even if they had fled abroad to escape anti-Semitic violence or Communist persecution. Second, in pre-1988 cases that have languished, the law gives former property owners or their families only six months — from the date the law takes effect — to assert their claims and another three months to prove their claims, a threshold that could be impossible for many claimants to meet. Finally, the law removes the right of ex-owners to seek the return of large categories of properties, including those used by the government.

The mayor of Warsaw, Hanna Gronkiewicz-Waltz, who helped craft the legislation, defended it as a “transitional” solution to a national problem. “The biggest sin of the Polish state is that it hasn’t passed a law that would resolve the issue of restitution once and for all,” she recently told the broadcaster TVN24.

Under Polish law, former owners can bring private restitution claims in Polish courts; some Jewish claimants have been awarded compensation. But the process is difficult, time-consuming and expensive, and few claims have been successful.

The city of Warsaw has long had the practice of appointing a trustee to represent the anonymous heirs of unclaimed property — even if the rightful heirs are all deceased. The practice was costly, and in some cases, property developers abused the legal uncertainty to acquire buildings.

“The tribunal ruled that if someone didn’t file a restitution claim for 70 years, then it is fair to assume that they have agreed that the ownership of a given property should be passed onto the city of Warsaw,” Bartosz Milczarczyk, a spokesman for the mayor’s office, said in a phone interview on Wednesday. He added: “There are numerous buildings in Warsaw that have not been claimed by anyone and they deteriorated. We needed a legal way to prevent that.”

Advocates of restitution opposed the law, though they agreed with Ms. Gronkiewicz-Waltz that a national solution was required.

“We want a national program that would enable rightful property owners to file claims which would be examined in a public and transparent process,” Mr. Taylor said. “The process should end with restitution where possible or with compensation where not possible.”

He said the issue was a moral, not a legal, one. “Only by dealing with the past will Poland be able to move forward,” he said.

A 1945 decree transferred ownership of properties within the city’s prewar boundaries to the city government. It allowed former owners of those properties to assert ownership rights, but the Communist government rejected or failed to review most of those claims, according to the World Jewish Restitution Organization. Thousands of cases remain open.

Norman Trysk-Frajman, 86, a Holocaust survivor, is among those affected by the court’s ruling. Mr. Trysk-Frajman’s grandparents owned two apartment buildings in Warsaw; he said that he has the property deeds, and that he and three cousins in France are the only rightful heirs. He never filed a restitution claim because he did not know he had the right to do so.

“Our forefathers, who were slaughtered during the war, left it to us,” Mr. Trysk-Frajman, speaking by phone from his home in Florida, said of the properties. “It is rightfully ours and I cannot imagine that anyone in the world would disagree with this under normal circumstances.”

Mr. Trysk-Frajman added: “Our lives took a drastic turn during the war when practically all of my family were murdered. Yet, it is decades later and I still have to worry how I will survive the next day, though this time it is because of my family’s desperate financial situation. Often we have to choose whether to pay for medication or food. This is not right; we should not have to endure such hardship after everything we have been through.”

The case was referred to the court by Bronislaw Komorowski, who was Poland’s president until August, and raised concerns about its legality.

The conservative Law and Justice Party, which swept to power in October, has taken a hard-line view, declaring that restitution legislation is not necessary because the past is the past.