In the 1960s, the government signed bilateral agreements in which Poland transferred money to certain foreign governments to cover foreign citizen claims for private property losses sustained after 1939. Among these agreements was the 1960 U.S.-Poland indemnification agreement, based on which Poland transferred $40 million to the U.S. government to cover claimants who were U.S. citizens at the time their property was wrongfully seized. This agreement did not cover those who were Polish citizens at the time their property was seized and only later became naturalized U.S. citizens; it therefore excluded most Polish Holocaust survivors and their families.
In 1999, the Polish government proposed a private property bill that would have provided a percentage of the current fair market value to anyone who had lost property during WWII or the Communist period. The Polish parliament, however, amended the bill to limit its application only to current Polish citizens, and the bill was vetoed in 2001 by then President Kwasniewski as a result. The Polish government reports that as of April 2019, it has paid approximately $2.29 billion in compensation to claimants of various nationalities via an assortment of legal instruments and procedures legislated since 1989, including the physical return of some original or in-kind property. Of this $2.29 billion, according to the government, approximately 4.5 billion zloty ($1.2 billion) went to settlements arising under the 2005 “Bug River” law, and 1.2 billion zloty ($338.7 million) went to settlements under legal provisions specifically governing Warsaw (both are further described below).
[Note: For cases involving private rather than communal property, the government does not generally track the religion of claimants; these figures therefore include restitution to Holocaust victims and other victims of WWII and the Communist period.]
In 2005, in response to a decision of the European Court of Human Rights, Poland enacted the “Bug River” law providing for compensation for private property lost by Polish owners who resided in territory that became part of present-day Lithuania, Belarus, or Ukraine as a result of Poland’s post-WWII border changes. The legislation obligated the government to create a register of all eligible claimants and pay compensation at 20 percent of a property’s value at the time of taking. Eligible claimants were property owners (or heirs) who were Polish citizens on September 1, 1939, who left the affected territory, and who retained their Polish citizenship. Holocaust survivors, their families, and any others who did not retain their Polish citizenship were excluded. By the December 2008 filing deadline, 91,845 claims had been submitted under the law. The Ministry of Interior and Administration reported that by the end of February 2019, the government had paid compensation for 74,058 claims worth approximately 4.5 billion zloty ($1.2 billion).
Poland does not have a separate mechanism or process to address private property claims other than the “Bug River” or Warsaw areas. The World Jewish Restitution Organization estimates that a total of 2.55 billion zloty ($680 million) has been paid to claimants for all property within the current borders of Poland for areas outside of Warsaw. Claimants in Poland may pursue restitution through administrative court proceedings or through settlement agreements with municipal governments or the national treasury. In practice, in order to succeed, claimants must seek nullification of Communist nationalizations by demonstrating that a procedural flaw occurred. Some American citizen claimants have reported that the process is cumbersome, lengthy, costly, and ineffective. They report that the process is particularly difficult for heirs to claims that were made by parents or grandparents who died without receiving compensation for their looted, confiscated, or nationalized property.
In 2016, Poland’s Constitutional Tribunal upheld legislation passed in 2015 designed to prevent those publicly owned properties in Warsaw that previously had been privately owned from being returned to their pre-Communist era owners. The law sought to terminate 70-year-old claims that had remained unresolved due to the inability to determine the parties to the proceedings. Some outside observers, as well as American citizen claimants and their lawyers, reported that the administration of the law makes it almost impossible for claimants successfully to reclaim their property. Specifically, some claimants have said that the law did not allow enough time to complete succession (inheritance) proceedings in Polish courts, which the law requires, despite the fact that in other circumstances Polish inheritance law recognizes heirs as determined under U.S. law.
In March 2017, parliament passed a law establishing a government commission to investigate accusations of corruption in private property restitution in Warsaw. The law authorized the commission to: (1) issue a decision confirming a restitution decision; (2) partially or entirely annul a restitution decision and issue a different decision; (3) annul a restitution decision in its entirety and send the case back to the appropriate institution for review; (4) publicly declare that a restitution decision was made in violation of the law if circumstances made it impossible for the commission to reverse a decision they determine was made illegally; and (5) discontinue current restitution cases. In June 2018, the commission reported it had reviewed 593 restitution cases and issued 74 decisions during its first 12 months of operation. The commission chair estimated the commission’s actions returned property valued at approximately 700 million zloty ($184 million) to the City of Warsaw. Administrative and court decisions have slowed as a result of this review process, causing some outside observers – including lawyers representing Holocaust survivors or their heirs – to argue that the commission had a negative effect on private and communal property restitution cases.
In 2017, the Justice Ministry proposed a new comprehensive, national private property restitution law. The draft law would have: (1) blocked any physical return of remaining properties (whether privately or publicly owned); (2) provided compensation in cash or government bonds of 20 to 25 percent of the property’s value at the time of taking; and (3) set a one-year filing period for claims. The draft law limited claimants to current Polish citizens who had been Polish citizens at the time their property was seized or their direct heirs. Some outside observers expressed concern that the proposed legislation would have effectively excluded foreign claimants, many of whom were Holocaust survivors or their heirs. In 2018, the chair of the Standing Committee of the Council of Ministers withdrew the legislation on the grounds that it needed further revision and analysis, including with regard to questions about its potential costs and compliance with national and international law.
Communal and Religious Property
Poland has laws enabling the restitution of certain communal religious property. The process, while incomplete, has allowed for the return of many synagogues.
Four joint commissions oversee communal religious property restitution claims that were submitted by the filing deadlines, one each for the Jewish community, the Lutheran Church, and the Orthodox Church, and one for all other denominations. (A fifth joint commission related to property of the Catholic Church is addressed below.) The commissions function in accordance with legislation providing for the restitution of property to religious communities nationalized during or after WWII. The law governing such restitution does not, however, address communal properties that the Communist regime sold or turned over to new private owners after WWII. The Ministry of Interior and Administration and the respective religious community each appoint representatives to the commissions. Although the law provides that decisions by the commission on communal property claims may not be appealed, the Constitutional Tribunal ruled in 2013 that parties could appeal commission decisions in administrative courts. The Department of State is not aware of any reports of parties filing such appeals.
The 1997 Act on the Relations between the State and Jewish Religious Communities in the Republic of Poland regulates the restitution of Jewish communal property. According to the Ministry of Interior and Administration, as of December 2018, the Jewish communal property restitution commission had partially or entirely resolved 2,810 of the 5,554 claims filed by the Jewish community by the 2002 filing deadline. According to the Foreign Ministry, the commission has awarded 88 million zloty ($23 million) in compensation to Jewish religious communities since its establishment. Some Jewish community representatives report that the pace of Jewish communal property restitution is slow, involves considerable legal expense, and often ends without recovery of property or other compensation for claimants.
By comparison, the Catholic Church joint property commission had resolved all but 216 of its 3,063 claims by 2011. According to the Ministry of Interior and Administration, the remaining religious community property commissions resolved 87 communal property claims in 2018, leaving unresolved more than 3,000 of the 7,000 claims filed by other religious groups. At the end of 2018, the commissions had partially or entirely resolved 989 of 1,200 claims by the Lutheran community, 268 of 472 claims by the Orthodox Church, and 87 of 170 claims by all other denominations.
The laws on religious communal property restitution do not address the issue of disputed communal properties that are now privately owned, and outside observers argue that the government has left several controversial and complicated cases unresolved. For example, a number of buildings and residences were built on land that included Jewish cemeteries destroyed during or after WWII. Experts on communal property assess that all of the straightforward Jewish communal property cases have been resolved; they note that the Jewish communal property restitution commission is unable to proceed with most of the remaining claims, as the government does not agree that the properties fall under the definition of a religious communal property. Several claims awarded to the Jewish community during the last two years remained unpaid as of mid-2019.
The devastation and human toll of Nazi-perpetrated crimes during the Holocaust left most of Poland’s more than 1,200 Jewish pre-WWII cemeteries with no surviving Jewish population to care for them. The restitution of Jewish cemeteries on land owned by local municipalities or the national treasury falls under the Jewish communal property joint commission. Cemeteries are returned to the local Jewish community if one exists nearby, or to the Union of Jewish Communities in Poland if no local community remains. The Union transfers these burial grounds to the Foundation for the Preservation of Jewish Heritage in Poland, a partnership of the Union and the World Jewish Restitution Organization. Some Jewish community representatives have argued that Jewish cemeteries are part of Poland’s cultural heritage and that the national government should take over ownership, restoration, and preservation of such sites around the country. In December 2017, the national parliament allocated 100 million zloty ($28.7 million) to the Cultural Heritage Foundation to subsidize an endowment to restore, preserve, and maintain the Warsaw Jewish Cemetery.
A 1959 law on cemeteries and burials requires that a religious community give permission before its cemetery area can be used for any other purpose. However, conflicts persist over the use of Jewish cemeteries that were nationalized during the Communist era. For example, in 2018, an issue arose regarding the commercial utilization of parts of a historic cemetery in Siemiatycze that was no longer listed as a cemetery in current land records.
In July 2017, the General Inspector of Monuments of the Ministry of Culture and National Heritage (Culture Ministry) provided official guidelines to all provincial governors and inspectors of monuments for strengthening the protection of Jewish cemeteries. In August 2017, the Act on Stewardship of Historical Monuments was amended to require that provincial inspectors of monuments approve the sale, exchange, donation, or lease of land owned by the national or local governments that encompasses or includes historic cemeteries in order to prevent commercial construction on the sites of former Jewish cemeteries. Also in 2017, the Culture Ministry – in cooperation with the National Heritage Board of Poland, the POLIN Museum of the History of Polish Jews, the Jewish Historical Institute, the Chief Rabbi of Poland, the Rabbinical Commission for Cemeteries, the Union of Jewish Communities in Poland, and the Foundation for the Preservation of Jewish Heritage in Poland – began the first full inventory and verification of historical boundaries of all Jewish cemeteries in Poland. In 2018, the Culture Ministry instituted a project to place markers designating the boundaries of Jewish cemeteries and to place a memorial stone featuring a plaque declaring the site to be a Jewish cemetery. By February 2019, the Culture Ministry had completed the project for six Jewish cemeteries out of an estimated 1,200 in the country.
Poland has not passed a law to address the significant amount of private property left heirless by the Holocaust. Instead, heirless property is governed by Polish inheritance law, which requires that such property be returned to the local municipality or national treasury. According to the government, Poland began immediately after WWII to reconcile the legal status of property left by owners, including Jews who were killed during the Holocaust, under a series of decrees regulating derelict and abandoned property, as part of the overall nationalization of private property under the post-war Communist regime.