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Are Poland’s Proposed Holocaust Restitution Laws A Form of Historical Denial?

Growing legal thickets are making it harder and harder to restore property to Jews

Christian Davies
January 19, 2018
Illustration: Tablet Magazine
Illustration: Tablet Magazine
Illustration: Tablet Magazine
Illustration: Tablet Magazine

When Anna Low’s father died in 2013 at the age of 94, she set herself the task of achieving what he had never managed: to secure the return of his family’s property in Poland.

Low’s father, Maurice Tabaksman, grew up in Warsaw as part of a prosperous Polish-Jewish family and was studying abroad in France at the outbreak of World War II. In his absence, almost the entire family was killed in the Holocaust; only he and a single cousin survived.

“It must have always been on his mind—where were they, what happened to them—and then this fight that he was losing to try and get the property back,” she recalled. “I don’t know whether it was to restore family honor, or whether he wanted to do it in their memory, or he wanted to show his dead parents that he had done something for them, but it was definitely passed on to me, because he was a very disappointed man.”

Tabaksman first traveled back to Warsaw in hope of securing the return of his family’s property in 1967 and spent decades trying to reclaim some part of what had been taken from him. “He tried and tried and tried, and every time we thought we were getting somewhere, the goalposts were moved,” Low remembered. “The Polish government or president would veto something, and we would be back to square one. They’re waiting for us all to die, no one seems to care.”

Unlike almost every other country in Central and Eastern Europe, Poland has never established a comprehensive restitution regime for private property (though a concordat signed in 1997 regulates the restitution of communal Jewish property), meaning that prewar property owners and their heirs—whether Jews or non-Jews, Polish citizens or not—must apply through the court system, often a long and arduous process that in many cases bears no fruit. In October, however, Poland’s ruling Law and Justice Party published a series of proposals that, if enacted, would effectively bring property restitution to an end. Under the proposals, restitution would cease, and compensation would be capped at 20 percent of the property’s prewar value, or 25 percent in Polish government bonds. Only Polish citizens would be eligible for compensation, and applications would be restricted to the spouses or direct descendants of prewar owners making applications from within the country. Anyone who has given up their Polish citizenship or served in a foreign military force would be excluded. Only the heirs of property-owners who were resident at the time of nationalization would be eligible to apply.

The proposals prompted a fiercely critical response from a number of foreign governments and organizations representing Jewish claimants, who argue that the conditions as outlined in the proposals would end the hopes of virtually all Holocaust survivors of making successful claims. In December, the U.S. Senate passed legislation calling for the State Department to monitor and report on whether countries are meeting their commitment to adopt national laws and policies to help Holocaust survivors identify and reclaim their properties.

Even though non-Jewish Poles often have similar difficulties in securing restitution or compensation, the realities both of the Holocaust and the subsequent departure from Poland of the majority of surviving Polish Jews mean that in practice, Jewish claimants very often find it much harder to make progress than their local non-Jewish counterparts.

Yet some in Poland suggest that Jewish advocacy groups are demanding special treatment without recognizing the devastating material losses sustained by the Polish state during the war, and the fate of non-Jewish Poles who lost their lives and property during the dual Nazi-Soviet occupation and mass resettlement of almost two million Polish citizens as a result of the redrawing of Poland’s prewar borders. “On what basis should Poland decide that those with Jewish ancestors get compensated, whereas Belarussians, Poles, Ukrainians or Crimean Karaites, or Tatars and Germans—all of whom used to live here before the war—shouldn’t be compensated?” Law and Justice leader Jaroslaw Kaczynski asked party supporters last year. “Is Poland able to turn back time and compensate all those who suffered in those tragic events? Does it mean that the descendants of poor Poles are supposed to pay the descendants of those who were rich?”

Observers warn that such attitudes risk denying the specificity of Jewish history in Poland during and after the Holocaust. “The law doesn’t discriminate in a sense that it categorizes people into Jews and non-Jews, but it has a disproportionate effect given the circumstances how many Jews perished, and it is little consolation for Jewish survivors, refugees and their families that local non-Jewish Poles often find restitution just as difficult,” said David Tilles, a dual British-Polish citizen with experience of the restitution process. “There is an expectation that, given all the suffering, restitution should be made easier, particularly for Polish Jews forced to leave by the Holocaust and the subsequent Communist regime’s anti-Semitic purges.”

Many properties that were taken into “public management” by the Communist authorities after the war but not formally transferred into state hands have remained registered as belonging to their prewar owners. In these cases, it is up to the prewar owner’s descendants to identify themselves as the rightful heirs to the property.

“It’s not just a question of proving that you are a descendant,” said Tomasz Świerczyński, a lawyer based in Kraków with experience representing foreign clients in restitution cases. “To identify the rightful heir, you have to establish the sequence in which your predecessors died, whether or not each one had written a will that could be found, and so on.”

Noting that Polish judges had raised the bar for proving rightful ownership after a series of scandals in the 1990s whereby people had used fraudulent documentation to obtain unclaimed properties, Świerczyński cited a case in the southwestern province of Silesia, where in order to establish the legitimate heir to an estate, the law required documentation from 27 members of an extended Jewish family who were living on various continents across the world.

The cost, length, and unpredictability of the current process exacerbate what is for many already an emotional and often distressing process. “I don’t think it’s about the money, I think it’s very often about this idea of some sense of justice, and that there is really no closure,” said Jonathan Ornstein, director of the Jewish Community Centre in Kraków. “People often don’t know where their relatives are buried, a lot of times they were killed in horrible ways and buried in open fields—the gas chambers and then crematoria—and the idea of some sort of tangible connection is very important for a lot of people, it’s part of the healing process.”

In some instances, Jewish claimants have been able to provide the required documentation to secure restitution or compensation. But for many others, the difficulty of knowing even the basic facts about what had happened to their loved ones, let alone securing the documentation to prove it, has proved an insurmountable hurdle.

“It wasn’t easy for Jewish heirs,” said Tilles, whose great uncle was a President of Kraków’s prewar Jewish Community, which accounted for around 25 percent of the city’s population. “Once Communism fell, the heirs themselves were elderly, their children didn’t speak Polish, and it’s just not easy to initiate a process under foreign jurisdiction.”

While the lack of a proper legal framework for restitution is sometimes interpreted outside Poland as a deliberate attempt to avoid the country’s obligations to Holocaust survivors in particular, that notion is rejected by Michael Schudrich, the chief rabbi of Poland.

“There is amongst some a misconception that this lack of a private restitution law is somehow against Jews,” he told Tablet from his office in Warsaw’s Nożyk Synagogue. “It’s not, it’s against property-owners, the vast majority of whom are non-Jewish. There was fear amongst successive governments that whoever passes a proper restitution law is not going to win the next election because people will resent them for taking away their money and giving it to somebody else.”

The failure to enact a proper restitution regime has had damaging consequences within Poland itself, denying justice to Polish property-owners, creating economic uncertainty and facilitating corruption, as best illustrated by Warsaw’s so-called reprivatization (reprywatyzacja) scandal that has gripped Polish politics over the past year. “Reprivatization” refers to the return of properties that were transferred into state ownership after the war in accordance with one of 21 decrees or laws passed by the Communist authorities between 1944 and 1962 (in contrast to properties transferred into “public management,” but still registered as belonging to their prewar owners). To secure restitution of these properties, claimants must show that the original requisition was inconsistent with the original decree or law. Because the Communist often did not uphold their own laws, this meant a flood of claims after the fall of Communism in 1989.

The most famous of these requisition decrees is the so-called Bierut Decree of 1945, which transferred all land and property within Warsaw’s prewar boundaries into state ownership so as to facilitate the rebuilding of the city after 50 percent of its population was killed and 90 percent of its dwellings destroyed during the war. (That is why the process of applying for restitution is different in Warsaw than, for example, Kraków or Łódź.) The reprivatization of over 4,000 properties in Warsaw since 1989 became associated with a series of scandals, including the forced eviction of tenants living in buildings that had been city properties but were transferred into private hands. In some cases, lawyers and property developers colluded with city officials to exploit weaknesses in the legal system in order to obtain valuable properties for a fraction of their true cost at the expense of rightful claimants.

The issue also has a strong partisan dimension because Warsaw is run by the pro-European Civic Platform party, the main opposition to the Law and Justice government. The family of the husband of Hanna Gronkiewicz-Waltz, Mayor of Warsaw and deputy leader of Civic Platform, is understood to have benefited from the reprivatization of an apartment building, the claim to which is alleged to have originated from an act of blackmail against its Jewish owner in the 1940s. Since Civic Platform is associated by many in Warsaw with reprivatization and its scandals and injustices, Law and Justice want to put a stop to the process once and for all as part of its campaign to win the Warsaw mayoralty in local elections next year. It was in this political context that the government’s controversial new proposals were published.

Insiders stress that the government, with its focus on restitution as a domestic political issue, is unlikely to have been singling out Holocaust survivors deliberately, implying that ignorance and insensitivity were a more likely explanation. But the defensive response to the criticism on behalf of some in Poland highlights a misconception that Jewish restitution claims constitute a form of demand for admission of Polish culpability for the destruction of Polish-Jewry during the Holocaust.

People with knowledge of Jewish restitution issues argue that it is not a question of blame, but simply a matter of recognizing the fact that the Polish state and many of its citizens benefited materially from the post-war absence of Polish Jewry, whatever the circumstances of their death or departure.

“Considering Poland was not a welcoming place after the war for Jewish survivors with some pogroms and waves of expulsions, many Jews may have left before the Communists got around to the nationalization of their property so would be disqualified from claiming [under the present proposals], as they had already departed,” said David Tilles. “The Communists nationalized properties, nationalized industries, many of which were owned before the war by Polish Jews. Those assets have been transferred from government to government. After the fall of Communism they privatized some and pocketed the money, sometimes they may have sold them at underpriced levels to their friends, there were also Jewish schools that are now state schools, Jewish hospitals established by the Jewish community but are now in state ownership.”

As Schudrich puts it, “The Polish state is being sued for my bicycle because they have my bicycle. It’s not because the Germans have my bicycle, the Polish government has my bicycle!”

Whilst noting the importance of acknowledging the specific circumstances of many Holocaust survivors and their heirs, however, advocates reject the idea of restitution as somehow solely a “Jewish issue,” suggesting it is an unhelpful way for anyone to look at it. A comprehensive restitution law that takes into consideration a range of perspectives and circumstances, they argue, is the fairest resolution for Poles and non-Poles, Jews and non-Jews alike.

“It’s both a Polish issue and a Jewish issue, and it’s as much a moral and historical issue as it is financial,” said Gideon Taylor, of the World Jewish Restitution Organization. “It’s the history of Polish Jewry. A house that stood in Poland—a family lived in that house. A shop—it was their shop. A synagogue—it was where they prayed. To ignore those claims, to exclude those people, is to reject that history, it’s to reject what was. That’s why it’s deep, that’s why it’s important, that’s why it matters.”


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Christian Davies is a correspondent based in Warsaw.