Q&A

 

What is the historical background to Polish restitution?

In the years 1939-1945, Poland suffered massive and extensive war damage – both in terms of population and property. Large portions of Polish cities were destroyed. Warsaw suffered the worst damage. Most of its buildings were razed to the ground. Warsaw authorities at that time decided to nationalise large parts of the city to enable its reconstruction.

In communist-era Poland, like in all former “Eastern Bloc” countries, at the final stages of World War II and immediately afterwards, private property was nationalised on a mass-scale because of:

  • a change of the economic and political system;
  • border shifts resulting from the Potsdam Agreement (the incorporation into Poland of part of the Third Reich’s territory and the Free City of Gdańsk, and a concurrent loss of Poland’s eastern territories);
  • the take-over of private property by operation of law, pursuant to relevant legislation the subject matter of which is now difficult to classify, often without legal grounds or in flagrant breach of the law.

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Who was affected?

Those affected by the nationalisation of private property at the time can be divided into four categories:

Citizens of the Second Republic of Poland;

Citizens of the Third Reich (including citizens of the Second Republic who assumed German citizenship during the war);

Citizens of the Free City of Gdańsk;

Persons who were not Polish citizens prior to 1 September 1939.

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Was any compensation given during the communist rule?

Compensation claims, although admissible in theory, were extremely rarely awarded in practice. The communist government followed these rules:

Property owned by citizens of the Second Republic of Poland, in almost all cases, was nationalised without any compensation;

In the case of citizens of other states, the Polish government, based on indemnity agreements entered into with over ten countries (“indemnity agreements”) paid global damages for the property owned by citizens of these states that it had nationalised;

German property located within post-1945 Polish borders was treated as reparations for war-time losses, therefore the Polish legislator did not consider himself bound by an obligation to pay damages.

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Did the actions of the Polish government at the time conform to international law?

Yes. According to most international law experts, during this period states exercised full discretion in the scope of taking over property belonging to their citizens. Hence, governments had the right to take over private property even without paying compensation to its former owners. This norm was derived from the principle of sovereignty and autonomy of states as subjects of international law. Let us note that a system of international human rights protection had not yet been internationally codified. Persons who were not citizens of the country that nationalised their property were in a different situation. Such act was regarded as an indirect violation of the interests of the state whose citizens were deprived of their property, even if physically such property was located in the territory of the seizing country. The principle of sovereignty was construed as imposing a duty on the state that nationalised the property of foreign citizens to compensate their respective states. The latter states could, but were not obliged to transfer the said compensation to the entities that had lost their property. For these reasons, in the years 1948-1971 the Polish government entered into the so-called indemnity agreements with a number of countries whose citizens were affected by nationalisation.

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What are the measures available today to persons who want to claim property restitution in Poland?

Persons who lost their property after World War II and their legal successors (even if they are not Polish citizens) may pursue their claims through court and administrative procedures. The choice of procedure is determined by the type of property and the grounds on which it was taken over. Persons claiming property restitution may apply, without time limits, for a declaration of invalidity of a decision pursuant to which the property was seized, provided that the decision at the time it was issued contained serious defects referred to in the Code of Administrative Procedure (CAP). Declaration of invalidity leads to disregarding the administrative decision in the process of establishing the legal status of property. If a decision has led to irrevocable legal consequences, then an administrative body instead of declaring the decision to be invalid, finds that it was issued in breach of the law. A party to the proceedings may assert damages pursuant to Article 160 § 1 of the CAP for damage actually suffered (damnum emergens) caused by an invalid decision or a decision issued “in breach of the law.” Persons who did not take part in proceedings that ended in a decision finding a breach of the law may also claim damages. Indemnity claims are barred by a statute of limitations of three years from the day a supervisory decision becomes final. Damages for unlawful takeover of property are paid out of the Reprivatisation Fund administered by the Minister of Treasury. Pursuant to the Law of 30 August 1996 on Commercialisation and Privatisation (Dziennik Ustaw of 2002 No. 171, item 1397 as amended), the Reprivatisation Fund is funded with proceeds from the sale of companies owned by the State Treasury (5% of the value of shares sold). Damages are paid from the Fund on the basis of legal titles, i.e. non-appealable and final judgments, court settlements, and final administrative decisions. Since 2001, i.e. from the date the Reprivatisation Fund was set up until 31 October, 2012, it paid out damages totalling PLN 1.05 billion to 2,682 natural and 63 legal persons based on 807 awarded claims.

In the event that property was seized without legal grounds or based on an invalid administrative decision, a claim may also be filed with a common court of law for possession of property (Article 222 § 1 of the Civil Code) and for reconciling the entries of a land and mortgage register with the actual legal status of the property in question. The evolution of case law and court practice in the last twenty years has affected the process of awarding damages for taken over property. A significant number of proceedings ended in rulings awarding former owners their property in rem or damages. Many judgements delivered by the Supreme Administrative Court, the Supreme Court and the Constitutional Court are in favour of the parties concerned. Similarly, as regards the real property located in Warsaw and properties taken over in other cities on different legal grounds, local authorities have for some years interpreted the law in favour of the expropriated owners.

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How much property in Poland has been returned to claimants?

Due to the complex nature of this issue, the following data is not comprehensive and should be treated as an estimate. The information presented below illustrates the scale of restitution in Poland claimed through court and administrative procedures.

  • Warsaw properties (number of immovable properties nationalised ca. 17,000)

- 3,486 pieces of real property returned;

- ca. 300 damages paid (in the years 2002-2012 alone damages paid totalled over PLN 530 million);

- ca. 5,000 cases pending

 

  • Real property in other large cities

In large cities located within the borders of the Second Polish Republic, as a rule, regulations like the Warsaw Decree were not in force. Those towns suffered less extensive damage during WW II. For this reason, the restitution of illegally seized property in those towns after 1989 was less complicated than in the case of Warsaw.  Below is an estimated percentage of accepted applications for restitution of real property and/or restoring the ownership title to real property taken over by the state in the years 1944-1989. Estimated data was provided by organisations of real property owners:

- Gdynia: 90%

- Katowice: 80%

- Krakow: 80%

- Lublin: 90%

- Łódź: 90%

- Poznań: 80%

  • Landed property seized pursuant to the Decree on Agrarian Reform.

No detailed data available; castles, palaces and country mansions are being returned in increasing numbers.

  •   Property Beyond the Bug River

- 111,600 applications have been filed;

- 60,533 claims  have been processed by June 3, 2015;

- payments exceed PLN 3.5 billion.

  • Industry enterprises

According to the Ministry of the Economy estimates, around 4,000 applications for invalidating nationalisation decisions have been filed since 1989. To date, around 3,000 cases have been examined, of which most ended in decisions in favour of the old owners. In early 1990s, most cases ended in restitution in rem.

  • Reprivatisation Fund

Since 2001, i.e. from the date the Reprivatisation Fund was set up, until June, 2015, it paid out damages totalling PLN 1.9 billion to 3,914 natural and 66 legal persons based on 1100 awarded claims. This sum includes damages paid to persons claiming enterprises to whom their property was not returned in rem.

  • Communal property (churches and religious communities):

- Landed property: no less than 70,000ha.

- No less than PLN 215 million paid in compensation.

- Reports of property restitution commissions relative to the property of Churches and other religious association

Record of work of the Commission for Restitution of Property to the Polish Autocephalous Orthodox Church (as at 30 May, 2012)

Work of the Commission for Restitution of Property to Jewish Religious Communities, operating pursuant to the Law of 20 February 2012 on Relations between the State and Jewish Religious Communities in the Republic of Poland as at 31 May 2012

/in polish/ Sprawozdanie z dzialalności Komisji Majątkowej w latach 1989-2011

Do Jewish claimants have a separate legal status?

No. Polish citizens of Jewish origin who lost their property (and their legal successors) do not represent a separate legal category. Legally, the situation of persons of Jewish origin and their successors (also those who today are not Polish citizens) is no different from the situation of other persons, in particular from that of other Polish citizens. If their property was taken over in violation of the then applicable law, persons of Jewish origin may claim property restitution in court and administrative proceedings on the same grounds as other eligible persons.

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How does the European Convention of Human Rights impact the restitution process in Poland?

Poland has been bound by the Convention since 19 January 1993, and since 1 May 1993 it acknowledges the jurisdiction of the European Court of Human Rights in adjudicating cases that may be brought against it. The provisions which guarantee the protection of ownership are stipulated in Article 1 of Protocol No. 1 to the Convention which has been binding for Poland since 10 October, 1994. According to the general principles of international law, an international agreement – in this case the Convention and Protocol No. 1 – may not be applied to acts of the state that had occurred before the entry into force of the agreement in such state, or to situations which ceased to exist before such date. Consequently, the European Court of Human Rights, a supervisory body that operates pursuant to the Convention, may examine applications filed with the Court only to the extent they concern events or acts committed by the state before the entry into force of the Convention and its relevant additional protocols in that state. Within the meaning of Article 1 of Protocol No. 1, the loss of ownership resulting from expropriation, nationalisation or confiscation is, in principle, an instantaneous act and does not create a continuing situation which the Court would be competent to examine. For this reason, once it is found that property had been seized before the Convention and Protocol No. 1 entered into force in Poland, the Court has no temporal jurisdiction to examine the circumstances surrounding specific acts of property takeover or their effects, even if they continue to this day. In other words, the Court would not find any nationalisation, confiscation or expropriation carried out under communist regimes to be in breach of the Convention. The idea of the Strasburg system is to protect individuals against current infringements of the rights guaranteed to individuals under the Convention and its additional protocols. The Court’s case law has developed the principle that Article 1 of Protocol No. 1 to the Convention does not create any binding obligation on a state to return any property taken over by that state prior to the ratification of the Convention and Protocol No. 1. This transpires from the Court’s case law relating to the scope of the right of ownership subject to protection. It involves the right to enjoy the existing ownership, and not “the right to property”. It transpires from the Court’s case law that if property was nationalised under nationalization laws, the fact that a state later became bound by the Convention and its Protocol No. 1 does not constitute grounds for questioning ownership relations that existed on the day that state became bound by these international agreements.

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