Restitution after 1989 (legal regulations)

IMMOVABLE PROPERTY OF CHURCHES AND OTHER RELIGIOUS ASSOCIATIONS 

Restitution of immovable property by the state to churches and other religious associations has been carried out through the work of property restitution  commissions which are a type of arbitration courts.

One example of such commission was the Property Commission set up pursuant to the Law of 17 May 1989  on the Relationship between the State and the Roman Catholic Church in the Republic of Poland (Dziennik Ustaw of 1989: No. 29, item 154 as amended). The Property Commission was dissolved pursuant to the Law of 16 December 2010 Amending the Law on the Relationship between the State and the Roman Catholic Church in the Republic of Poland (Dziennik Ustaw of 2011: No. 18, item 89).

The following bodies continue their work: :

1)  Commission for the Restitution of Property of the Polish Autocephalous Orthodox Church set up pursuant to the Law of 4 July 1991 on the Relationship between the State and the Polish Autocephalous Orthodox Church (Dziennik Ustaw of 1991: No. 66, item 287 as amended);

2)  Property Restitution Commission set up pursuant to the Law of 13 May 1994 on the Relationship between the State and the Evangelical Church of the Augsburg Confession in the Republic of Poland (Dziennik Ustaw of 1994: No. 73, item 323 as amended);

3)  Commission for  the Restitution of Property of Jewish Religious Communities set up pursuant to the Law of 20 February 1997 on the Relationship between the State and Jewish Religious Communities in the Republic of Poland (Dziennik Ustaw of 1997: No. 41, item 251 as amended);

4)  Commission for the Restitution of Property of Other Churches set up pursuant to the Law of 17 May 1989 on Guarantees of the Freedom of Conscience and Religious Denomination  (Dziennik Ustaw of 2005: No. 231, item 1965; z 2009: No. 98, item 817; z 2010: No. 106, item 673; 2011: No. 112, item 654). The Commission examines  restitution claims filed by Churches and their legal entities, operating  pursuant to:

a)      Law of 13 May 1994 on the Relationship between the State and the Evangelical Reformed Church in the Republic of Poland (Dziennik Ustaw of 1994: No. 73, item 324 as amended);

b)      Law of 30 June 1995 on the Relationship between the State and the Evangelical Methodist Church in the Republic of Poland (Dziennik Ustaw of 1995: No. 97, item 479 as amended);

c)      Law of 30 June 1995 on the Relationship between the State and the Christian Baptist Church in the Republic of Poland (Dziennik Ustaw of 1995: No. 97, item 480, as amended);

d)      Law of 30 June 1995 on the Relationship between the State and the Seventh-day Adventist Church in the Republic of Poland (Dziennik Ustaw of 1995: No. 97, item 481, as amended).

Claims were filed with this last Commission also by other Churches and religious associations, as well as national inter-Church organisations. These were:

e)      The Muslim Religious Union in the Republic of Poland;

f)       The New Apostolic Church in Poland;

g)      The Anglican Church in Poland;

h)      The Evangelical Christian Church in Poland;

i)       The Pentecostal Church in the Republic of Poland;

j)       The Bible Society in Poland.

The claims of the last three Churches and the Bible Society in Poland have already been examined. The duration of restitution proceedings before the Commissions depends on many factors and often entails search queries in both Polish and foreign archives. The property restitution process applicable to churches and other religious associations has also exposed problems, such as the destruction of documents during the war, loopholes in the communist legal system, the deletion of names of former owners from deeds, and the frequent absence of former property owners’ names in earlier court decisions. Given these problems, the Commissions that examine restitution cases usually decide in favour of claims when they are in doubt. The Commission for the Restitution of Property of Jewish Religious Communities where the beneficiaries of the performances awarded by the said Commission are the Union of Jewish Religious Communities and Jewish religious communities may serve as an example of such practice.

Once a claim has been found to fulfil statutory requirements, a procedure is initiated leading to:

a) restitution in rem;

b) award of similar property of comparable value;

c) compensation or monetary damages.

Many cases have been settled by the parties (between the current owner of immovable property and its pre-World War II owner) or by the Commission. Restitution proceedings are conducted by individual Commissions (competent and appropriate for the respective churches and religious denominations), composed of (in equal number) representatives of a given church/religious denomination and the government. In addition to the claimant, all central and local government agencies and religious agencies concerned participate in the restitution proceedings. A large number of cases are settled by a decision of the Commission competent for the relevant church or religious denomination. Restitution proceedings also end in settlements reached before members of the commission adjudicating on a restitution case. In most cases, restitution proceeding regulations take into account the special circumstances created after the post-World War II shift of Poland’s borders. In the event that the Commission fails to reach a decision, restitution proceedings participants may bring their case to court or assert their claims pursuant to general provisions of private property law (see below).

Restitution of property to churches and other religious associations in figures  

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PRIVATE PROPERTY

Since 1980, the Polish system of administrative law has provided for the possibility, in perpetuity, to challenge administrative decisions (including decisions of property deprivation). The legal situation applicable at the time such decisions were issued is subject to scrutiny. If a decision was issued “in breach of regulations on competence”, “without legal grounds or in gross violation of the law”, “was addressed to a person who was not a party to a case” or in other similar circumstances, it may be removed from legal circulation, together with all the legal consequences it has caused. Such decision is challenged when a higher level body declares it “invalid.” Detailed premises that provide grounds for requesting invalidity of an administrative decision are laid down in Article 156 § 1 of the CAP. Once an administrative decision is declared invalid, it is treated almost as if it did not exist. A nationalisation decision, once it is declared invalid, in many cases may lead to the restitution of property to its former owners or their legal successors and subsequently to their repossession of real property and the reconciliation of the land and mortgage register entries with the actual legal situation. An administrative decision may not be declared invalid if it has caused irrevocable legal consequences (for example, in the meantime the nationalised property was sold to third parties). Such a decision is nonetheless declared to have been “issued in breach of the law” and a party to the proceedings that was injured by this decision has the right to assert – pursuant to Article 160 § 1 of the CAP – claims for the damage actually suffered (damnum emergens). Damages referred to in this legislative provision may also be claimed in certain cases when a higher instance body declares an administrative decision to be invalid. Damages may be asserted within three years of the date a decision was declared invalid, irrespective of the time the decision was declared invalid (e.g. even if a damage occurred many years earlier). The right to indemnification is determined pursuant to general principles of private law in the course of civil proceedings. According to the Supreme Court’s case law, persons who did not take part in proceedings that ended in a decision finding a breach of the law may also claim damages. Court case law also favours former owners in cases involving acquisitive prescription of real property acquired by the State Treasury for the exercise of its public authority. Pursuant to a resolution of the full Civil Chamber of the Supreme Court of 26 October, 2007, ref. No. III CZP 30/07, acquisitive prescription of real estate is not possible if its owner could not have effectively claimed repossession of such property.

CLAIMS TO IMMOVABLE PROPERTY LOCATED IN THE CAPITAL CITY OF WARSAW

The Decree of 26 October 1945 (the “Decree”) on Ownership and Usufruct of Land in the Area of the Capital City of Warsaw provided for the ownership transfer of all landed property located within the Warsaw city limits to the municipality of the Capital City of Warsaw. Former owners of real estate had the right to apply for perpetual lease (perpetual usufruct) provided that the enjoyment by the present owner could be reconciled with the use of land. Pending the examination of their application, the former owners retained ownership of buildings and other objects located on the land. If the municipality dismissed the application, the ownership of all buildings located on the land was transferred to the municipality (and subsequently to the State Treasury). Under the current legal system decisions issued pursuant to the Decree can be verified. If a decision refusing temporary ownership of land was issued by the National Council Presidium of Warsaw, an application for invalidating such decision should be submitted to the Local Government Board of Appeals (municipal property) and if the property now belongs to the State Treasury – to the Voivode of the Mazowieckie Voivodeship. Claimants may appeal against final decisions issued by the former Ministry of Municipal Economy to the Minister of Transport, Construction and Maritime Economy. If the above decision is found to be invalid, the competent authority re-examines the application for temporary ownership (now: perpetual usufruct). If a negative decision issued pursuant to the Decree has caused damage, damages may be asserted pursuant to the rules described above. Moreover, in certain situations referred to in Article 215 of the Law of 21 August 1997 on Real Property Management (Dziennik Ustaw of 2010, no. 102, item 651), former owners could claim damages without having to challenge decisions issued pursuant to the Decree. Damage claims should be submitted to the Mayor of the Capital City of Warsaw. 

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CLAIMS INVOLVING NATIONALISED INDUSTRY

After the end of World War II, industry in Poland was nationalised. Nationalisation decisions are examined for compliance with the then applicable law pursuant to the rules described above.

Pursuant to the Law of 3 January 1946 on the Nationalisation of Core Branches of the National Economy, the Law of 25 February 1958 on Regulating the Legal Status of Property Administered by the State, the Decree of 16 December 1918 on Compulsory State Management, nationalization decisions were issued whose legality is now subject to verification. Decisions may be checked for legality pursuant to Article 156.1.2 of the CAP. The party concerned should apply to the authority that issued the final decision or to its legal successors. In the case of the Law of 3 January 1946 on the Nationalisation of Core Branches of the National Economy, the authority to apply to is the Minister of Economy, and in the case of forced management and enterprises taken over by the state, applications should be lodged with the competent ministers:

Minister of Health – health resorts;

Minister of Environment – sawmills;

Minister of Agriculture and Rural Development – mills, butcher shops, oil mills;

Minister of Finance – the spirits industry.

If a nationalisation decision concerns an enterprise owned by a natural person or persons as at the date of seizure, applications may be submitted by such persons or their legal successors. In the case of a joint stock or limited liability company, applications may be submitted by the management board of the company or a court-appointed receiver.

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CLAIMS ARISING FROM THE DECREE ON AGRARIAN REFORM AND THE DECREE ON TAKEOVER BY STATE TREASURY OF OWNERSHIP OF CERTAIN FORESTS 

After World War II, agricultural enterprises and farmland were nationalised in Poland.

Pursuant to the PKWN Decree of 6 September 1944 on Agrarian Reform, the State Treasury nationalised landed property owned or coowned by natural or legal persons, provided that their total area exceeded 100ha of the overall area or 50ha of arable land, while in the Poznańskie, Pomorskie, and Śląskie Voivodeships, provided that their total area exceeded 100ha of the overall area – irrespective of the portion of arable land in such landed property. With respect to land-related standards referred to in the legal provision above, claimants may apply for a decision, issued under administrative law, that would determine whether their taken-over property met the criteria set out in Article 2.1(e) of the Decree on Agrarian Reform. The Supreme Administrative Court in its Resolution of 10 January 2011 (file no. I OPS 3/10) reaffirmed that Article 5 of the Ordinance of the Minister of Agriculture and Agrarian Reforms of 1 March 1945 implementing the PKWN Decree of 6 September 1944 on Agrarian Reform (Dziennik Ustaw of 1945 No. 10, item 51, as amended) may constitute grounds for issuing an administrative decision on whether real property or part thereof forms part of landed property referred to in Article 2.1.(e) of the PKWN Decree of 6 September 1944 on Agrarian Reform (Dziennik Ustaw No. 4, item 17, as amended). The competent authority in such cases is the Voivode. Its decisions may be appealed against to the Minister of Agriculture and Rural Development. In other cases in which food production enterprises were located on the premises of landed property, eligible claimants should apply to a court to obtain a decision establishing ownership title pursuant to the procedure provided for Article 189 of the Code of Civil Procedure. Similar rules apply to forests and forest lands covering an area of over 25 ha whose property has been transferred to the State Treasury pursuant to Article 1 of the PKWN Decree of 12 December 1944 on Takeover by the State Treasury of Ownership of Certain Forests. In the course of proceedings before common courts, legal successors of former owners may present arguments to support the claim that the real property taken over pursuant to the above decree did not fulfil the conditions permitting their ownership transfer to the State Treasury.

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CLAIMS RELATING TO THE LOSS OF PROPERTY LEFT BEYOND THE PRESENT BORDERS OF THE REPUBLIC OF POLAND

As a result of frontier changes in the aftermath of World War II, large numbers of Polish citizens found themselves living in areas that remained outside the re-defined Polish borders. These persons had the right to claim compensation under the Law of 8 July 2005 on Exercising the Right to Compensation for Immovable Property Left outside the Borders of the Republic of Poland (Dziennik Ustaw of 2005: No. 169, item 1418, as amended). Pursuant to Article 2 of the Law, a former owner of immovable property left outside the existing Polish borders is entitled to compensation, provided that he or she meets all of the following criteria:

1. was a Polish citizen as at 1 September 1939 and was settled at that time within the borders of the then territory of the Republic of Poland and was resettled from that territory for reasons referred to in the Law; it should also be noted that the Constitutional Court in its judgement of 23 October 2012, file no. SK 11/12 found that the requirement of residence in the former territory of the Republic of Poland on 1 September 1939 is unconstitutional.

2. is a citizen of the Republic of Poland. In the event an owner of immovable property left outside the present borders of the Republic of Poland dies, the right to compensation may be exercised by all or some of his successors appointed by the remaining ones, on condition that such persons fulfil the requirement referred to in Article 2.2 of the Law. The successors may appoint a person entitled to compensation by submitting a written declaration with notarised signatures or by signing it before a public administration body or by sending it to a Polish consular office (Article 3.2 of the Law). Confirmation of the right to compensation is issued upon an application of the person concerned. The deadline for submitting such applications expired on 31 December 2008. The relevant voivode is empowered to issue a decision confirming the right to compensation. Pursuant to Article 13 of the Law, the right to following forms:

1. By crediting the value of immovable property left outside the existing borders of the Republic of Poland against:

a) the sale price of immovable property owned by the State Treasury, or

b) the sale price of perpetual usufruct rights held by the State Treasury, or

c) fees for perpetual usufruct of landed property owned by the State Treasury and sale price of buildings located thereon and other premises and appurtenances thereon, or

d) fees for changing a perpetual usufruct right into an ownership right of immovable property owned by the State Treasury under separate provisions of law, or

 2. Cash payment from the Compensation Fund.

Eligible claimants receive twenty percent of the value of immobable property left outside the present borders of the Republic of Poland in the form of cash payments. The payments are made out of the Compensation Fund, a special-purpose fund administered by the Minister of the Treasury.

 

Poland in Its Borders od 1939 and Today

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CLAIMING COMPENSATION FOR WORKS OF ART AND MOVABLE CULTURAL HERITAGE SEIZED BY THE STATE AFTER WORLD WAR II

Works of art and other cultural heritage artefacts, including libraries and archives, were seized by the authorities after World War II pursuant, in most part, to the following two legislative acts:

 1. PKWN Decree of 6 September 1944 on Agrarian Reform – Article 2 Subarticle1 letter e) and implementing provisions issued under the Decree (Dziennik Ustaw of 1945: No. 3, item 13; Dziennik Ustaw of 1946: No. 49, item 279; Dziennik Ustaw of 1957: No. 39, item 172, and Dziennik Ustaw of 1968: No. 3, item 6). During the implementation of the Agrarian Reform, the government also seized movable property of historical, artistic or scientific value found on landed estates that were nationalised and belonged to the owners of such estates. Under the Agrarian Reform, property located within the pre-1939 Polish state borders was nationalised. Restitution claims to property seized under the Agrarian Reform take the form of individual actions before civil courts for possession of property. Claimants should prove that, at the time the 1944 Agrarian Reform Decree was promulgated, they were owners of specific works of art or other cultural heritage artefacts, to which the Agrarian Reform regulations did not apply. The court then examines whether the claimant has lost his title by operation of Agrarian Reform regulations or otherwise. If the court admits a claim, it orders the current holder of claimed property which usually is a museum, library or archive, to return the work or artefact to the owner or his legal successor.

 2. Decree of 8 March 1946 on Abandoned and Ex-German Property (Dziennik Ustaw of 1946: No. 13 item 87; No. 49, item 279; No. 72, item395; Dziennik Ustaw of 1947: No. 19, item 77; No. 66, item 402; Dziennik Ustaw of 1948: No. 57, item 454; Dziennik Ustaw of 1969: No. 13, item 95). The decree on Abandoned and Ex-German Property covered, in principle, two categories of property. First, any property that had been lost during the 1939-1945 war and occupation and was not repossessed by its owners before the end of 1950 (applies to movable property including works of art and other cultural heritage artefacts) or by the end of 1955 (applies to immovable property) – i.e. abandoned property. Secondly, any property formerly owned by the German Reich or the Free City of Gdańsk, German or Gdańsk legal persons and German or Gdańsk citizens excluding Poles and other nationalities persecuted by the Germans (e.g. Jews) – the so-called ex-German property. The ownership of abandoned property was transferred to the State Treasury of Poland as of the final date for regaining its possession, which for works of art and cultural heritage items was 1 January 1951. The ownership of ex-German property was transferred to the Treasury of Poland as of 19 April 1946. In both cases the ownership was transferred to the State Treasury by operation of law, without the need to issue decisions or take other actions, regardless of whether the property in question was currently held by the state or someone else. If an owner of a work of art classified as abandoned property (or his legal successor) did not regain possession of his property before the end of 1950, he may pursue his claim in a civil court for possession, like in the case of claims for possession of property seized under the Agrarian Reform regulations. The claimant has to demonstrate that the artefact did not fall in the category of abandoned property or that he regained its possession before the final date set in the Decree. The court establishes the identity of the artefacts and whether the claimant has not lost his ownership title otherwise. The same applies to any work of art classified as ex-German property, i.e. a claimant may pursue his claim in a civil court for possession and is required to demonstrate that his property had not be classified as ex-German property and that he has retained the ownership right to this property. In both cases, the opposing party in any action for possession is the one that holds the object in question, which in most cases means a museum, library or archives.

 

Restitution of private property in figures

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