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(Un)finished Business of Restitution

(Un)finished Business of Restitution

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The new Polish restitution law has been enacted and signed by the President. It solves the problem of restitution claims by making a clean break and doing away with them altogether. But is that the end of the story?

The matter provoked international outrage, most notably in the US, and did nothing to improve the already strained relations between Poland and Israel. But is the whole matter now closed, or are there other issues still at play?

Not Only Jewish Property

In the context of international discourse, it is worth noting that the new law – far from being aimed solely at the heirs to Jewish property – affects the descendants of all members of a community who were stripped of their property during WWII and thereafter.

Individual restitution proceedings would often take years or even decades to wrap up, eventually allowing some of the victims to obtain compensation. As a rule, this was easier to achieve for claimants based in Poland. Those living abroad had multiple obstacles to overcome, largely on account of limited access to competent authorities but also due to difficulties collecting evidence as well as the intricacies of legal succession, travel expenses, and the language barrier.

No weight was given to the degree of harm or deservedness or even to the issue of the interested party’s age, and as a result cases were often decided in a haphazard order.

Proceedings would move at a snail’s pace or stall altogether, with the usual red tape and sluggishness playing a part, particularly affecting those who participated in them from afar and often lacked the means or energy to effectively enforce their rights.

Lack of Financial Compensation

In shutting the door on the possibility of individual restitution, no alternative was provided to allow those prevented from seeking restitution to obtain financial compensation. Theoretically, interested parties could seek damages, but – after all – even financial claims are not immune to the statute of limitations.

Poland has never introduced a generally applicable law on restitution for property confiscated during WWII or afterwards. What this means is that even access to the previously available means of restitution was limited to those stripped of their property in violation of the then applicable laws.

Many of those affected had no means of seeking restitution or compensation because their property had been lawfully confiscated (even if today we would see it as manifestly unjust).

So-called Heirless Property

The problem is further compounded by the issue of so-called heirless property, which used to belong to Holocaust victims who died without leaving any descendants. Long-established Polish law stipulates that such property always devolves to the State Treasury.

On the other hand, international actors, including the USA as per its Justice for Uncompensated Survivors Today (JUST) Act of 2017 and the Terezin Declaration (Poland being one of the signatories), would like such property to “serve as a basis for addressing the material necessities of needy Holocaust (Shoah) survivors and to ensure ongoing education about the Holocaust (Shoah), its causes and consequences.”

In Poland, we tend to stress the incompatibility of the conclusions of the Terezin Declaration with Polish law, as well as its non-binding nature, over any willingness to act upon it.

All or Nothing?

Was the lack of compensation for those affected just? Or would it be more just to offer general compensation to the descendants of all those who lost their property as a result of WWII, giving effect to the principles of the Terezin Declaration?

Or, at the other end of the spectrum, would it be best to let bygones be bygones and pragmatically decide that the living owe nothing but memory and remembrance to the descendants of those who lost their property fifty to eighty years ago?

If pragmatism is to prevail over justice, will it be at the price of worsening international relations with two of Poland’s major allies: the USA and Israel? And is there any reason to think that such a ‘solution’ will prevent the problem from re-emerging in the future?

Symbols that Matter

An actual solution is probably more of a matter of a symbolic gesture than any real compensation, especially considering the fact that the beneficiaries, in most cases, would be far-removed descendants rather than those directly affected. That being said, perhaps a school voucher for a year of studies at a university of the beneficiary’s choice might serve as such a symbolic compensation for historical injustice while simultaneously promoting personal development and general welfare?

By Andrzej Tokaj, Senior Partner, Penteris

Poland Knowledge Partner

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