Restitution of private property in Poland: The problem in context

by Marek Jan Chodakiewicz  |  May 16, 2017  |  ARTICLES

This May, IWP professor Marek Chodakiewicz gave an interview to the New York Times regarding the restitution of Jewish property since World War II. The article using one of his responses was published here. His responses to the Times, which review the issue in depth and in context, can be found below.

NYT: The report finds that Poland is the only EU nation that has failed to institute any process whereby claimants can seek restitution: What is your response, in general, to the findings? Are they accurate, or off the mark?

MJC: The report is a mixed bag. Some specific contentions are true, but others rather contrived. The strongest point of the report is that it enumerates a variety of legal actions in the domestic and international context.

Generally, however, the historical background is rather inadequate. First and foremost, one must unequivocally understand that from September 1, 1939, to September 17, 1993, Poland was not a sovereign nation. On September 1, 1939, Poland was invaded by the Third Reich and on September 17, 1939, by the Soviet Union. Thus, it lost its sovereignty for over 50 years. That means all legal actions on its territory were executed by the occupiers. Whereas the German occupation gradually collapsed by the end of January 1945, the Soviet domination re-commenced on January 3, 1944 (and not, pace the report, in 1947 when the Communists falsified a parliamentary election). Moscow menaced Poland until the last Red Army soldier departed the Polish soil on September 17, 1993.

The lack of understanding of this crucial historical context causes the authors of the report to appreciate that all decisions by Hitler, Stalin, and the Western Allies pertaining Poland -- at Teheran, Yalta, and Potsdam -- which left out the legal Polish government in exile violated Polish sovereignty and are, thus, non-binding. Likewise, all laws imposed on Poland under either the Nazi (1939-1945) or Soviet (1939-41, 1944-1993) occupations are not legal. So called Communist "laws" and "regulations," including those mandating, first, property restitution (1944-1949) and, then, its confiscation (1944-1989) are likewise illegal. There was no sovereign Polish state with a free, democratic Parliament to validate such laws. Therefore, invoking continuity between the totalitarian order and current legal arrangements on the field of property restitution is warranted so far as it exposes the roots of the pathologies paralyzing the process of justice currently.

Further, since the report focuses on the Jewish community, it tends to view not only the issue at hand (i.e., property restitution) but also a broader context almost exclusively through the prism of the concerns of the Jewish people. It is fine as far as identity politics, but it falls short of solid scholarship quite necessary for the dispassionate assessment of the problem. One should not write about the Second World War in Poland and concentrate almost exclusively on the plight of the Christians there. That would completely leave out the Holocaust of the Jews. Likewise, one should not take the minority Jewish story out of its majority Christian context.

The report suffers of poor contextualization throughout. From 1939, Poland had two enemies: Hitler and Stalin, who jointly attacked her, which the authors register without drawing any conclusions. History makes it obvious that the Soviet dictator ultimately prevailed and colonized the Polish state, imposing Communism on it.  Both regimes were equally nefarious to the majority of the denizens. Both were very hostile to private property ownership by the citizens of Poland. The Communists were greater offenders in this respect simply because their rule lasted almost half a century, and not five years as the Nazi domination had. This context is understated in the report.

In explaining the background, the authors of the report focus mostly on the Nazi occupation. They arbitrarily lower the number of Christians killed to 1.9 million, just as previously the Communists arbitrarily fixed the number of non-Jewish victims at 3 million. The truth is that the historians are yet to conduct a series of proper case studies to be synthesized into a statistical approximation of Poland's losses during the Second World War. Statistically, there is a gap of 11 million citizens missing, if we compare the population tally of 1938 to that of 1948. Some died, including ca. 3 million Jews and between 2 and 3 million Christians. Others were deported or displaced, including through flight. This is simply staggering.

Further, the authors of the report stress that the Germans "targeted groups such as Roma and political dissidents." That statement is rather inadequate as to the categories of victims. It also leaves out the true scope of the German persecution and extermination of the Christian majority. Simultaneously with focusing on Jews, the Nazis (and the Soviets) aimed to exterminate the Polish elites. It was not just "political dissidents" (if the authors mean underground fighters by that) who suffered. From the start, the Germans targeted the leading, educated stratum of the Polish society.  Their victims included priests, teachers, lawyers, doctors, notary publics, engineers, officers, landed nobility, and others. The extermination was partial, not wholesale, but not for the lack of trying. However, radicalized by the Holocaust of the Jews, as the German occupation degenerated into a more genocidal frenzy and ferocity, the Nazi terror mowed down indiscriminately common Polish Christian people as well, and not just "Roma and political dissidents." Hence, ultimately between 2 and 3 million Christian victims perished, and not just hundreds of thousands of the Polish elite.

Throughout their ghoulish sojourn, German authorities, civilian, police, and military, were quite explicit in their dispatches that they were punishing and extirpating "the subhuman Poles." Incidentally, the Soviets referred to their Christian victims in Poland as "Polish lords." Obviously, such ethno-cultural labels unmistakably identify the deed as genocidal as described by Rafal Lemkin, a Polish-Jewish lawyer who was the intellectual father of the UN genocide convention. This was murder on a massive scale, and not just against the Jews. Failing to appreciate this appears as disrespectful to the victims of the totalitarians, and it causes a serious disservice upon the acuity of the legal analysis.  

It would also be helpful to underline that Poland lost half of her pre-war territory. That means less than half of pre-war Poland remains and the rest of what is Polish now used to be German. After 1945, violating the nation's sovereignty, Stalin and the Western Allies shifted Poland physically to the west, incorporating formerly German territories into the Communist puppet state. That entailed horrific convulsions of death, expulsion, deportation, and forced resettlement of Polish citizens (Christians and Jews) from their domicile in the east which accrued to the Soviet Union and are now parts of Ukraine, Belarus, and Lithuania. The eastern expellees replaced the German population which disappeared through death, flight, deportation, and emigration. At all levels, the operation entailed not only violence, but also massive property loss without any compensation. The Communists, of course, refused to issue property deeds to the Polish expelees in the newly incorporated lands.  They were also hostile to property ownership in the old, truncated part of Poland between Warsaw and Cracow.

Here, I applaud the authors of the report who finally admit that the Communist confiscations of the late 1940s targeted everyone "regardless of race, religion or ethnicity."  What about the Soviet confiscations in eastern Poland between 1939-1941 and then after 1944? They also impacted all and sundry.  One should stress that the main victims of this injustice were not only Jews, but broadly understood rightful property owners, their background notwithstanding. This includes primarily pre-war Christian, traditional elites who outnumber anyone else as the wealth losers of the Second World War in Poland.

The bottom line is that the years between 1939 and 1945 were hell for Polish Jews who faced the extraordinary terror of total extermination. For Polish Christians it was a horror period of the ordinary terror of partial annihilation. Nothing like this obtained anywhere else under the Nazi occupation. By the same token, for the Christians and others in Poland the decades from 1945 were initially the time of Communist slavery, including executions, expropriations, imprisonment, persecution, and discrimination. Following 1956, the terror gradually receded, only to spike cyclically until the implosion of the USSR after 1989.

Without the context, as outlined above, the report fails to inform properly the target audience why there are problems with various issues, including property restitution in post-Communist Poland. The Poles are prisoners of history and they can extricate themselves but slowly from their predicament.

As far as the bulk of the report that pertains the current question of property restitution, it is serviceable. In particular, the authors are correct that there has been no property restitution via the Polish Parliament.  They also admit truthfully, however, that some Jewish "communal properties" have been returned via administrative means. In fact, many religious and other community real estate and land have been restored, not just to Jews but all other faiths, including Catholics, Protestants, and Muslims. This fact alone should put the accusations of any religious bigotry to rest, including the anti-Jewish ones.

Yet, one must also stress with the authors of the reports that there has been no law on property restitution enacted by the Parliament.  Why?

NYT: If the study findings are accurate, why do you think that Poland lags behind other Eastern European nations in creating restitution procedures, in accord with the Terezin Declaration. Other countries that are signatories on the Terezin Declaration were also under Soviet rule but may have managed to establish at least some process for processing property claims, according to the report. What do you think has been the other obstacles in Poland? The subsequent governments? Destroyed documents? Anti-semitism? Legal issues? Legislative hurdles? A combination?

MJC: It is a good question. Multiple factors are at work here. They include the sordid past, technical problems, legal issues, leftist ideologies, and current politics.

First and foremost is the horrific legacy of history: the Nazi and Soviet occupations. No other nation experienced what Poland did in the Second World War and its aftermath. It was rather easy, say, in the Czech Republic, to sort out what should be restored and why. The victims were mostly Jewish; the Czech Christians largely survived the occupation without major losses. Both experienced Communist confiscations, but also here the case is very straightforward: a simple reversal of the expropriation orders should suffice in most cases. This is not the case in Poland for a variety of reasons which follow.

Sometimes the historical and technical factors overlap. For example, there was hardly any destruction in Prague. On the other hand, Warsaw was practically obliterated by the Germans in 1944. Then the Communists confiscated virtually all real estate in the Polish capital. It was rebuilt with Soviet-style monstrosities substituting for elegant architecture of the pre-war period. New buildings not only sit in place of the old buildings but they frequently overlap several confiscated land parcels. Under the circumstances, who owns what? The land surely belongs to the rightful owners. But what about the new buildings? How to sort it out?

Further, what about the replevin law? After 1939 private property was confiscated by the state. First it was the Nazis and Soviets, and then the Polish Communists. The rightful owners were usually expelled and deported, often to be killed or exiled. Meanwhile, state institutions (central, provincial, municipal, and rural) allowed or ordered others to occupy the vacated real estate either as rental property or rental businesses.  The state collected the rent. Moving in did not translate into ownership. However, according to law, after a lapse of time, usually 25 years, one could claim ownership of a property. The problem was that the Communist state hardly ever agreed to enter a beneficiary of the replevin law into the property registers as a new rightful owner. Until this very day most are simply tenants, and not owners, the replevin law provisions notwithstanding.

Moreover, it seems that the Communist regime simply did not bother to change property registers and old owners still are listed there. The Communists routinely violated property rights and thought they would rule forever; hence, they ignored legal documents without bothering to destroy them. This brings us to yet another point. There are probably more German than Jewish properties taken over by the Communist state with Polish Christian tenants. Former German owners are still listed in the registers. Giving the real estate and lands up now via a property restitution law by the Polish Parliament would be tantamount to losing the Second World War to Germany, having had lost it to the USSR previously. Hence, there is simply no political will among Polish parties to commit political suicide. Therefore both Jewish and Polish Christian rightful owners continue to be left out in the cold.

Also, there is a moral dimension. Who would be heartless enough to kick out the tenants who have made an expropriated property their home for about 75 years now? Sometimes, however, it is a moral imperative to evict the current inhabitants and return the property to the rightful owner. In Warsaw in particular, the Nazis selected for themselves the poshest houses after 1939. They were superseded by the Soviets, who moved in following their entry into the city in January 1945. The Soviets decamped and were replaced by their local Polish Communist cronies. To get rid of them should be a no brainer. Justice demands it.

But even in this seemingly crystal clear situation there are bumps.  For example, the Nazis and the Communists expropriated an apartment building of a sterling Polish patriot, Leopold Wellisz, whose contributions to national defense were second to none and who, according both to halakha and the Nuremberg laws, had Jewish roots. His family place was taken over by rabid Stalinists, a family active in the propaganda sector and the secret police, who also happen to be of Jewish extraction.  You can bet that there will be baseless howls of anti-Semitism when the American grandchildren of the patriot challenge the son of the Stalinist apparatchiks. He is the former Trotskyite dissident and leftist pundit Adam Michnik himself. 

The moral dimension sometimes overlaps a populist angle. Which mainstream party would like to restore private property to the rightful owners at the expense of the tenant voters? Who would like to come across as persecuting the poor on the behalf of the rich? Would the tenants be evicted by the "bloodsuckers"? There have already been leftist demonstrations to that effect. Half a century of Communist propaganda had a devastating impact on collective mentality of the Polish (and other) survivors of totalitarianism. According to the socialist trope, equality dictates that everyone should suffer destitution: everyone but the Communists and their allies.  And that is linked to a very important next consideration.

Outside of Poland, in most other places in central and eastern Europe where property restitution laws apply, there has also been a thorough de-Communization and de-KGB-zation. This co-relation is quite significant. Poland failed to get rid of the old Communists, so they continued to occupy positions of importance in the government, the judiciary, and the secret police for about two decades after 1989. Many a shady deal went down to enrich the post-Communists. The so-called systemic transformation in Poland and other post-Soviet countries was an orgy of embezzlement with the Communists as its main beneficiaries. The "new class" privatized itself and became a new crony capitalist parasite. Why would the post-Communists therefore allow property restitution? Why would they want to underwrite the reemergence of Poland's traditional elites to challenge the post-Communists? Why would they put up with anyone else, including Jews, who adhered to the system of values inimical to theirs and who was able to threaten their power?

The wholesale theft of state-controlled properties, including expropriated real estate, land, and enterprises, allowed the red kleptocrats to retain the position of supremacy vis-à-vis the rest of the Polish population. The old Communists remained in power until a few years ago. It was one of their apparatchiks, Polish president Aleksander Kwaśniewski, who vetoed one of the most advanced property restitution bills. Thus, self-interest neatly intersected with their ideological predilections against private property. For years after 1989 the old Communists and their leftist allies dominated the Parliament. They formed governments, frequently in coalition with liberals and other progressives who also were quite allergic to restoring property rights to the dispossessed.  They did not mind new kleptocrats but they uniformly feared the rightful owners, whether Christian or Jew.

There is also a cultural and legal impediment to certain aspects of property restitution.  Free Poland's legal tradition derives from Roman law. That means that individuals inherit from their relatives. Collective groups cannot inherit from individuals unless otherwise stipulated in the will. This includes religious, social, ethnic, and other organizations. If there are no heir, the state takes over such property. The idea of a non-state, collective "class" action suit to gain heirless individual property seem like quite an alien concept in Poland. Thus, international Jewish organizations that claim property of heirless Jewish individuals are regarded as culturally incompatible. It may work in America, which is based upon the Anglo-Saxon rule of precedent, but it sure does not work in Poland.

Last but not least, there is hardly any lobby of the victims of property theft, either Christian or Jewish in Poland.  True, the Jewish community makes noises from the outside. They are not very helpful because -- operating outside of the Polish context -- they seem like foreign attempts at bullying and strong arming. Poland is not Switzerland in terms of either wealth or resolve. From the poor and the hardened, one should expect a severe populist reaction rather than wimpy liberal squeamishness.  That may even cause anti-Semitism to raise its ugly head, which would be a terrible reversal of all the praiseworthy progress on the field of Jewish-Polish relations in a place which has been generally recognized since 1989 as perhaps the most pro-Israeli state in Europe.

NYT: Today, victims of the Holocaust that I spoke to said that they still have to file claims in court to get restitution, an expensive and time consuming process, rather than having an administrative process. How do the courts tend to handle these matters? Have the courts attitudes about these matters changed in recent years, and if so, how?

MJC: Welcome to the club. Anyone who would like to have his or her property restored must hire a lawyer and proceed through the courts. It is an arduous process but a necessary one. There are many crooks impersonating the rightful owners, including long deceased Jews. It is crucial to establish the legal ownership claim. And then one needs to wait patiently as the case is adjudicated. It is an expensive and time consuming process. It is also necessary to prove one's ownership claim if the Parliament finally passes property restitution law.

It was quite horrible in the 1990s. The courts were still packed with old Communist judges who were quite antagonistic toward the claimants. "The lords have returned and they want to take our people's state property," one frequently heard off the record. The hostility was palpable towards expropriated property owners, whether Christian or Jew. That has now changed. The hatred has receded. The judges are younger, perhaps more relaxed, less indoctrinated. They are not as inimical to private ownership as twenty five years ago.

NYT: What do you think it would take to change the restitution process in Poland? Will pressure from the European Parliament be enough? Is public perception of Poland's intransigence worrying to politicians there, and enough to encourage change?

MJC: Well, you are talking about sea change here. Good. Yet, Brussels is congenitally incapable of executing anything except the platitudes of political correctness. What makes you think it could strong arm Warsaw? Where would the police come from? Berlin? If the European Union so blatantly interferes with Poland, that will only unleash a wave of nationalist and populist indignation. Do not mess with anyone's sovereignty unless you want a Polexit.

In a short run, you should pray for a libertarian and conservative government in Poland. This would be a government which respects property rights, including the rights of the dispossessed rightful owners. That government would have to enjoy huge popularity to take care of property restitution. But like all national governments it would enact a law that first and foremost benefits the citizens of Poland.

In a long run, it would take a counter-revolution in the mentality of the Poles to make them sensitive to private property. Communist mentality lingers on. It would also help if Poland became very rich. So invest in Poland. Then the egalitarianism of the downtrodden would dissipate along with the acute poverty which still afflicts most Poles. People who suffer so much are reluctant to feel the pain of others. And the rightful owners are always a minority. If they are out of power, and if they are plagued by various socialist heresies inimical to merit, tradition, and continuity, which are often reflected in private property ownership, they cannot get their stuff back. It is that simple.

Overthrowing Communism was an indispensable step number one; overthrowing the post-Communists is step number two. Now the Poles need to emerge from under the rubble and create a transparent and just system of freedom, including freedom to own, multiply, inherit, and reclaim private property.