Poland Faces Property Restitution Claim

By Eric J. Greenberg

Published February 11, 2005, issue of February 11, 2005.

Poland has received much praise from Jewish leaders in recent days for its sponsorship of the commemoration of the 60th anniversary of the liberation of Auschwitz — perhaps the last major memorial to be attended by survivors and liberators.

In addition, the Polish government is being hailed for finalizing agreements last month to build a $30 million museum commemorating 800 years of Polish Jewry that will stand in the heart of Warsaw’s former Jewish quarter, razed by the Nazis during World War II.

But the heightened good will in Polish-Jewish relations might be short lived.

This week in Strasbourg, France, the New York Legal Assistance Group, a nonprofit organization that provides free civil legal services to Holocaust survivors and other at-risk populations, was expected to file an unprecedented claim against Poland in the European Court of Human Rights on behalf of a French Holocaust survivor, Henryk Pikielny, who is challenging Poland’s refusal to return his father’s factory in Lodz. Depending on how the court rules, the case could lead to Poland being ordered to compensate Holocaust survivors and the heirs of many of the 3.2 million Polish victims of the Nazi killing machine.

The case represents the first time the human rights court is being asked to address Poland’s failure to pass a private property restitution law, and an example of Holocaust survivors depending on European institutions rather than the United States to secure justice.

“There are literally thousands of cases like the Pikielny family who have been unable to receive fair treatment within the Polish legal system,” said Phyllis Brochstein, an attorney for NYLAG. “For many of these survivors, bringing this case before the ECHR is a last chance for urgently needed resolution.”

Poland is the only Eastern European country — outside of the former Soviet Union countries — that has failed to adopt a private property restitution law.

Poland did strike a deal in 1997 with local and international Jewish organizations to return communal properties, such as synagogues. Jewish communal officials, however, are claiming that government bureaucrats in Poland have been stonewalling the process by employing restrictive interpretations of the country’s land use laws.

Out of a total of 5,544 properties, only 352 have been returned or compensated since 1997, Monika Krawczyk, CEO of the Warsaw-based Foundation for the Preservation of Jewish Heritage in Poland, told the Forward.

“We survivors appreciate the museums, the monuments and the Holocaust commemorations that Poland is organizing,” said Jehuda Evron, president of the U.S. division of the Holocaust Restitution Committee, a group of about 3,000 Polish Holocaust survivors. “But they cannot be in lieu of the homes of our murdered families.”

Evron said Poland’s close alliance with the Bush administration over Iraq and other issues makes it unlikely that Washington will pressure Poland to pass a fair restitution law anytime. As a result, restitution advocates are pinning their hopes on the Pikielny case.

According to the lawsuit, in 1889 Pikielny’s grandfather founded a large textile factory, known as MIT Pikielni, which manufactured fabrics for women’s clothing, in Lodz, Poland.

During World War II, the factory was seized by the Nazis and operated by a Nazi-appointed trustee.

Surviving the concentration camps, the family returned to Lodz to find the factory continuing to operate under a communist government-appointed authority. In the face of continuing violence against Jews returning to Poland after the war, the Pikielny family left in 1946.

Meanwhile, ownership of the textile factory underwent several transfers by the communist government to various state-owned entities, according to the lawsuit.

After the collapse of the communist regime in Poland in 1990, Pikielny launched efforts to reclaim his family’s properties. The family spent 12 years unsuccessfully petitioning the Polish government for compensation.

In 2004, after years of appeals and litigation within Poland, the Polish government notified the Pikielnys officially that they would not receive compensation for their confiscated properties under existing Polish law.

Pikielny is the perfect representative case for the European Human Rights Court because he already has exhausted all avenues inside Poland’s legal and administrative systems, a prerequisite for the European court, said Yisroel Schulman, executive director of NYLAG.

Poland’s acceptance into the European Union last year opened the door to the legal maneuver, Schulman said. “As a signatory to the European Convention on Human Rights, Poland is legally bound to abide by any decision made by the court,” he said. “The case effectively demonstrates that Poland has been in direct violation of specific provisions of the convention related to [people’s] rights of property.”

For his part, Pikielny sounds hopeful. “The Nazis stole my family’s past, but the new democratic Poland can contribute to the future of my family by restoring our legacy,” he said in a statement.

Some Polish lawmakers are floating draft language for a restitution bill that Jewish critics say fails to establish a fair process for returning properties or offering fair market value for the assets. The draft proposal, obtained by the Forward, calls for offering only compensation and no return of any properties, regardless of whether they are still state owned or how valuable they are.

Claimants would be eligible to collect only between 10% and 20% of the warime value of the property, with a cap kicking in at about $15,000. In addition, the compensation would be payable only in some sort of investment bonds that would not be redeemable for 20 years.

Experts said that while there could be a commercial market for the bonds, which would potentially allow elderly Holocaust survivors to sell them without waiting 20 years, their value would be minimal.

“Few people who have property claims are likely to feel satisfied by such a proposal,” said Rabbi Andrew Baker, director of international affairs for the American Jewish Committee.

“One of the most telling aspects in the saga has been the continued refusal, although often put diplomatically, to have informal discussions with Jewish organizations or claimants’ groups to discuss how to deal with the problem,” Baker said.

Poland supporters said the country has unique problems when it comes to establishing a policy on restitution. About 3 million Polish Jews were killed during the Holocaust, representing about 10% of the Polish population — by far the largest group of Holocaust survivors. The cost of fully compensating property owners would be in the billions of dollars — and would cause severe economic problems for the country.

“The private property restitution issue is not a Jewish issue: it affects all Poles whose property was nationalized under Communist rule,” said Agnieszka Magdziak-Miszewska, Poland’s counsel general in New York. She said Poland needs to resolve the problem for all those affected.

In March 2001, the Polish parliament approved a law for the restitution of private property, but limited the right to make claims to people who had Polish citizenship as of December 31, 1999, excluding virtually all Jews and many Poles who fled the country when the Communists took over after World War II. Ultimately the bill was vetoed.

In 1999 a class-action suit was filed in Brooklyn federal court against the government of Poland on behalf of 12 Jewish plaintiffs, and thousands of others. An appeal is pending in the U.S. Court of Appeals for the Second Circuit, in Manhattan, over whether the plaintiffs have standing to sue a foreign government.



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