Jewish Property Restitution – Failed Measures


Restitution or compensation for Jewish property nationalised by the communist regime in Poland after WW2 is an ever-recurring issue of public debate, fuelled by repeated appeals from Jewish organisations and certain foreign politicians for the enactment of relevant provisions. Due to numerous economic, social and political considerations, successive Polish governments after 1989 have been rather reluctant to respond to these demands. However, contrary to popular belief, regulations on this matter do exist and date back to the times of communism, when the regime itself decided to face the problem and attempted to solve it on both an international and a domestic level.


The initial attempts at regulating the status of property abandoned in wartime came in the Law on Abandoned and Deserted Property of 6 May 1945 (Journal of Laws of 1945, No 17 item 97) and its successor – the Decree of 8 March 1946 on abandoned and post-German property (Journal of Laws of 1946, No 13 item 87). Both these acts were mainly concerned with restoring the actual possession of such movables and real estate to those entitled. In the absence of entitled claimants, such property was subject to prescription by the State Treasury and other public entities, which could acquire its ownership. However, these, as well as other similar acts, failed to encompass all of the abandoned property, and did not deal with the claims of those whose rights were affected.

The key legislation addressing these problems is the Law on Making Entries for the State Treasury in Land and Mortgage Registers on the Basis of International Agreements on Settling Financial Claims of 9 April1968 (Journal of Laws of 1968, No 12 item 65). This rather short act comprises only five, brief articles, all of which remain in force today, unamended.

Article 1 of the Law states that its provisions apply to real estate owned by foreign nationals or held by these individuals under perpetual usufruct or other limited property rights. In practice, such foreign citizens were mostly Holocaust survivors who abandoned Poland during or after WW2, as well as their heirs, though the Law also encompasses the rights of legal entities (Article 1 sect. 2). Section 1 of that article contains the essence of the Law – it provides for entering the State Treasury in the land and mortgage registers as the owner or holder of the rights to the real estate. It has to be noted that such an entry is of paramount practical importance, since it results in a legal presumption that the person it indicates is the actual owner or holder of a specific right. The indispensable condition for making the entry is the transfer of these rights to the Polish State by virtue of “international agreements on the settlement of mutual financial claims”. The transfer has to be stated by an administrative decision issued by the Minister of Finance, which constitutes a direct basis for the entry (Article 2).


It follows from the above that the Law itself does not set out the details of the compensation for the abandoned property, nor any grounds for the transfer of ownership or other rights to the Polish State Treasury. These are to be found in the international agreements on the settlement of mutual financial claims (also known as “lump sum agreements”) concluded before or after the Law came into force (Article 5 sect. 2). Between 1948 and 1971, Poland concluded 12 such agreements with 13 states, i.e. France, Denmark, Switzerland, Sweden, the United Kingdom, Norway, USA, Belgium and Luxembourg, Greece, Holland, Austria and Canada.

Perhaps the most widely applied and the most representative of them is the Agreement between the Government of the United States of America and the Government of the Polish People’s Republic regarding claims of nationals of the United States, signed at Washington on 16 July 1960 (UN Treaty Series vol. 384 No 5518).

Under this agreement, the government of Poland undertook to pay the US government the sum of $40,000,000 “in full settlement and discharge of all claims” of US nationals, i.e. both individuals and legal entities, against Poland “on account of the nationalization and other taking by Poland of property and of rights and interests in and with respect to property, which occurred on or before the entry into force of this Agreement” (Article I.A). It was also the US government’s duty to verify the validity of the claims and to distribute the above sum among those entitled. (Articles III and V). As a result, after the Agreement entered into force, the US government ceased to support any claims of its nationals against Poland, and any such claims presented directly to the government of Poland were to be referred to the US government (Article IV).


Nevertheless, this ostensibly simple solution contains major loopholes that seriously undermine its efficiency. These are particularly exploited by those affected by the Minister’s decisions, who seek to question their validity in order to regain their property or obtain additional compensation. Their doubts are often shared by the courts, leading to a number of divergent rulings of the Chief Administrative Court, the Civil Chamber of the Supreme Court and even the Constitutional Court.

The government of Poland undertook to pay the US government the sum of $40,000,000 “in full settlement and discharge of all claims” of US nationals.

The most important problem comes from the fact that both the Agreement and the Law encompass de-facto appropriation or restriction of use with respect to real estate, done by the state without any legal basis, which was very common shortly after WW2. However, neither of the acts define such factual transfers, nor do they clearly indicate the prerequisites for them to take legal effect. In addition, there are no fixed criteria of establishing the scope of such transfer – i.e. whether the state took over the ownership of property or just imposed certain restrictions on its use. The courts have tried to fill these gaps by a somewhat creative interpretation of both acts, reaching varied and sometimes contradictory conclusions. At the same time, most courts have so far seemed to turn a blind eye to the fact that the Agreement was never ratified by Poland, as required by the Constitution (Article 87 sect. 1), and so cannot constitute a valid source of law. In fact, acknowledging this would result in the Law being left in a “regulatory void”, and would have serious consequences for all the decisions issued on its basis.

Another serious doubt concerns the competence of civil courts to verify the legal effects of the Minister’s decisions, and the scope of such verification. Even though administrative decisions are normally controlled solely by administrative courts, the civil courts’ competence in these matters is indirectly derived from their power to control the correctness of real estate’s legal status indicated in the land and mortgage register. This, in turn, may lead to parallel proceedings concerning the same real estate before different types of courts and, not uncommonly, to divergent judgments.

The measures discussed were meant to settle the question of foreign nationals’ claims against Poland once and for all. However, all of the above shortcomings provide grounds for challenging the legality and scope of real estate transfers that the Law and the agreements were supposed to sanction. As a result, they largely failed to achieve their principal goal, in many ways further complicating the legal status of the abandoned property.

Posted on by Jakub Petkiewicz in Property Law

About the author

Jakub Petkiewicz
Jakub Petkiewicz

Author graduated with a Master of Laws degree from the Maria Curie-Skłodowska University in Lublin and holds an MA in Applied Linguistics (English and French) from this university. He also studied European Law at Université Nancy 2. He is currently a trainee at the National School of Judiciary and Public Prosecution in Cracow.