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Restitution of Jewish property in Poland

Michael Decker
Michael Decker

Kfir Cohen

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“We should be reunited with what is rightfully ours” – why reclaiming Jewish property in Poland is not a lost cause

The film Woman in Gold, from which the above quote is taken, is based on the true story of Maria Altmann, an Austrian Jewish woman who escaped the Nazis and found a home in the US. In 1999, sixty years after fleeing Vienna, as an elderly woman, she launched a sensational legal campaign to reclaim from the Austrian government several paintings stolen from her family by the Nazis – most notably Gustav Klimt’s Portrait of Adele Bloch-Bauer, the titular dazzling woman in gold. With the help of attorney Randy Schoeberg, Maria embarks upon a lengthy legal battle to recover this painting and several others, but it will not be easy, for Austria considers them national treasures.

The story of Maria Altmann is an example of perseverance, mutual support between her and her lawyer, who provided encouragement even in moments of doubt by the
main character, but above all the victory of justice years later. She can certainly be an inspiration to those who – deprived of help and hope – have not yet claimed what is rightfully theirs.

There are many other Jews and Jewish families around the world who yet hope for the restitution of assets robbed from them during the course of WWII and the Holocaust, whether located in Israel or abroad. Our law office specializes in the reclamation of Jewish property in Poland, Europe and North Africa.

Reclaiming Jewish property in PolandThe fate of Poland’s Jews

Maria Altmann was from Vienna, Austria, where the Jewish population was at least several times smaller in number than in Poland, where the shared Polish-Jewish
history dates back more than 1,000 year. The Jewish community was an important part of Polish society in every respect – political, economic, social and cultural.

The two cultures intermingled, the clearest sign of which was the possession of Polish citizenship by persons of Jewish nationality and their becoming an integral part of Polish society on the territory of the Polish State. Living in this territory from generation to generation, Jewish families accumulated property that they were suddenly and unjustly deprived of.

These days, those who survived the Holocaust are fewer and fewer among us, but those who are still alive and the descendants of those who have passed away – often after years of silence caused by trauma – are beginning to wonder what constituted their Polish heritage, what happened to it and most importantly – what should have happened to it.

International law regarding Holocaust victim assets

On June 30, 2009, 46 countries, including Poland, adopted the Terezin Declaration on Holocaust-Era Assets and Related Issues. The goal of the document was to get the countries that accepted it to regulate the legal status of Holocaust victims’ property, provide assistance to Jewish survivors and educate about this German Nazi crime and its aftermath.

In turn, the JUST Act (the so-called 447 Act) passed by the US Congress in April 2017 required the State Department to prepare a report on the implementation of the declaration in the countries participating in the Terezin Conference.

Restitution of Jewish assets in Poland

Poland, which saw double confiscation by both the Nazi regime and then the subsequent communist regime, supported the Terezin Declaration. Unfortunately,
it has been slow to implement the aspirations of the Declaration, if at all. It is also the only European Union country that has not adopted a law on property restitution.

Admittedly, for many years it was possible to seek the return of the property or obtain compensation before Polish authorities and courts (although this was an extremely lengthy, complicated and tortuous process) but an amendment to the law introduced by Poland in 2021, which stirred up a lot of controversy and strained relations between Poland and Israel, closed this path, depriving even most of those whose proceedings were already underway of the opportunity to claim their rightful property.

It should be noted that there are still cases in which the property has not been repossessed and the former owners are listed as such in the official books up to the
present day. Then the situation is relatively simple (most likely an inheritance case must be conducted in Poland), but time is at a premium due to the running period of acquisitive prescription – by which is meant a situation in which third parties possess the property as owners (in most cases a period of 30 years is required) and are able to prove it, while at the same time the rightful owners had no interest in the property and took no legal action, then these third parties can take over ownership.
If this is not the case, is there then no more hope?

What can be done to reclaim your family property?

Let’s go back to Maria Altmann for a moment. Did she succeed in getting justice in an Austrian court? Well, no. The final solution turned out to be arbitration. Bilateral Investment Treaties (BITs) are agreements between two countries protecting investments made by investors from one contracting state in the territory of the other contracting state. BIT between Poland and Israel came into force on May 6, 1992.

It would be appropriate to ask whether this agreement is not violated by the inability of a foreign claimant – in our case from Israel – to pursue property and compensation claims in a country like Poland. Are international standards, including human rights such as property rights, not being violated?

In the possible event that Poland is sued, it could argue as a state that claims for property restitution or compensation are not “investments” within the meaning of the BIT, particularly because they date from before the BIT went into effect. However, the answer is that under international law the properties were never legally seized. Similarly, claims for compensation also already existed when the BIT went into effect.

International arbitration could become a forum in which claimants – preferably jointly, in a class action – demand what is rightfully theirs – their property. A need that states like Poland and its justice system have been unable to address…

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