The issue of Jewish heirless property demands extraordinary measures
The issue of Jewish heirless property is the most controversial aspect of the debate over finding a comprehensive regulatory solution for reprivatisation in Poland. The general legal principle calling for reversion of property to the state (escheat) if the owner dies without heirs is of little practical assistance in these matters.
The term Jewish heirless property applies to property that belonged to Jewish victims of the Second World War who, due to the scale of extermination, did not have testamentary or statutory heirs (spouses or relatives).
This issue is the most controversial aspect of the debate over creating a comprehensive legal approach to the question of post-war expropriations in Poland. Opinions published in Polish media have warned that American Jewish organisations are making claims over heirless property in Poland, hoping to profit from the losses suffered by Holocaust victims who were Polish citizens. (We dispel this myth here.) Some have suggested that discussions about finding a solution to the issue of Jewish heirless property may be closed off by applying a general legal principle under which intestate property reverts to the State Treasury in the absence of eligible relatives (statutory heirs). However, practice has shown that this principle is nearly impossible to apply in these matters. Additionally, the absence of specific mechanisms for resolving the question of Jewish heirless property has created circumstances giving rise to the “reprivatisation scandal” and widespread abuses in the appointment of curators. Given these realities, we should consider creating an extraordinary regulatory system to address the extraordinary situation of Jewish heirless property in Poland.
Reprivatisation in Poland: Applying general rules to extraordinary circumstances
A bona-fide reprivatisation process has not yet occurred in Poland. Since the collapse of communist rule, Poland’s post-war expropriation has not been subject to a comprehensive re-examination which would have led to broad recovery of property or payment of compensation to the former owners (or their heirs). The absence of a holistic approach to the issue gave rise to a limited approach which boils down to whether a post-war expropriation was conducted in compliance with the law in force at that time. As a result, reprivatisation in Poland is based on applying general rules to the extraordinary circumstances surrounding post-war expropriations.
Pursuing reprivatisation claims in Poland is a highly complex and time-consuming process. The burdens faced by former owners or their heirs (especially ones not residing in Poland) cause a great deal of frustration over the need for such complex legal proceedings in recovering family property lost during the war or in its immediate aftermath. It is on these grounds that Jewish former owners (or their heirs) and representatives of the Jewish community have voiced their belief that the question of Jewish property merits special treatment under Polish law. This argument cites the scale of suffering experienced by Jews during the Shoah and the heirs’ disadvantaged standing (compared to other former owners) in Polish reprivatisation proceedings.
In reality, the situation of Jewish former owners (or their heirs) is identical to that faced by all former owners in reprivatisation proceedings in Poland. Both groups face the same documentary, evidentiary and procedural burdens set out under applicable laws. However, the situation is significantly different in relation to Jewish heirless property, where the generally applicable laws and regulations for determining a property’s legal status cannot be applied. The uniqueness of the Jewish heirless property issue can be traced to both the factual circumstances in which the former owners perished, as well axiological questions over the propriety of the State Treasury taking ownership of such property.
Circumstances of disappearance of Jewish owners of heirless property
In the majority of Jewish heirless property matters there is a lack of documents providing even indirect information about the property and its owners (or their relatives). In some regions, pre-war land and mortgage registers were completely destroyed during the war. Additionally, civil status records for the Jewish community in many cities and regions were completely destroyed. There is also no chance of finding death certificates of Jewish property owners, especially those murdered in concentration camps; such documents were often never issued. Frequently there are no documents or witnesses who could provide even indirect confirmation that a particular individual or family was transported to a concentration camp or other location.
These seemingly obvious historical facts illustrate the challenges the State Treasury would have to face in order to formally acquire Jewish heirless property through escheat. Such acquisitions would necessarily involve property for which there is a lack of documents regarding their pre-war legal status, and determining even basic facts about the pre-war owners’ civil status is often impossible.
Impossibility of confirming the State Treasury’s acquisition of heirless property
It is impossible to apply the general legal principle that heirless property reverts to the state in Jewish heirless property matters. While this principle was in effect during the war (Art. 723 and 768 of the Napoleonic Code) and in its immediate aftermath (Art. 27 of the Inheritance Law of 8 October 1946), and also today (Art. 935 of the Civil Code), there are numerous obstacles to its application to the question of Jewish heirless property. First of all, in order to find that the State Treasury has acquired the estate of a former Jewish owner, it would have to establish that it has knowledge of his identity (personal data). Even if this data is available, Art. 643 of the Civil Procedure Code requires that for a finding of acquisition of property to be valid, the State Treasury must also possess a copy of the owner’s death certificate or final declaration of death in absentia.
Under Art. XXVII–XXXIV of the implementing provisions of the Civil Code of 23 April 1964, it is possible to initiate death in absentia proceedings for a person of Jewish descent who most likely died during the Second World War and whose death certificate does not exist. However, under Art. 529 §1(1) of the Civil Procedure Code, in seeking a death in absentia finding, the State Treasury would have to provide basic elements of the former owner’s civil status (name, date of birth, parents’ names and mother’s maiden name). Thus, even if the State Treasury knew the owner’s name (from land and mortgage registers), obtaining the remaining data would be impossible due to the wartime destruction of civil status records. While the absence of civil status records does not constitute a technical deficiency in death in absentia proceedings, it is hard to imagine the manner and basis on which the required information about the owner (date of birth, parents’ names) would be reconstructed. Furthermore, Art. 529 §2 of the Civil Procedure Code requires that the circumstances leading to a determination of death in absentia be plausibly demonstrated (e.g. Supreme Court resolution of 27 June 2013, Case III CZP 29/13). For many Holocaust victims and their families all documentary records stop at the time of the war and there is no way to discover these individuals’ further fates. The mere fact of a person’s Jewish descent will not always be sufficient for a finding of death in absentia, if there is no further information as to his whereabouts during the war. In effect, a death in absentia finding for a Jewish property owner would be impossible to obtain and, as a result, the State Treasury would not hold a formal finding that it had acquired the property. A formal finding of the acquisition of property is declaratory in nature—it simply confirms the acquisition of all rights and obligations upon the former owner’s death. However, a finding of death in absentia is a constitutive proceeding with retroactive effect, and only upon a final finding of death in absentia can a date of death and the start of the inheritance process be conclusively determined. Therefore, even if potential acquisition of inherited property (including acquisition by the State Treasury) occurs at the time of the owner’s death, such a finding requires a prior conclusive determination that the death occurred and of its circumstances.
As a sidebar to the above discussion, it should be noted that the Supreme Court allows land and mortgage registers to list the State Treasury as the owner of properties with uncertain legal status under Art. 713 of the Napoleonic Code (property which has no owner belongs to the state). While Polish civil law does not recognise the concept of property which “has no owner,” the Supreme Court has found that the above rule can form the basis for recording the State Treasury as the owner of real property whose legal status is uncertain, as is the case with Jewish heirless property. By applying this interpretation of Art. 713 of the Napoleonic Code in the matter of Jewish heirless property, the State Treasury would no longer be responsible for determining the former owner’s identity and eventual fate. This would lead to rapid acquisition of all such property by the State Treasury without any inheritance proceedings.
The application of the general principles of statutory inheritance to the matter of Jewish heirless property raises serious axiological doubts. While state acquisition of heirless property is a widely accepted principle, its application to property that was lost as a result of the Holocaust and was then used for more than 50 years by others (often by the State Treasury itself) is, at the very least, questionable. As a matter of honour and respect for the former owners, their identities and the dates and circumstances of their deaths should be precisely determined. However, the objective circumstances described above frequently make this impossible. Furthermore, any potential efforts by the State Treasury to confirm its acquisition of Jewish heirless property could make it appear to be leveraging its privileged position as a statutory heir to profit from property lost as a result of the Shoah. The legal principle of escheat was intended to regulate the legal status of property that became heirless in the normal course of human events. The tragic circumstances of the Holocaust are in no way comparable.
Suspicious curators resulting from uncertainty over Jewish heirless property
Many of the court-appointed curators in reprivatisation proceedings are acting on behalf of missing Jewish owners. Most often, the curators were appointed because the absence of the co-owners (or their heirs) blocked reprivatisation proceedings instituted by the remaining co-owners (or their heirs). The lack of any documents left behind by the missing co-owners has precluded inheritance proceedings in which the State Treasury was the statutory heir. In these circumstances, despite the high likelihood that the co-owners died during the war, the courts chose to appoint curators as this was the only way out of the procedural deadlock caused by a lack of alternative solutions to the issue of heirless property. The appointment of a curator is a far simpler procedure than a finding of death in absentia and requires far fewer documents and information about the (presumably dead) former owner. This flexibility led to the appointment of growing numbers of curators with less and less oversight over the quality and validity of these applications. This led to the highly publicised abuses seen in the Warsaw reprivatisation scandal.
Applying the general principle of inheritance law that heirless property is acquired by the state to questions of Jewish heirless property in Poland is ill-considered and does not take into account the tragic realities involved. The impossibility of obtaining birth and death certificates or even findings of death in absentia for the former owners makes it impossible for the State Treasury to confirm its acquisition of their property. Furthermore, moral considerations strongly indicate that alternative solutions to the issue must be found.
Within this context, it is worthwhile to examine the potential use of solutions set out by the Terezin Declaration (signed by Poland in 2009). The declaration provides alternative methods of remedying the losses resulting from post-war expropriations of Jewish heirless property. These include funding local civil society initiatives assisting living survivors of the Shoah or local institutions tasked with preserving and cultivating Jewish culture and heritage.
Another possible solution to the problem can be found by establishing a special fund to manage all private heirless property expropriated after the war in Poland. The revenues generated by such a fund could then be used to pay just compensation for after-war expropriations which do not present problems in establishing the identities of former owners and their legal heirs. Unfortunately, such a proposal is entirely incompatible with Chapter VII of the reprivatisation bill proposed by the Ministry of Justice on 26 October 2017. The proposal provides for the expeditious acquisition of heirless property by the State Treasury without even a minimal effort to establish the identity of the former owners.
Radosław Wiśniewski, Real Estate, Reprivatisation and Private Client practices, Wardyński & Partners