The JUST Act (Justice for Uncompensated Survivors Today Act of 2017) was passed by the United States Congress in December 2017 and subsequently signed by the President of the United States in May 2018.
This act refers to the Terezin Declaration of 2009, which covers issues relating to private and communal restitution of Jewish property seized during World War II and afterwards. The declaration sets forth principles according to which restitution of assets in the signatory countries should be maximally transparent and simplified, ensuring the return of seized assets to their former owners (or owners’ legal heirs) in a non-discriminatory manner or the awarding of compensation in cases where property cannot be returned in rem (for instance, when such property is in private hands).
It should be noted that the Declaration has the character of soft law under international law; nevertheless, 46 countries (including Poland) have decided to develop instruments guaranteeing implementation of the principles set forth in the Declaration. However, the Polish solutions regarding restitution of Jewish property fall far short of the ideal – in fact, they don’t really exist yet.
The JUST Act and Polish law
The Ministry of Justice’s draft legislation, the so-called “big restitution law” released 26 October 2017, failed to meet the requirements under the Declaration – and in any case, it has been consigned to the parliamentary “freezer” (we write at greater length about it here). The draft law restricted the right to make claims by citizenship: only Polish citizens (or their legal heirs) whose place of residence was in Poland at the moment their property was seized would be eligible for compensation for nationalized assets under its provisions. These solutions are contrary to the Declaration, which clearly states that signatory countries should not enact discriminatory rules that make satisfaction of claims dependent on citizenship or place of residence.
The JUST Act is a kind of executive regulation aimed at monitoring the implementation of the obligations contained in the Terezin Declaration. Under the Act, the body monitoring implementation of the Declaration’s principles by signatory countries is the US Department of State, which is to submit reports on compliance to the US Congress.
Actions taken on the international arena
As we mentioned earlier, the Terezin Declaration and the JUST Act are “soft law” – they do not impose sanctions on signatory states for non-compliance. Nevertheless, Poland’s failure to take appropriate measures to regulate the complex issue of restitution of Jewish assets could negatively impact Polish-Israeli and Polish-American relations, thus weakening our country’s position on the international arena.
Restitution in the countries neighboring Poland
The idea of regulating restitution with a comprehensive law should be regarded as at least 20 years too late, yet nonetheless extremely important. All the more so in that most of the former Eastern Block countries (not counting the ex-Soviet republics) long ago understood the economic and social importance of enacting such solutions, as these countries strove to leave the demons of the 20th century far behind them. In every instance, though, these were specific social compromises between the absolute protection of property rights and the given country’s budgetary means. Unfortunately, our neighbors’ experiences show that restitution laws never entirely close the books on those painful events, and often become the starting points for successive disputes.
Restitution map of Europe
The Czechs enacted laws governing restitution in the early 1990s. The costs of restitution in their country exceeded the original estimates, and their case serves to illustrate the gulf separating what actually happens in the process from forecasts stemming from various analyses, including the government’s. Moreover, Czech restitution was limited solely to former owners themselves (even though exclusion of their heirs gave rise to constitutional doubts). The principle of in rem restitution was adopted, unless it was impossible to return the lost property, in which case the claimant was paid monetary compensation considerably deviating from the market value of the assets that had been seized.
The Hungarians tried to solve the problem with the help of special compensation vouchers, which were awarded to nearly a million eligible people. Unfortunately, the vouchers proved to have little more than token value – around 500 USD per recipient on average. And a while later this solution was questioned by the country’s Constitutional Court, which ruled it was incompatible with the principle of proportionality and fairness of compensation.
Bulgaria, during the first years of its full independence in the early 1990s, passed a set of liberal restitution laws that allowed for in rem return of assets, among other solutions. Eligibility to make claims was not limited to persons with Bulgarian citizenship. This far-reaching solution paved the way for a range of abuses (particularly of the principle of social co-existence) during the restitution of apartment houses in the most important urban centers, with some cases ending in tenants being evicted onto the street. Consequently, the Bulgarian Parliament effectively tightened up the restitution system, imposing the obligation to provide replacement dwellings to evicted tenants. Looking back, the Bulgarian solutions – despite numerous imperfections – should be regarded as the right ones. Paradoxically (from the Polish perspective), it was churches and religious associations that had the most difficulty recovering property in Bulgaria.
The Baltic countries, several of the states resulting from the breakup of Yugoslavia and the former German Democratic Republic all took measures to deal with restitution, more or less successfully.
Poland’s failure to enact a legal solution to the complex issue of restitution makes no sense. If the government enacted appropriate and fair solutions, it would regulate this huge problem, thus contributing to ending a difficult period in the history of Poland. Leaving restitution at point zero has created problems not only for claimants, but also for the state itself, which – in the absence of a comprehensive law – is forced to return property or pay out compensation without any percentage restrictions.