The U.S. Congress is processing the bill regarding restitution of property which was wrongfully seized or transferred during the WWII and in the communist era. The bill will be soon voted by the House of Representatives. As an experienced practitioner of these matters in Poland, I cannot help looking into this fact. I would like to bring forth some reflections from a Polish lawyer perspective.
The term wrongfully seized or transferred
used in the bill is defined as confiscations, expropriations, nationalizations, forced sales or transfers, and sales or transfers under duress during the Holocaust era or the period of communist rule of a covered country. The term covered countries
means signatories to the Terezin Declaration on Holocaust Era Assets and Related Issues of 2009 that are determined by the Special Envoy for Holocaust Issues to be countries of particular concern with respect to such restitution. The list includes the countries such as Poland, Ukraine, Germany, the Czech Republic and many others.
The proposed bill – if passed into the law – will direct the Department of State, with respect to covered countries, to annually include within either the relevant annual report or other appropriate report an assessment of the nature and extent of national laws or enforceable policies regarding the identification, return, or restitution of seized property and compliance with the goals of the Terezin Declaration, including:
- the return to the rightful owner of wrongfully seized property or the provision of comparable substitute property or the payment of equitable compensation to the rightful owner,
- the use of the Washington Conference Principles on Nazi-Confiscated Art and the Terezin Declaration in settling claims involving publicly and privately held movable property,
- the restitution of heirless property to assist needy Holocaust survivors,
- progress on the resolution of claims for U.S. citizen Holocaust survivors and family members.
The proposed law may have a great impact on the process of restitution of property in the covered countries. The most controversy is around point 3 of the new law which deals with the so-called heirless property which means the situation where there is nobody to inherit the estate of the deceased. There are many cases like this.
The new law says that, in the case of heirless property in covered countries, the Secretary of State shall prepare the report that assesses and describes the nature and extent of national laws and enforceable policies of each covered country regarding the identification and the return of or restitution for wrongfully seized property in this country. In other words, the so-called heirless property located in Poland and other covered countries will be identified, recognised and subsequently managed in such a way that the revenues it brings will be used „to assist needy Holocaust survivors, to support Holocaust education, and for other purposes”.
The new law is an American piece of legislation and it will be up to the US lawyers to interpret it. However, as a Polish lawyer, I need to point out the general issues that might be controversial from my point of view.
First of all, the proposed wording is not clear enough and it is very likely to cause serious problems in interpretation. The law which aims to regulate such sensitive matter as restitution of property should be detailed enough as to leave no room for assumptions or doubt.
The proposed bill is of very general nature and can be viewed as ambiguous. A number of questions arise regarding it, such as - who should provide the property to whom (especially in relation to heirless property which typically is owned by the State Treasury)? Who should be in charge of the process? What compensation should be given? The laws should be clear and understandable. Lack of precision may cause practical problems while implementing the law.
Secondly, dealing with the heirless property in the proposed way is a very controversial idea. It is a general provision of inheritance law that heirless property is owned by the State Treasury of each of the covered countries. The idea of giving it away to a third party is not in line with acknowledged solutions in civilized countries. Legal systems of most of the covered countries assume that the heirless property of its citizens becomes the property of the state in the absence of any eligible successors. Similar laws exist in the USA. If an American citizen of Polish origin dies in the US and there is no one to inherit his property, then the ultimate successor of his property is the state of his citizenship. Everyone accepts such a solution. It would be really strange to have different sets of rules for different kinds of people.
Although the idea of restituting unlawfully seized property is morally right, the proposed bill rises many uncertainties. A more detailed solution should be devised jointly by the covered states and the people whose property had been unlawfully seized.