25 Fall 2021 reprivatization”was used to describe cases where through fraudulent means (e.g., corruption, misuse of trust, forged documents) compensation was paid or property was handed over to parties that should never have received a payment or title to a property. This “wild reprivatization” however, was the result of a lack of a comprehensive restitution process, and not due to the original wording of the Code of Administrative Procedure. The critics of the amendment included many Jewish organizations, as well as the Israeli government, which claimed that it was aimed at Holocaust survivors and their heirs. While it is true that the new regulation does impact on Holocaust survivors and their heirs, it also impacts all those affected by the Communist regime’s nationalization process, regardless of faith, beliefs, or nationality. Unlike the Nazis, the Communists stole not only from Polish Jews but from all Poles, regardless of faith or ethnicity. The universal impact of this legislation was often ignored or not emphasized by the critics, with exaggerated accusations by Israeli Foreign Minister (and alternate Prime Minister) Yair Lapid that this law somehow denies the memory of the Holocaust. At the same time, the Polish government argued that it would not pay“one zloty, one euro, or one dollar” for the crimes of the Germans, as announced by Prime Minister Morawiecki, completely ignoring the fact that the ongoing property restitution claims are for properties stolen by the Communists after the war, and not by Nazis during the war. Such overheated political rhetoric made reasoned discussion impossible. United States Secretary of State Anthony Blinken issued a more measured response, saying “We deeply regret the adoption of these amendments… [and] urge the Polish government to … develop a clear, efficient, and effective legal procedure to resolve confiscated property claims and provide some measure of justice for victims.”Secretary Blinken correctly pointed out that “[i]n the absence of such a procedure, this legislation will harm all Polish citizens whose property was unjustly taken, including that of Polish Jews who were victims of the Holocaust.” The Nature of the Discussions Regarding the Provisions of the Amendment The amendment to the Code of Administrative Procedure went through the legislative process of the lower house of Parliament (Sejm), which is controlled by Poland’s current ruling Law and Justice party (PiS), without extensive debate. During the legislative path, there were some concerns raised regarding closing pending proceedings before decisions were rendered. The Senate – the higher house of the parliament where the opposition parties have a majority – suggested changes to the amendment that would have provided for the possibility of completing ongoing proceedings, even if they had been initiated 30 years after the delivery or publication of the administrative decisions. The Senate also proposed extending the vacatio legis of the act from 30 days to 3 months. While three months is still an extremely short period for such a fundamental change of law, it would have at least offered some claimants a greater chance to come forward and initiate their cases by filing an annulment motion, which could then have been further pursued if the other amendment (that is, the chance to complete ongoing proceedings) made by the Senate remained in place. The Sejm rejected all of the changes proposed by the Senate, and decided not only to close pending proceedings, but also to not allow any opportunities for the parties and administrative authorities to complete them before the act came into force. Proceedings Not Affected by the Amendment Amendment to Article 156 § 2 of the Code of Administrative Procedure will not affect the so-called“small reprivatization act”– i.e. cases concerning nationalization of real properties located in Warsaw, for which the city of Warsaw periodically issues notifications for claimants to come forward and resolve pending claims. Unfortunately, the “small reprivatization act” itself contains enough provisions that make it notoriously difficult to pursue claims, especially for foreign claimants. Nevertheless, the amendment in question should not directly affect these matters. It will also not affect any proceedings initiated to determine ownership of real estate, whose legal status is unregulated (cases in which persons inscribed in mortgage records are deceased or for other reasons are no longer owners of real estate). Having said that, the amendment will widely affect reprivatization cases in specific assets that were nationalized by Communist authorities after World War II on the basis of provisions allowing for the takeover of specific types of enterprises or land of a specific area or use.n Sylwia Myśliwska is an attorney partner in the Gostyński & Partners law firm, Kraków, Poland. She is a member of PEOPIL and the American Association for Justice. My thanks to Prof. Michael Bazyler, Chapman University (Orange, CA) and Szymon Gostyński attorney at law - founding Partner of Gostynski and Partner Law Office (Kraków, Poland) for their encouragement and help in the preparation of this article.
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