Expropriation of real estate as a consequence of the loss or lack of Polish citizenship
| The right to property, seemingly one of the most protected, it is sometimes restricted or even taken away in the name of the law under various circumstances. In the period after 1945, Polish law has contained several regulations directly linking the loss of Polish citizenship (or the lack of such citizenship) with the loss of property. |
| Pursuant to the Decree of March 8, 1946 on abandoned and post-German property1, by virtue of the law itself, all property of the citizens of the German Reich and the former Free City of Gdańsk became the property of the State Treasury, with the exception of persons of Polish or other nationality persecuted by the Germans (art. 2 paragraph 1 (b)). In the above context, citizens of the German Reich and of the former Free City of Gdańsk were considered to be persons of Polish nationality, if they were of Polish origin, or showed their connection with the Polish nation, and also made a declaration of fidelity to the Polish nation. Citizens of the German Reich and the former Free City of Gdańsk, residing in the Recovered Territories, were considered to be persons of Polish nationality only if they had obtained a declaration of Polish nationality pursuant to the provisions of Art. 1 and 2 of the Act of April 28, 1946 on the citizenship of the Polish State of persons of Polish nationality residing in the Recovered Territories.2 Citizens of the German Reich and the former Free City of Gdańsk, belonging to national groups who, after January 30, 1933, were subject to legal restrictions were considered to be persons belonging to different nationalities persecuted by the Germans. The nationality of the abovementioned persons was determined by the authorities of the general administration of the first instance of the place of last residence in Poland before January 1, 1945 of the person concerned, or the place of the location of property.3 |
| The decree of March 8, 1946 set grounds for the expropriation of German citizens, while pursuant to the Decree of September 13, 1946 on the exclusion of persons of German nationality from Polish society4, the property of persons deprived of Polish citizenship was lost; they also lost the ability to inherit and accept donations. The lost property became the property of the State Treasury. In exceptional cases, all or part of the property of the deprived person could be transferred in equal parts to descendants, ascendants and spouses who were not deprived of Polish citizenship and who were solely dependent on the owner of the property. People deprived of citizenship were deported from Poland. As a rule, persons who after the age of 18 demonstrated their German national identity by their behavior were deprived of Polish citizenship, however a declaration of belonging to German nationality or being of German origin made during the World War II did not itself constitute evidence of German national identity. With some exceptions, family members of the above-mentioned persons were also deprived of citizenship, i.e.: a) a spouse, if expressed a desire to leave Poland, b) children under the age of 18, if both parents lost their Polish citizenship, or if in the event of death or long absence of one of the parents caused by the circumstances of the war - the other lost Polish citizenship, c) extra-marital children under the age of 18, if a mother lost Polish citizenship, unless not brought up by the mother but by another person who did not lose citizenship. |
| The decree of April 18, 1955 on the enfranchisement and regulation of other matters related to the agricultural reform and agricultural settlement5 provided that a farm (a worker's plot, a craft plot, etc.) which was acquired on the basis of the provisions regarding the implementation of the agricultural reform or the agricultural system and settlement, but abandoned by the owner before the entry into force of the decree, i.e. April 29, 1955, became the property of the state by virtue of the law without compensation and free of encumbrances, except for land easements. The transfer of ownership was confirmed by the presidium of the district national council. The ownership of the above-mentioned properties was granted to settlers managing them, in accordance with an allocation provided by the presidium of the district national council (Article 15). This provision was repealed in 1971.6 In 1957, a solution was introduced under which the above-mentioned farms (workers' plots, craft plots) abandoned by their owners in the period from April 29, 1955 to July 26, 1957, could be taken over by the state.7 In 1961, a rule was adopted according to which farms and plots of land abandoned by owners after April 28, 1955, as well as all other farms abandoned by their owners, could be taken over by the state without compensation and free from encumbrances, with the exception of land easements, retaining of which was deemed necessary.8 An abandoned farm was a farm where the owner or the owner’s spouse, children or parents did not reside, and the farm was not fully or mostly cultivated and was not subjected to appropriate agronomic treatment by the owner, user or tenant. The abandoned farms did not include those whose owners were minors, incapacitated or limited in legal capacity, or called up for military service or deprived of liberty pursuant to an order of a competent authority.9 |
| In 1959, persons managing state property located in the Recovered Territories were recognized as owners of these properties if they obtained Polish citizenship and were members of families of previous owners who lost ownership of the properties due to failure to obtain Polish citizenship. Family members included a spouse, children, grandchildren, parents and siblings.10 |
| The Act of July 14, 1961 on land management in cities and settlements, referring to the Decree of March 8, 1946 on abandoned and post-German property, stated that real estate owned, under the said Decree, by persons who were granted Polish citizenship as a result of being declared a person of Polish nationality, "shall become, by virtue of law, the property of the state, if these persons, due to leaving the country, lost or will lose their Polish citizenship”.11 In 1969, the above regulation was supplemented with the provision that "these persons lose the right to dispose of the property on the day on which they submitted their Polish identity card to the competent authorities and received a travel document entitling them to travel abroad12". The new provision also applied to "real estate acquired in the course of agricultural settlement or enfranchisement by persons who were granted Polish citizenship as a result of being declared a person of Polish nationality, and who then lost or will lose their citizenship due to their departure from the country”.13 |
| The Act of July 14, 1961 on land management in cities and settlements applied only to Polish citizens of German nationality who immigrated to Germany and lost their Polish citizenship under the Resolution of the State Council No. 37/56 of May 16, 1956, in accordance with the intention of the Polish authorities. However, it did not apply to property of Jews - Polish citizens immigrating to Israel and losing Polish citizenship under the Resolution of the State Council No. 5/58 of January 23, 1958. The aforementioned act also omits the issue of property lost by Polish citizens of Belarusian, Ukrainian, Russian, Ruthenian and Lithuanian nationalities, who were deported from Poland in the years 1944 - 1946, and then deprived of Polish citizenship under Art. 4 point 2) of the Act of January 8, 1951 on Polish Citizenship ("A Polish citizen is not a person who, although on August 31, 1939 had Polish citizenship, but lives abroad and [...] is of Russian, Belarusian, Ukrainian, Lithuanian, Latvian or Estonian nationality […]”). The problem of property of this group of citizens was resolved as early as 1947 and 1949. |
| Pursuant to the Decree of September 5, 1947 on the transfer to the State of the property left by persons resettled to the USSR: |
| § all movable and immovable property of persons resettled to the USSR, remaining in the territory of Poland, became the property of the state by virtue of the law, upon their resettlement, without compensation (Article 1 (1)); |
| § the property of legal persons whose existence or activity as a result of the resettlement of their members to the USSR, or of persons covered by this activity, has become redundant, also became the property of the State Treasury (Article 1. (2)); |
| § the property became the property of the State, free of all debts and burdens, except for easements, the retaining of which was deemed necessary (Article 2 (2)).14 |
| The issue of expropriation of the displaced persons was concluded by the Decree of July 27, 1949, which allowed the state to take over, in whole or in part, land properties located in the białostockie, lubelskie, rzeszowskie and krakowskie voivodeships within the border zone provided for in the Regulation of the President of the Republic of Poland of December 23, 1927 on the borders of the State and in the biłgorajski, krasnostawiski and lubelski districts of the lubelskie voivodship, as well as brzozowski and przeworski districts of the rzeszowskie voivodeship, if they were not in the actual possession of the owners.15 |
| It is worth noting that people displaced to the USSR lost their property as Polish citizens, and therefore unlike people displaced or immigrated to Germany - in their case, the confiscation of property was a consequence of the loss of Polish citizenship. Moreover, the above-mentioned decrees of 1947 and 1949 are in blatant contradiction to the "republican agreements" which the Polish authorities still refer to. Each of these agreements stated that: |
| 1) "the value of movable property left after evacuation, as well as real estate left [in the agreement with the LSSR -" except for land "- author’s emphasis] shall be returned to evacuees according to the insurance assessment in accordance with the laws in force in the Polish State and, respectively, in the Ukrainian Socialist Republic of Soviets [Belarusian Socialist Soviet Republic, Lithuanian Socialist Soviet Republic – author’s emphasis]. In the absence of an insurance assessment, the property is assessed by the Plenipotentiaries and Representatives of the parties. " |
| 2) "the property left behind is placed under the care of the state".16 |
| Meanwhile, in accordance with the decrees of 1947 and 1949, the property of the displaced persons was transferred to the state without compensation. |
| The cited provision indicates that the value of property of those displaced from Poland should be returned to them by the Polish authorities. It is difficult to imagine a situation where the value of movable property and real estate left in Poland would be determined according to the "insurance assessment" prepared in accordance with foreign law. Anyway, each of the agreements contained an identical provision saying that "in the event that the evacuee transfers his crops to the state where he is leaving, the other Party will return the transferred crops in the same amount, at the place of settlement." It points out that compensation for damage to the property of displaced persons, as a rule, should be paid by the state where the property remained, and only in exceptional cases by the state to which the victim was displaced. |
| Whatever the case, the above-mentioned Resolutions of the Council of State No. 37/56 of 1956 and No. 5/58 of 1958, as Polish courts accepted, "constituted a source of specific rights for citizens" concerned. People who were considered to be Germans or Jews could go to a better - western, non-communist world, which other inhabitants of the People's Republic of Poland could only dream of. Citizens whose nationality was described by authorities as Ukrainian or Ruthenian, for a change, experienced prosperity in the Soviet Union: 68% experienced hunger and almost half were persecuted by the Soviet authorities. They also did not have a chance to confirm Polish citizenship and recover real estate left in Poland and confiscated by the authorities. This differentiation in the treatment of unwanted citizens by the Polish authorities is not even consistent with the idea of a one-nation state, pursued with such zeal. People immigrating to East Germany and West Germany on the basis of Resolution No. 37/56 left as declared Germans because there was no other possibility. People deported in the years 1945 - 1946 from Poland to the east (about 650,000 people) were forced to leave because they did not want to recognize themselves as Ukrainian or Ruthenian. dr Andrzej Kiedrzyn Radca prawny | Counselor at Law T: +48 22 447 43 00 |
| Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield, and is based on the facts and guidance available at the time of its release which may be subject to change. The purpose of the publication is to draw attention to the legal events indicated in it and should not be the sole basis for any decision regarding a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal development to the particular facts can be verified. |
[1] Dz. U. Nr 13, poz. 87 z późn. zm. / Journal Of Laws No. 13, item 87 as amended.
[2] Dz. U. R. P. Nr 15, poz. 106. / Journal Of Laws R. P. No. 15, item 106.
[3] Rozporządzenie Ministra Sprawiedliwości z dnia 21 maja 1946 r. wydane w porozumieniu z Ministrami: Obrony Narodowej, Administracji Publicznej, Bezpieczeństwa Publicznego, Skarbu, Oświaty, Rolnictwa i Reform Rolnych, Leśnictwa, Przemyślu, Żeglugi i Handlu Zagranicznego, Aprowizacji i Handlu, Komunikacji, Poczt i Telegrafów, Odbudowy oraz Ziem Odzyskanych - o określeniu osób, których majątek przechodzi na własność Państwa (Dz. U. Nr 28, poz. 182). / Regulation of the Minister of Justice of May 21, 1946 issued in agreement with the Ministers of: National Defense, Public Administration, Public Security, Treasury, Education, Agriculture and Agricultural Reforms, Forestry, Industry, Shipping and Foreign Trade, Supply and Trade, Communications, Post Office and Telegraphs, Reconstruction and Recovered Territories - on the determination of persons whose property becomes the property of the State (Journal of Laws No. 28, item 182).
[4] Dz. U. Nr 55, poz. 310 z późn. zm. / Journal Of Laws No. 55, item 310 as amended.
[5] Dz. U. Nr 18, 107. / Journal Of Laws No. 18, 107.
[6] Ustawa z dnia 26 października 1971 r. o uregulowaniu własności gospodarstw rolnych (Dz. U. Nr, 27, poz. 250 art. 18 ust. 1 pkt 5; weszła w życie 4.11.1971 r.). / The Act of October 26, 1971 on regulating the ownership of farms (Journal of Laws No. 27, item 250, art. 18, paragraph 1, point 5; entered into force on November 4, 1971).
[7] Ustawa z dnia 13 lipca 1957 r. o zmianie dekretu z dnia 18 kwietnia 1955 r. o uwłaszczeniu i o uregulowaniu innych spraw, związanych z reformą rolną i osadnictwem rolnym, art. 2 (Dz. U. Nr 39, poz. 174; weszła w życie 26.07.1957 r.). / The Act of July 13, 1957 amending the decree of April 18, 1955 on expropriation and regulating other matters related to the agricultural reform and agricultural settlement, Art. 2 (Journal of Laws No. 39, item 174; entered into force on July 26, 1957).
[8] Ustawa z dnia 13 lipca 1961 r. o zmianie dekretu z dnia 18 kwietnia 1955 r. o uwłaszczeniu i o uregulowaniu innych spraw, związanych z reformą rolną i osadnictwem rolnym, art. 1 (Dz. U. Nr 32, poz. 161; weszła w życie 21.07.1961 r.). / Act of 13 July 1961 amending the decree of 18 April 1955 on expropriation and regulating other matters related to the agricultural reform and agricultural settlement, Art. 1 (Journal of Laws No. 32, item 161; entered into force on July 21, 1961).
[9] Rozporządzenie Rady Ministrów z dnia 5 sierpnia 1961 r. w sprawie opuszczonych gospodarstw rolnych, § 1 (Dz. U. Nr 39, poz. 198 z późn. zm.: weszło w życie 19.08.1961 r.). / Regulation of the Council of Ministers of August 5, 1961 on abandoned farms, § 1 (Journal of Laws No. 39, item 198, as amended: entered into force on August 19, 1961).
[10] Dekret z dnia 18 kwietnia 1955 r. o uwłaszczeniu i o uregulowaniu innych spraw, związanych z reformą rolną i osadnictwem rolnym, art. 7 (Dz. U. z 1959 r., Nr 14, poz. 78, t.j.). / Decree of April 18, 1955 on the enfranchisement and regulation of other matters related to the agricultural reform and agricultural settlement, art. 7 (Journal of Laws of 1959, No. 14, item 78, i.e.).
[11] Ustawa z dnia 14 lipca 1961 r. o gospodarce terenami w miastach i osiedlach (Dz.U. Nr 32, poz. 159; weszła w życie 22.10.1961 r., uchylona z dniem 1.08.1985 r.). / Act of July 14, 1961 on land management in cities and housing estates (Journal of Laws No. 32, item 159; entered into force on October 22, 1961, repealed on August 1, 1985).
[12] Ustawa z dnia 19 kwietnia 1969 r. o zmianie ustawy o gospodarce terenami w miastach i osiedlach (Dz. U. Nr 11, poz. 80, art. 1 pkt 13) lit. a)). / Act of April 19, 1969 amending the act on land management in cities and settlements (Journal of Laws No. 11, item 80, art. 1 point 13) lit. a)).
[13] Ibidem, art. 1 pkt 13) lit. b). / Ibidem, art. 1 point 13) lit. b).
[14] Dz. U. Nr 59, poz. 318 z późn. zm.; wszedł w życie 17.09.1947 r.; uchylony z dniem 4.11.1971 r. / Journal Of Laws No. 59, item 318 as amended; entered into force on September 17, 1947; repealed on 4.11.1971.
15 Dekret z dnia 27 lipca 1949 r. o przejęciu na własność Państwa nie pozostających w faktycznym władaniu właścicieli nieruchomości ziemskich, położonych w niektórych powiatach województwa białostockiego, lubelskiego, rzeszowskiego i krakowskiego (Dz. U. Nr 46, poz. 339 z późn. zm.; wszedł w życie 10.08.1949 r., uchylony z dniem 4.11.1971 r.). / Decree of July 27, 1949 on the takeover of property not being in an actual possession of the owners located in some of białostockie, lubelskie, rzeszowskie and krakowskie districts (Journal of Laws No. 46, item 339, as amended); entered into force on August 10, 1949, repealed on November 4, 1971).
16 Układ pomiędzy Polskim Komitetem Wyzwolenia Narodowego a Rządem Ukraińskiej Socjalistycznej Republiki Rad dotyczący ewakuacji obywateli polskich z terytorium U.S.S.R. i ludności ukraińskiej z terytorium Polski, podpisany w Lublinie 9 września 1944 r., art. 3 ust. 6 i ust. 7, [w:] Biuletyn nr 4/2002. Wybór orzecznictwa Europejskiego Trybunału Praw Człowieka w sprawach polskich, Tom III, s. VIII – XIV; Układ pomiędzy Polskim Komitetem Wyzwolenia Narodowego a Rządem Białoruskiej Socjalistycznej Republiki Rad dotyczący ewakuacji obywateli polskich z terytorium B.S.S.R. i ludności Białoruskiej z terytorium Polski, podpisany w Lublinie 9 września 1944 r., art. 3 ust. 6 i ust. 7, [w:] Biuletyn nr 4/2002, op. cit., s. I – VII; Układ pomiędzy Polskim Komitetem Wyzwolenia Narodowego a Rządem Litewskiej Socjalistycznej Republiki Rad dotyczący ewakuacji obywateli polskich z terytorium Litewskiej S.S.R. i ludności litewskiej z terytorium Polski, podpisany w Lublinie 22 września 1944 r., art. 3 ust. 6 i ust. 7, [w:] Biuletyn nr 4/2002, op. cit., s. XVII – XXIII. / Agreement between the Polish Committee of National Liberation and the Government of the Ukrainian Socialist Republic of Soviets regarding the evacuation of Polish citizens from the territory of the U.S.S.R. and the Ukrainian population from the territory of Poland, signed in Lublin on September 9, 1944, art. 3 paragraphs 6 and 7, [in:] Bulletin No. 4/2002. Selection of the case law of the European Court of Human Rights regarding Polish cases, Volume III, pp. VIII - XIV; Agreement between the Polish Committee of National Liberation and the Government of the Belarusian Socialist Republic of Soviets regarding the evacuation of Polish citizens from the territory of the B.S.S.R. and the Belarusian population from the territory of Poland, signed in Lublin on September 9, 1944, art. 3 paragraphs 6 and 7, [in:] Bulletin No. 4/2002, op. cit., pp. 1-7; Agreement between the Polish Committee of National Liberation and the Government of the Lithuanian Socialist Republic of the Soviets regarding the evacuation of Polish citizens from the territory of the Lithuanian S.S.R. and the Lithuanian population from the territory of Poland, signed in Lublin on September 22, 1944, art. 3 paragraphs 6 and 7, [in:] Bulletin No. 4/2002, op. cit., pp. XVII - XXIII.