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Helsinki Commissioner Releases Letter to Polish Ambassador on Property Restitution

WASHINGTON – Commission on Security and Cooperation in Europe Chairman Christopher H. Smith (R-NJ) today released the text of a letter to the Polish Ambassador to the United States concerning reports that a commission of the Sejm, Poland’s lower house of Parliament, has proposed discriminatory amendments to a draft law on property reprivatization. The letter was signed by Ranking Members Senator Frank R. Lautenberg (D-NJ) and Rep. Steny H. Hoyer (D-MD).

Full text follows:

January 11, 2000
The Honorable Jerzy Kozminski
Republic of Poland
2640 16th Street, N.W.
Washington, DC 20009

Dear Mr. Ambassador:

Over the past several months, we have followed with interest the Sejm’s work on a government-proposed law that would provide for the return of private property confiscated by the Nazi or communist regimes in Poland or, when the actual return of property is not possible, to provide original owners the right to receive alternate compensation. We were pleased to learn that Polish Government officials had stated that the proposed law would settle the property claims of both current and former Polish citizens. Regrettably, the parliamentary commission overseeing this legislation reportedly wants to limit the right to receive restitution or compensation for wrongfully confiscated property to those individuals who are Polish citizens on the date the proposed law is enacted and who have been residents of Poland for at least five years before that date.

The Helsinki Commission has heard from dozens of people with unresolved property claims in Poland. This issue matters to hundreds, if not thousands, of people who fled to the United States and other countries because they faced religious, ethnic or political persecution in Poland. In the 105th Congress, Commissioners from the House of Representatives sponsored a resolution, H. Res. 562–which was unanimously adopted by the House of Representatives–that commended post-communist countries, such as Poland, for addressing the complex and difficult question of the status of wrongfully expropriated properties.

As that resolution expressed, however, when a country enacts laws providing for restitution or compensation for properties taken by previous regimes, restrictions that require claimants to reside in, or be a citizen of, the country from which they seek restitution or compensation are arbitrary and discriminatory. The U.N. Human Rights Committee, established by the International Covenant on Civil and Political Rights (ICCPR), has already considered several cases in which claimants have been excluded from post-communist property restitution/compensation policies on the basis of their current citizenship or residence. In two cases brought by American citizens and others with property claims in the Czech Republic, the Committee determined that, while there is no right to property per se enumerated in the ICCPR, there is a right to non-discrimination pursuant to article 26 of the Covenant. The U.N. Human Rights Committee concluded that preconditioning restitution or compensation on current citizenship or residence violates the Covenant’s non-discrimination clause.

The Human Rights Committee’s reasoning in these cases is compelling:

The [Czech Republic] acknowledges that the confiscations were discriminatory and this is the reason why specific legislation was enacted to provide for a form of restitution. The Committee observes that such legislation must not discriminate among the victims of prior confiscations, since all victims are entitled to redress without arbitrary distinctions. Bearing in mind that the [property claimants’] original entitlement to their respective properties was not predicated either on citizenship or residence, the Committee finds that the conditions of citizenship and residency in [the Czech law] are unreasonable. . . . Moreover, it has been submitted that the [property claimants] left Czechoslovakia because of their political opinions and that their property was confiscated either because of their political opinions or because of their emigration from the country. These victims of political persecution sought residence and citizenship in other countries. Taking into account that the State party itself is responsible for the departure of the [property claimants], it would be incompatible with the Covenant to require them permanently to return to the country as a prerequisite for the restitution of their property or for the payment of appropriate compensation. Simunek v. Czech Republic, (1995) (emphasis added).

While the Human Rights Committee’s decisions in these cases are not directly binding on Poland, we hope nonetheless that the Sejm Commission which recommended using citizenship and residency restrictions in the Polish law will bear in mind the Committee’s persuasive reasoning and will recall Poland’s obligation, as a party to the ICCPR, to respect the treaty’s non-discrimination clause.

A few months ago, at a meeting of the Organization for Security and Cooperation in Europe (OSCE), the United States raised concerns with several countries, including the Czech Republic, Slovakia and Lithuania, for using citizenship or residency restrictions in their property restitution laws. At that time, the Polish draft law did not contain such restrictions and the United States held Poland up before those other countries as a positive example of a country pursuing nondiscriminatory restitution and compensation policies. While the parliamentary commission’s recommendations are extremely troubling, we hope that the Polish Government and the full parliament will work to ensure that the legislation ultimately adopted will be a model of democratic values.

We would appreciate any further information that you can provide on these issues.

Sincerely, cc: Deputy Secretary Stuart E. Eizenstat The Honorable Maciej Plazynski, Speaker of the Sejm The Honorable Daniel Fried, U.S. Ambassador, Warsaw

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