In a test case that will likely increase international pressure on Poland to return billions of dollars of property seized from Jews by the Nazis during World War II and nationalized by the communists after the war, a Polish-born Holocaust survivor is expected to file suit before the European Court of Human Rights in the next few weeks, The Jewish Week has learned.
A New York-based not-for-profit law firm is preparing the case on behalf of Henryk Pikielny, who now lives in Paris.
The case, to be submitted to the Strasbourg, France-based court, requests that the Pikielny family’s textile factory in Lodz be returned to Henryk Pikielny and that the Polish government be directed to address the claims of other Holocaust survivors whose families lost property in the war.
The suit, the latest twist in the Jewish community’s long battle with Poland over the return of personal and communal property, follows unsuccessful efforts in the past 15 years to have the country adopt effective compensation legislation, to regain property through the Polish courts and to lobby the Polish government through diplomatic channels.
“Nobody else has been successful. Nothing else has worked,” said Yisroel Schulman, executive director of the New York Legal Assistance Group, which has assisted some 50,000 Holocaust survivors and their families pro bono in obtaining compensation and restitution from European governments since 2000 through its Holocaust Compensation Assistance Project.
The project has received financial support from the Conference on Jewish Material Claims Against Germany and from UJA-Federation.
“We’ve heard promises so many times about new legislation” in Poland, Schulman said. “We’re not waiting anymore. If we wait any longer, there won’t be any [survivors left].”
NYLAG’s suit complements the work of such organizations as the World Jewish Congress and the World Jewish Restitution Organization, and is designed to bring public pressure on Poland, which joined the European Union last year, Schulman said.
“The goal of the case is to get the European Court of Human Rights to direct the Polish government to take steps to remedy the situation … on a global level,” to enact long-promised legislation, Schulman said.
Though the court, which enforces the five-decades old Convention for the Protection of Human Rights and Fundamental Freedom, is not connected with the EU, Poland may fear the negative publicity surrounding the case and an unfavorable verdict, he said.
The suit asserts “violations of certain provisions of the convention,” said Phyllis Brochstein, NYLAG’s lead attorney on the Pikielny suit. “We are claiming a violation of the right to property.”
“Poland is a little more sensitive” since it joined the EU, Brochstein said. “It sees itself as a member of the European community.”
Jehuda Evron, president of the U.S. division of the Holocaust Restitution Committee, said Poland is “very concerned about its image.”
Evron, a Romanian-born Holocaust survivor, has testified before Congress on the reparations issue and advised NYLAG in preparation of the suit.
“This is the stick” that other organizations can wield to persuade Poland to reach an acceptable settlement, Schulman said. “We’re looking for an out-of-court settlement.”
The Polish Consulate General in New York declined to comment on the case.
The Court of Human Rights does not accept class-action suits, but this “representative case” could set a precedent for the estimated 15,000 to 20,000 Holocaust survivors around the world who have outstanding property claims in Poland, Schulman said. The total value of their property is estimated at $40 billion to $50 billion.
“This case is a test case because if it succeeds it will be a precedent for many other claims,” said an authority on Holocaust reparations who asked not to be identified. “The fact is it will be a high-profile case. Let’s assume it doesn’t work — it gives alert to the Poles that pressure will not cease until historic justice has been done.
“It will be an opening shot,” the authority said. “The issue will not go away.”
While a decision by the Court of Human Rights is binding and no appeal to a higher tribunal is possible, the court has no enforcement mechanism.
The suit deals only with such private property as homes, farms and businesses, not Jewish communal property that came into Nazi hands during the war, the authority said.
“This is the perfect representative case — nobody has done this the way we are doing it,” Schulman said. Plaintiffs who brought earlier compensations suits against Poland in the Court of Human Rights “had not exhausted all the administrative remedies.”
Schulman said the Pikielny family has the necessary documents to prove its claim on the property, and it has pressed its suit through the Polish legal system, a requirement for the Court of Human Rights to accept a case.
Pikielny “went through all the channels,” Schulman said. “We think we have met every administrative criterion. It’s probably the only case that meets all the criteria.”
The court probably will decide within a matter of months whether the case will proceed.
A ruling last year by the court in favor of a Polish national who was forced to leave his home in Germany at the end of World War II may be used as a precedent in the Pikielny case, Brochstein said.
Abraham Foxman, a Polish-born Holocaust survivor and national director of the Anti-Defamation League, called the suit a “creative” approach to the compensations issue. He said a suit in an international court has symbolic importance.
“Certainly the law was abused in the ’30s and ’40s to strip Jews of their property,” Foxman said.
“What is almost sacrosanct is for individuals who lost property to have a fair chance to retrieve that which was theirs and that which was taken. I would hope that the Polish government on its own would find a way to deal with [this issue] justly,” he said. “This may be a stimulus for them to do it.”
Most of the other EU countries have passed compensation legislation, Brochstein said.
“Poland has done less than any other [EU] country,” Schulman said. “Poland has got to recognize its responsibility.”
There is currently no legislation governing the restitution of private property in Poland, according to the Web site of the Claims Conference, which has worked with Israel since 1951 to obtain and distribute reparations payments from Germany, Austria and other countries.
“In March 2001, the Polish parliament approved a law for the restitution of private property,” the Web site says. “However, the right to file a claim was limited to those persons who had Polish citizenship as of Dec. 31, 1999.
“In the absence of restitution legislation that might allow for collective negotiations for property return or payment, some people have elected to pursue individual property restitution claims [in] Polish courts. The Polish government has so far rejected the validity of any class-action lawsuit filed in the United States for the return of property seized from Polish Jews during or after World War II.”
Several Holocaust survivors have filed suits in Polish courts for the return of their family’s property, Evron said, but he did not have an exact figure.
“I don’t think that even 2 percent of the people got their property back,” he said.
Pikielny, a survivor of several concentration camps who moved to Brazil after the war and settled in Paris in 1964, brought a suit in a Polish court for the return of his family’s property in Lodz in 1990, after communism fell in Poland. The case went through the country’s legal system “up to the last level,” until Pikielny was informed last year by the minister of finance that “there is nothing than can be done.”
Pikielny, 76, a retired real estate developer, was told he had no legal recourse, he said in a phone interview from Paris.
“We have all the documents” to prove ownership of the factory, which was founded in 1894 by his grandfather Mojzesz, he said. “There is no doubt.”
The MIT Pikielny factory at 74-76 Jaracza St., in the center of Lodz, was a few minutes walk from the elementary school Pikielny attended. After school he would kick a soccer ball with friends on an empty field on the factory’s 1.5-acre grounds.
His mother and several other relatives died in the Holocaust. The factory, used by the occupying German army, came into communist hands after the war and eventually was nationalized by the Polish government.
Pikielny said he waited for Poland to adopt compensation legislation. He returned to Lodz in 1992 and found the factory, formerly a set of 15 brick buildings, in ruins.
“The Nazis stole my family’s past, but the new democratic Poland can contribute to its future by restoring our legacy,” said Pikielny, who estimated that the property is worth several million Euros.
“This is more than a financial issue to me,” he said. “I want the property back because it belongs to the family. I am only asking for what rightly belongs to me.”