GOP TO PUT FORWARD DRAFT PRIVATE PROPERTY

C O N F I D E N T I A L SECTION 01 OF 03 WARSAW 001138

SIPDIS

EUR/OHI FOR KENNEDY AND BECKER
EUR/CE FOR PIERANGELO AND MORRIS
DRL/SEAS FOR RICKMAN

E.O. 12958: DECL: 09/28/2018
TAGS: PGOV PHUM PREL PL
SUBJECT: GOP TO PUT FORWARD DRAFT PRIVATE PROPERTY
RESTITUTION LAW; PROSPECTS IN SEJM UNCLEAR

REF: 07 WARSAW 498

Classified By: DCM QUANRUD FOR REASON 1.4 (D)


1. (C) SUMMARY: Polish Treasury Vice Minister Krzysztof
Laszkiewicz told visiting Special Envoy for Holocaust Issues
Ambassador J. Christian Kennedy September 12 that draft
legislation on compensation for WWII and Communist-era
confiscations is ready to be introduced to the Sejm (the
lower house of parliament) once it is approved by the Council
of Ministers, perhaps in October. Ewa Ziomecka, State
Secretary for Social Issues in the Presidential Chancellery,
indicated that President Kaczynski would like to resolve the
issue, but that he and Law and Justice (PiS) party leader
Jaroslaw Kaczynski expect the Government to request their
cooperation. Both Ziomecka and Laszkiewicz confirmed that
Sejm Speaker Bronislaw Komorowski has pledged to move the
bill through parliament as quickly as possible once it is
introduced. Other PiS and Democratic Left Alliance (SLD)
insiders offered a different take, saying they were not sure
that their parties would be able to support the draft
legislation though individual members might. All
interlocutors agreed that the legislation's success will
likely depend on its cost to the national budget and
Government-opposition dynamics. Several also emphasized the
need to launch a major PR campaign to overcome widespread
misinformation and skepticism about the nature and purpose of
the legislation. END SUMMARY.

TREASURY PREVIEWS DRAFT LEGISLATION


2. (SBU) Treasury Vice Minister Laszkiewicz previewed a draft
bill currently under interministerial review (paras 7-11
contain more detailed information). Pending completion of
this review, the bill will be forwarded to the permanent
committee of the Council of Ministers and, if accepted, on to
the Council of Ministers itself in October. Laszkiewicz said
that the Sejm Speaker Bronislaw Komorowski (Civic Platform,
PO) had offered assurances that he would work to move the
bill through the required legislative procedure as quickly as
possible. (COMMENT: Komorowski expressed similar intentions
in a January 2008 meeting with Ambassador Kennedy. END
COMMENT.) Laszkiewicz noted that parliamentary amendments
had led then-President Kwasniewski to veto similar
legislation in 2001, and amendments could be attached this
time around as well. Laszkiewicz reiterated that the GoP is
determined to get the legislation passed this time.

FILING PROCEDURES FOR CLAIMS


3. (SBU) Laszkiewicz said claimants will have twelve months
from the date of the legislation's passage to file an initial
claim (only the application) and will be permitted
subsequently to submit supporting documents up to two years
afterwards. Claimants would have the option of mailing their
application directly to the appropriate provincial
(Wojewodztwo) authority or submitting applications through a
Polish consulate abroad. Laszkiewicz said the GoP would
begin to make payments two years after the law goes into
effect and would strive to complete the payment process as
quickly as possible. Asked about the possibility of
front-loading payments to elderly claimants (or to original
owners vice heirs),Laszkiewicz said such a provision could
prompt legal challenges on the grounds that it violates
Polish guarantees of equal treatment under the law.

PROJECTED COMPENSATION PAYMENTS


4. (SBU) In terms of cost to the national budget, Laszkiewicz
said it is impossible to predict what the value of total
claims will be. Given this lack of information, the GoP
shifted tack from previous formulations that based
compensation on a specific percentage of total claims.
Instead, under the draft law, Poland will allocate no less
than 20 billion PLN (approx. 8.7 billion USD) to a fund.
(NOTE: Laszkiewicz confided that the Treasury Ministry had
earlier predicted a total of 100 billion PLN in claims. The
20 billion PLN fund represents 20 percent of this amount.
END NOTE.) Laszkiewicz said the payments would be stretched
over a period of at least ten years. If the total amount of
claims in any given year exceeds the amount of funds
available, the legislation calls for the national budget to
make up ) or write off - the difference. The funds to be
set aside would come from the sale of Treasury Ministry
assets, including confiscated properties. "This must be done
smartly," Laszkiewicz said, in order to maximize the amount
of money that can be allocated to the fund.


WARSAW 00001138 002 OF 003


PRESIDENTIAL CHANCELLERY SUPPORTIVE, BUT WANTS GOVERNMENT TO
TAKE FIRST STEP


5. (C) Presidential aide Ewa Ziomecka told Kennedy that
President Lech Kaczynski would like to resolve the issue.
However, she argued that passage of the legislation would
require better relations between the Government and the
President's opposition Law and Justice (PiS) party. "PiS and
the Government should be natural allies" on this and many
other issues, "but we are not." She said the Government
would likely need to launch a comprehensive public relations
campaign before the legislation is introduced in the Sejm in
order to address widespread skepticism and misinformation,
including the perception that restitution is primarily a
"Jewish issue." To date, Ziomecka said, the Government does
not seem to have developed such a strategy. In a similar
vein, Ziomecka said, both the Government and the President's
office would prefer that any U.S. lobbying be done quietly.
If Poland is perceived as acting under foreign pressure, she
explained, it will be more difficult to get the legislation
passed. She speculated that the Catholic Church could play a
key role in drumming up political and public support for the
bill.


6. (C) Ziomecka agreed that Speaker Komorowski has expressed
his intent to support the legislation and move it through the
legislative procedure as quickly as possible, but added that
it was not clear whether Komorowski understands the full
scope of pressure abroad. Ziomecka also insisted that PiS
party leader Jaroslaw Kaczynski ) "a lawyer with a sense of
justice" ) could also play a key role, but will likely
insist that PO ask PiS to cooperate on the issue. Although
there has been Polish press and commentariat speculation that
President Kaczynski might veto property compensation
legislation, Ziomecka did not mention this possibility,
despite several opportunities to do so. (NOTE: In a
discussion September 19 with DCM, MFA State Secretary Witold
Waszczykowski said President Kaczynski would have to support
the law, since it is embarrassing that Poland is one of the
few countries in Central/Eastern Europe not to pass such
legislation. END NOTE.)

OPPOSITION VIEWS


7. (SBU) Reaction from other PiS parliamentarians was more
circumspect. Jacek Kurski, Deputy Chair of the Sejm's
Finance Committee, said that PiS support would primarily
depend on its impact on the budget. Kurski did not deny that
there might be an electoral advantage for individual deputies
who support the legislation, but implied that PiS may seek
unspecified concessions from the Government on unrelated
issues. He noted that PiS votes would be essential to make
the legislation veto-proof. Pawel Poncyljusz, a party
insider with close ties to Jaroslaw Kaczynski, said that the
issue is something that Poland needs to solve and thought
that approximately 50 of PiS' 166 deputies might support the
legislation. Ryszard Kalisz, an SLD deputy and Chairman of
the Sejm's Justice and Human Rights Committee, took a similar
position, stating that he supports the project but thought it
would have a mixed reception among other SLD deputies.

TREASURY: WWII ERA CONFISCATIONS WILL BE COVERED


8. (SBU) Previewing the bill for Kennedy, Treasury Vice
Minister Laszkiewicz said the bill covers property that had
been confiscated by decree between 1944 and 1962. He noted
that many NGOs had pressed for the legislation to include
property seized by the Nazi occupation as early as 1939.
Although the legislation in effect covers all such property,
Laszkiewicz said, it was not possible to make the legislation
retroactive to 1939 because the Polish Government-in-Exile
issued a decree in November 1939 declaring invalid all acts
by occupying forces, including seizures of property held by
Polish citizens. The newly constituted Polish communist
government issued a similar decree in 1944. Because both
decrees are still recognized by the Republic of Poland, using
1939 as a starting date for private property restitution
would make legislation vulnerable to a legal challenge in the
Constitutional Tribunal and "would not change any legal
fact," given that all property seized by the Nazis was
nationalized by decree of the communist authorities in 1944.

DOCUMENTATION REQUIREMENTS


9. (SBU) On the issue of documentation, Laszkiewicz said
Article 75 of the Polish Administrative Procedure Code did
not make it possible to accept only a claimant's written
declaration of ownership. "Such a provision would be sent to

WARSAW 00001138 003 OF 003


the Constitutional Tribunal and the law would be immediately
struck down." Laszkiewicz did say that Polish authorities
would facilitate claimants' access to deed and mortgage
registers. For that purpose a claimant's written declaration
will suffice when requesting extracts from the registers.
Claimants may request extracts by sending a letter to or
appearing in person at the administrative court that oversees
the registers. Laszkiewicz explained that the administrative
court plays a dual role, i.e., both administering the
registers and resolving title disputes and bookkeeping errors.

PROVISIONS FOR RECOGNITION OF INHERITANCE AND POWER OF
ATTORNEY


10. (SBU) On the issue of inheritance, Laszkiewicz said it
would not be necessary to conduct court hearings for
acquisition of the property if a claimant inherited the
property in question in another country. Under the principle
of international comity, it is only required that a Polish
court recognize the inheritance. Laszkiewicz insisted this
is a fairly routine procedure under Article 1145 of the
Polish Administrative Code. Laszkiewicz said recognition of
foreign powers of attorney would also not be a problem in
cases where Poland has a bilateral treaty with the claimant's
country of residence that acknowledges power of attorney. He
noted that this includes all signatories to the Hague
Convention, which provides for mutual recognition of power of
attorney. In other cases, Laszkiewicz said, a Polish
consulate abroad is empowered to recognize power of attorney,
as Polish consular officers have notary authority.


11. (SBU) A more difficult question, Laszkiewicz said, would
be to conclude a legal determination that an individual is
deceased in cases where there was no death certificate or
inheritance procedure, whether in Poland or abroad. In such
cases, claimants would be required to present a court's
recognition that the original owner is deceased and would
then have to petition a Polish court to recognize the
inheritance. In cases where the claimant possesses a death
certificate but no inheritance procedure has been conducted,
the foreign death certificate would need to be recognized by
a Polish administrative court.

COMMENT


12. (C) The 1944 date mentioned by Laszkiewicz has caused
concerns among potential American claimants, many of whom
were dispossessed in 1939 under Nazi Aryanization actions.
Although Laszkiewicz's explanation provides a legal rationale
for the government draft bill using 1944 as a start date, we
should press the Poles for at least a strong, political-level
statement that the confiscations of 1939 and the rest of WWII
are covered. This kind of lobbying will be necessary on
other issues too, such as ease of filing, amount of the
compensation to be paid out, and the period over which
payouts will be made. However, further lobbying should
probably await actual introduction of the draft law in the
Sejm; until then, the main official to engage would be
Laszkiewicz, who has been consistent in his views over the
last six years about what is and is not possible under Polish
law. As drafter of the earlier bill vetoed by former
President Kwasniewksi, he has more expertise on this subject
than any other political-level figure in the current
government. The Treasury Ministry released the text of the
draft bill in a press release September 23.


13. (SBU) This message has been cleared by Ambassador Kennedy.

ASHE