[matcheek]

Legal Objections to Bills S.447 and H.R.1226
Proszę Państwa,
Oto zapowiadany wcześniej list do 48 członków Komisji Spraw
Zagranicznych Izby Reprezentantów Kongresu USA, oraz będąca jego
częścią wstępna analiza prawna dwóch, paralelnych, anty-polskich
- w swym wyrazie - ustaw procedowanych nie w Kongresie USA: Aktu S.
447, przyjętego 12 grudnia 2017 przez aklamację w Senacie USA i aktu
HR 1226, który ma być niebawem zopiniowany przez Komisję Spraw
Zagranicznych Izby Reprezentantów. Proszę tych z Państwa, którzy
są obywatelami amerykańskimi o natychmiastowy kontakt ze swoimi
kongresmenami w tej sprawie. Chętnie służę dodatkową informacją.
Pozdrawiam serdecznie
Edward Wojciech Jeśman
Prezes & National Director
January 8, 2018

The Honorable Members of Congress:
Ed Royce, Chairman (California), Eliot Engel, Ranking Member (New
York), Chris Smith (New Jersey), Ileana Ros-Lehtinen (Florida), Dana
Rohrabacher (California), Steve Chabot (Ohio), Joe Wilson (South
Carolina), Michael McCaul (Texas), Ted Poe (Texas), Darrell Issa
(California), Tom Marino (Pennsylvania), Jeff Duncan (South Carolina),
Mo Brooks (Alabama), Paul Cook (California), Scott Perry
(Pennsylvania), Ron DeSantis (Florida), Mark Meadows (North Carolina),
Ted Yoho (Florida), Adam Kinzinger (Illinois), Lee Zeldin (New York),
Dan Donovan (New York), Jim Sensenbrenner (Wisconsin), Ann Wagner
(Missouri), Brian Mast (Florida), Francis Rooney (Florida), Brian
Fitzpatrick (Pennsylvania), Thomas Garrett, Jr. (Virginia), John
Curtis (Utah), Brad Sherman (California) Gregory Meeks (New York),
Albio Sires (New Jersey), Gerry Connolly (Virginia), Ted Deutch
(Florida), Karen Bass (California), William R. Keating
(Massachusetts), David Cicilline (Rhode Island), Ami Bera
(California), Lois Frankel (Florida), Tulsi Gabbard (Hawaii), Joaquin
Castro (Texas), Robin Kelly (Illinois), Brendan Boyle (Pennsylvania),
Dina Titus (Nevada), Norma Torres (California), Brad Schneider
(Illinois), Tom Suozzi (New York), Adriano Espaillat (New York), Ted
Lieu (California).
Dear Member of the House Foreign Affairs Committee,
On December 12, 2017 the U.S. Senate approved Bill S.447, known as
"the Justice for Uncompensated Survivors Today (JUST) Act of 2017”.
The House Bill H.R.1226, which mirrors the U.S. Senate bill S.447, is
presently awaiting evaluation of the House Foreign Affairs Committee.
Attached is a legal evaluation of the proposed House Bill H.R.1226
that we are respectfully submitting for your review. It is our
position that H.R.1226 is logically and
legally flawed, as per the attached legal analysis. Moral, historical
and political dimensions must be carefully considered as well.
A follow up letter, and a full list of the Polish American signatory
organizations monitoring this bill, shall follow within the next
several days.
We urge you to reject H.R.1226.
Sincerely,
Edward Wojciech Jeśman, President
Polish American Congress of Southern California Los Angeles,
California
[e-mail] 310-291-2681
Andrzej Prokopczuk, President

Polish American Congress of Northern California San Francisco,
California [e-mail]
Jerzy Bogdziewicz, President
Polish American Congress of Florida Pompano Beach, Florida
Michael Nidzinski, President
Polish American Congress of Illinois Chicago, Illinois
Anne Bankowski, President
Polish American Congress Michigan Division Hamtramck, Michigan
Wieslaw Wierzbowski, President
Polish American Congress of Eastern Massachusetts Quincy,
Massachusetts
Walter Wiesław Gołebiewski
Polish American Congress Florida Western Division Corp. New Port
Richey, Florida
James L. Ławicki II, President
Polish American Congress Western New York Division Inc. New York
John (Jan) M. Malek, Founder & President
Polish American Foundation for Economic Research and Education
(PAFERE) Torrance, California
Stanislaw Matejczuk, Head Coordinator Polonia Semper Fidelis
New Mexico
Waldemar Biniecki, CEO Pax Polonica Foundation Manhattan, Kansas
Peter Pachacz, President
Pulaski Association Business and Professional Men, Inc. Brooklyn, New
York
Richard Mleczko, President
East Bay Polish American Association Martinez, California
Adam Gromek, President
Polonian Cultural and Pastoral Center Sacramento, California
Leszek Pawlik, CEO Polonia Institute Torrance, California
Witold Rosowski,
Polish Heritage Council of North America New York, New York
Zygmunt Staszewski, Co-Chair Polish-Jewish Dialogue Committee New
York, New York

Walter Wiesław Gołebiewski
World Research Council on Poles Abroad Florida
Jerzy W. Rozalski
Polish Varieties Radio WNZK Detroit, Michigan
Natalia Kaminski Polish Radio Hour
Los Angeles, California
Mary Lou T. Wyrobek, President Polish Singers Alliance of America
Ania Karwan, National Director
Polish American Congress of Southern California Los Angeles,
California
Edmund Lewandowski, National Director
Polish American Congress of Northern California San Francisco,
California
Halina Koralewski
Achilles Poland International Ambassador New York, New York
Zbigniew Koralewski, National Director Polish Singers Alliance of
America Long Island, New York

Cc:
▪ President of the United States, Donald Trump
▪ Vice President of the United States, Mike Pence
▪ Secretary of State of the United States, Rex Tillerson
▪ President of Poland, Andrzej Sebastian Duda
▪ Prime Minister of Poland, Mateusz Morawiecki
▪ Minister of Foreign Affairs of Poland, Jacek Czaputowicz
▪ Marszalek Sejmu, Marek Kuchciński
▪ Marszalek Senatu, Stanisław Karczewski
Pd H.R.1226
submitted by the Polish-American constituency
January 4, 2018

1. BILLS S.447 AND H.R.1226 VIOLATE INTERNATIONAL TREATY AND LAW
The Justice for Uncompensated Survivors Today Act of 2017, S. 447,
passed the Senate on December 12, 2017. A related House Bill H.R.1226
was introduced in the US House of Representatives on February 27,
2017. Both S. 447 and H.R. 1226 (the “Bills”) are now before the
Committee on Foreign Affairs of the House of Representatives. The
texts of the two Bills are similar and in parts identical. The Bills
call on “countries of particular concern” relative to the
Holocaust Era assets and related issues to: 1) return to the rightful
owner any property, including religious or communal property, that was
wrongfully seized or transferred; 2) provide property or compensation
for heirless property in order to assist needy Holocaust survivors, to
support Holocaust education, and for other purposes.
A. Compensation for private property in Poland already paid to
rightful owners
In calling for the return to the rightful owner of a property that was
“wrongfully seized or transferred,” the Bills violate the
Agreement between the Government of the United State of America and
the Government of the Polish People’s Republic regarding claims of
nationals of the United States signed at Washington on July 16, 1960,
and registered with the United Nations by the United States of America
on January 6, 1961 (“1960 Treaty”).
Under the 1960 Treaty, Poland paid the United States $40 million in
full settlement of claims of nationals of the United States for
nationalization or other taking of property, appropriation or loss of
use of their property and debt owed by enterprises taken over by the
State.1 [1] The $40 million paid pursuant to the 1960 Treaty
represents over a billion dollars in 2017. Hence, this substantial
compensation was intended to settle property claims against Poland by
US nationals. In accordance with Article IV of the 1960 Treaty, the
United States agreed to fully indemnify Poland for any property claims
of US nationals, which occurred on or before the entry into force of
the 1960 Treaty.2 [2]
_________
1 Art. II of the 1960 Treaty provides compensation for the following:
(a) the nationalization or other taking by Poland of property and of
rights and interests in and with respect to property; (b) the
appropriation or the loss of use or enjoyment of property under Polish
laws, decrees or other measures limiting or restricting rights and
interests in and with respect to property, and (c) debts owed by
enterprises which have been nationalized or taken by Poland and debts
which were a charge upon property which has been nationalized,
appropriated or otherwise taken by Poland.
2 Article IV of the 1960 Treaty provides: After the entry into force
of this Agreement the Government of the United States will neither
present to the Government of Poland nor espouse claims of nationals of

the United States against the Government of Poland to which reference
is made in Article I of this Agreement. In the event that such claims
are presented directly by nationals of the United States to the
Government of Poland, the Government of Poland will refer them to the
Government of the United States.
__________________________________________________________________
On March 31, 1966, the Foreign Claims Settlement Commission of the US
completed its administration of the Polish Claims Program pursuant to
the 1960 Treaty and submitted a final report to various committees of
Congress. Awards granted under the Polish Claims Program totaled
$100,737,681.63 in the #!$%@? amount plus interest in the amount of
$51,051,825.01.
Accordingly, in light of the contractual obligation of the United
States to provide indemnity to Poland for private property claims, the
enactment of the Bills that direct the US Secretary of State to
pressure Poland to pay further private property claims violates the
contractual obligation of the United States.
Also, it shall be noted that between 1948 and 1971 Poland concluded
property restitution and compensation treaties not only with the
United States but also with Austria, Belgium, Canada, Denmark, France,
Great Britain, Greece, Holland, Luxembourg, Norway, Sweden and
Switzerland. All claims for property located in Poland by the citizens
of these countries have been since settled in full and discharged.
Furthermore, since 1989, all legitimate property claims of private
individuals can be freely pursued before the Polish courts in
accordance with the provisions of the Civil Code. Every person
regardless of their nationality or ethnic origin may enforce their
property and inheritance rights before the Polish courts in accordance
with the procedures of the Code of Civil Procedure. Hence, every
individual with a right title can file a request for declaration of
the acquisition of the inheritance. Thousands of people with
legitimate title claims - regardless of their ethnic origin - have
recovered their properties in Poland pursuant to the private property
law.
1. Religious and communal property returned or compensated for in
Poland
The return of Jewish religious and communal properties has been
implemented in Poland pursuant to the 1997 law on the relationship
between the Polish State and Jewish religious organizations.3 [1] On
the basis of this unprecedented legislation, Poland granted the Jewish
minority broad decision- making powers in the implementation of this
legislation. The Commission for the Jewish Communities Affairs carried
out the restitution of Jewish religious and communal properties
program in close cooperation with the Union of Jewish Communities.4
[2] Over 2,500 communal properties, including synagogues, cemeteries

and cultural centers, have been either returned or compensated for
based on the Polish 1997 law.
Accordingly, practically all religious and communal properties with
adequately documented ownership have been either returned or
compensated for by now. Therefore, claims for this type of property
restitution have been settled in Poland.
2.

Restitution of heirless property is against the law

If there are no heirs, the property is not "wrongfully seized or
transferred." It escheats to the state. That's the law in every
country. The Bills introduce a precarious precedence of "heirless
property" compensation that is contrary to the Western legal tradition
and principles of jurisprudence. In S. 447, the goal and objective
relative to heirless property is
_____________________________
3 Law dated February 20, 1997, DZ. U. 1997 No. 41 Item 251.
4 Art. 32.1 of the 1997 Law.
_________________________________________________________________________
_____

is "the provision of property or compensation to assist needy
Holocaust survivors, to support Holocaust education, and for other
purposes. . ." H.R. 1226 states the goal and objective as "the
restitution of heirless property to assist needy Holocaust survivors,
and for other purposes . . ." "Restitution of heirless property" is an
aberration by definition. "Restitution" means the restoration of
something to its rightful owner. If the property is "heirless" then,
by definition, restitution of the property to the rightful owner is
impossible. The property might have been "wrongfully seized or
transferred" originally, but if the property is now heirless, it
escheats to the state. That's the law everywhere, including the United
States.
The Bills call on the Secretary of State to present reports that are
to address "wrongfully seized or transferred Holocaust era assets."
Hence, such reports should not include "heirless property" which
always and everywhere escheat to the state; such escheat being lawful
and legal, regardless of whether the property was earlier wrongfully
seized or transferred.
This issue is of crucial importance to Poland since most of the
heirless property claims are against Poland. Creating ex post facto a
legal precedent of property restitution to “non-heirs” for
“other purposes” amounts to extortion of funds from “other”
uncompensated victims of the German WWII genocide. Such scheme treats
the Polish taxpayers, who themselves are victims of the German
genocide and wrongful seizure of property, as those guilty of the

Jewish Holocaust, hence it is unconscionable.
D. Multiple payments for the same claims are wrong in law and equity
Poland has implemented numerous laws and procedures under which WWII
property claims have been effectively pursued. Since 1951 Germany has
paid the equivalent of over 100 billion dollars to Jewish individuals,
Jewish organizations and the State of Israel. The German payments
covered all of the Jewish property seized and expropriated by Germany
during WW2, including the immovable property located on the Polish
territory conquered and occupied by the Third Reich.
2. THE BILLS ARE UNCONSTITUTIONAL
The US Congress does not have the constitutional power to enact either
of the two Bills.
Rule XII Clause 7(c) of the House of Representatives requires that all
bills (H.R.) and joint resolutions (H.J.Res.) must provide a document
stating "as specifically as practicable the power or powers granted to
Congress in the Constitution to enact the bill or joint resolution" to
be accepted for introduction by the House Clerk.
According to the Constitutional Authority Statement, Congress has the
power to enact the Bills pursuant to Article I Section 8 Clause 3 of
the Constitution of the United States.5 [1] The cited clause
5 See: https://www.congress.gov/bill/115th-congress/house-bill/1226
[3] From the Congressional Record Online through the Government
Publishing Office. By Mr. CROWLEY: H.R. 1226 - the following: Article
I Section 8 Clause 3 [Page H1355].
_________________________________________________________________________
____

of "Article I Section 8 Clause 3" is commonly known as the Commerce
Clause,6 [1] which gives Congress the power “to regulate commerce
with foreign nations, and among the several states, and with the
Indian tribes.”
Clearly, neither S 447 nor HR 1226 are related to the regulation of
commerce. Unless, perhaps, it is intended to gather information, under
Congress' investigatory power, to be used in future legislation that
would impose sanctions on countries that are deemed not to have made
sufficient progress towards the Holocaust (Shoah) Era restitution
claims. If so, this purpose should be stated explicitly in HR 1226.
3. THE BILLS ARE DISCRIMINATORY IN NATURE
The Bills make reference to the Terezin Declaration adopted at the
2009 Holocaust Era Assets Conference held in Terezin, Czech Republic.
The Terezin Declaration adopted the phrase, "Holocaust (Shoah)
survivors and other victims of Nazi persecution" throughout, except
under the section entitled "Immovable (Real) Property," in which a

more narrow definition of victims i.e. "Holocaust (Shoah) victims" is
used. The use of "Shoah" is intended to restrict "Holocaust" to Jews
only and not include other victims.
The United States shall not discriminate against racial, ethnic or
religious groups whose members may be in the exact same situation as
Jews. Approximately 5 million non-Jews (mostly Christians) were killed
by the Germans. In particular, close to 3 million Poles were killed in
WWII by Hitler’s Germany and the Soviet Union, and it is estimated
that about 80% of the potential property claims would be by ethnic
Poles while about 20% by ethnic Jewish. The “other victims” in
particular the Polish victims of German extermination, must be
explicitly included in the restitution claims to avoid
misunderstandings and complaints of favoritism, undue influence and
outright discrimination.
Both Bills would require the US Secretary of State to submit a report
"that assesses and describes the nature and extent of national laws
and enforceable policies" of "covered countries" regarding the
"identification and the return of or restitution for wrongfully seized
or transferred Holocaust era assets." The report would also assess and
describe the covered countries' progress towards meeting the goals and
objectives of the 2009 Holocaust Era Assets Conference (S. 447), or
the 2009 Terezin Declaration on Holocaust Era Assets and Related
Issues (H.R. 1226).
The Bills give the Secretary of State in cooperation with the
Holocaust Envoy the power to determine, "in consultation with expert
nongovernmental organizations" whether the proposed law applies to a
particular country. The term "expert nongovernmental organizations" is
one of several unacceptable ambiguities in these Bills. Requiring the
Secretary of State or Holocaust Envoy to consult with undefined NGOs
before choosing "covered countries" gives the Secretary or Envoy too
much discretion and invites claims of discrimination of ethnic Poles
and the Polish American community.
6 https://www.law.cornell.edu/wex/commerce_clause [4]. [4]
_________________________________________________________________________
_______

The NGOs that are to be consulted in designating “covered
countries” should be explicitly named. As most of the potential
claims will involve Polish properties, Polish-American NGOs shall be
clearly identified for consultation, and Poland should be given full
opportunity to be heard. Poland and the Polish Americans should give
input and present their position regarding the issues involved before
any decision to apply the Bills to Poland is made.
4.

THE BILLS ARE DUPLICATIVE OF ESLI STUDY

The US Secretary of State report required by the Bills would be

duplicative of a comprehensive study published after the Bills were
introduced. In accordance with the Terezin Declaration, in 2010 the
Czech government established the European Shoah Legacy Institute
(ESLI) in Terezin to monitor the progress and advocate for the
principles of the Terezin Declaration.7 In fulfillment of its mission,
ESLI commissioned in 2014 the Holocaust (Shoah) Immovable Property
Restitution Study (the “Study”). Published on April 24, 2017,8 the
Study is the comprehensive compilation of all significant legislation
passed by the 47 states since 194

[dzieju41]

@matcheek: Trochę przesadziłeś.

[matcheek]

@dzieju41: sciana tekstu? Trzeba na markdown, ale skryptami nie wychodzi za dobrze.