A Crusading Lawyer’s Battle for Restitution

Brian Kramer.

Brian Kramer, an attorney in Boca Raton, Florida, conducts a practice that focuses on winning restitution for Holocaust survivors and their families. Increasingly, he has focused on property claims in Poland. In a conversation with Hamodia, Mr. Kramer shared with us what he sees as the importance of the cause as well as some of its unique challenges.

by Rafael Hoffman

Please give us some background on how you became involved in restitution issues.

I have been involved in Holocaust restitution issues for a number of years in a few different capacities, both as an employee and on a volunteer basis. I was first focused on Germany Wiedergutmachung Pensions and concentrating on ZRBG claims (aka “Ghetto Pensions”). I also worked briefly at the Conference on Jewish Material Claims Against Germany, known as the Claims Conference. I worked professionally alongside several organizations while privately helping family and friends.

In general, respect for survivors and ensuring their quality of life is a passion of mine and so, being an attorney, I guess it is not surprising that I focused on the most direct way of bringing this interest into my career. It also has helped me personally by giving me a direct way to connect with “lost” generations and strengthening my commitment to mesorah, an appreciation of our Jewish identity, minhagim and Halachah. My personal experience with Holocaust survivors allows me to connect to my Jewish identity in ways that I never thought possible.

Claims have become the main focus of my private practice. At this point, I’m handling several hundred different Holocaust reparations claims for individuals and families. I am also very involved with helping Holocaust survivors or their children obtain whatever benefits they might be entitled to from Germany. Many children, the “second generation” of Holocaust survivors who died in the past 15 or so years, may also be entitled to benefits that were not paid to their deceased parents by Germany.

What are some of the unique challenges in restitution cases? Which are most difficult?

When a lawyer takes on a lawsuit, the client knows exactly what he or she is suing to recover. They looked for an attorney in the first place because they know — or at least think — that they were damaged. When it comes to trying to reclaim property, especially when your client is an heir or beneficiary as opposed to the former owner themselves, you have a class of claimants who are completely unaware that they have any entitlements or claim, and that, in many instances, these claims are expiring.

As a licensed lawyer, I am bound by certain ethical requirements which, for example, prevent me from directly soliciting targeted claimants. So typically claimants are referred to me, or at least initiate the relationship. All I can do in the realm of property claims is educate people about unclaimed properties and try and match heirs and do my best to inform them of their legal rights. Unfortunately, there is no organization with sufficient resources, knowledge and experience to fill this void. However, organizations such as the European Shoah Legacy Institute have been very helpful in educating and lobbying for key changes. I work closely with them.

Interestingly, because of many scandals over the years, survivors and their families are very skeptical. This makes it difficult to convince them to trust me that, in fact, they might have a valid claim and then, of course, to let me pursue their case.

On top of that, of course, there is the challenge of dealing with archives and legal systems in foreign countries. I happen not to speak Polish or German, but have built up partnerships to help me with the language and cultural barriers. Then there is the fact that commuting, so to speak, between Boca Raton and Warsaw is not very easy. I’ve been there already four times this year, and am planning my fifth trip for after the chagim.

How do you deal with a lack of documentation? How do you work to prove claims from 75 years ago in a foreign country?

Despite the passage of time, war, and governmental changes, I have often been surprised that the documentation does exist, and when it doesn’t, I have enough experience in this area of the law to find other means of proving the claims.

I’ve also built good relationships with archivists and am constantly in touch with them. Many times, finding these papers is a matter of knowing which archive to look in — which one learns from experience. I also pay researchers to get the papers we need and they are usually pretty helpful.

With respect to Polish property restitution, baruch Hashem, I have been able to develop positive, cooperative, productive working relationships with domestic lawyers and, of course, legal experts across Europe, including several in Poland. For example, I have teamed up with international litigators Kathryn Boyd and Tom Watson from Los Angeles and Professor Michael Bazyler, a leading academic who has published several books and articles on Holocaust restitution.

Another aspect of the issue of research is that a lot of the information is already in the United States and Israel, which makes some things easier, but is just one part of the still unfolding tragedy of the restitution story as well. There was, for example, an organization funded by the Israeli government called Project Heart. They collected over tens of thousands of claims, but later lost their funding and Project Heart ceased to exist, basically overnight. Tens of thousands of people had submitted claims that they still don’t realize were not being followed up on. These claims are just lost — and now, many of those applicants are deceased. I can’t tell you how often I hear from a person that their claim was submitted and the proof they send me is correspondence from Project Heart — which has no impact [on current claims efforts].

A former shul in Cracow, now a nightclub.

Recently, you have focused a great deal on claims in Poland. How do they compare to other countries in terms of restitution claims, besides Germany which, for obvious reasons, has led the restitution movement?

Poland, as a whole, has the worst track record with regard to property restitution. They are the only eastern European country that has ignored — on a national level — its obligation to establish a formalized, comprehensive and universal system for the restitution of private property that was stolen from both Jews and non-Jews during the Nazi occupation and, later, under communist rule.

Instead of having a centralized, transparent system for claimants to pursue the return of their properties, the uniquely Polish system only allows for individuals to pursue remedies in local courts. This is in contrast to other countries which created an administrative office dedicated to remedying this problem and returning nationalized property seized during and after the Holocaust.

The Poles basically treat the claims of survivors like any other legal tort. Their courts are ridiculously slow, cost prohibitive, and full of unfair expectations of the claimants.

The result? Many claims get stalled in the wheels of “injustice” and many more people are discouraged from even trying. It is not unusual for a restitution matter to take up to five years from start to finish.

The Polish government is well aware of the time and financial hardships imposed by their system. They are keenly aware that WE are fighting against the clock and that the majority of Holocaust survivors are already deceased or elderly and that their children or grandchildren are generally uninformed or unaware of their stolen properties. Also, trust me: the Polish government has not forgotten that the statute of limitations is running in its favor. Generally speaking, claimants have 30 years to make a claim on expropriated property, without having the issue of adverse possession; however, in many cases, the clock didn’t begin to run until the end of communism in Poland in the summer of 1989 — thus again underscoring the importance of investigating potential claims today. We are now ending the 28th year since the fall of communism. So, new claims — for example, those first filed after the summer of 2019 — will probably face the insurmountable roadblock of 30 years of unopposed adverse possession.

As in any legal system, regional courts are already overburdened. Add to that, they are being asked to deal with complicated matters regarding claims from over 70 years ago made by people living abroad.

These courts end up asking survivors and their families to produce evidence that in a normal civil case would be par for the course, but are ridiculous in the context of Holocaust reparations. For example, in many cases, evidence that is being requested never existed in the first place. After all, how many death certificates were provided to the families of the 1.1 million Jews gassed in Auschwitz, the 900,000 killed at Treblinka or 600,000 gassed in Belzec? Yet, in order to prove inheritance and heirship, claimants need to document the death of these victims with death certificates.

Besides the lack of a central body for restitution, what are some other unique challenges of representing the claims of survivors from Poland?

In 2015, Poland passed a law enabling Polish “victims of oppression/persecution,” to collect a quarterly pension. They receive about $100 per month (paid quarterly). It’s not a lot of money, but many survivors in reality need this money. Others just want it as an acknowledgment of harm they suffered.

It was a welcome move, but they’ve made it very difficult to claim these pensions. Firstly, the forms are in Polish and responses have to be written in Polish. Also, if your claim is denied, you are only given seven days to appeal, and people who make these claims without a lawyer like myself do not even receive the denials (in Polish) for several months, well after the deadline. This also occurs for normal correspondence without a lawyer. Many people are left waiting 4-6 months between standard correspondences. Not to mention, the difficulty of proving persecution in an expeditious way so that there are no further delays can be difficult without sufficient experience.

Then you come back to the issue of proving what occurred. The Germans kept careful records of deportations, but this pension is also for those who were not sent to concentration camps but who were deported to Siberia, or even born there. Many Jews who were deported to, or born in, Siberia or middle-Asia during the war still don’t even know that they are entitled to this pension.

Then there are issues of who they consider a “victim.” In general, Polish law does not define someone who was hiding in the forest as a victim of persecution or oppression deserving of a pension. When I heard this from a Polish official on a trip to Warsaw in January, I was incredulous. I told him, ‘I’m wearing three layers of clothes and I’m still freezing; these people were in the woods without shoes and coats or food, and they are not recognized as victims of persecution?”

Also, while claims for persecution-related pensions tend to be more emotional for survivors while a property claim is often viewed as a legal battle. But try telling someone who had their family killed and only survived because they, at 5 years old, were able to hide in the woods for four years, that they were not persecuted.

I had a case of a woman who still speaks and writes Polish and had been sent to multiple ghettos and camps, and all of her siblings were killed. She gets three pensions from Germany, but Poland denied her because she was in smaller camps that did not have records available.

Another woman I worked with worked under a false identity during the war, and the Poles won’t pay her because the wartime documents have her pseudonym. They have an extra layer of bureaucracy to everything.

I don’t want to paint the entire Polish system or the Polish people as a whole as bad people. There are a lot of people in various government positions, including the Office of Victims of Persecution, who are very well intentioned, helpful people, but a lot of times it’s an uphill battle.

Why do you feel the Poles have been more reluctant on restitution than other countries?

It’s a very complicated matter. In some respects, I think it’s a reflection on the Polish system as a whole, and not that these hurdles were made to spite the Jews specifically.

Poles have a major psychosocial dichotomy about the fact that they were both perpetrators as well as victims of Nazi persecution. In reality, the war started in their country and they had tanks running over it for the entire time. In addition to the more than 3,000,000 Jews there were several million non-Jewish Poles killed during the War. I think it is just under 20% of the total population. In what seems, to many, an odd twist, the Polish government is now trying to sue Germany for reparations.

There’s also a long list of historical factors which make Poland unique among other European nations. Firstly, it was the largest country in prewar Europe; it also suffered more damage than the rest of Europe. Finally, there were many more victims, both Jewish and non-Jewish. Therefore, the sheer size and complications involved in undertaking the needed comprehensive restitution program probably seems too daunting. Instead, the Polish government has repeatedly opted to ignore the issue. Additionally, shifting borders have made it more difficult for the Polish government to proceed.

As you know, in February the Warsaw government began publishing lists of properties that were claimed but never concluded. After publication, a potential claimant has six months to move to reopen the old claim filed right after the war, or they will forever lose this property, their inherited legacy. They say that the city needs to clear its books and allow for its development and real estate market to function unencumbered. I have no reason to think that this is not their intention, but the time restrictions are completely unreasonable given the speed at which the Courts move and the difficulty of proving inheritance and since in most cases, the heirs don’t even know their claim exists and are not following the matter to learn about their rights. After asserting the claim, the claimant has three months to provide the documentation needed for the courts to make a decision. This as I said is an impossible deadline; after all, given the arguably unrealistic expectations, this process, on a good day, takes several years.

In 1989, when Poland first became a democratic nation, there was little stability. The government and leadership were constantly changing. Yet, in these early years, there were seemingly sincere attempts to pass a comprehensive restitution bill, but they all seemed to stall.

This was a huge setback to the process. Ironically, many of the people in today’s government were supportive of a comprehensive restitution process in the early years of Polish democracy, through 2001, but as time passed, Poland underwent commercial privatization, led mostly by foreign investors, which introduced a set of complications. Now there were new business owners who really had nothing to do with the asset’s history and did not feel any sense of responsibility.

Also, as the decades went by, political pressure decreased. People started to feel that the war was such a long time ago, and why should they give [property] back to people who have no connection to the country anymore?

Were many claims made after the war? What happened when the Communists took over? How many claims have been reopened?

The Holocaust came after nearly 1,000 years of vibrant Jewish life in Poland. Jews held many important positions in the overall economy. They owned businesses, factories, farms, real estate, art, and many other valuable assets. Yet, between September 1939 and April/May 1945, more than 3,000,000 Polish Jews were killed, 90 percent of the prewar Jewish population. Then, beginning soon after the war, particularly in Warsaw, the communists began to nationalize and expropriate, depriving individuals of their property rights.

Also, different parts of postwar Poland had varying degrees of anti-Semitism in the immediate years after the war. Many Jews returning to areas where they felt less safe were less likely to make claims. After the Kielce pogrom in July of 1945, people in smaller cities, fearing retaliation, just fled the country without making any claims. By contrast, Jewish survivors living in cities like Warsaw, Lodz and Wroclaw were more likely to file claims, but very few were successfully resolved.

A disputed property in Warsaw.

How have the recent steps the Warsaw government has taken on disputed property affected your work? What is the background of the 2,600 properties they are saying must be claimed now or forfeited forever?

As I said, during the postwar period, thousands of claims were started, but left open. Now, for obvious reasons, the city of Warsaw is anxious to close these claims, clear the titles to the properties and sell them. Though Warsaw claims only 2,613 open post-War claims yet we believe there are many more. It is also estimated that these claims alone are worth more than $20 billion dollars. In many cases we are talking about real estate in the middle of Warsaw.

Beginning in February 2017, the city of Warsaw started publishing small lists of properties for which claims were initiated but never concluded. After doing so, the claimants or their legal heirs have six months to reactivate their claim and then three months to substantiate it. After that time, these claims will likely be gone forever.

It should be noted that the published lists are NOT completely exhaustive and do have some errors. So if your name is not on any published list, it does not mean you have no claim. I can’t emphasize it enough that if you even think your family had any ties to Polish properties or business, specifically in Warsaw, they should contact an attorney that can navigate your claims as soon as possible.

What I find most shocking is that since February, very few claims have been submitted for these locations. To me, that means that the word has not been effectively transmitted. The WJRO (World Jewish Restitution Organization) has a database of claims but this, too, is neither exhaustive nor free of errors. Even though, technically, the deadline has passed on the first two batches, I hope that if someone were to come forward now, there would be enough political pressure and sense of justice to convince the Polish authorities to allow legitimate claimants to pursue their entitlements, so anyone who thinks they might have a claim should not give up.

Together with Professor Bazyler, we are trying to stay on top of the postings as soon as they are released and are busy trying to make any connections that exist.

The ruling Law and Justice party has been painted by many as having an agenda to downplay Poland’s role in the Holocaust. Do you feel this is accurate and has it affected the country’s attitude towards restitution?

There has been even more gridlock. The government’s position on restitution seems to conflict with their actions since taking office, resulting in unpredictability and stalemate.

Ironically, when the last president vetoed legislation to establish a national system for the restitution of property, he was criticized by the current government. Now, since they have taken power, they, too, have opposed legislation for a comprehensive restitution system. Instead, they have focused their attention on seeking restitution from the German government. The Polish government recognizes the unfinished business of Holocaust restitution and is seeking assistance from Germany — but it seems significantly misguided to make international claims for restitution without first dealing with their own domestic injustice; that is to say, without having clean hands yourself.

Even if they didn’t make a nationalized system of property restitution, there are other ways that the Polish government could help claimants. For example, they could grant access to the Land & Mortgage Registry, which has most of the information and evidence needed to determine who owned many of the unclaimed properties. Yet, access to these records is significantly restricted. Before a legal representative can even request access they must prove their lineage, a process which alone takes many months. The best thing the Polish government could do now, without creating a new comprehensive program, is to allow for comprehensive judicial and administrative reform to increase judicial efficacy, access to records, and transparency.

How much more do you think can be practically accomplished for the cause of restitution, in general?

There is no way of knowing how much more could be accomplished without trying. There is certainly a lot of injustice that needs to be corrected, but in Poland the present system is not designed for the efficient resolution of these claims.

Restitution, in general terms, is about providing some “measure of justice” to the remaining survivors and their families, regardless of how many years have passed or will pass. So the fight will continue.

Also, the Holocaust is not just about mass murder and genocide but also about mass theft of objects and property belonging to individuals, our cultural heritage. You can’t just take something and not return it. These buildings, these homes, these paintings, these family heirlooms belong to others.

Our biggest enemy is not only unfair systems, but the lack of information on our side. Therefore, I need to emphasize that if you know anyone who might have owned property, art, or a business in Poland, especially Warsaw, to urge them to take the steps now to initiate claims, even if they unsuccessfully tried to make a claim in the past. Time is running out; act now before these properties will be ceded to Poland without recourse.

To contact Mr. Kramer please email letters@hamodia.com.