Double compensation for Church land claims

♦  For a good summary, see Poland’s Property Commission on Trial for Deals that Handed Millions to Catholic Church (2013) 

In pre-war Poland the Catholic Church had 400,000 hectares of land, but once the country was shifted westward at the end of the war, they retained only 160,000 hectares. The rest was left "behind the Bug", (the river that happens to mark the boundary between  Catholic and Orthodox predominance and now forms the central part of Poland's eastern border). At this time Poland's western border was also moved in order to give it some German territory.

Due to the change in Poland's boundaries in 1945 there are, legally speaking, three different kinds of land claimed by the Polish Church. These are (from west to east): land ceded to Poland from Germany, land which has remained in Poland and land "behind the Bug" which was given to the USSR and is now a part of Lithuania, Belarus and the Ukraine.  

1. "Recovered Lands" (from Germany)

♦  In 1945 at Yalta Poland was legally ceded some German territory, (which is called by the Poles, somewhat confusingly, the "Recovered Lands", even though the last time Poland owned them was in the 12th century).

♦  Although the pro-German Pope Pius XII declared as late as 1949 that Polish control of the "Recovered Lands was still an open issue, [1] in practice, the church boundaries followed the new national ones. [2]

♦  Already in 1946 the Communists nationalised all the property of the German Catholic Church, not only buildings (like churches, hospitals, schools and businesses) but also machines and livestock. [3] 

♦  Then in 1959 the Supreme Court of Poland ruled that the Catholic Church in Poland was not the successor of the Catholic Church under the Third Reich and therefore could not claim its property. [4] However, according to MP Slawomir Kopycinski  the Polish Catholic Church was still able to get free use of the about 6500 churches in this formerly almost entirely Protestant area. These the Government let them use unofficially (de facto, as opposed to de jure). [5] He states that the Polish Church was not at this time entered as the owner in the land registries until the 1970s. [6]

♦  In 1960s the indefatigable Cardinal Casaroli "the Pope's Henry Kissinger" visited Poland repeatedly to set up negotiation mainly about the legal status of the Catholic Church on the Recovered Lands. [7]

♦  In 1971 Vatican diplomatic efforts bore fruit in terms of land claims, when the Polish communists finally gave the Church legal title to everything they'd been administering since the beginning of the year. This allowed all the denominations to legalise their use of church buildings on former German territory by entering them as the owners in the registry books. [8] 

♦  In 2006 the Polish Bishops, who were on the Joint Commission (Komisja Wspólna), got Government approval for their to claim to the non-sacral property of the German Church in the "Recovered Lands" [9], such as hospitals, schools and even forests owned by monasteries. (This was in spite of the fact that the previous year the Constitutional Tribunal had rejected the claims of the Baptist Church to property on the Recovered Lands — citing the 1959 ruling. [10])

♦  In 1950 the Communists nationalised the Church land in this part of Poland and in the same statute provided for compensation. [11] This Church Fund (Fundusz Kościelny) was thus originally meant to pay for nationalised land. However, in 1990 its scope was widened to include subsidising the social insurance of Catholic clerics and the conservation and renovation of historic Catholic Churches. [12] According to budget figures, between 1998 and 2001 state contributions to the Church Fund tripled to over 90 million Zlotys. [13]

♦  However, less than a month later the Church signed a secret Modus vivendi with the Communist Government which contained several escape clauses (Articles 2.3 and 7.1), allowing the Polish Church, at the discretion of the Government, to administer some nationalised land and even to get title to it. [14]

♦  In 1989 the end of the Polish Communism meant a more compliant government for the Catholic Church to deal with and it began to up its demands. For example, the 1988 Convention was scrapped, although it had already been signed, and work began on a wide-reaching concordat.

♦  In 1991 the Property Commission (Komisja Majątkowa) was set up in order to give back any properties (in the central 'part' of the country) which had been nationalised in breach of the Supplementary Protocol (e.g., anything smaller than 50 hectares). [15]

3. Land left "behind the Bug"

♦  The remit of the Property Commission, as mentioned above, had absolutely nothing to do with the lands ceded almost half a century before to the USSR. However, the Church used this as an opportunity to call for compensation from the new Polish Government for lands "behind the Bug" in Lithuania, Belarus and the Ukraine and received a new round of generous annual payments from the Church Fund.

And this strategy worked: so far the Church has received “back” from Poland 94,000 hectares, in other words, more than the 87,000 hectares were nationalised by the Polish Communist Government in 1950. [16]

Notes

1. Franzek Mazur, "Poland" in Bernard A. Cook, Ed., Europe since 1945: An Encyclopedia, 2001, pp. 1011-1012. Google reprint.

2. Jonathan Luxmoore, "Europe's reparation 'war'", The Tablet, 28 February 2009. http://www.thetablet.co.uk/article/1815

"In 1945, with tacit Vatican consent, the Polish [Catholic]Church took over the running of German parishes in the 'Recovered Territories'. It took Pope Paul VI until 1967 to appoint Polish apostolic administrators, and until 1972 to establish formal Polish dioceses when the two countries ratified a border treaty."  

3. Decree of 8 March 1946 on abandoned and post-German properties. http://isip.sejm.gov.pl/servlet/Search?todo=file&id=WDU19460130087&type=2&name=D19460087.pdf

4. Supreme Court case 1 CO 42/59, Judgement of 19 December 1959. The Justification is in "OSN 1960/II position 33" OSN - Sentences of the Supreme Court.

5. Question Nr. 384 in the Sejm (Lower House of the Polish Parliament) by MP Slawomir Kopycinski to Deputy Prime Minister Gregorz Schetyna, which he authorised to be answered by Home Office Deputy Minister Tomasz Siemoniak on 18 December 2007.  http://orka2.sejm.gov.pl/IZ6.nsf/main/4893E73B

On 3 July 2006 the Joint Episcopate-Government Commission [generally known as the Joint Commission] signed a protocol allowing use of the regulatory procedure [e.g., the Property Commission] on the Recovered Lands.

It needs to be underlined that Polish Catholic Church has never had any "unmovable" property [lands or buildings] on the Recovered Lands. The unmovable property on these lands which is now owned by the Catholic Church was transferred to its ownership under a statute in 1970s [from 23.06.1971]. 

This law permitted the Catholic Church to take actual possession after WWII of about 6500 properties used for religious purposes. These properties were mostly owned by the Catholic Church in the Third Reich. This statute also sanctioned the de facto possession by the Catholic Church of a number of buildings owned before the WW II by Protestant denominations and which have never been owned by the Catholic Church. It had been transferred from the State Treasury [which in Poland is also a "land bank"].

The Polish Catholic Church never was, and still is not, the legal successor of the Catholic Church in Third Reich on the Recovered Lands. Hence there is not the slightest justification for extending the regulatory procedure [the jurisdiction of the Property Commission] to these territories. There aren't the slightest legal grounds for the Property Commission to make any repossessions or grant convertible [i.e., exchangeable or saleable] lands to the Catholic Church, on the basis that they had previously belonged to the Catholic Church in Third Reich or its legal person [successor] on the Recovered Lands. Approval of this eventuality will be in violation of the interests of the Polish State and the laws that are in force.

This is because it [the Catholic Church] was not, and, in accordance with article 4 of the Concordat of 28 July 1993 (Polish Journal of Law of 1998, No. 58, item 318), still is not a legal person in the eyes of the public law.  Because the government terminated the previous Concordat and new provisions of law on civil status came into force on 1 January 1946, the Catholic Church in 1946 lost the functions which could provide the basis for considering it a legal person in the eyes of the public law.

There aren't legal grounds for the Property Commission to make any repossessions or grant convertible [i.e., exchangeable or saleable] lands to the Catholic Church,* on the basis that they had previously belonged to the Catholic Church in Third Reich or its legal person [successor] on the Recovered Lands. Approval of this eventuality will be in violation of the interests of the Polish State and the laws that are in force.

[*Translator's note: The comma here is misleading and is probably an error. This is because his argument rests on this assertion that the Catholic Church does not have the status of a legal person and therefore could not inherit lands from the Catholic Church in the Third Reich.]

The Minister evaded the question. He said: "[The] proper [people] to answer are the co-chiefs of the Property Commission". In other words, someone appointed by the Government and someone appointed by the Church. http://orka2.sejm.gov.pl/IZ6.nsf/main/6C695A02

6. Question Nr. 384 to the Home Office Minister on the regulatory proceedings of the Property Commission, 18 December 2007.  http://orka2.sejm.gov.pl/IZ6.nsf/main/4893E73B

7. Alessandra Stanley, "Agostino Cardinal Casaroli, 83, Dies; Led Vatican to Detente", New York Times, 10 June 1998. http://query.nytimes.com/gst/fullpage.html?res=9505E7DD123AF933A25755C0A96E958260&sec=&spon=&pagewanted=all

8. "Statute of 23 June 1971 on the takeover by legal persons of the Roman Catholic Church and other denominations  of ownership of some properties on the Western and Northern Lands." http://isip.sejm.gov.pl/servlet/Search?todo=file&id=WDU19710160156&type=1&name=D19710156.pdf

9. There are differing accounts as to when in 2006 the Polish Catholic Church was granted these lands in contravention of the 1959 Supreme Court ruling: MP Kopycinski claims it was on 3 July 2006, while Deputy Minister Siemoniak says it was on 29 March 2006.

10. Constitutional Tribunal Ruling, SK 25/02, November 2005. Summarised: http://www.trybunal.gov.pl/Rozprawy/2005/sk_25_02.htm
Full ruling:
pp.infor.pl/download/uzasadnienia_pdf/DZU/2005/225/1939-u.pdf
Reported in the large daily newspaper, Rzeczpospolita, 9 November 2005: http://new-arch.rp.pl/artykul/580423_Baptysci_nie_odziedziczyli_po_ewangelikach.html

11. "On the takeover by the State of the mortmain properties, guarantee of agricultural holdings for parish priests and establishing the Church Fund", 20 March 1950. For references and relevant parts of this, see the note at the end of this page.

12. See §4 of the 2007 Complaint to the EU and the endnote about §2 of the "Supplementary Protocol".)

13. Bronisław Tumiłowicz, "Najgłośniejsza poprawka Senatu" (35/2004), 23 September 2004. http://www.przeglad-tygodnik.pl/index.php?site=artykul&id=7318

14. Supplementary Protocol to the Modus vivendi, 14 April 1950. http://www.concordatwatch.eu/showtopic.php?org_id=931&kb_header_id=33791

15. There are now five commissions, one each for the Catholic Church, Jewish community, Lutheran Church, and Orthodox Church, and one for other denominations. 
http://www.state.gov/g/drl/rls/hrrpt/2008/eur/119098.htm 

16. Adam Easton, (quoting Senators at an SDL Party conference, 18 September 2004), “Poland's ruling party takes on Church”, The Tablet, 25 September 2004.
 

Research contributed by Maciej Psyk
Translations by Renata Anderson