CityReads | Reprivatizing Warsaw by Judicial Robbery

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Reprivatizing Warsaw by Judicial Robbery

How Warsaw is reprivatized by legal technologies?

Joanna Kusiak, 2019. Legal Technologies of Primitive Accumulation: Judicial Robbery and Dispossession‐by‐Restitution in Warsaw, International Journal of Urban and Regional Research, 43 (4) : 649-665

Source: 

https://onlinelibrary.wiley.com/doi/full/10.1111/1468-2427.12827

Picture source: https://www.reddit.com/r/poland/comments/du9y56/warsaw_city_center/

Today I am reading and translating an article from the International Journal of Urban and Regional Studies (IJURR), which is the Best Article of 2019 selected by IJURR Editorial Board, "Legal Technologies of Primitive Accumulation: Judicial Robbery and Dispossession‐by‐Restitution in Warsaw". This article focuses on the political controversies arising from reprivatizing of Warsaw, Poland, and examines how legal technologies have made reprivatization possible. Reprivatization refers to the restitution of formerly private property in post-socialist Poland. The author introduces the concept of Judicial Robbery and discusses how it has led to dispossession-by-restitution, where large amounts of property are not returned to the heirs of the original owners but fall into the hands of the hands of the reprivatization businessmen.

A revolutionary wave in the late 1980s and early 1990s resulted in the end of communist rule in Central and Eastern Europe and beyond. Poland has undergone a shock therapy and massive reprivatization, the effects of which are far-reaching. In Warsaw alone, reprivatization displaced over 10,000 families and forced several public institutions, including schools, kindergartens, and even some branches of the National Museum, to vacate their buildings. Many of the most valuable lots in the city centre were ‘restituted’, but not to the heirs of historical owners. Rather, they were acquired by professional businessmen who specialized in buying up property claims, getting them efficiently through the courts and gentrifying the thus ‘reprivatized’ buildings. The overall public cost of reprivatization was estimated to be as high as 190 billion PLN, an amount approximately equal, in 2016, to 10.9% of Poland's GDP.

Primitive accumulation, as Marx describes it, relies on extra‐economic means, which is to say, violence. Yet modern capitalism prefers the violence of law to crude physical force, as the former is subtler and more in keeping with a bourgeois (or liberal) aesthetics. Referring to the Acts for Enclosures of Commons as the ‘parliamentary form of robbery’, Marx connects the dots between capitalist accumulation, the state and the rule of law. References to law also feature in more recent articulations of primitive accumulation under neoliberalism, including in David Harvey's notion of ‘accumulation by dispossession’ (AbD). However, even works that acknowledge the role of law in facilitating primitive accumulation pay little conceptual attention to concrete legal and judicial mechanisms.

Reprivatization in Warsaw turned into a massive instance of AbD. This article singles out the specific legal and judicial technologies that facilitated this dispossession in the context of representative democracy and the rule of law. It makes three contributions to the theory of primitive accumulation and to critical urban studies. First, it introduces the notion of ‘judicial robbery’ and demonstrates how judicial systems can steal or invalidate political conflicts that obstruct the dynamic cycle of AbD. As a technology of power, judicial robbery entails a double dispossession: an expropriation from the political community not only of the real property in question but also of the political agency that, in a democracy, arises from public conflicts.

‘Judicial robbery’—that is, a non‐legislated expropriation of common property by way of judicial engineering. The state's top legal engineers—the judiciary itself—discreetly bypassed democratic law‐making protocols and kick‐started reprivatization on alternative legal terms, resolving to approach each case separately. Transferred to the judicial branch, the reprivatization process took on an especially brutal and speculative edge. By such means, the transfer of public assets into private hands proved far more extensive than was the case in countries that, like Hungary, legislated on reprivatization and thus capped compensation at a pre‐agreed level.

Second, I demonstrate how seemingly neutral legal technicalities, which are usually sheltered from political debate, can make substantive socio‐economic changes to the urban fabric. And third, I answer the question: why and how do impulses towards accumulation translate into dispossession in a particular context? Thus, in the Warsaw case, I anatomize a locally specific form of AbD, which I call ‘dispossession by restitution’. In closing, I pose broader political questions for further analysis: is the judicial form of robbery reversible?; and if we can reclaim property, can we also reclaim political conflicts that were stolen by the law?

The conflict over public/private land distribution in Warsaw

The scarcity of public municipal land was already seen as a major problem in the nineteenth century, when Warsaw, then part of the Russian segment of partitioned Poland, was turned into a fortress city. In 1918, when Poland regained independence, as little as 2.5 to 4% of the land in Warsaw was city‐owned. Thus, the political intention to communalize private land in Warsaw long predates state socialism.

In 1945 most of Warsaw was rubble: 67% of the cubic volume of its real estate lay in ruins, including 78% of property in the city Centre. The decree that ultimately enacted the expropriation of Warsaw's land—today known as The Warsaw Decree—was conceived as an emergency urban planning measure, rather than as a ‘proper’ nationalization decree.  According to this one‐page edict, from 21 November 1945 all Warsaw lands became municipal property. Another edict obliged all residents aged between 16 and 60 to provide ‘all the physical and intellectual aid’ necessary to rebuild the city.

The rebuilding of Warsaw was thus a massive public venture, financed by public money and achieved with the physical labor of all the city's inhabitants. Those who volunteered to help with rebuilding—often new Varsovians who had migrated from the countryside—were rewarded for their labor with new council flats. Adopting modernist ideals, they designed spacious squares, numerous schools and kindergartens, and vast public parks—everything that had been missing pre‐war. Funded with public money and raised from the ruins by its people, Warsaw was reborn a socialist city.

And then, in 1990, Warsaw was declared the headquarters of Poland's new capitalism. Polish new capitalism, kick‐started through economic shock therapy, was from the outset embedded in the project of neoliberal globalization.

The privatization of public housing was seen as a crucial means of creating a capitalist ‘society of owners’ on a wider scale, and thereby forming in people a material and lasting attachment to the new order. Post‐socialist states were therefore generally bound to introduce two kinds of legislation. The first effectively dissolved public and council housing by selling individual units to sitting tenants, usually for a fraction of the market price. The second stipulated that the property nationalized by socialist governments be restored to its pre‐war owners.

The role played by property restitution in forming capitalism was both economic and ideological: not only would it put previously nationalized land and housing on the real estate markets, it would also legitimize the private property system with a morally connoted notion of historical justice.

Although over 25 different reprivatization bills have been tabled since 1990, consecutive Parliaments have rejected all bar one, which, passed in 2001, was then vetoed by the Polish president. As of mid‐2019, no comprehensive reprivatization bill has yet been passed.

Analyzing this parliamentary deadlock reveals that the political conflict over reprivatization concerns not only historical justice, but also a variety of contemporary issues of redistribution and spatial justice. First, reprivatization has been perceived as a budgetary threat, especially in light of the existing budget deficit and rapidly growing levels of public debt.

Second, public opinion clearly objected to the issue of restitution trumping other, more burning issues of justice and politics.

Third, reprivatization is simply against the class interests of the 90% of Poles who are of peasant origin, and thus (directly or indirectly) benefited from the expropriation of the gentry and from other processes of nationalization.

Fourth, due to the shifting of Poland's state borders in 1945, the question of restitution raised fears that formerly German cities, such as Wrocław (Breslau) and Szczecin (Stettin), could be effectively taken over by Germans through property claims, and that vast areas of Warsaw would be similarly reclaimed by the heirs of Jewish owners now living in Israel or the US. At the same time, the idea of Polish citizens being able to reclaim property in Lviv (today in Ukraine) and Vilnius (today in Lithuania) was not considered geopolitically realistic.

Lastly, Warsaw itself has always played a prominent role in reprivatization debates. With two‐thirds of the city's area subject to property claims, reprivatization would endanger the Polish capital's urban liveability.

Judicial robbery

In the late 1990s the reprivatization conflict was discreetly shifted from the political domain over to the administrative‐judicial arena. Reprivatization thus became a process that, sheltered from the public in a judicial black box, pertained not to democratic discussion but to legal engineering. Paraphrasing Marx, who called legislated expropriation of public land the ‘parliamentary form of robbery’, I call such a non‐legislated expropriation of public property judicial robbery. As a technique of power, judicial robbery enables a double dispossession: it deprives the public not only of real property, but also of political agency in the conflict.

Using a range of legal‐rhetorical assemblages, the judiciary declared it had solved the reprivatization conflict. Outside the courtrooms, however, the conflict was perceived to have been quashed rather than solved. Despite there being no agreement on reprivatization rules and procedures, tenants were evicted from buildings that public owners were unable to usucapt, and schools that ‘could be reconciled’ with private property were actually vacated.

For not only did the judicial robbery put more of Warsaw real estate on the market, it also opened up the door to the so‐called reprivatization business, a key component of Warsaw's locally specific form of AbD.

Thus, it was not Capital, but the judicial system that ultimately launched the process of AbD. And although the ideological justification for reprivatization was to return property to its pre‐war owners, the judicial course of ‘dispossession by restitution’ created its own middlemen, who were locally dubbed ‘reprivatization businessmen’.

The municipality of Warsaw estimates that at least one fifth of all reprivatized lots were not restored to the historical heirs, but instead given to claim buyers. But while the overall majority of reprivatized lots may have gone to historical heirs, this does not give us the full story. If we look at the land values of the lots reprivatized by claim buyers, an interesting picture emerges: in the city center of Warsaw, where the land values are the highest in Poland, it is possible that up to 80% of reprivatized land lots were transferred to reprivatization businessmen  who had bought a property claim or acquired one in some other way. Some of them hired detective agencies to track down the heirs of historical owners living abroad, for example in Israel or in Argentina. Many heirs, unaware that they had a realistic chance of having their property restituted in court, ended up selling it for a fraction of its value. Furthermore, as parts of Warsaw's archives were burnt in the war, the courts have come across and proven several cases of forgery of either a property claim or a former owner's will, and many more such cases are likely to remain unrecognized.

Even more controversially, ‘reprivatization businessmen’ are known to have been more effective in the courts than actual historical heirs.

For reprivatization businessmen target many single buildings in different locations. To do so, they first strategically collect sensitive data on those buildings’ histories, their legal situations, and on the person and living situation of the heirs of their previous owners. As a result, it is not untypical in Warsaw's urban landscape for a freshly renovated luxury tenant house to border a ruin, and for a section of a public school's football field to be suddenly turned into a construction site for a commercial high‐rise.

Conclusion

The internal contradiction between cities as sites of capital accumulation and cities as sites of struggles for justice reaches deep into the heart of our so‐called justice systems. Law has always been implicated in matters of primitive accumulation. In fact, the notion of the rule of law itself originated as a tool used by lawyers to secure their privileged status as ‘guardians of a given, highly unequal, and certainly non‐democratic distribution of property in society’. Through defining legalities, states often facilitate processes of capital accumulation.

From the outset, popular opinion in Poland was against shock therapy. Despite waves of mass strikes, however, the state elites were able to push ahead with it by availing themselves of the notion of the rule of law to exclude certain issues from even entering into formal political debate.

Judicial robbery, confined to the courtroom and sheltered from public critique by inaccessible language, employs legal engineering to bypass the legislation process. as a legal technology of primitive accumulation, it fulfils a double function: it expropriates public property and simultaneously depoliticizes this expropriation. The basic mechanism of judicial robbery is subsequently expanded by a range of legal technicalities that, strategically crafted within each judicial proceeding, smuggle in politically meaningful decisions. Once a political conflict has been stolen from the community by the judiciary—that is, once a conflict has been shifted from the political to the judicial domain—such inconspicuous technicalities become decisive for transforming socio‐economic reality.

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