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Amicus Brief Filed in a Polish Court by the IDPCS

This is a case that we've been involved with since 2018 when we first filed a petition to the European Court of Human Rights in Strasbourg, France. This case involves a Polish-American family which invested money to develop a luxury summer resort at a lake in Poland between 2007 and 2011. The contract they signed with the government municipality, or the Ludwin Commune, a state unit of Poland, guaranteed the family the sale of the land upon the conclusion of their investment along with a clear contractual provision that the land is free from "any and all third-party claims and encumbrances." Upon the conclusion of their multi-million investment the Commune refused the sale of the now-developed land, citing to the fact that the sale is impossible because there are current proceedings against the Commune for prior expropriation of the land going back to the 1970s by prior owners. This was a direct breach of the contract. That sole fact was hid from the family, their business and their lawyers through false pretenses, deception and false reassurances by the Commune, which claimed it owned the land. The case went all the way to the Polish Supreme Court in Warsaw, where certain political influences were at play and the Court ruled against the family in 2018. This case not only proves that the Rule of Law is an illusion in Poland, but that the Polish court system is not an independent institution. The family has been left without any legal remedy at law, with further illegal tax executions by the Commune amounting in the millions on the Resort to make it impossible to ever acquire the land causing the family to have their investment fully expropriated by a state unit of the Polish Government in the 21st century.


OPINION OF FRIEND OF THE COURT (AMICUS CURIAE)

SUBMITTED BY THE INSTITUTE FOR THE DEVELOPMENT AND PRESERVATION OF CULTURE AND SELF-SUFFICIENCY

IN SUPPORT OF THE POSITION OF CLAIMANT SOLO INVESTMENT LLC AND ITS POLISH-AMERICAN PRINCIPALS (HEREINAFTER COLLECTIVELY REFERRED TO AS “CLAIMANT” OR “INVESTOR”) THAT THE LUBLIN COMMUNE HAS WRONGFULLY DEPRIVED THE CLAIMANT OF ITS RIGHT TO OWN AND DEVELOP A POLISH RESORT IN WHICH THE PRINCIPALS HAD INVESTED THEIR LIFE SAVINGS


I. INTRODUCTION


Amicus curiae - "amicus curiae opinion" is known in the practice of foreign courts, as well as in Poland, as a form of expressing legal opinions by non-governmental organizations in judicial proceedings in cases related to the goals of the organization. An "Opinion of Friend of the Court”, such as this Opinion, aims to present a particular view of the social organization on a case before a court. Its purpose is to assist in a comprehensive diagnosis of the case, taking into account arguments and views that may not have been raised by the parties to the proceedings. It is in this spirit that our organization is filing this Amicus Curiae Brief in order to highlight the underlying facts in support of Claimants’ position in the underlying litigation.

The Institute for the Development and Preservation of Culture and Self-Sufficiency (hereinafter: hereinafter referred to as the "IDCPS”) a California based not-for-profit corporation undertakes the preparation of "Amicus Briefs" all over the world in cases where, in the opinion of the Institute’s membership, it is in the interest of the public interest to present its opinion in this form. The Institute’s Statement of Purpose” has been summarized as follows:

“To defend and preserve communities, their culture and their citizens’ individual rights and liberties guaranteed to every person based upon the constitutional principles of fairness, equality, and justice.”

In accordance with Polish jurisprudential principles, this opinion (hereinafter referred to as “the Opinion”) is not intended to introduce new evidence or new factual circumstances. By contrast, in this Opinion, we are focusing on Polish General Principles concerning the required adherence to Polish human rights standards under the provisions of the Polish Constitution as they apply to the current proceeding. These General Principles provide as follows:

“General Principles:

Art. 32.

1. Everyone is equal before the law. All are entitled to equal treatment by public authorities.

2. Nobody may be discriminated against in political, social or economic life for any reason.

Economic, social and cultural freedoms and rights

Art. 64.

1. Everyone has the right to property, other property rights and the right to inheritance.

2. Property, other property rights and the right of inheritance are subject to the equal legal protection for all.

3. Ownership may be limited only by statute and only insofar as it does not infringe the essence of the property right.”

Stated in an analogous manner, we are submitting this Amicus Brief on behalf of the Institute as “Friends of the Court” to draw attention to various aspects of the case in the context of respect for international law and, in particular, certain facts which may not have been taken into account at earlier stages of the procedure.

Acting as a friend of this Honorable Court, the Institute hereby formally submits its Amicus Curiae Brief, which strongly protests the tentative decision of the Lublin District Prosecutor's Office made on or about June 23, 2020 to discontinue the investigation in the case under reference number “act of PO I Ds. 51.2019.” It is respectfully submitted that not only is this most recent decision wrong and unfair, but it appears from the record to be based on false testimony. The IDPCS respectfully requests that the Court not only reverse the decision, but that it mandate that the underlying decision of each of the Polish appellate courts to deny Claimant of its property and development rights, be reconsidered based on the evidence and briefs submitted to this Court.


II. THE INTERESTS OF THE IDPCS AND THE POLISH PUBLIC


As suggested above, the IDCPS is a national, non-governmental and non-political organization founded in part by Polish-American citizens residing in the State of Illinois, whose statutory goal is to protect human rights and preserve cultural and property rights by following constitutional principles, including control of their compliance by public authorities in Poland. The IDCPS is interested in the guarantees of property rights, especially in the context of uncompensated expropriation, and equal treatment of all individuals engaging in economic activity to avoid discrimination, which are considered fundamental rights that play a particularly important role in any democratic society, with a special emphasis, in the case of the Institute, on the rights of Polish and Polish-American, citizens.


One specialized case worth mentioning that the Founding Members of the IDPCS were involved with was successfully retrieving expropriated paintings for Ms. Altmann, an American-Austrian citizen, painted by Gustav Klimt, from the Austrian Government, leading the case all the way to the U.S. Supreme Court in Republic of Austria v. Altmann, 541 U.S. 677 (2004).


The present case is important from the point of view of the IDPCS's statutory objectives. Our voice in the present case is dictated by the concern for observance of the standards of freedom to peaceful enjoyment of property and just compensation for property that was expropriated by a state unit of the Polish Government, the Ludwin Commune. We hope that this Court will want to take caution of the amicus curiae opinion presented, thanks to which it will contribute to a wider public interest and thus will contribute to the implementation of protection of standard property rights in Poland.


III. THE PLEADINGS


Acting as experts and amici, my client’s representatives would emphasize the fact that the District Court in Lublin, 1st Civil Department, File reference: I C 28/12, judgement of December 29, 2015, established a very well and profound fact record through four years of heavy litigation. The Supreme Court in Warsaw, Case No. IV CSK 214/17, judgement of February 6, 2018 agreed with the majority of the findings of the District Court in Lublin, except for one issue: the date of the detection of the error, which the Supreme Court ruled was detected in 2008 and not 2011. What the Prosecutors are doing now is formulating a completely new theory that the detection of the error by the Investor occurred in 2006. The Prosecutors today allege the Investor knew about third-party claims and encumbrances already in 2006. This was never raised before by the Lublin Commune in any of the contentious litigation in the cited cases above, which if true, would’ve been an incredible defense – why focus on 2008, when the Commune could have focused on 2006? Why the Lublin Commune never raised the issue, which is now being raised by the Prosecutor, is because it could not have been true back then and neither is it now. The court rulings cited must be assessed by this Court in reference to this case, because a lot of the issues are interrelated and already have been ruled upon.


It is very convenient for the Prosecutors to continuously cite the Court of Appeals decision of 2017, but clearly and conspicuously omitting any references to the ruling in the District Court in Lublin in 2015 and to the ruling of the Supreme Court of Poland in 2018.

In the District Court ruling, Judge Maria Stelska was clear that,


“In view of the above circumstances, the Court gave faith in testimony of: Andrzej Pawlak, Wieslaw Tokarz, Jaroslaw Tarnasiewcza-Helduta, Slawomir Czubacki, to the extent they reported that in the course of the negotiations, the Commune presented the opportunity to sell real estate to the representatives of the company, and the concerns expressed by the Commune authorities regarding the parceling and sale of plots, irrespective of arrangements of the local spatial development plan, are in logical relation with the content of the contract and investments then taken by the plaintiff and his predecessor.”

“Zygmunt Ogorek [former Head of the Commune] testified that he did not inform the lessee at any stage of the negotiations about the pending return of the property, he also had no knowledge if any of the employees gave such information, in any case it should be considered that he did not issue such orders. However, Slawomir Czubacki [deputy Head of Commune] testifies that the municipality downplayed the proceedings, pointing to the obvious unfounded claims of J. Wojtasiewicz, which is in essence expressed in the testimonies of Zygmunt Ogorek.”

“However, the testimony given as a party by the Head of the Lublin Commune - Andrzej Chabros (k 1151v-1153) deserves only part of the bestowal of faith. First of all, these fragments of his testimony, which are based on information obtained from third parties, or those that boil down to the legal interpretation of contractual provisions, are not convincing.


District Court in Lublin, Case No. I C 28/12 (Exh. A).


The novel issue and new theory raised by the Prosecutor in its justification is that the “error of detection” date occurred already in 2005/2006 by the Investor at the time of negotiation of the contract between the Investor and the Commune.


IV. STATEMENT OF THE CASE


It must be duly noted, that we strongly believe, through listening to all witness testimony and objectively studying the established fact record, that the error was detected in 2011 by the Investor. Indeed, by following simple logic, no professional investor would invest 90% of the remaining funds in a property, upon the detection of an error in “2008”, without a guaranteed right to purchase the property at completion of the investment; anything otherwise would amount to recklessness and an amateur mistake.


But even assuming this Court would adopt the Prosecutor’s 2006 date, this Court should be mindful that the Court of Appeals and the Supreme Court of Poland’s findings pointed to the detection occurring at the earliest in 2008. This goes against any new theory that the Prosecutors’ representatives are trying to advance to this Court and in the process they are doing a great disservice to not only to this Court, but also to the twin concepts of Polish justice and fair play.


Apart from confirming the truthfulness of the version of the events given by Mr. Jarosław Tarnasiewicz, one cannot ignore the very professional and proper behavior of Mr. Tarnasiewicz and the management of Antar LTD, during the period from the moment they were informed about the possibility of investing at Lake Piaseczno in 2005 until the actual detection of the error in 2011.


Mr. Tarnasiewicz is a Polish-American dual citizen businessman who, from the beginning of the 1990s, created and then ran very successful development companies, both in the United States and Poland. In Poland, his company, Antar LTD, built multi-million zloty housing and residential complexes and had a very qualified team of employees and lawyers. It is illogical and virtually impossible to accept the fact that such an experienced businessman, who was specifically involved with this development, along with his team of professionals and lawyers, was in any manner aware of any error that would result in the loss of the entire multimillion investment in 2006. Among other things, the prosecutors completely disregard the facts that:


(i) In 2006, the Investor agreed to sign a fully negotiated and unambiguous contract to carry out the investment and purchase of the resort property;


(ii) The Investor had not reacted to any claims against the property until in 2011, after the completion of his multi-million zloty investment, when the Commune, to his surprise and shock, refused to sell him the land. Any earlier surprise as to the discovery of the error would logically have been evidenced by numerous exchanges of emails and calls, and a discontinuation of the investment in order to avoid any further liabilities imposed on the Investor, who was investing a large portion of his lifesavings. None of those letters, emails, and calls from or to a “worrisome” Investor were ever found in the fact-record of these proceedings. The explanation for this fact is simple- they never existed until 2011 when the Commune refused to allow the sale to the Investor in the letters dated August 29, 2011, September 22, 2011 & October 13, 2011 (see Exhibit E), unveiling the concealed truth which led to the Investor filing his lawsuit in the District Court of Lublin.


(iii) It is clear that the Investor relied on the continuous assurances of the Lublin Commune. As Judge Maria Stelska ruled:


Nevertheless, it should be pointed out that the legal predecessor of the plaintiff acted on the basis of the assurances of its contractor, territorial self-government units, which denied the existence of any doubts as to the legal status and, consequently, the possibility of selling the property located on Lake Piaseczno. Therefore, the tenant's conduct cannot be assessed in isolation from these circumstances.” (Exh. A).


What the Prosecutor’s representatives are apparently trying to do here is to establish a new and unsupported “record,” in 2020, fourteen (14) years after the unambiguous contract was negotiated by the parties! Law, equity and justice require that these representatives not be allowed to pursue this unfortunate path.


Before proceeding further Amicus wanted to make clear in this Brief that it accepts, for the purpose of argument, that the Prosecutor’s decision(s) in this context were not intentionally wrong but were mistaken. Either way, they must in the interest of justice be reversed. As a final point in this context it also cannot be fairly assumed that both Mr. Tarnasiewicz and the Antar LTD management board were aware and knowledgeable as to the “error” in 2006. The only logical explanation is that they did not know anything about it, because facts were hidden from them when they entered the one-sided contract based on the Commune’s falsity confirmed by the agreement of both the District Court in 2015 and the Supreme Court in 2018 that the falsity of the Commune was confirmed at the time of negotiation.


The Prosecutor's Office clearly cannot claim the testimony of Mrs. Bijata, the Commune’s personal lawyer - an interested party – was credible testimony. After all, this is a criminal matter at this point and a very troubling situation for her. What the Prosecutors’ representative have missed is that, directly contrary to her testimony. she prepared the contract. To compound the Investor’s problems, she unilaterally altered the crucial fully-negotiated provision giving him the right to unilaterally terminate the contract, and to receive back the invested funds. She surreptitiously added the phrase “at the permission of the Commune,” strategically leaving a greater right for the Commune, which, surprisingly, can still terminate the contract without the permission of the Investor. She created a great imbalance in the contract, in an illegal manner (see Exh. C, Declaration of Jaroslaw Tarnasiewicz; see Exh. D, Letter to the Prosecutor dated June 30, 2020), which applying United States due process concepts, rendered the contract an “unconscionable” one.


Mrs. Bijata self-evidently altered that provision for the Commune’s benefit, when representing only its interests. She was the person reading the contract to the parties when signing it and she approved the signatures of the parties, without raising any objections, but still she made a grave and consequential error, which hindered the ability to resolve the dispute in 2011, when she altered the Investor’s negotiated-for severance and termination provision. Objections were raised after the signature by the Investor, who was shocked that the negotiated term was altered – but the Investor was assured by the-then Head of the Commune, Zygmunt Ogorek, who scolded and scrutinized Mrs. Bijata and her actions – and specifically advised the Investor not to worry, because either way the land would be sold at the conclusion of the Investment. (Id.)


Deception and fraud occurred from the first day of the contractual negotiations. The reason that these issues surrounding the fraud that had already occurred 2006 were never raised by the Investor, was because the theory of his case was not that the contract should be void, because it was illegal – a much higher pleading standard to allege fraud - but that the contract was broken when the Commune refused to sell him the property in 2011. (See Exh. E, Letters from the Commune August 29, 2011; September 22, 2011; & October 13, 2011). Thus, he was dealt with in a deceitful manner.


Again, it cannot be stressed enough, that no investor armed with the proper historical facts with actual knowledge of the legal status of the property including fact claims on the property that could hinder its sale, would ever undertake such a contract with the Commune. The only way to secure the investor’s faith and commitment was to hide the truth. Mrs. Bijata participated and handled every case for the Commune that required legal assistance, so she knew or had at minimum “constructive knowledge” of the third-party claims and encumbrances, and about the ongoing deception on the Commune’s behalf, for the most glaring example, her personal knowledge of the altering of the contract severance/termination provision to the great detriment of the Investor.


Moreover, the Prosecutor's Office cannot claim the testimony of Mr. Tokarz as credible. Undoubtedly, the Prosecutor cannot escape the fact that under any set of circumstances, Mr. Tokarz has given contradictory statements which appear to be perjurious and certainly hindered the proper objectives of justice in this case. Recently, the Prosecutor apparently sent a letter dated July 28, 2020, informing him that his Office was investigating the contradictory statements made by Mr. Tokarz (See Exh. F).


Nonetheless, the most convincing aspect of this case is that the Prosecutor conveniently omits the Supreme Court of Poland ruling in his justification for discontinuing the investigation. The Supreme Court of Poland ruled, inter alia, that:


- The intention of the parties was to purchase the property by the investor after the investment was completed, which was guaranteed in the lease agreement - the company's claim against the commune in this matter exists and is justified.

- The return procedure against the property is a claim, which means that the commune confirmed falsity by making false statements about the lack of claims - the company's claim against the commune in this matter exists and is justified.

- In the contract, the Commune guaranteed the investor the right to purchase the property, which means that the Commune confirmed falsity because the property could not be sold due to pending return proceedings - the investor's claim against the commune in this matter exists and is justified.

- In the contract, the Commune guaranteed the investor the right to purchase real estate, so the commune did not fulfil its obligation to sell - the investor's claim against the commune exists and is justified.


Supreme Court in Warsaw, Case No. IV CSK 214/17 (Exh. B).


V. CONCLUSION AND PRAYER FOR RELIEF


This Court has the power to examine any facts or conclusions that were referenced in the record covering almost seven (7) full years of litigation in the Polish Courts. Anything else outside of the Polish Courts’ records and findings, particularly any conflicting testimony under the letter and spirit of Polish law, is objectionable on various grounds. The Court should take notice of the absurdity of all of this and the consequent irregularity. The Prosecutor is clearly acting, for whatever reason, against the established facts as the protector of the Polish State Unit of the Lublin Commune, rather than in his more proper role as the neutral protector of truth and justice.


As the members of this Court and the public are well-aware, the purpose of this Court is not to serve for the convenience of the Prosecutor or the State, but for the convenience of justice. A grave injustice has occurred in this case, where the Lublin Commune was unjustly enriched at the expense of the Claimant’s family owners, because of the Commune’s deception, false assurances and fraud, working to the detriment of truth and justice, leaving the whole Tarnasiewicz-Heldut family without any legal-remedy at law and without any just compensation. Presumably a target for their wealth and their American-Polish status, the Commune has provided unequal treatment to the Claimant and to the Commune in economic matters, with this action and disparate treatment in economic matters represent serious violations of Article. 32 of the Polish Constitution and an equivalent violation of the Claimant’s property rights under Article 64.


The injury occurred in 2011, when the Commune refused the sale of the property, leading the investor to litigate for nine (9) years to this day, followed by unlawful tax executions amounting in the millions by the Commune to obviously prevent the Investor from acquiring the property. The Court should consider the simple truth: the Commune was unjustly enriched and is the only entity coming out on top here. Over 13 million zloty has been invested by the Family and it would be unfair for the Commune to continue to retaining those invested funds, where as here, the property was essentially expropriated without any just compensation for the Investor and his Family in violation of the Polish Constitution and the dictates of International Commercial and Real Property Law.


We are asking the Court to cure the defect by ending this absurdity by denying the Prosecutor’s discontinuation of this investigation and recommending that someone here must be held accountable for the Commune’s actions. In the fairest of all possible worlds, this Court could go even further and deem the Lease Agreement void based on criminal intent of the Commune and order restitution for the Family, in line with the Polish Constitution and the International Law principle of just compensation for expropriated property. We hope that the observations of the Amicus and the international standards will prove helpful to the High Court in analyzing the case at hand.


Respectfully submitted on behalf of the Amicus Curiae Institute for the Development and Preservation of Culture and Self-Sufficiency.



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