Plunder by Menachem Kaiser (suggested reading txt) 📗

dead! We’re not? says the judge in the middle. No! says the judge on the left. We’re here to decide if they qualify as dead, regardless of whether they are literally dead. And on this point the law is clear: they do not qualify. Do we know the date? Do we know the cause? Yes, says the judge on the right, we do know the cause! The cause was the Holocaust! Not specific enough! says the judge on the left. Nowhere near specific enough! Hmm, says the judge in the middle. Also an interesting argument. I can see your point of view as well.

I badgered The Killer a while longer, did my best to get a sense of how the hearing had gone, but she was her usual terse cryptic self. What happens if we lose? I asked. The question seemed almost to offend Grazyna and The Killer; they offered another bromide about waiting. Yes, I know, I said, but if we lose, we can appeal, right? Yes, Grazyna said, we may appeal, the next court would be the Supreme Court. I laughed. Partly in disbelief and partly from the shot of maniacal joy it gave me to imagine arguing this in front of the Supreme Court.

Frustrating legal implications aside, there is something profound in the distinction between “dead” and “gone”—​it points to the obligation of the living to record death, that is, to remember. Death demands acknowledgment.

A few weeks later The Killer sent me a message that the Regional Court in Katowice had upheld the decision of the District Court in Sosnowiec; our appeal was denied, in other words; the three judges agreed that my dead relatives could not be declared dead.

Now it wasn’t a fluke. Now it wasn’t a funny story of one hyper-stringent local judge. Or even a (somewhat) less funny story of a local judge whose hyper-stringency was a semiconscious cover for what I was trying my darnedest not to see as anti-Semitism. Now it felt aggressive, like they (“Poland”) were tormenting me, toying with me. Now it was underlined and bolded, this exasperating pedantry, this radical abstraction of death, this gross insistence on denying the most banal fact, that these people were dead. Now the system was implicated. One judge comes up with some cockamamie reasoning as to why your dead relatives can’t be declared dead and it’s silly and annoying and you question that judge’s impartiality; three appellate judges declare the cockamamie reasoning to be sound and you wonder what logic this universe is adhering to. The absurd ruling wasn’t so absurd after all, just the first checkpoint of a surreal system.

The good faith with which I’d begun my Polish legal journey was shattered. I’d fortified myself from, even scoffed at, the prejudice against Poles that was, back home, a passed-down norm. But it was now even harder not to buy into that prejudice. I didn’t want this to be the case—​I wanted any difficulties I encountered to be purely bureaucratic; if I were to be stymied by the Polish courts I wanted it to be on account of inefficiency or poor historical recordkeeping, not bias—​but, yeah, it was, at this point, very hard not to buy in to. To the Supreme Court, I said to The Killer.

And then, as in so many other instances throughout this story, it turned out I had it wrong, it turned out I had no idea what was what, legally speaking. Like my grandfather more than fifty years ago, I had misunderstood the instructions.

There were, I learned, two processes, with different criteria and different implications, wherein the state ratifies death (three if you include the standard death certificate issuance): declaration of death (stwierdzenie zgonu) and recognition as deceased (uznanie za zmarłego). To have someone “declared dead” you need to be able to establish the specifics of said death, that is, the when and where and how; to have someone “recognized as deceased” only a certain amount of time has to have passed from when that someone went missing (how long depends on the circumstances; ten years is the maximum).

The two lower court judges, the one in Będzin and the one in Sosnowiec, had not in fact disagreed; they had, rather, ruled on separate procedures.

The judge in Sosnowiec, Judge Grabowska, had considered only whether or not my relatives could be “declared dead,” and ruled they could not, because the conditions were not met. When did they die? Where did they die? How did they die? It was all blank. There were no eyewitnesses; they didn’t show up on any concentration camp lists; their location during the war was unknown. Judge Grabowska had not malevolently twisted the law; she’d offered a technical argument regarding a technical requirement. (A perhaps troubling corollary is that Poland/1939–1945/Holocaust is too abstract/loose to qualify as place/time/method of death, which on the one hand, sure, that is abstract and loose, but on the other hand, one might contend that the Holocaust should be considered at least as “deadly” and “specific” as a natural disaster.)

The judge in Będzin, however, had considered whether my relatives could be “declared dead” or whether they could be “recognized as deceased.” And while she agreed with Grabowska that they did not qualify for the former, there was no question they qualified for the latter.

I tried asking The Killer about the discrepancy, tried to get her to explain to me why it had gone our way in Będzin but not in Sosnowiec, which procedure she had requested of the courts in the first place, but of course this went nowhere, I couldn’t get straight answers, so I ended up hiring another lawyer, Szymon, to explain my lawyer to me. I sent Szymon the relevant documents and a week later he sent me a seven-page memo that explained, in marvelously clear English, what had happened.

The Killer had filed the wrong motion. She had asked for “declaration of death,” which my relatives absolutely did not qualify for, and not “recognition as deceased,”