Decision no. 26/2005

In March 1938 the real estate in question – the division in three single estates took place after World War II – still belonged to the married couple M. In April 1940 the German "Reichsbahn" (Federal Railways) approached the couple M. wanting to negotiate the purchase of said estate. The final details of the sale had been agreed upon by May 1941. For a purchasing price of 72,307.50 German Reichsmark the estate of 7,445 square metres including all buildings was to change hands.

When it came to the certification in the real estate register however, the married couple M. refused to sign the contract for sale. The German Federal Railways subsequently sued the M.s for fulfilment of the contract and the District Court in Klagenfurt affirmed the petition. Due to the final decision the transfer of ownership took place in January 1943. The married couple M. refused to accept the 72,307.50 Reichsmark subject to the contract. In addressing themselves to various political decision makers and institutions – such as Hitler's office and the Carinthian district administration – Mr and Mrs M. tried to achieve the annulment of the estate transaction, which they perceived as lawless. However, their appeals went unheeded.

After World War II their efforts to seek annulment of the transaction continued, this time by appealing to the president, the chancellor and various departments as well as their respective heads. Yet legal proceedings according to the restitution laws were never instituted by either Mr and Mrs M. or their heirs. In the 1950s Mrs M. received a payment amounting to 35,000 Austrian Schillings for her former property. Further details concerning this payment could not be established.

The claimants – the grandchildren of the Mr and Mrs M. – have argued in their claims that the Yugoslav descent of their grandfather, A. M., was the overriding factor behind the requisition of the estate during the Nazi-era. Evidence for the persecution on these grounds could not be provided. The Arbitration Panel for In-Rem Restitution was only able to ascertain that A. M. was born in Lower Styria in 1872, in the district of Greater-Marburg. However this information does not suffice to prove a certain nationality, as the population of said district was made up of roughly 80 percent Slovenes and 20 percent Germans. No indication could be found whatsoever as to A.M.'s alleged descent having played a part in the transaction with the German Federal Railways.

One of the necessary prerequisites for an in-rem restitution is the existence of elements of persecution as defined in the closing paragraphs of the In Rem Restitution Laws. The persecution of individuals on grounds of their descent or nationality is among those definitions of persecution outlined. But as the claimants could not present any evidence for the persecution of their grandfather, and no other indications of reasons for the persecution could be established the Arbitration Panel had to dismiss the claim.