Decision no. 27/2005

Application

 

Applicant, Status

Doris A., Recommendation
Christopher C. A., Recommendation
Richard A. A., Recommendation
Andrew Charles Albert G., Recommendation
Stephan Louis Gerald G., Recommendation
Marietta P., Recommendation
Robert B. R., Recommendation
Marion E. R., Recommendation
Alfred S., Recommendation

Public owner

Republik Österreich

Type of property

immovable

Real estate in

KG Josefstadt (01005), Wien, Wien | show on map

Decision

 

Number

27/2005

Date

15 Nov 2005

Reason

"Extreme injustice" pursuant to Sec. 32 (2) item 1 of the GSF Law

Type

substantive

Decision in anonymous form

Related decisions

Press release

Press Release Decision No. 27/2005

Vienna, Josefstadt
On November 15, 2005 the Arbitration Panel for In Rem Restitution has recommended to the head of department in charge the restitution of an estate in Vienna, Josefstadt belonging to the Republic of Austria. The initial settlement between the Republic of Austria and the Collection Agency in 1966 presents a case of extreme injustice.
A former sanatorium in the 8th district in Vienna is subject to this procedure. Dr. L. F. took over management of the building erected as sanatorium at the turn of the century from his father and carried on with the prominent business in 1925. In April 1938 Dr. L. F. and his wife – both of Jewish descent – fell victim to anti-Semitic actions by national socialists. A party member took over the hospital as provisional manager. On April 3, 1938 the married couple committed suicide.
All potential heirs to the childless couple’s estate were of Jewish origin under Nazi legislation. The property was exposed to discriminating measures and gradually confiscated. A few relatives succeeded in fleeing the country, others were not as fortunate and perished.

As a consequence of the persecution and flight of possible heirs the trustee of the estate sold the hospital to the German Wehrmacht, which had already occupied and had been operating out of the premises since May 1938. The purchasing price of 310,000 German Reichsmark primarily served to cover the debts of the estate.

After the war US Army forces seized the sanatorium. US American institutions are partly still tenants in the building today. The ownership of the estate was finally transferred to the newly established Republic of Austria via the Austrian State Treaty in 1955, after an heir to the estate of L. F. unsuccessfully tried for restitution of the building but was denied by the supreme restitution commission which could not accept the claimant as heir according to the first restitution laws.
In 1960 the Collection Agency founded via the 1st State Treaty Implementation Act of 1955 as an organisation to administer unclaimed properties after the war filed for restitution of the estate. According to an expert the property was worth 6 million Austrian Schillings. After a long procedure the Republic of Austria and the Collection Agency settled on 700,000 Austrian Schillings. This settlement was part of a general settlement agreement amounting to 22,700,000 Austrian Schillings between the Republic of Austria and the Collection Agency covering all claims for estates that remained heirless after the war and had belonged to people persecuted by the Nazis. The settlement came into effect via the Collection Agency Compensation Act of July 7, 1966.

In this specific case the Arbitration Panel confirmed the seizure of the estate from the original owner despite having debts, as all possible heirs to the estate fell victim to Nazi persecution and were not in the position to enter on the inheritance.

In addition the Arbitration Panel found that the restitution procedures initiated by the Collection Agency qualify as previous measures according to the General Settlement Fund Law. Such previous measures normally rule out any recommendation for restitution by the Arbitration Panel.
However, the Panel believes the lump sum settlement within the framework of the Collection Agency Compensation Act presents an exception. The considerations believed to have influenced the general agreement between the Republic of Austria and the Collection Agency as well as the implementation of the settlement seemed unrelated to the restitution claim itself and the interests an assiduous claimant would have wanted safeguarded. It was more important to close down the Collection Agency as quick as possible in order to handle the Collection Agency’s claims against the Austrian Republic without engaging in unnecessarily lengthy and expensive procedures. After a general settlement had been promised the Collection Agency did not put enough emphasis on the restitution of the specific estate. The arbitration panel therefore identified a shortcoming in the settlement of the Collection Agency with regards to the sanatorium and saw this as an indication for the existence of extreme injustice according to the General Settlement Fund Law.

A further indication appears to be the great difference between the estimated sanatorium’s value of 6 million Austrian Schillings and the 700,000 Austrian Schillings subject to the settlement. According to the Arbitration Panel the difference as such is no proof for the existence of extreme injustice but presents a strong indication. If this were the case, the restitution commission would have had to decide on the restitution of the estate according to the law and therefore in favour of the Collection Agency. The Arbitration Panel believes the Financial Directorate for Vienna, Lower Austria and Burgenland should have arranged for the restitution under the law because the core issue concerning the restitution procedure – if the seizure as defined in the restitution law had taken place as a consequence of the persecution of the heirs to Dr. F. – must have been approved. However, the Financial Directorate did not think so. In view of a dismissal by the fiscal authority this objectively not justifiable interpretation of the restitution legislation became the basis for the settlement between the Collection Agency and the Republic of Austria at the cost of the Agency.
The Arbitration Panel for In-Rem Restitution therefore finds that the striking difference between an correct hypothetical restitution decision and the agreed upon settlement sum in combination with the discrepancy in interests of the Collection Agency and a diligent claimant of the estate present a case of extreme injustice in this procedure.
For use by media; not legally binding upon the Arbitration Panel for In Rem Restitution.
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