Decision no. 142/2006

At the end of 1937, the Polish citizen S. S. living in Vienna acquired the claimed real estate, which enclosed approximately 520 m², through a foreclosure sale. In October 1938, he sold the real estate to J. B. for the price of 6,333.00 Reichsmark. At first, the implementation of the property transaction was made dependent on the authorization of the Nazi bureaucracy which at last denied to have the competent jurisdiction. Since S. S. was Jewish, he was subjected to numerous humiliations and inhumane treatment by the NS-regime after the “Anschluss” and hence emigrated in August 1939 together with his family – among which were his two sons being the present applicants – to Palestine.

Initially, after the end of the NS-regime and after the introduction of the relevant restitution laws from 1945 until 1947, an application for restitution of the concerned real estate was not filed. In 1960, the Collection Agency - founded 1957 via the Austrian State Treaty of 1955 as an organisation to administer heirless and unclaimed properties - claimed after the war the restitution of the estate. For this purpose, in 1960 a property value of 187,000 Schilling was established by an expert. In June 1961, the Collection Agency A applied for restitution of the real estate after settlement negotiations with J. B. had failed. A short time after, S. S. in place of the Collection Agency A, entered the restitution proceedings which concluded with a settlement by all parties in November 1961. In exchange for a payment of 70,000 Schilling, S. S. waived the restitution of the real estate. The property remained under the ownership of J. B. who sold the real estate in November 1967 to the City of Vienna for 625,000 Schilling. On 17 January 2001, the cut-off date relevant for ownership structures, only 137 m² were still owned by the City of Vienna; 383 m² were private property and are hence not accessible to direct restitution.

The Arbitration Panel had to deal with the restitution proceedings in detail since according to the General Settlement Fund Law, the reopening of cases which have been concluded with a settlement is only possible in exceptional circumstances. In particular, it had to be investigated whether S. S’s economical exigency, which was brought forward by the applicants, triggered a restriction of his possibilities to enforce his rights. According to the continuous holdings of the Arbitration Panel, such circumstances can give rise to a reassessment of restitution settlements.

However, in this specific case, no indications of this fact could be established. S. S. was legally represented and he also concluded the settlement with the support of a lawyer. During the restitution proceedings the applicant stayed occasionally in Vienna and hence was able to look after the matter personally. The fact that the amount of the settlement of 70,000 Schilling achieved by S. S. was noticeably smaller than the value of the real estate at that time could be explained by S. S’s liability to reimburse the value of the workshop-building which had been constructed by J. B. on the ground of the property. Hence, the concluded settlement was not to be assessed as being extremely unjust. Therefore, the Arbitration Panel denied the claim for restitution of the real estate at issue.