Decision no. 317/2006

In 1938, the real estate in the 20th District of Vienna, on which a three storey house is built, belonged to the Jewish siblings Oskar and Josef D. and Erwine H. In August 1938, they had to sell the real estate for 32,000.00 Reichsmark to the married couples D. and H. in order to be able to pay the discriminatory taxes ascribed to them by the National Socialist state. Numerous permits by the National Socialist authorities were necessary for carrying out the sale. In 1939, Oskar D. was able to emigrate to Shanghai, and Erwine H. was able to emigrate to the USA in 1940. Josef D. remained in Vienna and was deported to the ghetto Litzmannsstadt/Lodz, where he died in 1942.

In July 1947, Oskar D. and Erwine H. applied with the Restitution Commission Vienna for the restitution of the real estate. In May 1948, the married couples D. and H. were obliged to restitute the real estate. However, as a countermove, Oskar D. and Erwine H. were made liable for paying back the purchase price of 32,000.00 Schilling to the married couples D. and H. Renting proceeds did not have to be remitted by the married couples D. and H. since the Restitution Commission regarded them as so-called upright owners. Regarding the last-mentioned two points, Oskar D. and Erwine H. raised a complaint in front of the Higher Restitution Commission Vienna. However, in June 1949 the Higher Restitution Commission, in its role as second instance confirmed the decision of the Restitution Commission Vienna.

After that, in the 1950ies and in the 1960ies the real estate had been passed on within the family of Erwine H. and Oskar D., by way of donation respectively inheritance. Later, it passed via further interim-owners into the ownership of the City of Vienna in 1999.

The current applicants before the Arbitration Panel, heirs to the prior owners Erwine H. und Oskar D., based their application for restitution on the fact that the decision by the Restitution Commission Vienna of June 1949 had been “extremely unjust” within the meaning of the General Settlement Fund Law. Since the sellers Oskar and Josef D. and Erwine H. had not received anything from the purchase price assessed in 1939, they also would not have had to pay it back according to the then effective restitution laws. However, they would have been entitled to the renting proceeds.

For the first time, the Arbitration Panel dealt in detail with the question whether in spite of a restitution, which had taken place priorly, a real estate can be restituted anew. The purpose of the General Settlement Fund Law is to resolve open questions concerning the compensation of victims of National Socialism. The General Settlement Fund Law provides possibilities of a financial compensation for losses on the side of the heirs to the applicants caused by an incorrect decision of the Higher Restitution Commission. But a decision on this matter does not come under the competence of the Arbitration Panel. However, the claim to restitution, which is to be asserted with the Arbitration Panel, has already been positively decided in a prior procedure. For these reasons, a recommendation of a restitution of the real estate could not be pronounced.