Decision no. WA1/2007

In 1938, the forest and agricultural property in the district Oberwart, Burgenland, with approximately 220 hectares was owned by the Hungarian citizens Klara W. (3/8), Blanka Sp. (2/8) and Ladislaus Si. (3/8). In March 1939, the owners who resided in Szombathely, Hungary, offered to sell a major part of the property to the German Reich, Reich Forestry Administration. After several years of dreary sale negotiations, the Reich Forestry Administration threatening the owners, who were considered to be Jewish, several times with “forced Aryanization”, Klara W., Blanka Sp. and Ladislaus Si. sold 208 hectares of their property in the years 1941/42 for 87000 Reichsmark to the German Reich, Reich Forestry Administration.

Klara W. and Blanka Sp. were equally affected when in March 1944 the National Socialist regime expanded its politics of extermination to the Hungarian-Jewish population. Both of them as well as numerous other family members during June and July 1944 were murdered in Auschwitz respectively since then have been considered as missing. Since 1943, there has been no news whatsoever about Ladislaus Si. who in 1943 was drafted by the Hungarian army for military work service.

After the end of the National Socialist regime, the Soviet occupying forces took over the administration of the property within the framework of the management of the USIA. This was a consequence of the Potsdam Agreement according to which the Soviet Union was allowed to make use for reparation purposes of the property of the German Reich. Finally, after the Austrian State Treaty had been implemented in 1955, the property devolved upon the Republic of Austria.

In 1956, Edith Sch. requested the Republic of Austria to restitute the properties, which were sold between 1941 and 1942. Her husband Karl Sz. also died during National Socialism. However, he had outlived his uncle’s widow, Blanka Sp., and their children, Klara W. and Ladislaus Si. Edith Sch., heiress to her husband Karl Sz., finally became the exclusive heiress to Klara W., Blanka Sp. and Ladislaus Si. since no closer relatives of the heirs had announced themselves during the probate proceedings after the three owners who had been declared dead. The probate proceedings took place before the district court Oberwart.

During the restitution procedure it was disputed on several court levels whether Edith Sch. was even entitled to make restitution claims after Klara W., Blanka Sp. and Ladislaus Si. Pursuant to the restitution laws, it was impossible for any heirs to make such claims. Exclusively a legally defined circle of close relatives of the injured owner was entitled to do so. The unclaimed property assets of victims of National Socialism were supposed to be transferred to special receiving organizations, the “Sammelstellen” (Collection Agencies). The Collection Agencies were supposed to distribute the collected means among victims of National Socialism.

After that in October 1961 Edith Sch.’s entitlement to file applications seemed to have been affirmed by the body in charge, Edith Sch. and the Republic of Austria concluded a restitution settlement. In exchange for a payment of 1,5 million Schillings, Edith Sch. waived the restitution of the 208 hectares she had claimed. In this case the Arbitration Panel was confronted with the exclusive problem of the applicants I. P. and M. P. deriving their hereditary title from a nephew of Blanka Sp. Through this, they were able to confirm a better hereditary title than Edith Sch after the prior real estate owners. Hence, Edith Sch. represented a so-called fictitious heiress for the Arbitration Panel. However, since the Arbitration Panel does not dispose of legal authority to reopen probate proceedings and to correct their results it had to reject the application of I. P. and M. P.

The applicants I.P. and M. P. filed an application for the reopening of the trial and referred to a document of the Österreichische Bundesforste (Austrian Federal Forestry Administration), which had appeared in March 2007. According to this document, the referee of the State Financial Procurator in charge of the case during the restitution procedure against Edith Sch. was convinced that she was not completely entitled to file applications. The Arbitration Panel accepted this document as a new proof of evidence as defined in the legal remedy introduced by the Arbitration Panel in 2007. At first, the Arbitration Panel decided to repeal decision 4/2004 and to decide anew on I. P.’s and M. P.’s application for restitution.

A juridical appraisal of these new facts showed that during the restitution procedure Edith Sch. would not have been successful at asserting the 3/8-share of Ladislaus Si. Pursuant to the restitution laws, Karl Sz., the deceased husband of Edith Sch., would have not made part of the relatives entitled to benefit. Since the responsible bodies of the Republic of Austria had been conscious of this fact, the Republic would have had to clear this legal opinion in several stages of appeal. Instead the State Financial Procurator advised against raising further legal remedies while explicitly making reference to the fact that the Republic of Austria would have to hand over the 3/8-share to the collection agencies and that the restitution would only be postponed.

In view of these facts, during the procedure before the Arbitration Panel, the Republic of Austria could not refer to the fact that there had already been a restitution procedure concerning Ladislaus Si.’s 3/8-share. In these regards, the settlement concluded against better knowledge in 1961 by the Republic of Austria with Edith Sch. is irrelevant for the applicants I. P. and M. P. Hence, the Arbitration Panel was able to recommend the restitution of a 3/8-share to a real estate surface of 196 hectares which today is public property (Austrian Federal Forestry Administration) to I. P. and M. P.