Decision no. 372/2007

Application

 

Applicant, Status

Susanne A., Dismissal
Michael F., Dismissal
Johanna P., Rejection
Wolf P., Dismissal
Johannes P., Rejection

Public owner

Stadt Wien

Type of property

immovable

Real estate in

KG Pötzleinsdorf (01510), Wien, Wien | show on map

Decision

 

Number

372/2007

Date

18 Sep 2007

Reasons

In rem restitution already granted after 1945
No legal succession
No seizure as defined by the GSF Law

Type

substantive

Decision in anonymous form

Press release

Press Release Decision No. 372/2007

Vienna, Pötzleinsdorf
On 18 September 2007, the Arbitration Panel for In Rem Restitution has rejected respectively dismissed the restitution of properties in Vienna, Pötzleinsdorf, owned by the City of Vienna. Partially the properties had been restituted to the injured owners in 1948, partially they never had been confiscated. Further, three of the five applicants were not entitled to make claims. Hence, the Arbitration Panel could not pronounce a recommendation for restitution.
In 1938, the properties which are situated by the Schafberg in Vienna, consisted of 92 properties in 17 land register inserts with a total surface of approximately 67.100 m². The major parts of these properties are undeveloped construction plots and belonged to the brothers Leopold, Friedrich Moriz and Ernst P. According to the Nuremberg Laws of 1935, Leopold and Friedrich Moriz were considered to be so-called “first degree half-breeds”. Leopold escaped to London in 1939 due to his political convictions – he had been arrested several times by the Gestapo for being a monarchist and legitimist. Friedrich Moriz survived the National Socialist period in Vienna. Ernst was considered a Jew for being a Jewish “half-breed”, being married to a Jew and for belonging to the Jewish Community. He was imprisoned in 1938 and in 1939 in the concentration camps Dachau and Buchenwald and after his release together with his family he escaped to the USA.

Consequently the properties of Leopold P. were put under tutelage. In 1943, on account of the 11th Ordinance of the Reich Citizen Law the properties of Ernst P. fell to the German Reich. Friedrich Moriz P. kept his power of disposition concerning his real estate. In the beginning of 1939, representatives of allotment garden associations and the National Socialist district administration of Vienna IX., wanting to acquire or at least rent these properties cheaply, started to pressure Friedrich Moriz and the representatives of Leopold and Ernst P. Since they were not ready to sell, the representatives of the allotment garden associations turned to the City of Vienna and asked to repurpose their properties from development into green areas so that they could be leased as allotment gardens. Consequently, in September 1939 the mayor of Vienna gave his decision on the repurposing of the objective area by the Schafberg. The responsible Vienna administration departments were conscious of the fact that pursuant to the Vienna building regulations in such cases of depreciation a financial compensation was mandatory. However, the matter was delayed by the City of Vienna and finally not further pursued. Then the district administration repurposed parts of the real estate to “arable land” and the representatives of the P. brothers were forced to lease to various allotment garden associations for a low rent. Later the City of Vienna tried to acquire real estate from Ernst P.’s expired property from the German Reich. However, this did not happen due to the Vienna Higher Finances President’s opposition.

After his application for restitution with the Financial Directorate Vienna pursuant to the First Restitution Act in 1947 all confiscated properties were restituted to Ernst P. The tutelage for Leopold P.’s properties was annulled in 1947. Equally, the same year, a part of the objective real estate was again repurposed from grassland to development area. The administration department 18 responsible for the repurposing into grassland in 1939, personally gave evidence of the fact that the repurposing during the National Socialist period took place for political and not for urban planning reasons. Also if a repurposing would not take place legitimate claims for compensation would have had to be expected. In 1955, Leopold and Ernst P. (meanwhile Friedrich Moriz was deceased) demanded from the City of Vienna the repurposing of the remaining part of the properties rededicated to grassland in 1939. This time the department 18 denied further adjustments in the zoning plan. However, it finally found a compromise with the two brothers according to which one part was repurposed and one part remained grassland. Later attempts at repurposing this last piece into development land remained unsuccessful. From the 1950s on, the P. brothers sold the properties which for the largest part had been repurposed into development land to private entities as well as to the City of Vienna. By the end of the 1970s, all properties of the P.-estate had been sold.

Three of the present applicants, descendants of Ernst P., based their application for restitution on the properties never having been restituted to Ernst P. However, this had happened in 1948 by decree of the Financial Directorate Vienna. Hence, the request for restitution had been positively decided in a prior procedure. Further, an entitlement to application could not be established. The heirs to Leopold and Friedrich Moriz P., among other things, brought forward that the repurposing from development area to grassland corresponded to a dispossession. For the first time the Arbitration Panel dealt with the question whether a repurposing of development area into grassland represents a confiscation as defined in the General Settlement Fund Law. The repurposing by the City of Vienna was arbitrary and was implemented for racial-political reasons and was also connected to the influence of the National Socialist representatives of the allotment garden associations. However, it did not correspond with a confiscation but with a depreciation. A confiscation implies that the owner changes. However, this was not the case with Leopold and Friedrich Moriz P.’s properties. As defined in the system of the General Settlement Fund Law the losses generated by the repurposing would have to be asserted exclusively in the procedure for financial compensation. However, a decision in this matter does not fall into the area of responsibility of the Arbitration Panel. For these reasons, the restitution of the real estate could not be recommended.
 
For use by media; not legally binding upon the Arbitration Panel for In Rem Restitution.
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