Decision no. WA2/2007

Application

 

Applicant, Status

Alice M., Recommendation
Nona S., Recommendation
Alice T., Recommendation

Public owner

Stadt Wien

Type of property

immovable

Real estate in

KG Neulerchenfeld (01403), Wien, Wien | show on map

Decision

 

Number

WA2/2007

Date

09 Oct 2007

Reasons

"Extreme injustice" pursuant to Sec. 32 (2) item 1 of the GSF Law
Previous decision repealed on grounds of new evidence/facts and circumstances pursuant to Sec. 21a (1) of the Rules of Procedure

Type

substantive

Decision in anonymous form

Related decisions

Press release

Press Release Decision WA 2/2007

Vienna, Ottakring
On 9 October 2007, the Arbitration Panel for In Rem Restitution has accepted the claim for restitution of a real estate in Vienna/Ottakring owned by the City of Vienna. A prior application for restitution had been dismissed in February 2006. On presentation of new documents facts had become known which lead to a evaluation of the case divergent from the first decision. A restitution settlement concluded in 1953 was now established to be "extremely unjust" since the applicants for restitution of the time had been restricted in their freedom of will and also because there had been a great difference in value between the settlement amount and the value of what they would have been entitled to.
In 1938, the applied for real estate with a one-story building was owned by Antonie L. and Mali B.; both of them were considered Jewish as defined in the Nuremberg Laws of 1935. In November 1938, they sold the real estate for 12.000 Reichsmark to the married couple W., whereas the National Socialist authorities had estimated the value of the real estate at 17.000 Reichsmark. Mali B. was able to escape abroad in March 1939. Antonie L. was deported to the ghetto in Modliborzyce in March 1941. Her further fate is unknown. Antonie L. was declared dead after the end of World War II.

In July 1950, Mali B. and Martha L., heiress to Antonie L., applied for the restitution of the real estate. In March 1953, the parties closed the procedure by settlement. In return for a payment of 6.000 Schilling the applicants for restitution waived the restitution of the real estate. The married couple W., who had the building, which was damaged by bombs, partially refurbished, in 1958 sold it to the City of Vienna for 180.000 Schilling. The City of Vienna had the apartment building demolished in the early 1960s and erected a school building on its premises and on the bordering properties.

The Arbitration Panel had to analyze in detail the prior restitution procedures since pursuant to the General Settlement Fund Law exclusively in exceptional cases the reopening of a trial which has been concluded by settlement is possible. In particular, the Arbitration Panel had to examine whether the parties involved in the restitution procedure had been on equal terms.

However, at first the Arbitration Panel did not dispose of sufficient indications of a restriction of freedom of will since the applicants for restitution were legally represented, Martha L. was an Austrian resident and there was no indication that the married couple W. did dispose of an edge on information. Further, the real estate value at the point of conclusion of the settlement could not be established. Hence, this settlement was not assessed as "extremely unjust" in the Arbitration Panel’s decision 46/2006.

The heiresses to Martha L. and Mali B. filed an application for a reopening of the procedure. Thereby they referred to the fact that due to the trauma caused by the German missile attacks on London in 1944 Martha L. was restricted in her freedom of will. This was substantiated with a declaration in lieu of an oath and also credibly confirmed during a hearing before the Arbitration Panel. This detail had not been brought forward during the first procedure since it had not been recognizable for the applicants that it would be of relevance for the decision.

The Arbitration Panel judged this a reason for the reopening of the procedure as defined in the legal remedy introduced in January 2007 and decided to reverse the decision 46/2006 and to decide the application for restitution anew.

A review of the new facts showed that the applicants for restitution at the time of the settlement in 1953 had been restricted in their freedom of will since there were sufficient indications of Martha L. being mentally impeded and of Mali B. finding herself in a tense economic situation.

During the course of further research in order to support the applicants the Arbitration Panel found documents which allowed for the conclusion that the real estate had a value of at least 30.500 Schilling at point of settlement. Hence, there was a great difference in value between the settlement amount of 6.000 Schilling and the equivalent value of what would have been awarded to the applicants for restitution – in the worst case 22.700 Schilling – during a holding of the court of the Restitution Commission.

Due to the great difference in value and the restricted freedom of will at the conclusion of the settlement, the settlement had to be assessed as "extremely unjust". Hence, in the opinion of the Arbitration Panel the claims of the heiresses to Martha L. and Mali B. basically were to be regarded as rightly given. Since a school building is constructed on this real estate today, the Arbitration Panel regards a restitution as unsuitable and after consultations with the City of Vienna will recommend to award a comparable asset.
For use by media; not legally binding upon the Arbitration Panel for In Rem Restitution.
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