Decision no. 550/2009

In 1938 the requested property, on which a tenanted house was located, belonged to Richard G. and to the spouses Nelly and Josef W., each owning one half. Due to persecution by the National Socialists, they were forced to flee abroad. Of the W. family, only the two sons, Emil and Eduard W. survived by fleeing to Palestine. Richard G. was able to escape to New York. In 1939, he and the W. spouses had granted the lawyer Dr. F. power-of-attorney to sell the property. The purchase contract negotiated by Dr. F. with a prospective private buyer was not approved by the National Socialist authorities because the City of Vienna asserted public interest in the property. It wanted to create a thoroughfare on this area. The property was finally sold to the City of Vienna in 1940.

In December 1948 Richard G., together with Emil and Eduard W., claimed for restitution of the property in Vienna, Neubau. The City of Vienna was very interested in retaining the property in order to realize the thoroughfare, which had already been planned during the sale, and therefore aimed for settlement negotiations, which were concluded in 1954 with the signing of a settlement. In this settlement, the restitution claimants waived the restitution of the property in return for a payment of 20,000 Schilling.

The Arbitration Panel had already affirmed that this settlement was "extremely unjust" pursuant to the General Settlement Fund Law in its decision 89/2006 concerning Emil and Eduard W. It now examined whether this was also applicable to Richard G. In the present decision, the Arbitration Panel confirmed that the settlement amount lay below the value which would have been awarded to the restitution claimants by the Restitution Commission. In particular, the earnings had not been taken into consideration. Furthermore, as in the case of Emil and Eduard W., Richard G. had also had very limited room for maneuver in the conclusion of the settlement. Due to his difficult financial situation and problems with his health, he was hugely restricted in his opportunities to select that form of enforcement of his rights which seemed most beneficial and effective to him. In particular, he was not able to select the lawyer of his choice. Of all lawyers, the sole lawyer to offer him legal representation without an advance payment of his fees was Dr. F. - the lawyer who had participated in the property seizure under National Socialist rule. On the other hand, the City of Vienna exerted pressure on the restitution claimants and conveyed to them, among other things, misleading and incomplete information on the costs to be reimbursed.

The interplay of these circumstances caused a grave state of imbalance to the detriment of the restitution claimants, causal for the content of the settlement, which was therefore to be classified "extremely unjust". The Arbitration Panel now recognized the restitution claim of the heirs of Richard G. as merited. As a municipal residential property is located on this property today, the Arbitration Panel regards a restitution as impracticable and, upon consultation with the City of Vienna, will award a comparable asset.