Decision no. 709/2010

In 1938, Jakob S. was the owner of three garden property parcels in Poysdorf and two areas of arable land in Walterskirchen. In September 1938, S. – who was persecuted by the National Socialist regime as he was considered Jewish pursuant to the Nuremburg Laws of 1935 – attempted to sell the properties in Walterskirchen to a private party for 6,500 Reichsmark. However, the Municipality of Poysdorf, which had laid claim to these properties as development land reserve, prevented the approval of the sale by the Property Transaction Office. Both of Jakob S.’s properties were subjected to a forced sale by auction in 1939 and acquired by the municipality for 4,500 Reichsmark. The municipality sold the property located in Poysdorf in December 1939 to the Reich Postal Service, which erected a bus garage on the land.

Jakob S. had been forced to leave Poysdorf and move to Vienna as early as 1938. From there, he was deported in Minsk in May 1942 and was probably murdered in the extermination camp Maly Trostinec.

In 1955, Heinrich S., a cousin of Jakob S., claimed the restitution of both properties. In October 1955, he waived the restitution of the property in Walterskirchen in exchange for a payment of 26,000 Schilling (plus 1,000 Schilling reimbursement of costs). On the basis of a second settlement, Heinrich S. received one of the three garden property parcels in Poysdorf. He waived the restitution of the remaining two in exchange for a payment of 18,625 Schilling.

Pursuant to the State Treaty of Vienna of 1955, these two property parcels passed into the ownership of the Republic. In 1960, Heinrich S. also sold the third parcel to the Republic, which continued to own the majority of the original property area (2,875 m²) in 2001. Of the original 2.6 hectare property in Walterskirchen, only a partial area of 330 m², which had been included in the federal highway L 20 in the mid-1970s, was publicly-owned.

The 16 applicants asserted the “extreme injustice” of the two settlements before the Arbitration Panel. There had been a marked difference in value between the settlement amount and the value of the properties. Heinrich S., who had been blinded as a result of abuse in the ghetto and the concentration camp Theresienstadt had been massively restricted in his freedom of contract due to this handicap and his difficult financial predicament.

However, the Arbitration Panel was not able to follow the arguments of the applicants because the comparative purchase prices drawn on by the applicants could not be applied to the requested properties. The Arbitration Panel reached the conclusion that the difference between the settlement amounts and the amount that Heinrich S. would have been awarded in a restitution decision was at most 15 % for the property in Poysdorf and a maximum of 30 % for those in Walterskirchen. At the same time there were indications that Heinrich S.’s scope for negotiation could have been restricted, however, it could not be recognized that this had had any effect on the outcome of the two restitution proceedings.

A difference in value and restriction of freedom of contract – the two criteria which must be met to justify the extreme injustice of a settlement – therefore existed, however they were not sufficiently manifested to be able to assume an extreme injustice.