Decision no. 737/2011

Application

 

Applicant, Status

Elizabeth Ann D., Recommendation
Louise Josephine H., Rejection
Christopher R., Rejection
Phyllis Joan R., Recommendation
Stephen R., Rejection

Public owner

Land Niederösterreich

Type of property

immovable

Real estate in

KG Sommerein (05019), Sommerein, Niederösterreich | show on map

Decision

 

Number

737/2011

Date

02 Mar 2011

Reasons

No legal succession
Outside the jurisdiction of the Arbitration Panel or the scope of application of the GSF Law
No prior measure pursuant to the GSF Law

Type

substantive

Decision in anonymous form

Related decision

Press release

Press Release Decision No. 737/2011

Lower Austria, Sommerein
On 2 March 2011, the Arbitration Panel for In Rem Restitution granted a claim for restitution of an area of land in Sommerein, Bruck an der Leitha, owned by the Republic of Austria. The property from which this partial area originated had already been the subject of restitution proceedings in the 1950s, in which the heirs’ claim had been rejected. However, as the sale of the property in 1940 had clearly been a persecution-related seizure, by taking the general purpose of the General Settlement Fund into account – the settlement of open questions of compensation – the Arbitration Panel was able to pronounce a recommendation for restitution.

In 1938, Rosa H. owned two properties in Sommerein, Lower Austria. As she was Jewish, in September 1938 she was ordered to leave Sommerein and her general store was confiscated. In early 1942 Rosa H. was deported with her husband from Vienna to Riga and murdered.

In 1940, Rosa H. had been forced to sell her properties to the German Armed Forces, which was planning to incorporate the entire territory of the Municipality of Sommerein into the military training area Bruck an der Leitha and resettle its inhabitants. The resettlement was, however, still not completed by the end of the war: around one third of the inhabitants remained in the area; at least 16 families were able to retain their property.

After the war, the Soviet occupying power laid claim to the territory of Sommerein as “German property”. Houses and agricultural land were leased. Upon the enactment of the State Treaty of Vienna 1955, the ownership passed to the Republic of Austria. In the early 1960s, the Republic sold the properties, including the two properties which had once belonged to Rosa H., as part of a resettlement procedure.

Ludwig and William R., two nephews of Rosa H. who had fled to New Zealand in 1938, had initiated restitution proceedings in 1948. As the Austrian courts rejected a negotiation of restitution claims for property to which the Allies had laid claim as “German property”, the proceedings had been suspended until 1955. In 1958, the Financial Directorate for Vienna, Lower Austria and Burgenland ultimately rejected the claim on the basis of the Drittes Staatsvertragsdurchführungsgesetz (“Third State Treaty Implementation Act”), which had been enacted one year before and according to which acquisitions for military purposes only constituted seizures if “the laws applicable at the time had been improperly applied in individual cases or the owner had been forced to sell solely on grounds of political persecution”. According to the Financial Directorate, this had not been the case for Rosa H. as the other residents of Sommerein had also been forced to sell.

In the juridical appraisal of the case, the Arbitration Panel initially reached the conclusion that the forced sale of Rosa H.’s property in 1940 was a seizure on grounds of persecution pursuant to the Entschädigungsfondsgesetz (“General Settlement Fund Law – GSF Law”). Although all of the inhabitants of Sommerein were obligated to sell their properties, Rosa H.’s situation was significantly influenced by the fact that she was persecuted by the National Socialist regime for being Jewish. She did not have an opportunity to negotiate with the armed forces or to retain her property by appealing and moreover – in contrast to most of the other vendors – she did not have to authority to dispose over the proceeds from the sale.

The rejection of William and Ludwig R.’s restitution claim by the Financial Directorate did not constitute an “extreme injustice” as defined by the GSF Law, as the authority’s reasons had complied with the legal situation at the time. However, during the examination by the Arbitration Panel it emerged that the narrow definition of seizure in Article 1 Sec. 1 of the Third State Treaty Implementation Act was derogated by the comprehensive definition of seizure in Sec. 28 of the GSF Law, which was enacted later. As the definition of seizure in the Third State Treaty Implementation Act is therefore repealed, the decision of the Financial Directorate, reached on the basis of this law, could remain insignificant. Taking into account the general purpose of the GSF Law, the settlement of open questions of compensation, the Arbitration Panel recommended the restitution.

Only a small part of the 3,550 m² which was owned by Rosa H. until 1940 was publicly-owned on the cut off day pursuant to the GSF Law. In the late 1960s, a partial area was incorporated into a provincial road of which around a third was transferred to the Municipality of Sommerein in 1997. As the area owned by the province is still used as a road today an actual restitution in rem does not come into consideration. Therefore, the Arbitration Panel will recommend the Province of Lower Austria to award the applicants, two heirs of William and Ludwig R., a comparable asset equivalent to the market value of the land.

For use by media; not legally binding upon the Arbitration Panel for In Rem Restitution.
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