Decision no. 738/2011

In 1938, the requested property, a tenanted apartment building in the fifth municipal district of Vienna erected in the late 18th century, belonged to Gisela S., who was considered  Jewish in line with National Socialist legislation. In 1941 she sold the property for 22.000,– Reichsmark to Karl Ko., who sold it on to his brother Anton Ko. in 1942. In 1942, Gisela S. and her husband Elieser Leib S. were first deported to the Theresienstadt ghetto and concentration camp and then, shortly afterwards, to the extermination camp Treblinka, where they were murdered.

The residential building had been damaged during the war. For this reason the Vienna municipal authorities issued an order for the repair of the damage. The estate of Anton Ko., who had in the meantime passed away, did not have sufficient means at its disposal to cover the costs of 37,780 Schilling which had been advanced by the City of Vienna for the building work. A lien for this claim of the City of Vienna was therefore recorded on the property in 1950.

In 1951, a daughter of Gisela S., Irene L., who had survived the National Socialist era in hiding in Budapest, filed an application at the Restitution Commission Vienna for the restitution of the property from the estate of Anton Ko. In April 1953, Irene L. withdrew her restitution application in exchange for a contribution towards costs of 2,000 Schilling.

In the proceedings before the Arbitration Panel, the applicants, grandchildren of Gisela S., asserted the extreme injustice of the settlement concluded in 1953. During its examination of whether the settlement was to be assessed as extremely unjust, the Arbitration Panel established that Gisela S. had received 9,730 Reichsmark of the proceeds from the sale for her free disposal. In the case of a restitution, Irene L. would have had to reimburse this amount in Schilling, as well as the lien for the City of Vienna of 37,780 Schilling, as this had been used for necessary measures as defined by the Drittes Rückstellungsgesetz (“Third  Restitution Act”). At the time of the restitution settlement, the property had been worth 44,500 Schilling at the most; the counterclaims were worth 47,500 Schilling and therefore exceeded the value of the property by over 3,000 Schilling. There was therefore no discrepancy in value between the settlement amount and a hypothetical restitution decision. The other requirement for an extreme injustice, i.e. a restriction of Irene L.’s freedom of contract, therefore no longer needed to be examined.