Decision no. 854/2012

In 1938, Dr. Josef H. was the sole owner of the requested property and of a 1/66 share of another property in Vienna, Hietzing. Both properties had been encumbered with a series of liens since 1929, which amounted to at least the value of these properties. The City of Vienna, as creditor, initiated a forced auctioning procedure as early as fall 1937. The winning bid, which was entered shortly after the German troops marched into Austria, was, however, not legal and binding as a result of the Gesetz über die Aufschiebung der Zwangsversteigerungen von Liegenschaften (“Law on the Postponement of Property Sales by Forced Auctioning Procedure”) of 21 March 1938.

In November 1938, the Reich Treasury (Aviation) acquired the requested property parcel, among numerous others on Küniglberg. The proceeds from the sale were used to settle the debts. Dr. Josef H. was able to flee via Rotterdam to the USA in 1940 with his wife and son, the applicant Lucian H.

In May 1938, the German Reich commenced the construction of barracks on the bordering collection of properties, in which air-raid defense troops were accommodated. The requested property, however, remained undeveloped and was, among others, leased by a residential allotment association from 1948 onward.

Dr. Josef H. did not file for restitution of the property after the war; nor did his heirs after his death in 1953. With the Staatsvertrag von Wien (“State Treaty of Vienna”), the ownership of the requested property passed to the Republic of Austria. In 1960, the collection agencies – established on the basis of the State Treaty – which laid claim to properties which had been seized during the National Socialist era and had remained “heirless” after the war and used the proceeds for the benefit of victims of National Socialism, filed an application for restitution of the property formerly belonging to Dr. Josef H. with the competent Financial Directorate for Vienna, Lower Austria and Burgenland. The restitution proceedings came before the highest instance, the Supreme Administrative Court, which, as in the lower instances, rejected the restitution as the sale to the German Reich had not constituted a seizure pursuant to the Dritte Staatsvertragsdurchführungsgesetz (“Third State Treaty Implementation Act”).

In its judicial appraisal, the Arbitration Panel reached the conclusion that if the National Socialists had not assumed power, the winning bid in the forced auctioning procedure would have become legal and binding and the father of the applicant would therefore have lost the ownership of the property. The later sale of the property to the German Reich is therefore not causally connected to the persecution of the owner Dr. Josef H. As no property seizure based on the persecution of the owner had occurred in this regard, the Arbitration Panel rejected the application.