Decision no. 911/2013

In 1938, the requested property belonged to Josef S. and his eldest son Franz S. Both were classified as “gypsies” by the National Socialist authorities and were persecuted as such. Josef S. was deported to Dachau concentration camp and was transferred from there one year later to Mauthausen, where he died on 27 November 1939. From autumn 1940, Franz S. was interned in the forced labor camp Kobenz near Knittelfeld for a year. In mid-April 1943 he was deported to Auschwitz concentration and extermination camp with his wife Anna, where they died in July and October 1943 respectively. Several other family members were also deported to Auschwitz or the ghetto Litzmannstadt (Łódż) and murdered.

After the death of Josef S., the Local Court Jennersdorf had allocated his share in the property to Franz S., who thereupon became its sole proprietor. In June 1944, the confiscation of the requested property was ordered for the benefit of the German Reich on the basis of the Verordnung über die Einziehung volks- und staatsfeindlichen Vermögens im Lande Österreich (“Ordinance on the Confiscation of Assets Hostile to the Population and the State in the Country of Austria”). However, the ownership title was never recorded in the land register for the German Reich. After the end of the National Socialist regime, the mentioned ordinance was annulled and the property was put under public administration.

In 1952, the father of the present applicant applied for the commencement of proceedings to have Franz S. declared dead, whom he described as his illegitimate father. Franz S. had been born the illegitimate son of Josefa S. in 1916 and also classified as a “gypsy”. He had, however, served in the German Armed Forces until 1943, had been taken prisoner of war and upon his release had returned to southern Burgenland. His mother and three sisters had been murdered in the Holocaust.

In 1953, the property was removed from public administration. In the same year Franz S. was declared dead. He had not left a last will and testament. His estate was devolved to his widow Anna S., who was deemed missing and – erroneously, as he had already been dead at the time of Franz S.’s death – to his father Josef S. Both were subsequently recorded in the land register as one half owners of the property.

Anna S. and Josef S. were declared dead in 1959. During the course of the probate proceedings the trustee of the estates sold the requested property to the H. spouses. As no heirs had made contact within the statutory period provided, the proceeds reverted to the Republic of Austria.

On 17 January 2001, the cut off day pursuant to the Entschädigungsfondsgesetz (“General Settlement Fund Law”), the majority of the property was privately-owned. A partial area of 89 m² had been incorporated into a federal road.

In its juridical appraisal, the Arbitration Panel came to the conclusion that the available evidence does not permit any clear assessment of whether the father of the applicant was a son of Franz S. Even if the paternity were able to be unequivocally established, the applicant would still be ineligible to file an application: even though Franz S. could possibly have been his illegitimate father, at the time of Franz S.’s death, however, the statutory succession of illegitimate children was precluded under the prevailing laws. In addition, the procedure of taking evidence revealed that the applicant had waived her right to the inheritance of both her father and her mother (to whom she was the sole heir). Her eligibility to file an application would therefore have already had to be denied alone for this reason.