Decision no. 961/2013

In 1938, Olga O. owned agricultural properties with an area of around 26 hectares in the Municipalities of Sarasdorf, Sommerein and Trautmannsdorf in the District Bruck an der Leitha. Shortly after the Anschluss of Austria to the German Reich, the German Armed Forces began to draw up plans to incorporate the municipal territory of Sommerein into the military training area Bruck an der Leitha, resettling the residents. In June 1939, Olga O., who was considered Jewish pursuant to the Nuremberg Laws of 1935, had to sell all of her agricultural and meadow land to the German Reich. This included two property parcels in Sommerein. The remaining property parcels were sold on as replacement land to private individuals from Trautmannsdorf who had themselves owned property parcels in Sommerein which they had had to sell to the German Reich.

The German Reich achieved a sale price of 47,840 Reichsmark for these replacement property parcels which it had purchased from Olga O. for 32,580 Reichsmark. Olga O. also received around one third less for the two property parcels in Sommerein than vendors of the surrounding property parcels, who had not been persecuted by the National Socialist regime. The resettlement of the inhabitants of Sommerein was not completed by the end of the war: around one third of the residents remained in the village; at least 16 families were also able to retain their property.

In September 1942, Olga O. was deported to the extermination camp Maly Trostinec and murdered.

After the war, the Soviet occupying power laid claim to the territory of Sommerein as Deutsches Eigentum (“German Property”). It leased the houses and agricultural land. With the State Treaty of Vienna of 1955, the ownership passed to the Republic of Austria, which, from the early 1960s onwards, sold the properties within the scope of settlement proceedings, including a property parcel formerly belonging to Olga O. The second property parcel was incorporated into the tank training area Götzendorf, created in 1957, and remained under the ownership of the Republic of Austria.

Olga O.’s son, Hans O., who had fled Austria with his family in 1938 and survived the Second World War in Great Britain, initiated restitution proceedings in 1948. In 1950, the property parcels in Sarasdorf and Trautmannsdorf had been restituted to him following a settlement with the buyers.

The proceedings regarding the two property parcels in Sommerein had however, been suspended until 1955, as the Austrian courts had refused to hold negotiations on restitution claims to assets which were claimed by the Allies as “German Property”. In 1959, the competent authority, the Financial Directorate for Vienna, Lower Austria and Burgenland rejected the application. Following an appeal, this decision was repealed by the Federal Ministry of Finance; in early 1960 the Financial Directorate again rejected the application. It based its decision on the Drittes Staatsvertragsdurchführungsgesetz (“Third State Treaty Implementation Act”), according to which acquisitions for military purposes only constituted a seizure if “in individual cases the laws applicable at the time had been applied unlawfully or if the owner had been forced to sell solely on grounds of political persecution”. In the opinion of the Financial Directorate, this had not been the case for Olga O., as the other inhabitants of Sommerein had also been forced to sell their property.

In its juridical appraisal, the Arbitration Panel reached the conclusion that the forced sale of Olga O.’s property in 1939 had constituted a seizure on grounds of persecution pursuant to the GSF Law: Although all landowners in Sommerein had been compelled to sell their property to the German Armed Forces, Olga O.’s situation was decisively shaped by the fact that she was persecuted by the National Socialist regime for being Jewish. She did not have the option of negotiating with the German Armed Forces or participating in statutory expropriation proceedings in which her interests would have been safeguarded. In addition – in contrast to the majority of the other vendors – she had had no power of disposition over the proceeds from the sale and the sale price was around one third lower than for non-persecuted vendors.

Although the Financial Directorate’s rejection of the restitution application in 1960 did not constitute an “extreme injustice” pursuant to the GSF Law, as the reasons given by the authority were in compliance with the legal situation at the time, an examination by the Arbitration Panel revealed that the narrow definition of a seizure in the Third State Treaty Implementation Act was derogated by the more comprehensive definition in the GSF Law. As the definition of a seizure in the Third State Treaty Implementation Act is therefore abrogated, the decision of the Financial Directorate which was issued on the basis of this law could be considered inconsequential. Taking into account the goal of the GSF Law, the settlement of unresolved questions of compensation, the Arbitration Panel recommended the restitution.

On 17 January 2001, the cut off day pursuant to the GSF Law, an area of 2,870 m², which had been incorporated into the tank training area from Olga O.’s original land holdings, had been publicly-owned. As this continued to be used as a training area by the Austrian Army, in rem restitution does not come into consideration. The Arbitration Panel will therefore recommend the Republic of Austria to award a comparable asset to the applicant, a grandson of Olga O.