Decision no. 1005/2013

Application

 

Applicant, Status

Ken P., Recommendation
Raymond P., Recommendation
Robert P., Recommendation
William P., Recommendation
George S., Recommendation

Public owner

Land Niederösterreich
Republik Österreich

Type of property

immovable

Real estate in

KG Schönau an der Triesting (04028), Schönau an der Triesting, Niederösterreich | show on map
KG Kottingbrunn (04016), Kottingbrunn, Niederösterreich | show on map
KG Klosterneuburg (01704), Klosterneuburg, Niederösterreich | show on map
KG Dornbach (01401), Wien, Wien | show on map
Show all on map

Decision

 

Number

1005/2013

Date

11 Dec 2013

Reasons

In rem restitution already granted after 1945
Outside the jurisdiction of the Arbitration Panel or the scope of application of the GSF Law
"Extreme injustice" pursuant to Sec. 32 (2) item 1 of the GSF Law
No ownership 1938-1945

Type

substantive

Decision in anonymous form

Related decision

Press release

Press Release Decision No. 1005/2013

Lower Austria, Kottingbrunn and Klosterneuburg and Vienna, Dornbach

On 11 December 2013, the Arbitration Panel for In Rem Restitution recommended the in rem restitution of a property parcel in Kottingbrunn, which forms part of the Südautobahn and is owned by the Republic of Austria, as it assessed a settlement reached in 1957 regarding this property to be “extremely unjust”. The applications for in rem restitution of other properties in Kottingbrunn were rejected as the properties had already been restituted in the 1950s or were the subject of settlements which were not assessed to be “extremely unjust”. The applications for in rem restitution of two properties in Vienna, Dornbach and Klosterneuburg were rejected as they were not publicly-owned on the cut off day, 17 January 2001.

In March 1938, Irma W. and her two daughters Helene St. and Marianne S. owned a 440 hectare estate, which included a castle. After the Anschluss, they fled Vienna to Australia, Irma W. with her husband, the industrialist Oswald W., and Marianna S. with her children. Helene St. was deported from Prague to the concentration camp Theresienstadt in 1942.

In 1941, the National Socialist authorities appointed a trustee for the estate and instructed him to sell it. Subsequently, the trustee sold the majority of the estate to the Berlin W. u. T. Aktiengesellschaft and the remainder to various local landowners, the Municipality of Kottingbrunn and several large areas to the German Reich.

From 1942, the German Reich proceeded to exchange various property parcels from the former estate with local farmers and the Municipality of Kottingbrunn, receiving in return the property parcels it required for the expansion of the airport in the Municipality of Kottingbrunn which had been taken over by the German Air Force.

One property parcel, which was supposed to have been subject of an exchange agreement with the farmer Rudolf P., remained under the ownership of the German Reich but was, however, cultivated by Rudolf P. and his legal successor.

The property in Klosterneuburg belonged to I. and M. GmbH, which was owned by Irma W. and her two daughters, and was acquired by a Viennese company in 1942. The property in Dornbach belonged to Oswald W. and his ownership title to this property continued to be recorded in the land register during the National Socialist era.

In 1949, Irma W., Helene St. and Marianne S. filed applications for restitution against the W. and T. Aktiengesellschaft, the Municipality of Kottingbrunn, the German Reich and the other owners of all properties which had formerly belonged to the estate.

In various settlements concluded in 1949 and 1950 with the private owners and the Municipality of Kottingbrunn, the restitution claimants waived the restitution of property parcels formerly belonging to the estate in exchange for compensation payments.

As the Allied occupying powers had laid claim to the properties from the estate which had been sold to the W. u. T. Aktiengesellschaft and the Deutsche Reich as “German Property”, the Austrian courts refused to conduct proceedings for the restitution claim until the signing of the Staatsvertrag (“State Treaty”) 1955. With the State Treaty of Vienna, these properties passed into the ownership of the Republic of Austria, and were restituted to Irma W., Helene S. and Marianne S. by settlements concluded in 1956 and 1957. The property parcel which, by then, was cultivated by Karl P., a son of Rudolf P. was not included in the restitution as the Republic of Austria took the stance that it had passed into Karl P.’s ownership. The restitution claimants waived its restitution for this reason.

In its juridical appraisal, the Arbitration Panel held that neither the property in Klosterneuburg, for which a settlement was concluded in 1960, nor the property in Dornbach, which had been sold by a representative in absentia to pay off outstanding tax debts, had been publicly-owned on the cut off day 17 January 2001. The applications for in rem restitution of these properties therefore had to be rejected.

The applications for in rem restitution of the properties belonging to the estate which had already been restituted in the 1950s also had to be rejected, as a renewed recommendation of restitution is precluded in such cases.

Regarding the properties of the estate which were the subject of settlements with private owners and the Municipality of Kottingbrunn and which, in part, were owned by the Republic of Austria and the Province of Lower Austria on the cut off day 17 January 2001, the applications for in rem restitution also had to be rejected as the settlements were not deemed to be “extremely unjust”. Irma W., Helene St. and Marianne S. were represented in the proceedings by a renowned Viennese law firm which had pursued the claims of its clients with due care and diligence. It was therefore not possible to identify that Irma W., Helene St. and Marianne S. were restricted in their freedom of contract.

Conversely, the Arbitration Panel reached the unanimous conclusion that the settlement concluded with the Republic of Austria in 1957, in which Irma W., Helene St. and Marianne S. had waived the restitution of the property parcel cultivated by Karl P., constituted an “extreme injustice”: during its assessment of the restitution proceedings which were conducted from 1949 to 1957 the Arbitration Panel determined that the Republic of Austria had exploited legal and factual room for maneuver to the detriment of the aggrieved owners Irma W. Helene St. and Marianne S. to such an extent that their waiver of the property parcel constituted an extreme injustice.

However, the Arbitration Panel could only recommend the in rem restitution of the area of this property parcel which was owned by the Republic of Austria on the cut off day; the remainder was no longer publicly-owned on the cut off day. As this area today continued to form part of the Südautobahn, an actual restitution does not come into question. Therefore, the Arbitration Panel shall recommend the Republic of Austria to award the five applicants, all legal successors of Irma W., Helene St. and Marianne S., the market value of the property.

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