Decision no. 1121/2015

Application

 

Applicant, Status

Damon B., Recommendation
Jonathan B., Recommendation
Olga Maria B., Recommendation
Sabrina B., Recommendation
Gerhard Franz H., Recommendation
Ariel M., Recommendation
Larissa P., Recommendation
Miguel Carlos R., Recommendation
Roberto Enrique R., Recommendation
Elfriede T., Recommendation

Public owner

Republik Österreich
Stadt Wien

Type of property

immovable

Real estate in

KG Hietzing (01205), Wien, Wien | show on map

Decision

 

Number

1121/2015

Date

24 Mar 2015

Reason

No prior measure pursuant to the GSF Law

Type

substantive

Decision in anonymous form

Related decisions

Press release

Press Release Decision No. 1121/2015

Vienna, Hietzing
On 24 March 2015, the Arbitration Panel for In Rem Restitution recommended the restitution of a 3,600 m² area of allotment gardens owned by the Republic of Austria and the award of a comparable asset for an approx. 170 m² area of public road owned by the City of Vienna. These areas had already been the subject of proceedings in the 1960s, in which the claim filed by the collection agencies was rejected. As the sale of the property in 1938 had constituted a seizure on grounds of persecution, the Arbitration Panel recommended the in rem restitution of the property with reference to the stated aim of the Entschädigungsfondegesetz (“General Settlement Fund Law”, GSF Law) to settled open questions of compensation.

In 1938, Nelly M., who was deemed Jewish pursuant to the Nuremberg Laws of 1935, owned an agricultural property on Vienna’s Küniglberg with an area of around 4,000 m². In autumn 1938 the Reich Treasury (Aviation) purchased this property on the Küniglberg, alongside many others. The purchase price had to be deposited on a frozen account and was also used to pay discriminatory taxes.

The German Reich acquired these areas for the purpose of constructing officers’ quarters, as an air-raid defense barracks was going to be constructed on the neighboring complex from May 1938 onward. During World War II, air-raid defense troops were accommodated there. However, at the end of the war the requested property remained undeveloped and from 1948 onward was leased with other neighboring plots by a garden allotment association.

Nelly M. was deported to the extermination camp Maly Trostinec near Minsk, where she was murdered.

After the war, no claim was filed for restitution of the property. Upon signature of the Staatsvertrag von Wien (“State Treaty of Vienna”) the ownership of the requested property passed to the Republic of Austria. The collection agencies, established on the basis of the State Treaty, could file claims for properties which had remained “heirless” after the war, using the proceeds to benefit the victims of National Socialism. In 1960 they filed a claim with the competent Financial Directorate for Vienna, Lower Austria and Burgenland for restitution of the property formerly belonging to Nelly M. The restitution proceedings reached the Supreme Administrative Court, which, like the subordinate instances, refused restitution as the sale to the German Reich had not constituted a seizure as defined by the Drittes Staatsvertragsdurchführungsgesetz (“Third State Treaty Implementation Act”).

In its juridical appraisal, the Arbitration Panel came to the conclusion that the forced sale of Nelly M.’s properties in 1938 had constituted a seizure on grounds of persecution as defined by the GSF Law: although the obligation to sell to the German Reich, Reich Treasury Aviation existed for all landowners on Küniglberg, Nelly M.’s situation was decisively influenced by the fact that she was persecuted by the Nazi regime for being Jewish. She had had no opportunity to negotiate with the German Reich or to enter into statutory expropriation proceedings in which her rights would have been protected. In addition – unlike the others – she had not had power of disposition over the entire proceeds from the sale or the opportunity, like her neighbors, to demand replacement land when selling her property.

The rejection of the application for restitution by the Federal Ministry of Finance in 1961 did not constitute an extreme injustice pursuant to the GSF Law, as the reasons given by the authorities were in keeping with the legal situation at the time. However, it emerged during the Arbitration Panel’s appraisal that the broader definition of a seizure in the GSF Law of 2001 overrides the narrow definition of a seizure in the Third State Treaty Implementation Act. As the definition of a seizure in the Third State Treaty Implementation Act is thereby annulled, the decision of the Financial Directorate issued on the basis of this Act is immaterial. With reference to the stated aim of the GSF Law to settle open 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 3,620 m² of the land originally owned by Nelly M. was owned by the Republic of Austria and a partial area of 174 m² by the City of Vienna. As the 174 m² forms part of a public road, an in rem restitution is not possible. Therefore, the Arbitration Panel will recommend that the applicants be awarded a comparable asset.

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