Decision no. 1121b/2016

In 1938, Nelly Ne., who was considered Jewish in accordance with the Nuremberg Laws of 1935, owned an agricultural property on Vienna’s Küniglberg with an area of approx. 3,620 m², which she was forced to sell to the Reich Treasury (Aviation) in autumn 1938. Nelly Me. was deported to the extermination camp Maly Trostinec near Minsk in May 1942 where she was murdered.

After the war no claim was filed for restitution of the property. Once the ownership of the requested property had passed into the hands of the Republic of Austria upon enactment of the State Treaty of Vienna the collection agencies, established in 1957, filed an application with the Financial Directorate for Vienna, Lower Austria and Burgenland for restitution of the property formerly belonging to Nelly Me. In 1963 the claim for restitution was rejected on the grounds that the sale to the German Reich had not constituted a seizure as defined by the Drittes Staatsvertragsdurchführungsgesetz (“Third State Treaty Implementation Act”).

In its judicial appraisal in decision no. 1121/2015 the Arbitration Panel came to the conclusion that although the forced sale of Nelly Me.’s property in 1938 had not constituted a seizure as defined by the Third State Treaty Implementation Act, it did constitute as seizure on the grounds of persecution listed in the Entschädigungsfondsgesetz (“General Settlement Fund Law” – GSF Law). As 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, the Arbitration Panel recommended the in rem restitution.

In the case at hand, in rem restitution was neither feasible nor practical as heirs represented by the representative in absentia were, in part, unknown. As such, it was not possible to draw up the documentation necessary for the change of ownership to be recorded in the land register.

Therefore, since it is not possible at present to transfer ownership to the known heirs, and it cannot be expected of them to wait until the trusteeship in absentia ceases, the Arbitration Panel recommended that, following consultations with the Federal Ministry for Science, Research and the Economy, the applicants be awarded a comparable asset for the 3,620 m² property.