Decision no. 1121c/2016

In 1938 Nelly Me., who was considered Jewish according to the Nuremberg Laws of 1935, was the owner of an approx. 4,000 m² agricultural property on Vienna’s Küniglberg. It was purchased in fall 1938 by the Reich Treasury (Aviation). Nelly Me. was deported to the extermination camp Maly Trostinec near Minsk in May 1942 and murdered.

After the war no claim was filed for restitution of the property. Upon enactment of the State Treaty of Vienna the ownership of the requested property passed into the hands of the Republic of Austria. The collection agencies, set up on the basis of the State Treaty, filed an application for restitution of the property formerly belonging to Nelly Me. at the Financial Directorate for Vienna, Lower Austria and Burgenland. The restitution proceedings went as far as the Supreme Administrative Court, which, like the preceding instances, also rejected the 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 in decision no. 1121/2015, the Arbitration Panel came to the conclusion that the forced sale of Nelly Me.’s property in 1938 had constituted a seizure on the grounds of persecution listed in the GSF Law, chiefly because Nelly Me. had not had power of disposition over any of the proceeds from the sale nor had she had the opportunity to obtain replacement land like her neighbors.

The Federal Ministry of Finance’s rejection of the restitution application did not constitute an “extreme injustice” pursuant to the Entschädigungsfondsgesetz (“General Settlement Fund Law” – GSF Law) as the authority’s ruling complied with the legal situation at the time. However, in its appraisal the Arbitration Panel reached the conclusion that the more comprehensive definition of the term “seizure” in the GSF Law of 2001 derogates the narrower definition of a seizure in the Third State Treaty Implementation Act. As the definition in the Third State Treaty Implementation Act is thereby invalidated, the decision of the Financial Directorate issued on the basis of this law could be discarded. With reference to the aim of the GSF Law, i.e. to settle unresolved property issues, the Arbitration Panel recommended the 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. Moreover, the Arbitration Panel extended the group of applicants to include further unknown heirs represented by the representative in absentia in the most recent decision.

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, following consultations with the Federal Ministry for Science, Research and the Economy, the Arbitration Panel obtained a report on the market value of the awarded property produced by an independent expert. The expert valued the area in question at 700,000 Euros. Therefore, the Arbitration Panel recommended the Republic of Austria to award the each of the applicants a share of the amount of 700,000 Euros corresponding to his/her respective inheritance share.