The proceedings before the Arbitration Panel
Application processing was carried out by historians and lawyers working in interdisciplinary teams. This approach was necessary and practical, as the seizures and restitution proceedings took place decades ago and their interpretation required profound knowledge of the respective organizational and legal frameworks. Moreover, the applicants themselves only seldom possessed the necessary documentation (evidence). In many cases it was not until comprehensive research had been carried out by the historians at the relevant archives and authorities as part of an “ex officio” establishment of the truth that it was possible to reach the findings regarding the facts of the case which were necessary for legal decision-making.
As a first step, the applications were examined for the formal statutory requirements: public ownership on the cut-off date, 17 January 2001, and whether the property had been owned by the applicant or his/her predecessors in 1938. If these elements were present, the application was subsequently designated “substantive”. If this was not the case, it was designated a “formal application”. In a further step for applications in which no specific property was named, the land register, historical address books and registration details and property notices from the Nazi era were investigated on the basis of the applicants’ submissions, in order to determine which properties the application might apply to. The applicants were informed of the outcome of this research in writing and given the opportunity to improve their application. Each “substantive” application was processed by one lawyer and one historian, who initially determined the necessary research steps. The duration of the historical research varied from case to case, depending on the research required at archives and official departments. This research served to determine the eligibility of the applicant, the ownership status in 1938, the existence of a persecution related seizure and a possible “prior measure” after 1945.
During the proceedings, both the applicants and the public owner had the opportunity to present their view of the case to the Arbitration Panel, thereby ensuring a fair hearing. After concluding the research and obtaining the statements of the parties involved, the competent case workers produced a draft of the decision which was discussed in detail in the monthly sessions of the Arbitration Panel before it reached its final decision. If necessary, the Arbitration Panel could call a hearing with the parties to the proceedings if new findings not included in the written submissions could be expected.
The implementation of the decisions recommending restitution fell under the competence of the public owner. If in rem restitution was not practical or feasible (this was the case, for example, for areas of public roads, schools or municipal residential buildings), a comparable asset could be awarded to the applicants. Generally, this took the form of the market value of the property, which was determined by the Arbitration Panel based on an independent expert valuation.
After an amendment to the Rules of Procedure of the Arbitration Panel in 2007, proceedings which had already been concluded could be reopened. In such cases, the Arbitration Panel initially decided whether the reopening of proceedings was admissible. This required evidence to be submitted that had previously been unknown and warranted the assumption that it would have resulted in a different outcome to the previous proceedings. In such a case, the Arbitration Panel made a renewed decision on the requested asset and repealed its earlier decision.