Decision no. 3/2003

Since 1917, the real estate applied for belonged to the Jewish married couple Heinrich and Flora S.; each of them sharing the estate 50:50. The businessman Heinrich S. died in 1936. After the National Socialist takeover in March 1938, Flora S. and the representative of the estate of the deceased Heinrich S. sold the real estate to the Reichsanstalt für Arbeitsvermittlung und Arbeitslosenversicherung (Reich Agency for Employment and Insurance of the Unemployed) on 13 June 1938. One part of the purchase price of Flora S.'s half of the house was used illegally for the liquidation of Heinrich S.'s debts. Flora S. died in Vienna in 1944. The heirs of Heinrich and Flora S. submitted an application for restitution in 1948. The real estate at issue was considered German property. For this reason, an approval of the Allied Council was necessary for the procedure. As a result of this, the procedure was continued and concluded only after the implementation of the State Treaty of 1955. In 1957, a settlement for restitution was concluded between the Republic of Austria and the applicants. At the same time, the Republic of Austria committed itself to paying 618,000- Schilling while the then applicants for restitution waived restitution.

The persecution of the Jewish owners, who had been subjected to considerable discriminations after the Anschluss, was incontestable. Also, the Arbitration Panel clearly linked the racist persecution of the owners to the sale of the real estate, which had been settled by the National Socialist Property Transactions Office. The partial over-indebtedness of the real estate, which had been asserted by the Republic of Austria during the restitution procedure of the time, was not regarded by the Arbitration Panel as enough reason for doubting a confiscation. Regarding the settlement, which was concluded with the Republic of Austria in 1957, the Arbitration Panel reached the opinion that it represented an "extreme injustice". The decisive reasons for this qualification were the settlement origins apparent in the documents of the restitution phase.

A first indication of an inadequacy of the settlement was apparent from the large discrepancy between the settlement sum (618,000 Schilling) and the real-estate value of 1957 (4,5 million Schilling). The Arbitration Panel was now to examine whether this discrepancy would have also existed had a restitution procedure been assumed correctly. Here, the Arbitration Panel explained that during the calculation of the settlement sum two deciding factors had not been taken into consideration: the proceeds, which had been attained from renting the real estate, as well as the purchase price which had been used for liquidating the debts in 1938, for the disadvantage of Flora S. The rental fees of 200,000- Schilling, which had been collected since the confiscation, as well as Flora S.'s share of the purchase price, which had not been transferred to her due to the liquidation of debts, would have had to be paid out to the applicants if the restitution procedure had included a correct application procedure according to the legal regulations. Seen from this point of view, the settlement was to be assessed as "extremely unjust".