Decision no. 824/2012

The requested properties were part of a landed and silvicultural estate in Gloggnitz. In 1938 it was owned by Chance H. and her daughter Sophie K., who were both deemed Jewish pursuant to the Nuremberg Laws of 1935. A part of the properties was sold in late 1939/1940 to the Municipality of Gloggnitz for substantially less than their true value by a trustee who had been appointed by the National Socialist authorities. In 1940, Sophie K. had had to sell the remaining properties to the Reich Forestry Administration, also for less than they were worth.

Chance H. died in May 1940 in Vienna. Sophie K. was deported to Minsk in November 1941 and murdered. Her sons Marcel and Bruno K. survived World War II in Great Britain and the Shanghai ghetto. From 1949 onwards, they conducted proceedings for the restitution of the properties.

The proceedings regarding the properties sold to the Municipality of Gloggnitz were concluded in August 1952 with a settlement between the Municipality of Gloggnitz and the K. brothers, who waived the restitution in exchange for a payment of 600,000 Schilling. The proceedings regarding the restitution of the properties sold to the Reich Federal Forestry were concluded in October 1957 with a settlement between the K. brothers and the Republic of Austria, which had become their owner following the State Treaty of Vienna 1955. In this settlement, Marcel and Bruno K. waived the restitution in exchange for a payment of 160,000 Schilling.

The present applicants – the son of Bruno K. and 19 heirs of Marcel K. – asserted that the two restitution settlements had been extremely unjust.

In the case of the settlement concluded between the K. brothers and the Municipality of Gloggnitz in 1952, the Arbitration Panel denied the existence of an extreme injustice: the settlement amount had been determined on the basis of an report on the properties’ market value compiled by a court-sworn expert, and the difference between the settlement amount and the amount to which the K. brothers would have been entitled in a positive restitution decision was negligible. Therefore, the Arbitration Panel rejected the application for restitution of the land dealt with in this settlement, from which – from the 1970s onwards – several subdivided areas had been partitioned off and incorporated into a federal road and a provincial road. One property parcel had also been acquired by the Republic of Austria for the construction of the Semmering Base Tunnel.

The Arbitration Panel also failed to identify an extreme injustice in the settlement concluded between the K. brothers and the Republic of Austria in 1957. Although the procedure of taking evidence revealed that the settlement negotiations had been based on a land value which from today’s perspective was too low, there were no indications that the Republic had possessed more information than the restitution claimants or exploited its position. The Federal Forestry had established the value on which the negotiations were based in using methods which it considered logical. Moreover, Marcel and Bruno K. had been provided with the settlements of account which they had requested and their lawyer had also been able to gather an impression of the condition and value of the properties during the course of the negotiations. 

The Arbitration Panel also determined that the K. brothers had not been in an unfavorable position due to the fact that from 1956, the Republic of Austria, or the State Financial Procurator’s Office acting under the auspices of the Ministry of Finance, had been the adverse party. No indications that the authorities concerned had consciously worked together to the detriment of the restitution claimants could be established in this case. Finally, the duration of the proceedings (around seven years) could not be attributed to any attempts by the authorities to deliberately cause delays aiming to create an advantage for the Republic of Austria. 

As the Arbitration Panel was therefore unable to determine that the K. brothers’ freedom of contract had been restricted in any was in these proceedings – which is, however, a necessary requirement for an extreme injustice according to the continuous holdings of the Arbitration Panel – the application for restitution of the properties sold to the Reich Forestry also had to be rejected.