Application for in rem Restitution
Principally any private person is entitled to submit an application. The Settlement Fund Act, however, clearly defines the criteria the claimants must meet.
In order to file the application for in rem restitution, the primary criteria of asset confiscation and public property must be met:
The real estate was seized from the rightful owner between March 12, 1938, and May 9, 1945. The manner in which the assets were transferred in the National-Socialist era plays no role in categorizing the transaction as a confiscation. Seizures were not always carried out by means of an official decision (asset expropriation, asset deterioration), but were camouflaged in most cases as purchase agreements, and in some cases as forced judicial sales, gifts and inheritance.
This criterion applies if the real estate was publicly owned as of January 17, 2001. As the Settlement Fund Act is a federal law, the term "public assets" refers exclusively to federal assets. The Settlement Fund Act, however, provides for a so-called "opt-in" for federal provinces and municipalities under Sec. 38 (Legal Foundations). This means that by passing a resolution in the provincial parliament or municipal council, provinces and municipalities can create the necessary legal foundation for allowing public assets to be examined as to their potential background in the National-Socialist era. As a result, the Arbitration Panel only deals with those claims for in rem restitution where the province, the city or the municipality has availed itself of the "opt-in" clause, thereby enabling claims for in rem restitution to be examined by the Arbitration Panel.
Consideration of prior proceedings
As most of the real estate properties have already been the object of restitution proceedings at some point, the following criteria play a key role in the proceedings before the Arbitration Panel:
- The real estate has never been the object of a claim for restitution that was either subject to a final decision or settled by mutual consent (e.g. by a court of law, and administrative authority or by a settlement).
- Neither the claimant nor a relative thereof has received any compensation or any other kind of consideration in any way.
- Exceptions can be made in the following two cases:
1. The earlier decision or mutually concluded settlement represents an extreme injustice.
2. The claim for restitution was rejected by Austrian courts of law or administrative authorities due to a lack of evidence. In the meantime, evidence that was not accessible at the time has now become available.
Persons entitled to submit a claim
Pursuant to the Settlement Fund Act (Legal Foundations) the following persons are entitled to submit a claim:
- "Persons and associations, who were persecuted under the National-Socialist regime for political reasons or reasons involving ethnicity, religion, nationality, sexual orientation, physical or mental disability, or based on accusations of so-called "asociality" or had left the country in order to escape such persecution, and who suffered loss or damage as a result of or in connection with the events that took place in the territory what is today the Republic of Austria during the National-Socialist era." (Sec. 27 para 1)
- "Furthermore, heirs of persons entitled to make a claim shall also be entitled to submit a claim pursuant to Sec. 1 within the meaning of the provisions of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch). In the event that an association has been dissolved, an association considered by the Arbitration Panel to be its legal successor shall also be entitled to submit a claim. (Sec. 27 para 2)
- Comprehensive information on the filing of claims (in particular on the deadline for filing) can be found at the homepage of the General Settlement Fund.
Proceedings before the Arbitration Panel
After 1945 claims for restitution were submitted for a large portion of the confiscated real estate. In most cases, restitution proceedings were concluded by a court ruling or mutually concluded settlement.
- In rem restitution in the 1940/1950s:
If a real estate property was the subject of in rem restitution in the late 1940s or 1950s, the Arbitration Panel rejects a claim for in rem restitution in accordance with its current decision-making practice.
- Prior decision in restitution proceedings or settlement:
The Arbitration Panel can reach a unanimous decision that a prior decision or mutually concluded settlement constituted an extreme injustice. Neither the Washington Accord (Legal Foundations) nor the Settlement Fund Act (Legal Foundations) defines the criteria under which a matter is considered to constitute an "extreme injustice".
According to the Arbitration Panel's current decision-making practice, both of the following criteria must be met in order for a matter to be said to constitute an "extreme injustice":
- Value difference (value discrepancy between the actual value of the real estate and the sum of money granted to the restitution claimant in comparison)
- Limitation of the autonomy of the individual
The limitation of the individual autonomy of the restitution claimants has been defined in the following manner in the decisions of the Arbitration Panel:
- o Economic imbalance or a lack of information provided to the restitution claimant (Decision 25/2005 of the Arbitration Panel, marginal number 147)
- o Limited or total lack of access to information relevant to the restitution proceedings (Decision 46/2006 of the Arbitration Panel, marginal number 77)
- o Imbalance in the negotiation positions within the context of the restitution proceedings: "The decision-making process could have been impeded due to the difficult economic or physical conditions prevailing subsequent to the National-Socialist era." (Decision WA 2/2007 on 46/2006 of the Arbitration Panel, marginal number 202)
All of the decisions taken by the Arbitration Panel to date regarding claims for in rem restitution can be accessed anonymously via a database.
- Existence of new evidence:
The Arbitration Panel also issues decisions in cases where claims were originally rejected by Austrian courts or administrative authorities for lack of evidence. Such evidence was not accessible to restitution claimants at the time and has become available in the meantime.