An Open Letter to the Austrian Attorney General
Amsterdam & Partners LLP acts as international counsel for Stephan Templ, a Jewish author who has been ruthlessly persecuted by the Austrian government. Mr Templ has been a vocal critic of the Austrian government’s post-war record on returning Nazi property to its former owners, and now faces a three-year jail sentence based on a restitution claim. This open letter to the Attorney General of AustriaDr Werner Pleischl raises a number of the multiple factual and legal errors in the prosecution of Mr Templ, and highlights the fundamental injustice of the conduct by the Austrian authorities. The full text of the letter follows – a PDF version of the document can be downloaded here.
Dr Werner Pleischl
General Prokurator
Schmerlingplatz 11
A-1016 Wien
Austria
London, 27 October 2014
Dear Dr Pleischl,
Request for Extraordinary Reopening of the Case, re 051 Hv 2/13f
I write as international counsel to Mr Stephan Templ (Mr Templ), an Austrian citizen, resident in Prague, Czech Republic. Mr Templ received a letter on 25 July 2014 from judge Sonja Weis of the Regional Criminal Court (Landesgericht für Strafsachen), requesting him to report to Justizanstalt Wien-Simmering on Kaiserebersdorferstrasse, 2971110 Vienna on 25 August 2014. This has been temporarily postponed until 25 September 2015.
Mr Templ is an Austrian Jew, whose ancestors’ property, located at Schmidgasse 14, Vienna, registered as EZ 864 of the Land Registry for Josefstadt (the Property), had been forcibly sold in 1938 under the Third Reich. Mr Templ is the author of a book named Unser Wien: Arisierung auf Österreichisch (Our Vienna: Aryanization, Austrian-Style) which was critical of the Republic of Austria’s (the Republic) efforts to atone for its national-socialist past. It is the first compilation which named the looted and Aryanised properties in Vienna. As such, we believe that our client has been singled out for retaliatory treatment. The Agreement between the Government of the United States of America and the Austrian Federal Government concerning the Austrian Fund “Reconciliation, Peace and Cooperation” dated 23 January 2001 (the Washington Agreement) led to the establishment of the Federal Law on the Establishment of a General Settlement Fund for Victims of National Socialism and on Restitution Measures (Entschädigungsfondsgesetz) (the Settlement Fund Law). This, in turn, provided for an Arbitration Panel for In Rem Restitution, which forms the background to this case.
Mr Templ was accused of deceiving the Arbitration Panel into awarding his mother, Helene Templ, a larger share than she was entitled to which allegedly caused property damage to the Republic. How the Republic can lay claim to property that is acknowledged to have once been stolen and has been then given back to the heirs of the rightful owners is a fundamental error in the entire logic of the prosecution of Mr Templ. Senior representatives of the Austrian judicial system made public declarations and written statements confirming that the Republic could not be considered the victim.
(i) On 10 April 2014, Dr Martin Windisch of the Finanzprokuratur wrote in an email to a journalist: “[…] that the Republic of Austria (or rather the Bundesimmobiliengesellschaft) suffered damages […] does not correspond to the facts. I would again point out that civil law claims against Stephan Templ by the Republic in this criminal court were not raised, nor did the criminal court recognise such claims.”[1]
(ii) On 28 May 2014, the President of the Regional Criminal Court of Vienna, Friedrich Forsthuber, stated in a lecture at the University for Economics in Vienna that the verdict against Mr Templ was wrong. According to him, Mr Templ did not cause any damage to the Republic and that it should not enrich itself by a once “Aryanised” property.[2]
(iii) During Mr Templ’s hearing on 6 June 2014, one of the judges, Johannes Jilke, confirmed that the verdict was wrong because it stated that the Republic was the injured party. He stated that he and his fellow judges were “in a dilemma”.
(iv) On 9 September 2014, Dr Windisch confirmed in a letter to Mr Templ’s counsel “The Republic makes no claims against your client in connection with the conduct […] of your client. The Republic and the Federal Real Estate Agency further assume that a claim for civil damages has not arisen on the part of the Federal Real Estate Agency as a result of his conduct.”[3]
This case has been taken on by our firm on a pro bono basis as it is a case that cries out for justice. For a Jew to be indicted and jailed by an Austrian court in these circumstances represents a grotesque violation of historical memory.
Mr Templ was indicted on 3 January 2013, and on 25 April 2013 a Regional Criminal Court (Landesgericht für Strafsachen Wien) sentenced him to three years in jail for the offence of serious fraud pursuant to sections 146 and 147 (3) of the Austrian Criminal Code (Strafgesetzbuch) (StGB). On 22 January 2014, the Supreme Court (Oberster Gerichtshof Wien) refused to consider the appeal (Zurückweisung der Nichtigkeitsbeschwerde) and the Higher Regional Court (Oberlandesgericht, Wien) reduced the sentence to 1 year in jail with two years’ probation on 6 June 2014.
We respectfully request you to grant an extraordinary reopening of the case, concerning both the verdict and the penalty, pursuant to section 23 of the Austrian Criminal Procedural Code (Strafprozessordnung) (StPO), section 362 (1) (2) StPO and section 363a StPO.
Pursuant to section 362 (1) (2) StPO, the Procurator General – and only he – can file an application for the criminal proceedings to be reopened as an extraordinary measure for the benefit of the person convicted, on the grounds of substantial reservations against the correctness of the facts on which the decision was based, as disclosed by the file.[4]
Under section 363a StPO the Procurator General can file an application for the criminal proceedings to be reopened on the basis that fundamental rights under the European Convention of Human Rights (ECHR) have been violated by one of the parties involved in the proceedings. However, the Austrian Supreme Court has confirmed that it is not mandatory for the European Court of Human Rights (ECtHR) to have made a ruling for an application under section 363a StPO to be made[5].
Thus, errors in factual matters are open to challenge under section 362 StPO, and errors in legal matters under section 23 StPO.
As we set out in detail below, Mr Templ has suffered many times over because of errors in both factual and legal matters. Throughout the proceedings, Mr Templ’s fundamental rights have been violated causing Mr Templ to have exhausted domestic remedies and to commence action before the ECtHR in Strasbourg. Additionally, we are concerned about Austria’s ignorance of the terms of the bilateral Washington Agreement as we explain in Part 4 below.
We further respectfully submit that the 3-year prison sentence imposed on Mr Templ is excessive, has been imposed without just cause and is therefore manifestly unjust. Restitution represents a discretion of the state and the investigation of these claims is the sole responsibility of the state to which Mr Templ owed no duties.
It is submitted that applicants under the Settlement Fund Law are often foreigners who have no knowledge of the Austrian legal system. In light of the wording of the law, applicants naturally assume that the application for restitution can only be for their benefit – not to their detriment.
2. Section 23 StPO
2.1 Errors in Legal Matters
To be guilty of serious fraud under section 147(3) StGB, Mr Templ had to have deceived some person or entity which misled this person into an act that caused property damage to this person or another. The question of damage is central to the finding of Mr Templ’s guilt yet as is clear, and as will be explained, in the light of restitution law, no damage was caused to the state in any event.
The court argued that Mr Templ’s mother was only entitled to a 1/24th share of the Property and not the 1/12th share that she actually received. The court maintained throughout the proceedings that the Federal Real Estate Agency (Bundesimmobiliengesellschaft) was damaged as a result. The court considered the Republic the victim as: (i) it was the owner of the Property at the time of the crime (through the Federal Real Estate Agency); and (ii) the shares of those people who were eligible to file a claim with the Republic, but did not, remained with the Republic.[6] Each assertion will be examined in turn.
First, however, it should first be recalled that in the decision of 25 April 2013, the Regional Criminal Court found that:
“according to the established findings the Republic is the damaged party of this convicted offence, [and] the civil claimant, Dr Elisabeth Kretschmer, has been advised to pursue her claims under section 366 (2) StPO by way of the civil courts.” [7]
Thus, the court conclusively found in this first verdict that it was not Mr Templ’s aunt, Elisabeth Kretschmer (Dr Kretschmer), who had been damaged, but rather the Republic. Had the court found otherwise, the Supreme Court could not and should not have upheld the verdict as it did on 22 January 2014 and Mr Templ should not be about to be deprived of his liberty. This notwithstanding, as stated, there are also fundamental flaws with the concept that the Republic could be a damaged party.
(a) Republic as Owner at the Time of the Alleged Crime
The Arbitration Panel was set up in respect of public property only which was defined as property in possession of the Republic as of January 2001 and which had been taken during the period March 1938 to May 1945. Only this type of public property was eligible for restitution[8]. There is no argument that the Property was public property at the time the claims to the Arbitration Panel were made. By the time of Mr Templ’s involvement, the Arbitration Panel had found that the Property had indeed been unlawfully taken from its owners and that it therefore had to be returned to the heirs. Once this decision, 27/2005, was taken on 15 November 2005 by the Arbitration Panel, the Republic had been found to have no ownership in the Property, and at best, was held by it on trust until the end of the application process and the completion of the Arbitration Panel’s recommendations.
(b) Shares of Unsuccessful Applicants Remain with Republic
To find the Republic the damaged party, the “extra” 1/24th share awarded to Mr Templ’s mother would have to have been awarded to her at the expense of the Republic. The court based its conclusion that the Republic would be the beneficiary of the shares of the potentially eligible applicants who did not claim within the deadline on the witness statement of Martin Hübner. Mr Hübner worked at the Federal Real Estate Agency and was the liaison point between the Arbitration Panel and the Ministry.
First, this is contrary to what the Indictment held:
“Even if Dr Elisabeth Kretschmer had not filed an application for restitution, her share would have proportionally fallen to the other heirs – therefore not just to Dr Helene Templ.”[9]
Second, Martin Hübner, in his witness testimony, could not and did not point to any legal provision that would support his argument that the shares of those who were eligible to make an application, but for whatever reason did not do so, would remain with the state. He even admitted that this was “a difficult legal question” and that one could “write a PhD about this question.” [10] Despite Mr Hübner’s hesitation, the court proceeded on the basis that any unclaimed share of the Property would remain with the Republic. This is in contrast to the expert opinion of Prof. Dr Georg Graf on the legal consequences for the restitution process if one applicant among a group of potentially eligible applicants failed to apply for restitution on time (the Opinion). The Opinion is based on the provisions of the Settlement Fund Law itself and it concludes that:
“Section 27 para 2 of the Settlement Fund Law refers to the Austrian Civil Code which leads to the clear conclusion that shares for heirs, who failed to claim their share, do not remain with the Republic but are to be divided among heirs who made an application in time.”[11]
Third, it is not only an academic question, but one for which there is a legal precedent. In decision 27c/2008, the Arbitration Panel was made aware of the existence of two potential heirs. These potential heirs had not made an application to the Arbitration Panel and it is possible that they did not know of its existence. The Arbitration Panel’s knowledge of their existence and the potential heirs’ failure to make a successful claim, however, did not result in the Republic keeping “their” shares, contrary to what the court maintained. In margin note 20, the Arbitration Panel affirmed that:
“Statements regarding the legal successors to Renee Bau and Erika Al. need not be made however, as the Arbitration Panel only examines the eligibility to file applications of applicants and not of persons who do not appear as applicants.”[12]
Thus, in this situation there were two potentially eligible applicants, who did not claim before the deadline, and the Republic did not hold back “their” shares for itself. Why, then, is Mr Templ’s mother’s case being treated differently and why has Mr Templ been labelled a criminal who is about to be sent to jail?
Fourth, during the court hearing on 6 June 2014, the chair judge Charlotte Habl told Mr Templ that if he paid his “moral guilt” to Dr Kretschmer, then his one year in jail would be commuted to probation, meaning he did not need to serve any jail time at all.[13] This is curious. Either the Republic is damaged, in which case it is to them alone that any money is owed, or it was Dr Kretschmer (who could have received a share had she successfully applied to the Arbitration Panel) who was damaged, in which case the court erred in naming the Republic the victim, and this case was tried on the wrong grounds, leading to a verdict that is manifestly unjust.
Finally and quite extraordinarily, as was highlighted on page 2, senior representatives of the Austrian judicial system made public declarations and produced written statements confirming that the Republic could not be considered the victim.
Thus, the central question in this case – that the Republic was damaged and that it could be considered the victim – represents an absolute departure from the law and the facts.
Without the unequivocal establishment of ownership or damage an offence of serious fraud cannot be proven. It is submitted that a decision which contradicts one of the fundamental basic requirements of the rule of law, nulla poena sine lege, simply cannot stand. Deprivation of liberty is the most serious act a state can take against a citizen and yet, Mr Templ is being thusly punished, despite the legal certainty that no crime has even been committed.
(c) Mr Templ’s Alleged Duties Throughout the Restitution Process
The General Settlement Fund Law clearly provides for a restitution process under equitable principles and for the assessment of each application on a case-by-case basis[14]. A standardised application form can only assist the process, but it does not absolve the Arbitration Panel from its duty to review each case individually.
The Arbitration Panel’s authority is limited to making non-binding “recommendations”[15] to the relevant Minister, and the bodies involved in the restitution process carry no liability for claims arising out of the process[16]. There is no legal right to receive benefits or awards[17] and as such, the Republic’s restitution measures are a mere act of mercy, [18] which is done in order to fulfil a moral and political (but not a legal) duty.[19][20]
It is submitted that the process described under the Settlement Fund Law creates no obligations on either party. This is in contrast to general probate law where all parties involved carry various duties. In clear contradiction to the intent of the Settlement Fund Law, the court drew on the wrong principles of general probate law in respect of the completion of the application form and wrongly concluded that Mr Templ had obligations throughout the process, including the duty to name other applicants in the application form. This is plainly incorrect as disclosure of other applicants by the Arbitration Panel would have been (i) in breach of the data protection obligations[21]; and (ii) contrary to the assessment of each application on a case-by-case basis.
A plain reading of the law makes it clear that in order to apply for restitution, Mr Templ’s sole tasks were to make an application within the prescribed timeframe and to file a statement of eligibility under general probate law.
2.2 Errors in Factual Matters
Serious fraud further requires that Mr Templ deceived a person into committing, omitting, or acquiescing to an act that caused damage to this person or another. The court argued that Mr Templ deceived the Arbitration Panel into recommending the restitution of the Property, and it was this recommendation that led to the transfer of the shares to the heirs, including to Mr Templ’s mother, thereby causing damage to the Federal Real Estate Agency. The deceit in question is that he did not inform the Arbitration Panel of the existence of Dr Kretschmer. However, the court was wrong in stating that even had they known of her existence, that any different conclusion would have occurred.
The Arbitration Panel expressed in margin note 44 of Decision 27d/2012, that even if the existence of Dr Kretschmer had been known to them, its recommendation would not have been different:
“With Decision No. 27a/2006, Dr. Helene Templ’s eligibility to file a claim was acknowledged by the Arbitration Panel. The judgement reads: ‘Dr. Helene Templ’s eligibility to file a claim for in rem restitution of the property at Schmidgasse 14, land registry no. 864, of the cadastral community of Josefstadt, is justified.’ Since only Dr. Helene Templ’s eligibility to file a claim was thereby affirmed, discussion of her specific share of the inheritance (see, in this connection, the aforementioned explanations in Marginal Note 25) was not their task, so would result in no change to the judgement, even under the now known circumstances of the inheritance sequence of heirs of Rose Hollas, according to which, apart from Dr. Helene Templ, the claimant [Dr. Kretschmer] was also an heir.’”
The court expressly mentions three acts that the “deceived” party “committed” that led to the damage caused. Unfortunately for Mr Templ, it seems that the court misjudged the facts of the matter, as is explained in detail below.
(a) The Affirmation of the Eligibility of Helene Templ to file an Application concerning the in rem Restitution of the Property.
The Arbitration Panel’s task was to assess applicants’ eligibility to file a claim for restitution. If the Arbitration Panel found an applicant so eligible they would make a recommendation to the relevant Minister (i.e. of the ministry which owned the property in question) for restitution. The Arbitration Panel did not decide the share or proportion each applicant should receive.[22] The Arbitration Panel found Mr Templ’s mother eligible in decision 27a/2006 on 23 January 2006. At this stage, nine other applicants had already been found eligible by the previous decision 27/2005 on 15 November 2005. Decision 27a/2006 did not affect the original nine heirs’ eligibility, and indeed, when the total number of heirs found eligible by the Arbitration Panel later climbed to 39, it did not affect the other successful applicants.
In margin note 20 of decision 27d/2012, the original decision is re-affirmed:
“As the Arbitration Panel had already examined and confirmed the existence of the legal requirements pursuant to Secs. 28-32 of the GSF Law in its decision no. 27/2005, the examination of the application of the new applicant, Dr Helene T. was limited to the examination of her eligibility to file an application.”[23]
Margin note 21 continues on to say:
“As in decision no 27/2005, the Arbitration Panel held in its juridical appraisal that proof of being a statutory heir was sufficient, as long as no stronger grounds of appeal were demonstrated. The applicant Helene T. also belonged to the group of the third parentela. As no evidence was submitted which would contradict her status as heir, the Arbitration Panel confirmed the eligibility of Dr Helene T. on the basis of her proven status as heir.”
Coupled with the Arbitration Panel’s obligation to deal with each applicant on a case-by-case basis, the finding of Helene Templ’s eligibility is a standalone decision. Thus, whether Dr Kretschmer made a successful application or not would not have prevented or changed the Arbitration Panel affirming the eligibility of Mr Templ’s mother to file an application.
(b) The Recommendation of the Arbitration Panel for in rem Restitution to the Federal Ministry of the Economy, Family Affairs and Youth (the Ministry), that the Property be returned to the Descendants of Daniel and Marie Fürth.
As mentioned above, the Arbitration Panel’s obligation was to assess the eligibility of applicants for restitution. By decision 27/2005, the Arbitration Panel found that the Property fulfilled the criteria of the Settlement Fund Law for restitution.[24] In short, the Property was publicly owned in January 2001, and had been stolen or forcibly sold by the owners, (whose descendants are now filing the applications), during the period March 1938 to May 1945. Accordingly, the Arbitration Panel recommended to the Ministry that the Property should be returned to the descendants of the owners. Those descendants who filed successful applications before the deadline could be considered heirs, and the Ministry was to divide the Property between them.
Each of the court decisions concerning Mr Templ sets out that
“Stephan Templ is guilty, he has […] through fraudulent misstatement of facts […] induced the Arbitration Panel to recommend that the property be returned to the descendants of Daniel and Marie Fürth”, the grandparents of the owner of the property, Dr Lothar Fürth, deceased in 1938 […]”.[25]
Thus, it can clearly be demonstrated that the Arbitration Panel made its recommendation to the Ministry long before Mr Templ made his first application to the Arbitration Panel. His actions did not deceive the Arbitration Panel into recommending the Property for restitution and accordingly, the court erred in saying it did. Indeed, it is noteworthy that Mr Templ’s crime is said to have taken place “during the period from 24 November 2005 to 28 December 2005”[26], which therefore excludes any inference of Mr Templ’s influence on the original decision of 15 November 2005.
The number of heirs and the existence or absence of successful applicants does not change the fact that the Property had been found to have been unlawfully stolen and qualified as returnable to the heirs, pursuant to the Settlement Fund Law and in accordance with the principles of the Washington Agreement.
(c) The Issuing of an Order for the Transfer of the Property from, [the Ministry] to the Federal Real Estate Agency to transfer, without a Fee, 1/12th of the Property to Dr Helene Templ.
Following on from the above, that the Ministry acted on the recommendation of the Arbitration Panel in a) ordering the transfer of the Property and b) including Mr Templ’s mother as one of the transferees, was in accordance with the rules of the Arbitration Panel and the Settlement Fund Law. This would not have changed even had Dr Kretschmer made a successful application.
That Mr Templ’s mother was awarded 1/12th, rather than 1/24th of the Property as the court suggests it should have, was the decision of the Ministry and the facts the court relies upon to suggest that it was the fault of Mr Templ, are also questionable. Mr Templ did not and could not influence the decision of the Ministry.
In decision 27d/2012, the Arbitration Panel confirmed how the proportionality of shares had been calculated.
Even if, and it is wholly denied, Mr Templ hid the existence of his aunt, the Ministry was arguably negligent in not doing even the lightest of research itself. The existence of Dr Kretschmer was a matter of public record – the probate files are stored and readily available in Vienna. Mr Templ had submitted the death certificate and last address of his grandmother and he had further given his express authorisation on behalf of his mother in the application form for any and all necessary files to be retrieved. If the Arbitration Panel and/or the Ministry were going to rely only on the applicant’s own submissions, then this would not have been necessary. Indeed, section 30 of the Settlement Fund Law provides that
“The Arbitration Panel shall make recommendations on the basis of evidence submitted by the claimant and submissions of the Austrian Federal Government, as well as any relevant findings of the Austrian Historical Commission.”
Aside from each applicant’s submissions, the notary public Dr Scheubrein submitted genealogical records to the Arbitration Panel and to the Ministry. His own research drawn from these records formed the basis of the Ministry’s division of the shares in all other cases. Nonetheless, Dr Scheubrein was not charged with having deceived anybody, even though his “complete family tree” that he provided to the Ministry did not demonstrate the existence of Dr Kretschmer. It is hard to reconcile how Mr Templ is going to be jailed for “deliberately omitting” his aunt from the genealogical chart he submitted, while Dr Scheubrein’s “complete family tree” that also omitted Dr Kretschmer, has not been challenged, amended or withdrawn. Of the two individuals, the only duty was on Dr Schreubein, not Mr Templ.
Moreover, section 40 of the Settlement Fund Law explicitly provides that:
“The Fund and its organs established according to the present Federal Law shall be authorised to obtain from public authorities and other public institutions all information necessary to fulfil its tasks.”
This is repeated in Section 14 (4) of the Rules of Procedure, drawn up by the Arbitration Panel itself. It is thus demonstrably and unequivocally clear that the Arbitration Panel was fully authorised to carry out its own searches but chose not to do so.
Finally, Dr Kretschmer had every possibility of applying to the Arbitration Panel herself, and she did not do so. The process was widely advertised throughout Austria, and Dr Kretschmer lives in the capital, in Vienna. Further, she was aware that the Property was in the family, and that she did not apply of her own volition was not recognised as relevant by the court. It was never argued, and indeed, it could not have been, that Mr Templ in any way prevented, hindered or obstructed Dr Kretschmer’s ability to file an application.
That all participants in the process were obligated to observe confidentiality under section 12 Rules of Procedure[27] further strengthens the idea that Mr Templ had no obligation or right to give out the personal data of another without permission. Thus, that the blame for the Ministry’s ignorance of Dr Kretschmer’s existence is laid wholly on Mr Templ is entirely unreasonable. It ignores the facts, including the culpability of other parties, and constitutes a grave error on the facts.
3. section 363a StPO
We respectfully request that the proceedings against Mr Templ are renewed pursuant to section 363a StPO on the basis that Mr Templ’s fundamental rights granted under the ECHR have been violated and such violation has influenced the sentence for Mr Templ to his detriment.
Mr Templ is in the process of submitting a complaint to the ECtHR arguing, inter alia, that the following rights have been violated throughout the proceedings: (i) Art. 7 ECHR “No punishment without law”; (ii) Art. 6 ECHR “Right to a fair trial”; and (iii) Art. 14 ECHR “Prohibition of discrimination”.
3.1 Art. 7 Violations
Art. 7 para 1 ECHR states, inter alia, that
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.”
Art. 7 ECHR applies to criminal proceedings and offences and refers to the criminal law within the meaning of the right to a fair trial according to Art. 6 ECHR.[28] Its application is limited to ‘convictions’ and ‘sentences’ and applies in Mr Templ’s case. It prohibits criminal convictions and sentencing without legal basis.
First, Art. 7 ECHR provides for a central requirement that criminal convictions or sentences are based in or respectively covered by, criminal law (‘nulla poena sine lege’).[29] This special principle of legality restricts the margin of appreciation and interpretation regarding criminal provisions by domestic criminal courts.
Second, Art. 7 ECHR requires that legal provisions contain all necessary information and are formulated in ways that individuals may reasonably foresee what consequences a given action may entail.[30]
Third, Art. 7 ECHR prohibits extensively construing criminal law to an accused’s detriment, for instance by analogy.[31]
These three basic conditions have not been observed by the Austrian courts in the case of Mr Templ:
(a) Nulla Poena Sine Lege
Serious fraud requires: (i) an intent by the accused to unlawfully enrich himself or a third party; (ii) deception of another; and (iii) that such deception causes property damages to this person or another. All three elements must be present to establish this crime.
We set out above that the court argued that Mr Templ deceived the Arbitration Panel into recommending the restitution of the Property, and it was this recommendation that led to the transfer of the shares to the heirs, including to Mr Templ’s mother, thereby causing damage to the Federal Real Estate Agency. The deceit in question is that he did not inform the Arbitration Panel of the existence of Dr Kretschmer. The Arbitration Panel’s obligation does not go beyond the establishing of one’s eligibility to file an application.
“An obligation – beyond that of establishing the eligibility to file an application – to determine the inheritance shares and to determine in its judgment in what proportions the restitution should occur can neither be derived from the statutory provisions nor from the Washington Agreement 2001. The task is solely the responsibility of the competent Federal Minister. For this reason, an examination of the right to inherit exceeding that of the determination of the eligibility to file an application is not necessary.”[32]
Thus, even if the Arbitration Panel had known of the existence of Dr Kretschmer, they would not have decided her eligibility unless she were an applicant. Further, a decision on Helene Templ’s eligibility would not have been affected by the existence of one or even a hundred other heirs.
Furthermore, even though Mr Templ is blamed for deceiving the Arbitration Panel into making the recommendation to the Ministry to transfer the Property in question, this is not logically possible.[33] As was explained earlier, Mr Templ is accused of committing his crime “during the period 24 November 2005 to 28 December 2005”[34] which therefore excludes any inference of Mr Templ’s influence on the original decision of 15 November 2005.
The finding of the Austrian courts that the Arbitration Panel was deceived into affirming Helene Templ’s eligibility to file an application because Mr Templ had “misrepresent[ed] the facts” i.e. that he had omitted to inform the Arbitration Panel of the existence of his aunt, has been demonstrated to be false. According to the Settlement Fund Law, the affirmation of one’s eligibility is not affected by the affirmation or rejection of other’s eligibility. In any case, the recommendation that the Property be transferred to any of the heirs was taken long before Mr Templ first made any application to the Arbitration Panel.
As we explained in Part 0 above, it is clear that no damage occurred in Mr Templ’s case, yet this constitutes an essential element of the alleged crime.
(b) Clarity of Legal Provisions which Enable the Accused to Foresee Legal Consequences
Section 15 of the Settlement Fund Law sets out the preconditions for claims and the standards for evidence submitted as well as the assessment criteria which have to be applied by the Arbitration Panel. The claimants have only to testify to their respective entitlements under “relaxed standards of proof”. No reference can be found in the legal provisions requiring the claimants to cite other persons eligible for the benefits of this law. Fundamentally, there is no provision in the Settlement Fund Law or reference to such in another law providing for criminal responsibility for anyone who does not cite other potential heirs.
(c) Prohibition to Construe Criminal Law to an Accused’s Detriment
As we explained in section 2.1(c) above, the court drew on the wrong principles of general probate law in respect of the completion of the application form and wrongly concluded that Mr Templ had obligations throughout the process, including the duty to name other applicants in the application form.
This complex and entirely unclear legal situation made it impossible for Mr Templ to foresee that the omission to fill in the name of his aunt on the form would lead to an accusation of fraud under section 147(3) StGB. A legislative framework that does not enable an accused to know the meaning and scope of the criminal law is deficient not only as regards the general conditions pertaining to the “quality” of the “law”, but also as regards the specific requirements of legality in the criminal law.[35] It is submitted that a legal lacuna was used to Mr Templ’s detriment which will – if not remedied – have drastic consequences on Mr Templ’s liberty.
3.2 Art. 6 Violations
Art. 6 of the ECHR provides for the right to a fair trial. The ECtHR has stated several times in its case law that the principle of equality of arms – one of the elements of the broader concept of fair trial – requires that each party should be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent.[36] The concept of a fair hearing also implies the right to adversarial proceedings, according to which the parties must have the opportunity, inter alia, to make known any evidence needed for their claims to succeed.[37]
The ECtHR’s role is to ascertain whether the proceedings considered as a whole were fair as required by Art. 6 ECHR. In this context, importance is to be attached to the appearance of the fair administration of justice. Mr Templ has submitted an application to the ECtHR to deal with errors committed by the Austrian courts as they have infringed his rights and freedoms protected by the ECHR.
All facts show that the Austrian courts did not comply with their overriding duty to make a fair and balanced judgement and that they were not sufficiently impartial from an objective point of view. For the requirements of a fair trial to be satisfied, the accused, and indeed the public, must be able to understand the verdict that has been given; this is a vital safeguard against arbitrariness.[38] As the ECtHR has often noted, the rule of law and the avoidance of arbitrary power are principles underlying the [ECHR].[39] In the judicial sphere, those principles serve to foster public confidence in an objective and transparent justice system, one of the foundations of a democratic society.[40] Where heavy penalties such as the deprivation of liberty that Mr Templ is facing are concerned, respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.[41]
The ECtHR often reiterates that in the case of courts sitting with a lay jury – such as in the criminal proceedings of Mr Templ – any special procedural features must be accommodated, seeing that the jurors are usually not required – or permitted – to give reasons for their personal convictions.[42] In these circumstances, Art. 6 ECHR requires an assessment of whether sufficient safeguards were in place to avoid any risk of arbitrariness and to enable the accused to understand the reasons for his conviction. Such procedural safeguards may include, for example, directions or guidance provided by the presiding judge to the jurors on the legal issues arising or the evidence adduced, and precise, unequivocal questions put to the jury by the judge, forming a framework on which the verdict is based or sufficiently offsetting the fact that no reasons are given for the jury’s answers.[43]
According to the ECtHR’s case law, compliance with the requirements of a fair trial must be assessed on the basis of the proceedings as a whole and in the specific context of the legal system concerned. The review of the absence of a reasonable and proportional verdict is to determine whether, in the light of all the circumstances of the case, the proceedings afforded sufficient safeguards against arbitrariness and made it possible for the accused to understand why he was found guilty.[44]
- Presumption of Innocence
The presumption of innocence applies until the accused is “proved guilty according to law”.[45] The burden of proof rests with the prosecution. Judges must not start with the preconceived idea that the accused has committed the offence charged. In other words, it is on the prosecution to adduce evidence proving the guilt of the accused and not the duty of the accused to prove his innocence.[46] The contents of the Indictment and the Verdict are almost 100% identical. We consider this astounding given the complexity of the law and the facts at hand. No proper assessment was made of the allegations made in the Indictment and whether there was sufficient evidence to establish the offences.
What also has to be taken into consideration is the competence of the court to assess the evidence and to rule on the accused’s guilt.[47] It is submitted that Mr Templ was presumed guilty when he was charged and proven guilty throughout the trial based on the wrong interpretation of facts and law.
- Appearance of Bias in the Tribunal
A requirement for impartiality is found in judicial systems all over the world and is at the heart of public confidence in courts and their decisions. Art. 6 (1) of the ECHR reflects this and provides for a “fair trial [….] by an independent and impartial tribunal”. Impartiality can be assessed subjectively and objectively, reflecting the importance of justice not only being done, but being seen to be done. In other words, the appearance of bias is as potentially harmful as actual bias in a court.
In the case of Piersack v Belgium, the court noted this dual approach to impartiality noting that “what is at stake is the confidence which courts must inspire in the public in a democratic society”. The court held that “It is sufficient to find that the impartiality of the “tribunal” which had to determine the merits of the charge was capable of appearing open to doubt.”[48]
As introduced earlier, the court judged Mr Templ’s applications to the Arbitration Panel on behalf of his mother as efforts to “make as much money for himself as possible”. The court’s repetitions that Mr Templ desired to unlawfully enrich himself by “fil[ing] claims under the Settlement Fund Law” suggests that the court found something illegal or immoral about Mr Templ correctly using the restitution process. The court used the fact of his multiple applications as evidence to prove guilty intent. This is wrong and suggestive of a highly prejudicial appearance of bias. Mr Templ was well within his rights to apply to the Arbitration Panel as many times as necessary to ensure that property that once belonged to his ancestors was returned to him and his family. Having investigated the history of Vienna’s buildings that once belonged to Jews, Mr Templ was an applicant who knew better than most what had once belonged to his ancestors. That he was conscientious in applying for precise restitution is not against the law or the restitution legislation. Furthermore, the moral judgment that multiple applications must mean that Mr Templ wanted “the highest amount of money for himself” has no place in a criminal trial, and is worryingly reminiscent of anti-Semitic stereotypes that focus on the supposed greed of Jewish people.
- Fair Hearing
Part of the principle of fairness under Art. 6 ECHR is the right to be heard. This envisages that each party is afforded a reasonable opportunity to present his case.[49] The ECtHR requires that prosecuting authorities disclose all material evidence in their possession for and against the accused.[50]
Mr Templ requested that the notes of Claire Fritsch who worked in the offices of the Arbitration Panel as well as the notes from the Arbitration Panel in specific cases were put into evidence. These were requested so that the defence could demonstrate that in the case of Ms Fritsch’s notes. Contrary to her recollection and testimony, Mr Templ did not claim that there was only one child per generation in his family. As for the notes of the deliberations of the Arbitration Panel, this would demonstrate that it is false to say that had the Arbitration Panel known of the existence of other heirs, that it would have definitely informed that presumptive heir of their potential eligibility. In the specific case of Paulina Schwarzkopf (mentioned previously) it was shown that the Arbitration Panel knew of the existence of other presumptive heirs and that nonetheless, the Arbitration Panel did not reach out and inform these presumptive heirs of their eligibility to make an application. Further, in that case the Republic awarded shares only to those who had successfully filed an application i.e. no shares were retained by the Republic. This file of the Arbitration Panel’s reasoning would have been of paramount and decisive importance for the outcome of the criminal procedure, as it would have proven Mr Templ’s case, and would disprove a finding of guilt under section 147 StGB. Nonetheless and in complete absence of legal reasoning, the court rejected all evidence and said that it was legally irrelevant. This exclusion was all the more serious in light of the court’s continuous assertions that Mr Templ was out to “make the highest amount of money for himself”.
- Admissibility of Witness Evidence of a Biased Witness
Susanne Betz and Claire Fritsch worked for the Arbitration Panel and held meetings with and received applications from the applicants, including Mr Templ. During the hearing of 14 March 2013, Ms Betz, who was later called as a witness, was present in the courtroom from the beginning of the proceedings and heard both the reading of the indictment and, especially, the testimony of the witness Ms Fritsch. Ms Betz also heard the reading of the Indictment, and Mr Templ’s entire testimony. Mr Templ’s defence counsel immediately censured this to no avail. The court lent credence to the witnesses’ testimony as having drawn
“[…] identically and plausibly, a comprehensive picture of the conversation with the accused of 1 December 2005 and described in agreement with each other that the question of other possible heirs/rightful claimants was the topic of the conversation.”[51]
These two witnesses’ testimony impacted the severity of the sentence Mr Templ received. In its Verdict, the court noted that it was Mr Templ’s conversation with the witnesses and the (non) presentation of documents to them that made this an “active offence”, i.e. a commission, and not just omission, which resulted in Mr Templ being given a three-year jail sentence.
It is this witness (Claire Fritsch) who is responsible for the decision NOT to comply with the legally prescribed process to examine each application under section 30 of the Settlement Fund Law and not to forward the application to the Republic. A deception of the Republic by Mr Templ cannot have occurred. The production of the above documentary evidence which had been applied for but denied could have clearly proven the wrongful conduct of both witnesses.
- Rejection of Witnesses
Mr Hankiewicz, the Public Prosecutor, filed an application to produce evidence
“for the examination of Dr Helmut Scheubrein, notary public, as a witness, of how the Arbitration Panel came into existence, or more precisely, of why Dr Elisabeth Kretschmer does not appear in the family tree submitted to the Ministry.”[52]
Mr Templ was found guilty based in part on the so-called family tree he drew up that omitted Dr Kretschmer. This so-called family-tree is a half-filled A-4 page, which showed how his mother was descended from Hermine Fürth and nothing more. This “family tree”, does not show any graphic arborescent picture of lineages.
In any case, it was the family tree drawn up by Dr Scheubrein that the Arbitration Panel relied upon, as did the Ministry when it was deciding the proportionality of shares. Thus, it was the omission of Dr Kretschmer from Dr Scheubrein’s family tree that led to the Ministry awarding Helene Templ 1/12th of the Property. Mr Hankiewicz wanted Dr Scheubrein as a witness in order to ask him why Dr Kretschmer was missing from the family tree. Mr Hankiewicz reproached Dr Scheubrein for producing and relying on the supposedly “complete” family tree, when the probate file of the mother of Dr Kretschmer and Helene Templ was easily accessible and both women lived in Vienna.
Further, Dr Scheubrein knew from at least 2006 of the existence of Dr Kretschmer. As a witness in a civil case against Helene Templ, 4 December 2009 he said:
“On the occasion of the meeting in December 2006, when I was asked by the lawyer of the accused [Helene Templ], it happened that some of the claimants had already been discovered. By this time it was already clear that there were other rightful claimants. We knew the lineages, and we knew the lines had no descendants. It was therefore known which lines could still have more rightful claimants.”[53]
He did not reach out to Dr Kretschmer until 2011, four years after the 2007 deadline for filing a claim.
Mr Hankiewicz also wanted to find out about the conflict of interest stemming from the fact that Dr Scheubrein was on the one hand representing the Republic as notary public and on the other hand was representing 34 of the 39 claimants for restitution.
Public Prosecutor Hankiewicz further wanted to know more about the conflict of interest of Dr. Scheubrein, who represented 34 of 39 claimants in the restitution process and also provided a “complete family tree” to the Republic, including the different shares which provided the basis for the transfer of the shares in the Property to the heirs. In a criminal context, no proper assessment was made of the inherent conflict of interest concerning Dr Scheubrein’s involvement in this case.
It would have been of interest to cross examine Dr Scheubrein and ask him why he facilitated a transfer of the Property before the completion of the restitution process despite his knowledge of the following facts: (i) the existence of additional heirs; (ii) the absence of any legal basis for such transfer by the known applicants; (iii) the very purpose of an in rem restitution; and (iv) that such transfer would have affected the rights of any additional applicants.
This was the sole motive for the liability statement which was not provided for by the law.
For all these reasons, the testimony of Dr Scheubrein would have been highly relevant and yet the court refused his interrogation as he was simply a “representative” of the parties thereby ignoring:
(i) his role in assisting the Arbitration Panel and the Ministry in their decision-making on applications and proportionality of shares respectively;
(ii) his improper handling of a conflict of interest; and
(iii) his (contributory) negligence in providing an incomplete family tree which omitted Dr Kretschmer.
(f) Procedural Safeguards Against Arbitrariness
Mr Templ’s case concerns the law of reparations – a complex legal area – coupled with ancillary civil law questions. In these circumstances, Art. 6 ECHR requires sufficient safeguards to avoid any risk of arbitrariness. It is clear from the reasoning of the lay judges that they misinterpreted and were mistaken in their application of the Settlement Fund Law. The court wrongly implied that Mr Templ had various duties throughout the restitution process which are simply not provided for in the Settlement Fund Law or indeed any other law.
Restitution represents a discretion of the state and the investigation of these claims is the sole responsibility of the state to which Mr Templ owed no duties. It is submitted that applicants under the Settlement Fund Law are often foreigners who have no knowledge of the Austrian legal system. In light of the wording of the law, applicants naturally assume that the application can only be for their benefit – not to their detriment.
The court’s erroneous conclusion that the Republic was the damaged party is further evidence of a complete lack of understanding by the lay judges of the very basics of the Settlement Fund Law.
Moreover, Helene Templ’s refusal to sign a statement of liability was used against Mr Templ as further proof of his intent to enrich himself and his mother.
“A further indication that the accused was greatly concerned to unlawfully enrich himself is the fact that the accused, […] refused to sign the liability statement demanded by the Republic, more precisely by the Federal Real Estate Agency. [The statement] which would have had the effect that the people who had already received their shares of the property would not hold the Republic and the Federal Real Estate Agency liable in the event that not all the heirs had been taken into account in the restitution process and therefore those who had received too big a share would have to pay it back. The accused could in no way provide a plausible explanation for this refusal, nor is it very clear how the trial at the Regional Civil Court, Vienna, in which the mother of the accused was sued for no longer agreeing to the sale of the property to a company of Russian or Ukrainian background is connected to this question.”[54]
The Settlement Fund Law makes no provision for liability statements. This liability statement was an artificial construct for those applications, who wanted to sell their share in the Property before the expiry of the application deadline. Mrs Templ was against the sale of the Property before the end of the application deadline.
The court failed to justify the conclusions it drew from Helene Templ’s refusal to sign the liability statement. A plain reading of the Settlement Fund law makes it clear that it is against the very purpose of this law to sign any such liability statement. The efforts of the other applicants and the Federal Real Estate Agency’s to sell the Property before the application deadline had expired and all applicants had made themselves known is irreconcilable with the aim of the Settlement Fund Law.
Minimum safeguards to reduce the risk of such arbitrary interpretation of the law would have included the consideration of expert evidence such as a restitution expert like Prof. Dr Graf (as mentioned previously) and/or some directions provided by the presiding judge to the lay judges on the legal issues arising out of the case at hand.
3.3 Art. 14 Violations
Art. 14 ECHR covers the prohibition of discrimination and states, inter alia, that:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Art. 14 ECHR adds the requirement of non-discrimination in the application of the fundamental guarantees of the ECHR.[55] It is an accessory right and to the extent that the substantive provisions of the Convention impose positive obligations on its member states, they must be fulfilled in a manner compliant with Art. 14 ECHR.[56] State authorities must take all reasonable steps to unmask any political motive and establish whether or not intolerance towards a dissenting political opinion may have played a role in the events.[57]
As outlined earlier, the court’s repeated statements that Mr Templ was out to get as much for himself are not only entirely irrelevant to the question of whether he committed a crime or not, but they are also grossly reminiscent of anti-Semitic stereotypes. This discriminatory conduct raises the potential of bias, or at the very least, the appearance of bias. Indeed, it appears that the court used a lacuna in the law to prosecute Mr Templ, despite the uncertainty of the law.
Mr Templ’s profession as author and journalist has meant that he has expressed views and research that are critical of the Republic’s efforts to atone for its past. Because of the publication and repute of his book Unser Wien, he was well known to the Austrian officials involved in the restitution process, and indeed the witness Susanne Betz said she was familiar with his work on the legacy of national-socialism. Mr Templ shone a light on the current Austrian government’s dealing with its national-socialist predecessors and its responsibilities towards the descendants of the Jewish citizens who, as is well documented, were treated shamefully during the Third Reich.
The Washington Agreement had widely been criticised as Austria’s piecemeal post-war effort to deal with its Nazi past.[58] In light of the criticism, we respectfully submit that Austria is under an additional duty to focus now on the results of the Washington Agreement, that is, the agreements and the benefits that have been made available to Holocaust victims and their heirs.
The stereotyping of Mr Templ throughout the proceeding as a greedy and money-mad Jew, the gross violations of Arts. 5 and 6 ECHR throughout the proceedings and the fundamental error in the entire logic of the prosecution of Mr Templ lead us to conclude that the critics were right. Austria has failed to fully address the dark chapter in its history.
4. Austria’s attempt to ignore the intent of the Washington agreement
Aside from the factual and legal errors that make this case deserving of re-opening, the context in which the charges occurred must be taken into consideration to ensure a full understanding of the facts. The Washington Agreement, in which Austria agreed to confront its national-socialist past, was intended to rectify the wrongs done to (the mainly Jewish) Austrian citizens by the Austrian state.
The Arbitration Panel was set up so that the heirs of those people whose property was stolen or forcibly sold could receive what rightfully belonged to them as a minimal gesture of recognition from the Republic of the un-rectifiable damage done.
Austria undertook that the members of the Arbitration Panel would be “familiar with the relevant regulations both under Austrian and international law (in particular, the ECHR).”[59] We find it hard to reconcile that such Arbitration Panel could design an application process that makes it impossible for the applicant to foresee that an incorrect completion of the application form would result in criminal sanctions.
Although the application process was designed to be as straightforward as possible, reducing the cost and the effort needed to apply, many lawyers and genealogists offered to complete the process in exchange for a contingency fee. These could act as successfully as they did, because the Republic failed to implement measures, which could have simplified the application process. The Austrian Historical Commission examined all publicly owned properties and their ownership during the Nazi period and reported on potential restitution of these properties. This database was intended to assist potential applicants. The Settlement Fund undertook to publish the Commission’s findings, but has failed to honour its commitment to date.
It is noteworthy that Mr Templ’s mother was the only one out of the 39 heirs of the Property who did not agree to such an arrangement, and when the representatives of the other heirs wished to sign away their presumptive shares – long before the application period deadline had even ended, and therefore before the full number of heirs was known – Helene Templ was the only one who refused. Such prospective transfer of the shares was impossible in the original draft of the Settlement Fund Law and is contrary to the intent of the law.
Her refusal came about because she was adamant that she wanted her name on the Land Registry which given the emotional and historical significance of restitution is an easily understandable and perfectly legitimate desire. Helene Templ’s refusal to sign a statement of liability was used against Mr Templ as evidence of his “intent to unlawfully enrich himself”, although it follows the purpose of the law in every respect.
Additionally, as mentioned above, Mr Templ is a journalist and author who as mentioned previously, co-wrote Unser Wien. This book was critical of the Republic, especially as it concerned the state’s willingness to atone for its past. It also criticised the restitution process, and provided an extremely detailed history of properties stolen during the national-socialist period of Austria’s history.
We respectfully submit that in an attempt to rectify its past and recognise its moral responsibility by undertaking obligations in the Washington Agreement, the Republic – as represented by the judiciary – has lost its way. Mr Templ was seeking to right a historic wrong and applied for restitution under an act of mercy by the Republic. He has now become the victim of a decision that is based upon multiple errors in both factual and legal matters.
We enclose a translation of this letter into the German language. This translation into German is for convenience only and the English version of this letter shall be the governing version.
Sincerely,
Robert R. Amsterdam
AMSTERDAM & PARTNERS LLP
Enclosure:
Convenience Translation of Letter
List of Court Applications:
- Indictment 40 St 165/12t-3 of 3 January 2013
- Hearing 051S Hv2/13f of 14 March 2013
- Hearing 051S Hv2/13f of 25 April 2013
- Verdict 051S Hv2/13f of 25 April 2013
- Nullity Appeal and Appeal on the Facts Hv2/13f of 19 July 2013
- Decision of Supreme Court 15 Os 133/13t-8 22 January 2014 (26 February 2014)
- Cost Assessment and Sentence Hearing 20 Bs 82/14a 6 June 2014
- Letter from the Finanzprokuratur dated 9 September 2014
[1] “[…] dass sich die Republik Österreich (bzw die BIG) selbst als Geschädigte angibt, lässt sich dem BESCHLUSS nicht entnehmen und entspricht auch nicht den Tatsachen.” Email from Rebekka Salzer (journalist at ORF) to Stephan Templ dated 5 June 2014 09:13 quoting Dr Martin Windisch.
[2] “Die Republik darf sich nicht weiter an ‚arisierten‘ Liegenschaften bereichern.”
[3] “Seitens des Bundes werden daher in Zusammenhang mit dem Verhalten Ihres Mandanten […] keine Ansprüche gegen Ihren Mandanten erhoben. Es wird seitens des Bundes und der Bundesimmobiliengesellschaft mbH davon ausgegangen, dass ein zivilrechtlich absatzfähiger Schaden durch dieses Verhalten auch bei der Bundesimmobiliengesellschaft mbH nicht entstanden ist.“ Letter from Dr Martin Windisch of the Finanzprokuratur to Dr. Christof Dunst dated 9 September 2014
[4] Website of the Austrian Procurator General, available at: http://www.generalprokuratur.gv.at/gp/index.php?nav=13
[5] Decisions of the Supreme Court GZ 13 Os 135/06m, dated 1 August 2007; GZ 11 Os 132/06f, dated 23 October 2007; and GZ 13 Os 16/09s dated 16 April 2009
[6]“Dass durch die Täuschungshandlungen des Angeklagten ein Schaden von weit mehr als Euro 50.000,–, nämlich in Höhe von etwa Euro 550.000,– sohin der Hälfte des Verkaufserlöses aus dem Verkauf des Liegenschaftsanteils an die Schmidgasse 14 Entwicklungs-Gesmbh (siehe dazu Seite 27 f in ON 2) beim Bund entstand, ergibt sich schon aus der Tatsache, dass die gegenständliche Liegenschaft zum Tatzeitpunkt öffentliches Eigentum war (siehe dazu die Entscheidung der Schiedsinstanz AS 21 f in ON 2) sowie die Aussage des Zeugen Martin Hübner (insbesondere Seite 26 f und Seite 31 im Hv-Protokoll vom 25.4.2013) wonach Anteile, hinsichtlich jener Personen gibt, die anspruchsberechtigt wären, die aber keinen Antrag gestellt haben bei der Republik verbleiben.” Verdict of the Regional Criminal Court 25 April 2013, page 14
[7] “Da nach den getroffenen Feststellungen der Bund Geschädigter der verurteilten Straftat ist, war die Privatbeteiligte Dr Elisabeth Kretschmer mit ihren Ansprüchen gemäß Paragraph 366 Abs 2 auf den Zivilrechtsweg zu verweisen” Verdict of the Regional Criminal Court 25 April 2013 page 17
[8] Section 28 Settlement Fund Law
[9] “Selbst wenn Dr Elisabeth Kretschmer keinen Restitutionsantrag gestellt hätte, wäre ihr Anteil den übrigen Erben – also nicht nur an Dr Helene Templ – anteilig zugefallen.”
[10] “Das ist im Grunde genommen eine schwierige Rechtsfrage. […] Aber über diese Frage könnte man wahrscheinlich eine ganze Dissertation schreiben.“ Transcript of Hearing on 25 April 2013, pages 26/27
[11] “Der Verweis in Paragraph 27 Abs 2 EF-G auf das ABGB führt somit zum eindeutigen Ergebnis, dass Anteile für Erben, die keinen Anspruch geltend gemacht haben, nicht bei der Republik zu verbleiben haben, sondern vielmehr auf jene Erben zu übertragen sind, die rechtzeitig Ansprüche geltend gemacht haben.“ Univ.-Prof. Dr Graf: ‘Rechtsgutachten zur Frage, welche Rechtsfolgen sich an das Unterbleiben einer rechtzeitigen Antragstellung auf Naturalrestitution (Gem. Para 27 EF-G) durch einen von mehreren Erbberechtigten knüpfen’, page 3
[12] Decision Number 27c/2008 dated 23 June 2008, available at: http://www.en.nationalfonds.org/sites/dynamic1614.html
[13] “Wenn sie Ihre moralische Schuld der Tante gegenüber tilgen so kann das eine Jahr Gefängnis auch auf Bewährung Gesetz wahren”. Though this was curiously not recorded in the transcript of the trial, there were over 60 witnesses who could attest to this, and it was also widely reported by the media.
[14] Section 26 Settlement Fund Law
[15] Section 34 Settlement Fund Law
[16] Section 3 (a) Settlement Fund Law
[17] Section 7, and section 42 Settlement Fund Law
[18] Christian Rabl: Die Erben als Begünstigte der Naturalrestitution nach dem Entschädigungsfondsgesetz (EFG), 374 ecolex 2006 1
[19] 476 der Beilagen zu den Stenographischen Protokollen des Nationalrates XXI. GP, Nachdruck vom 12. 2. 2001, Bericht und Antrag des Verfassungsausschusses betreffend den Entwurf eines Bundesgesetzes über die Einrichtung eines Allgemeinen Entschädigungsfonds für Opfer des Nationalsozialismus und über Restitutionsmaßnahmen (Entschädigungsfondsgesetz) sowie zur Änderung des Allgemeinen Sozialversicherungsgesetzes und des Opferfürsorgegesetzes, available at: http://www.parlament.gv.at/PAKT/VHG/XXI/I/I_00476/fnameorig_000000.html
[20] Eric Rosand, Confronting the Nazi Past at the End at the 20th Century: The Austrian Model, 20 Berkeley J. Int’l Law. 202 (2002), available at: http://scholarship.law.berkeley.edu/bjil/vol20/iss1/8
[21] Section 40a Settlement Fund Law
[22] Section 26 Settlement Fund Law
[23] Decision Number 27d/2012 dated 26 January 2012, available at: http://www.en.nationalfonds.org/sites/dynamic012d.html?action=db&todo=preview&rid=1010
[24] Sections 27-29 Settlement Fund Law
[25] “Stephan Templ ist schuldig, er hat […] durch Täuschung über Tatsachen […] zu Handlungen verleitet […], nämlich zur Empfehlung der Schiedsinstanz für Naturalrestitution […] die genannte Liegenschaft an die Nachkommen von Daniel und Marie Fürth rückzustellen […].“ Decision of 22 January 2014 page 2. See also: Verdict of the Regional Criminal Court 25 April 2013; Decision of 22 January 2014; and Verdict of 6 June 2014.
[26] “Stephan Templ hat im Zeitraum 24.11.05 – 28.11.05 […]”
[27] “General Obligation to Confidentiality. All persons who participate or have participated in some form in the proceedings or parts thereof shall observe confidentiality”.
[28] Christoph Grabenwarter: The European ECHR for the Protection of Human Rights – A Commentary, 2014, page 173/3
[29] Ibid 174/5
[30] ECtHR, 25/6/2009, Litvik v Estland, Appl 12157/05, paragraph 93 et seq, 100
[31] ECtHR (GC), 12/2/2008, Kafkaris v Cyprus, Appl 21906/04, paragraph 138
[32] “Wie die Schiedsinstanz in 3a/2007 bereits dargelegt hat, ist weder aus gesetzlichen Bestimmungen noch durch das Washingtoner Agreement von 2001 eine Pflicht abzuleiten, über die Antragsberechtigung hinaus die exakten Erbquoten festzustellen und auch im Spruch festzulegen, zu welchen Quoten die Rückstellung einer Liegenschaft erfolgen soll. Diese Aufgabe obliegt dem zuständigen Bundesminister allein. Aus diesem Grund kann eine über die Frage der Antragslegitimation hinaus gehende Prüfung des Erbrechts unterbleiben.” Decision Number 27c/2008 dated 23 June 2008, Margin Note 57, available at: https://de.nationalfonds.org/docs/Schiedsinstanz/entscheidung_27c_2008.pdf
[33] Each of the court decisions concerning Stephan Templ sets out that “Stephan Templ is guilty, he has […] through fraudulent misstatement of facts […] induced the Arbitration Panel to recommend that the property be returned to the descendants of Daniel and Marie Fürth, the grandparents of the owner of the property Dr Lothar Fürth, deceased in 1938”.
[34] “Stephan Templ hat im Zeitraum 24.11.05 – 28.12.05”
[35] ECtHR, 20/1/2009, Sud Fondi SRL v Italy, Appl 75909/01
[36] See ECtHR, 4/6/2001, Komanicky v Slovakia, Appl 32106/96, paragraph 45, citing several other judgments of the ECtHR
[37] Ibid, paragraph 46, also citing several other judgments of the ECtHR
[38] ECtHR, 10/1/2013, Agnelet v France, Appl 61198/08, paragraph 57
[39] ECtHR (GC), 16/11/2010, Taxquet v Belgium, Appl 926/05, paragraph 90
[40] ECtHR, 1/7/2003, Suominen v Finland, Appl 37801/97, paragraph 37; ECtHR, 22/2/2007, Tatishvili v Russia, Appl 1509/02, paragraph 58
[41] ECtHR (GC), 27/11/2008, Salduz v Turkey [GC], Appl 36391/02, paragraph 54; ECtHR (GC), 16/11/2010, Taxquet v Belgium, Appl 926/05, paragraph 93
[42] ECtHR (GC), 16/11/2010, Taxquet v Belgium, Appl 926/05, paragraph 92
[43] Ibid, paragraph 92
[44] Ibid, paragraph 93
[45] Art. 6 (2) ECHR
[46] Christoph Grabenwarter: The European ECHR for the Protection of Human Rights – A Commentary, 2014, page 167/158
[47] Ibid, page 167/158
[48] ECtHR, 8692/79, Piersack v Belgium, 01/10/1982
[49] ECtHR 27/10/1993 Dombo Beheer BV v Netherlands, 144448/88, paragraph 33
[50] ECtHR, 24/06/2003, Dowsett v UK, 39482/98, paragraphs 41 et seq
[51] “Zum anderen zeichneten beide genannten Zeuginnen in den Kernpunkten gleichlautend ein plausibles und nachvollziehbares Bild vom Gespräch mit dem Angeklagten vom 1. Dezember 2005 und schilderten übereinstimmend, dass die Frage weiterer möglicher Erben/Anspruchsberechtigter Thema des Gespräches gewesen war” Verdict of the Regional Criminal Court 25 April 2013, page 12
[52] “Der Staatsanwalt beantragt die zeugenschaftliche Vernehmung des Notars Dr Helmut Schreubein zum Zustandekommen der Kommission, bzw. dem Ministerium vorgelegten Stammbaums in dem die Frau Dr Kretschmer nicht vorkommt.“ Transcript of Hearing 25 April 2013, page 36
[53] “Anlässlich der Besprechung im Dezember 2006 war es so, das im Hinblick auf wenn ich von Seiten des Beklagtenvertreters gefragt werde, dass schon einzelne Anspruchsberechtigte festgestellt waren. Zu diesem Zeitpunkt stand auch schon fest, dass es weitere Anspruchsberechtigte gibt. Wir kannten die Stämme, und wir wussten welche Stämme ohne Nachkommen geblieben waren. Es war daher klar, dass wenn sich etwas tut, dass sich dann nur etwas innerhalb dieser Stämme tut. Das kannten wir und war bekannt.” Transcript of Hearing on 4 Dezember 2009 Case 60 Cg 149/08k, page 20
[54] “Ein weiteres Indiz dafür, dass es dem Angeklagten sehr wohl darum ging, sich unrechtmäßig zu bereichern, ist die Tatsache, dass der Angeklagte […] sich (im Namen seiner Mutter) weigerte, die vom Bund, bzw. der BIG geforderte Haftungserklärung (Schad- und Klagloserklärung) – die bewirkt hätte, dass diejenigen Personen, die Anteile an der Liegenschaft bekommen, die Republik und die BIG schad- und klaglos halten, für den Fall, dass nicht alle Erben im Restitutionsverfahren berücksichtigt worden waren und damit den Anteil, den sie zu viel bekommen haben zurückzuzahlen – zu unterzeichnen. Eine plausible Erklärung für die Verweigerung konnte der Angeklagte keineswegs bringen und ist auch wenig nachvollziehbar in welchem Zusammenhang der Prozess vor dem Landgericht für Zivilrechtsachen Wien, in welchem die Mutter des Angeklagten auf Zustimmung zum Verkauf der Liegenschaft an eine Firma mit russischem und ukrainischen Hintergrund geklagt wurde, haben soll.” Verdict of the Regional Criminal Court 25 April 2013, page 14
[55] Christoph Grabenwarter: the European ECHR for the Protection of Human Rights – A Commentary 2014, page 343/4
[56] Ibid, 362/32. For example, ECtHR 10/03/2009, Turan Cakir v Belgium, 44256/06, paragraphs 77/80.
[57] Ibid, 363/32
[58] Eric Rosand, Confronting the Nazi Past at the End at the 20th Century: The Austrian Model, 20 Berkeley J. Int’l Law. 202 (2002), available at: http://scholarship.law.berkeley.edu/bjil/vol20/iss1/8
[59] Annex A para 3 (d) Washington Agreement
