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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.

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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,

“[…] 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
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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 made5.
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

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

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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

“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
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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”

“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
9

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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
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

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arising out of the process16. There is no legal right to receive benefits or awards17 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.1920
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 obligations21; 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

16

Section 3 (a) Settlement Fund Law
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
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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.

Section 26 Settlement Fund Law
Decision Number 27d/2012 dated 26 January 2012, available at:
http://www.en.nationalfonds.org/sites/dynamic012d.html?action=db&todo=preview&rid=1010
22
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(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.

24

Sections 27-29 Settlement Fund Law
“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 […]”
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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.

10

That all participants in the process were obligated to observe confidentiality under section 12 Rules
of Procedure27 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

“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
27

11

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
31

ECtHR (GC), 12/2/2008, Kafkaris v Cyprus, Appl 21906/04, paragraph 138
“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”
32

12

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

35

ECtHR, 20/1/2009, Sud Fondi SRL v Italy, Appl 75909/01
See ECtHR, 4/6/2001, Komanicky v Slovakia, Appl 32106/96, paragraph 45, citing several other
judgments of the ECtHR
36

13

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
(a)

Presumption of Innocence

37

Ibid, paragraph 46, also citing several other judgments of the ECtHR
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
38

14

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.
(b)

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.

45

Art. 6 (2) ECHR
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
46

15

(c)

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”.
(d)

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

49

ECtHR 27/10/1993 Dombo Beheer BV v Netherlands, 144448/88, paragraph 33
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
50

16

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.
(e)

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

“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
52

17

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:

(f)

(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.

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
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

18

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.

“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
54

19

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.

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
55

20

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.

59

Annex A para 3 (d) Washington Agreement

21

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
Power of Attorney from Stephan Templ in favour of Amsterdam & Partners
List of Court Applications:
1.

Indictment 40 St 165/12t-3 of 3 January 2013

2.

Hearing 051S Hv2/13f of 14 March 2013

3.

Hearing 051S Hv2/13f of 25 April 2013

4.

Verdict 051S Hv2/13f of 25 April 2013

5.

Nullity Appeal and Appeal on the Facts Hv2/13f of 19 July 2013

6.

Decision of Supreme Court 15 Os 133/13t-8 22 January 2014 (26 February 2014)

7.

Cost Assessment and Sentence Hearing 20 Bs 82/14a 6 June 2014

8.

Letter from the Finanzprokuratur dated 9 September 2014

22