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139 Piccadilly

London
W1J 7NU
United Kingdom
Dr Werner Pleischl
General Prokurator
Schmerlingplatz 11
A-1016 Wien
Austria
2 February 2015

Dear Dr Pleischl,
Re: The Extraordinary Conviction of Stephan Templ (Mr Templ)
We thank you for your letter dated 30 December 2014 (the Reply), received at our offices on 13
January 2015 in response to our letter of 27 October 2014 (the Letter). We must declare our surprise
that in answer to our twenty-two paged Letter, which demonstrated in detail the very serious
irregularities and inconsistencies in Mr Templ’s trial and conviction, you saw fit to send such a
brusque response.
Given the gravity of the impending imprisonment of Mr Templ, and the fact that you alone have the
discretion to examine such cases as the ‘supreme guardian of the application of the law’ 1, we are
disappointed that the Reply did not engage with the new and crucial legal and factual circumstances
brought to light, which call into question the fundamental validity of the case.
Mr Templ is eight months from having his liberty forcibly stripped away from him and we would
have expected more than a cursory rejection of his application for mercy. In applying for restitution of
Nazi-looted ancestral property on behalf of his elderly mother, the courts of the Republic of Austria
(the State, Austria, the Republic) decided that Mr Templ was too greedy; he was so greedy,
apparently, that he resorted to chicanery and defrauded the state in his desire ‘ to obtain the highest
possible amount of money for himself’ 2.
Somehow, yet again, Austria has positioned itself as the victim.
In each court hearing, every possible negative inference was assumed against Mr Templ; all innocent
explanations for his actions were given no shrift. Manipulating the evidence to create the villain they
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From the website of the General Prokuratur http://www.generalprokuratur.gv.at/en/description-of-thefunctions
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From the Verdict of the Regional Criminal Court, 25 April 2013
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needed, the court documents do not demonstrate how Mr Templ’s mother had been denied her
inheritance by her sister. Instead, only evidence that showed Mr Templ in a bad light was allowed.
Not including his aunt’s name in the application for restitution – which as it turns out, was only
necessary for applications for monetary compensation, and not In Rem restitution as in this case - was
dressed up and portrayed in a manner highly suggestive of the grossly Anti-Semitic stereotype that
focuses on the supposed greed of Jewish people:
“… the accused was very likely concerned to make as much money as possible…”
“A further indication that the accused was greatly concerned to unlawfully enrich himself…”
“… these claim applications show very well the accused’s efforts to obtain the highest
possible sum of money in connection with the in rem restitution of the property as well as his
comprehensive interest in the case…” 3
It cannot be ‘unlawful enrichment’ when it concerns the return of property stolen from your family.
That there were many possible claims demonstrates only that the Nazis were comprehensive in their
looting of Mr Templ’s family. Using multiple applications as evidence of guilty intent suggests
Austria finds it immoral to be conscientious in applying for precise restitution.
It seems necessary to remind you that Mr Templ never sought to obtain something for his mother to
which she had no right. The restitution process was established to correct the wrongs suffered by the
Jewish population during Nazi rule in Austria. Mr Templ’s family was deprived of their assets simply
because they were Jews. His mother was accordingly entitled to apply for restitution or compensation
in lieu. Mr Templ did nothing other than vindicate that right, pursuing that aim resolutely and with
firm determination. To characterise such perseverance for the defence of one’s interests as seeking
unlawful enrichment amounts to a serious distortion of the concept of fraud and is morally
reprehensible.
Why is Mr Templ the only restitution applicant to be ever charged and convicted in Austria? What
made him the target of such relentless ire? What sets Mr Templ apart from the other applicants in this
case is that:
i)

He was the only one who managed the process without the use of a so-called ‘restitution’
lawyer and genealogist. The other applicants were found and notified of their eligibility to
claim by the same lawyer and genealogist who then took 40% of what they received. Mr
Templ and his mother refused to allow others to benefit from their restitution application
through the rent-seeking behaviour of the Austrian Holocaust Industry.

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(ibid)

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ii)

Mr Templ is the co-author of the well-known book Unser Wien, otherwise known as
“Aryanization the Austrian Way”. This is a ‘topography of robbery’ that details for the
first time the property stolen by the Nazis in Vienna. This book was highly embarrassing
for Austria as it criticised the State’s poor record of restitution and its failure to
acknowledge its responsibility.

iii)

Mr Templ has all the qualities of a good journalist – he is meticulous, he doggedly
pursues the truth and he is not afraid of annoying established interests in his attempts to
hold a mirror up to society. These character traits have been twisted to show evidence of
his supposed cunning.

Each ground raised in the Letter was summarily rejected by you and we urge you to provide more
detail so that you can demonstrate how you came to such definitive decisions. Regarding s. 362
Strafprozessordnung (Austrian Criminal Code) it is noted that a mandatory requirement to resume
or reopen the case would be new circumstances that raise serious doubts about the accuracy of the
underlying facts. As for s. 363 Austrian Criminal Code, the Reply similarly notes that new and crucial
facts would render the application permissible.
Regarding s. 23 (1) Austrian Criminal Code, the Reply notes that an action pursuant to this provision
is “impossible according to settled case law and existing scholarly views”. These ‘scholarly views’
and the case law cited are of such generality, prohibiting us, and every other interested party, from
understanding why you have found it so difficult to right this patently transparent wrong.
Therefore, according to your letter what we must do is to bring you new and crucial facts that raise
serious doubts about the accuracy of the underlying facts. Please find these below.
New and Crucial Fact 1 – Elisabeth Kretschmer (Dr Kretschmer) Has Come Forward To Say
She Is the Injured Party
On December 05, 2014 Mr Templ’s aunt Dr Kretschmer filed a claim against him at the Regional
Civil Court in Vienna. 4 She has come forward as a victim in this matter, alleging that Mr Templ’s
actions injured her in the amount of €550,000. Mr Templ responded to this claim on January 13,
2015. 5
Dr Kretschmer’s allegation stands in total opposition to the position of the courts and calls into
question the foundations upon which the Republic’s case stands. Indeed, as is detailed below, Dr
4
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Attached as first Enclosure
Attached as second Enclosure

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Kretschmer’s position that she is the victim of the case, mirrors what agents of the Republic have
argued – that if anyone in this case is a victim, it is surely not the State.
The incarceration of Mr Templ cannot take place while this question reminds outstanding.

New and Crucial Fact 2– The State Has Expressly Declared that It Was Not the Injured Party
From the Indictment onwards, each court that dealt with Mr Templ’s case held that the State was the
victim – which they were obliged to do as a sine qua non of the criminal charge of fraud. However,
from April 2014, through June 2014 –the date of the final judgment - right up until December 2014,
various representatives of the Republic have publicly declared that it is Dr Kretschmer who is the
victim, not the State, and/or separately, that the State has not been damaged. This is not
inconsequential. These representations raise serious doubts as to the accuracy of the facts the courts
relied upon to reach its verdict – namely, who the victim was, that was necessarily “damaged” by Mr
Templ?
i.

On 02 April 2014, Klaus Famira, the Deputy Head of Mission at the Austrian Embassy in
Berlin wrote to Georg Diez of Der Spiegel:
“The victim – now 84 year old – aunt of Mr Templ…”

ii.

On 10 April 2014, Martin Windisch of the office of the Finanzprokuratur wrote to Rebekka
Salzer of ORF:
“[…] that the Republic of Austria (or rather the Bundesimmobiliengesellschaft)
suffered damages […] does not correspond to the facts.”

iii.

On 20 May 2014, Friedrich Forsthuber, the President of the Regional Criminal Court of
Vienna, stated in a lecture at the University for Economics in Vienna that:
The verdict against Mr Templ was wrong and Mr Templ did not cause any damage to
the Republic. (paraphrased)

iv.

On 06 June 2014, Johannes Jilke, one of the judges at Mr Templ’s sentencing hearing
confirmed that:
The verdict is wrong because it stated that the Republic was the injured party. He
stated that he and his fellow judges were therefore “in a dilemma”. (paraphrased)

v.

On 06 June 2014, Charlotte Habl, one of the judges at Mr Templ’s sentencing hearing told Mr
Templ that:

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“If you pay your “moral guilt” to your aunt, your sentence in jail will be commuted.”
vi.

Crucially, on 09 September 2014, Martin Windisch wrote to Mr Templ’s criminal lawyer, Dr
Christof Dunst, saying:
““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.”

vii.

On 14 November 2014, Spokesman Andreas de Valk of Austrian Embassy in the Hague
wrote to Rene Zwaap of the Nieuwe Israelietisch Weekblad:

“The Austrian State is not themselves disadvantaged, and the fact remains that Templ
has harmed his aunt”.
We set out all but the final statement above in our Letter. In your Reply, however, you failed to
explain how these facts do not constitute new and crucial facts which would therefore fundamentally
change the legal analysis of this case.
The courts found Mr Templ guilty of fraud because of the damage he was said to have caused the
State. However, these representations made by Austrian officials contradict the courts’ decisions and
fundamentally call into question Mr Templ’s conviction. If it is found that the State is not, in fact,
damaged, his conviction must, by any measure of justice, be null and void. In such a case, the courts
can be said to have been labouring under a mistaken assumption of incorrect factual conditions and in
order to rectify this wrong, the case should, at a minimum, be resumed or reopened.
Purported Substantial Examination by the Supreme Court of European Convention of Human
Rights (ECHR) Issues
The Reply notes that the appeal under s. 363a Austrian Criminal Code is rejected because the
Supreme Court already “substantially examined” the facts with respect to Articles 6, 7 and 14 of the
ECHR in its decision. The Supreme Court’s decision of 22 January 2014 makes no explicit reference
to the ECHR, or to the right to a fair trial, the right not to be retrospectively charged with a previously
non-existent crime, nor did it acknowledge or reference the discrimination question that must be
acknowledged in cases such as this.
Given Austria’s history of National Socialism, its delay in introducing restitution, and given Mr
Templ’s published critiques of this – all in the context of the return of property stolen by the State
from Jews - it is incomprehensible that this spectre would not be acknowledged.
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We respectfully request that you substantiate and explain your assertion that the Supreme Court gave
consideration to the issues complained of.
Extra-judicial Assertions of Moral Guilt
We note from the website of the Attorney General that as ‘the custodian of the law’, you alone can
file a Nullity Appeal from any ‘unlawful ruling or measure’ in order to, inter alia, ‘ensure uniformity
and correctness of the law’, as well as to ‘re-establish justice in an individual case’. It is with this in
mind that we must raise the further issue of ‘Moral Guilt’.
At Mr Templ’s sentencing hearing on 6 June 2014, Charlotte Habl of the Higher Regional Court
(Oberlandesgericht, Wien) told Mr Templ that if he paid his ‘moral guilt’ to his aunt, then his
sentence would be commuted. It is impossible to overstate how extraordinary this is.
This concept of ‘moral guilt’ is not a legal remedy; it is contrary to s. 1 of the Austrian Criminal
Code; is not found in Austrian case law, and is not a practice of which the Austrian courts ever make
use. It is not within the Austrian courts’ or any other courts’ remit to decide upon questions of
morality and as a matter of principle a court should not engage in extra-judicial reckonings of justice.
Specifically to Mr Templ’s case, it is not in the Higher Regional Court’s power to remedy the
incorrect factual analysis of the Regional Criminal Court to afford a non-party to the case a financial
remedy in lieu of the defendant not going to jail.
We note that the Higher Regional Court considered on page five of its judgment the mitigating factor
of compensating the victim which could have resulted in a reduction of Mr Templ’s sentence.
However, the court argued that a reduction could not be granted on this basis as:
i.

the victim had not been compensated; and

ii.

no funds had been deposited with the court in order to demonstrate a serious attempt to
compensate the victim.

Such compensation of the victim would have effectively meant that Mr Templ compensate the
Federal Real Estate Company – the victim as held by all the courts - and make a deposit in their name.
As the idea of the aunt as the victim had expressly been rejected, the Higher Regional Court was
bound by these earlier decisions. This is perhaps why the court later created the artificial construct of
“compensation of moral guilt” towards Dr Kretschmer.
These statements betray a disregard to the actual law of Austria, and a worrying preoccupation with
subjective opinions of morality. These pronouncements were made openly to the court and reported

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widely in various media, including reputable newspapers such as Der Spiegel, Die Neue Zürcher
Zeitung, Der Kurier and Die Presse. 6

In conclusion, we urge you to explain and substantiate the following:
i.

how Dr Kretschmer’s claim does not raise more than reasonable doubts about the legality of
Mr Templ’s conviction;

ii.

how the statements by various agents of the State that the Republic was not the victim of the
alleged crime, similarly do not raise doubt in your mind;

iii.

the extent to which Articles 6, 7 and 14 of the ECHR were examined by the Supreme Court;
and

iv.

how you, as Attorney General, can support the extrajudicial assertions of moral guilt made by
the courts and reconcile them with Austrian law specifically, as well as the rule of law more
fundamentally.

If in the light of this new evidence, you do not do everything in your power to re-examine this clearly
irregular ruling, it is beyond doubt that Austria will have failed its duty to uphold its citizens’ human
rights.
We will send a convenience translation of this letter in German in due course, but this English letter
will remain the governing version.
Sincerely,

Robert R. Amsterdam
AMSTERDAM & PARTNERS LLP

Enclosures:
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http://www.spiegel.de/kultur/gesellschaft/tatort-kommissarin-selma-jacobi-prozess-gegen-stephan-templ-a960037.html; http://kurier.at/chronik/wien/restitution-frei-nach-franz-kafka/68.876.019;
http://diepresse.com/home/panorama/oesterreich/3817825/Restitution_Strafe-fur-Sohn-einer-Erbin ;
http://www.nzz.ch/aktuell/startseite/strafmilderung-im-wiener-restitutionsprozess-1.18317557
; http://kurier.at/chronik/wien/verurteilung-nach-restitution-haftstrafe-abgemildert/69.189.987 ;
http://kurier.at/chronik/wien/im-erbschaftskrimi-steht-bald-strafantritt-bevor/74.739.537 .

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1. Elisabeth Kretschmer’s civil case lodged at the Regional Civil Court of Vienna, 5 December
2014
2. Stephan Templ’s answer to Elisabeth Kretschmer’s civil claim, 13 January 2015

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