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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.

2

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,

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

3

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

4

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 restitution8 . 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

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

5

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”

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

6

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 basis14 . 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

7

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 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

8

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.

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

9

(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 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 […]”

10

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.

11

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

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

12

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 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”

13

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 36 See ECtHR, 4/6/2001, Komanicky v Slovakia, Appl 32106/96, paragraph 45, citing several other

judgments of the ECtHR

14

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 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

15

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 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

16

(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 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

17

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

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

18

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

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

19

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.

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

20

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.

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

21

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

22

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