Thomas Schreiner
Fuerst Esterhazy'sche Privatstiftung Schloss Eisenstadt
Austria

1. Austrian claims for restitution vs. Russia and allied states

1.1. Looted cultural valuables - Russian statutory law (federal law regarding cultural goods, which have been moved during the 2nd World War into the USSR and have remained on the territory of the Russian federation, from 15th April 1998)

The above cited Russian federal law deals with the legal treatment of displaced cultural goods. As it is probably common knowledge amongst the participants of the conference it is defined in the Act as follows:

• cultural goods: valuable goods of religious or secular kind, with historic, artistic scientifical cultural importance, and others
• displaced cultural goods: cultural goods which have been brought to the souverain territory of the USSR, in realization of compensatory restitution from the territories of Germany and their former military allies Bulgary, Hungary, Italy, Romania, Finnland, by orders of the military command of the Sowjet army and military administrations or other rightful authorities.
• former enemy states: the above mentioned states
• the states affected: states whose territory has been (completely or partially) occupied by troops of the former enemy states

Exceptions are made in Article 8 and 12. The procedure ist regulated in Articles 16 to 20 of the above mentioned law.

According to Article 4 the connecting factor ist the place from which the cultural goods have been removed. The citizenship of the former owner is of no importance.

Cultural goods, which have been removed from Austria, are not „displaced cultural goods" within the meaning of the law, are not subject to compensatory restitution and remain in unchanged ownership (of the owners at the time of removal).

According to Article 9 Par. 1 of the above cited federal law, an affected state can claim its ownership of cultural goods to which the exceptions of Article 8 Par. 1 are applicable.

Article 18 Par. 4 and 5 regulate the costs of identification, storage and conservation of cultural goods, which have to be returned.

Article 22 declares, that the Russian Federation will conclude agreements under international law regarding the exchange of displaced goods, guarantees for protection, especially in exhibitions in foreign countries, and assistance in restoration.

1.2. International Law - treaty from 15th May 1955 to reestablish an independent and democratic state of Austria, between the USSR, United Kingdom of GB and NI, USA, France and Austria

Article 23 regulates Austrian property with regard to Germany.

Article 24 states the Austrian waiver of claims against allied states, resulting of military operations or damages and decisions of the courts. No waiver ist made for displaced cultural property.

Article 27 declares the willingness of the allied forces, to restitute.

Article 27 of the treaty regarding Austria, states that the allied forces declare their intention to restore Austrian property, rights and interests, „as they are presently found in their territories" or to restore the proceeds of sale. The allied forces declare their intention to conclude an agreement with the Austrian government. This article of the „Austrian state treaty" significantly has the same meaning as the newly established regulations of the Russian law cited 1.1.

This treaty has been signed by the governments of Austria, of the Union of the Socialist Sowjet Republics, of the United Kingdom, of the United States of America and of France.

1.3. Austrian Federal Law BGBl. 1998 I/67 from 15th May 1998, regarding restitution of unlawfully displaced cultural goods, following European Law

This law had to be enacted because of the obligation Austria has to implement an EC-directive into national law, as a member of the European Community. It regulates legal issues concerning unlawfully displaced cultural goods, which have been displaced after 31th December 1932. Thus it is only important to the most recent occured cases.

This federal law defines „national cultural goods". It regards as „unlawfully displaced" any displacement of goods from the territory of a member state of the European Community contrary to the legal provisions of the national state for the protection of national cultural goods or contrary to the (Verordnung EWG Nr. 3911/92 from 9th December 1992).

The law provides the duties for giving information (§ 7), provision measures (§ 8), procedure (§§ 9 - 15) and additional measures.

The law cares for European restitution claims. Claimant can be a member state of the European community. Subject are all the cultural goods, which have been unlawfully displaced after 31th December 1992. The claimant is under the obligation of proving the answering to the description, ownership, etc. and the displacement after the above mentioned date.

A central registry has to register all claims.

1.4. Council directive 93/7/EWG concerning restitution of unlawfully displaced cultural goods from the territory of a member state of the European Community

Council directive 93/7/EWG of 15th March 1993 on the return of cultural objects unlawfully removed from the territory of a member state was enacted. The purpose of this directive was to establish rules to secure the return of cultural objects to the territory of a member state and thus protect cultural heritage.

Cultural objects may be reclaimed by a member state, if they have been removed unlawfully.

The main purpose of this council directive is to establish national rule over European freedom of exchange of goods. It therefore is not ment to settle bore or post war problems, its purpose is to provide for reclamation of cultural goods removed on or after 1 January 1993.

All member states, including Austria, have the duty to implement this EC-directive into national law. Austria has enacted the above (1.3) mentioned law to follow this duty. Similar laws were enacted in all other countries of the EU.

Following its duty to implement an EC-directive into national law, Austria has enacted the above mentioned law regarding the restitution of unlawfully displaced cultural goods. 1.5. Ways of procedure, right to require assistance by local authorities

According to the Austrian Constitutional Act each organ of the federation, of the federal states and of the communities has the obligation to mutual assistance within its sphere of action. The duty to provide official assistance exists within the compentence of the organ and shall help to avoid actual difficulties in exercising the functions. Additionally there exist special provisions, for instance:

Regarding civil matters: § 37 JN (Jurisdiktionsnorm) regulates the mutual official assistance of domestic courts and § 38 JN states the basic duty of domestic courts to assist foreign courts. Details are regulated by bilateral or multilateral agreements. The official assistance is to refuse, if it is illegal according to domestic laws or if it is in conflict with the domestic ordre public, but not if the petition seems to be expedient.

Regarding criminal matters § 26 StPO (Strafprozessordnung) regulates that the criminal courts can demand the help of various organs, especially of the security offices. The mutual assistance in criminal matters of courts with foreign countries is regulated by the ARHG (Auslieferungs- und Rechtshilfegesetz: law of extradition and legal assistance) and various bilateral agreements.

2. Russian claims for restitutions vs. Austria

2.1. International Law - treaty from 15th May 1955 to reestablish an independent and democratic state of Austria, between the USSR, United Kingdom of GP an NI, USA, France and Austria

Article 26: Austria is obliged to give back property, lawful rights and interests, which have been deprived by forceful confiscatory measures or by racial or religious motivation. These provisions are of special importance for the period 2nd World War until 1955 in which time the majority of displacements have occured.

2.2. International Law vs. National Civil Law - possible conflicts

International law establishes relations and obligations between sovereign states. These states may be obliged to care for restitution of cultural goods.

Civil law regulates among other things private ownership. The present owner has the right to defend his legal ownership. Also the present owner, who may have acquired ownership by a respectable and rightful way, will defend his ownership. The kind of acquisition, acquisition in good faith, lapse of time, buying at auction, etc. are main components of regulation. The interests are different to those in international republic law: Someone, who has acquired cultural goods in a public auction and has probably payed a great amount of money for this acquisition, cannot be deprived of his ownership without any compensation.

The public authority, which has to fulfil its international obligations, has to find adjust and rightful solutions with the private owners of these goods. This solution is in part dependant on the circumstances of acquiring the ownership.

2.3. Rightful claimant

Who has the right to set up claims? According to public or international law, this may be an organistation or a state.

According to private law this is the actual owner respectively his heirs.

In general a sovereign state will put up his claims against another state. The attached state may be able to satisfy the claim or may be inable, for the reasons of private ownership. If the Austrian state cannot fulfil its legal duties, it will be obliged to come up for damage (to accept responsibility for the damage), which means the payment of compensation for damage.

A special problem arises, if a private person has purchased a cultural good, which later on turns out to be stolen. The purchaser may not be able to get back his money, e.g. the seller has died or has moved, so the delivaration of the cultural good will mean substancial financial damage to the buyer. It is just (?) Austian law providing for this, as commented in 2.4.

2.4. Austrian Private Law: Original acquisition of ownership, bona fide acquisition (§ 367 ABGB)

According to § 367 ABGB the bona fide possessor of a good is protected. If he is „bona fide", he is rightful owner and is not obliged to give back the good, if he proves that he acquired the good
1. in a public auction
2. from someone, who ist engaged in commerce, being duly authorized hereto
3. against payment from someone, who has been entrusted with the good

The person claiming ownership has to prove these facts.

2.5. Multiple causes of action for single satisfaction; concurring causes

Rei vindicatio (§ 366 ABGB):
With this action the owner of a good, who has lost the possession, claims the return of his property. The defendant can defend himself by proving that he has the right of possession. If movables are involved he has additionally the possibility to prove that he has acquired them either in a public auction or from someone, who is engaged in commerce, being duly authorized hereto, or against payment from someone, who has been entrusted with the good. The plaintiff again can prove that the possessor was not in good faith, because he could have had suspected that his possession is in bad faith because of the nature of the good or because of the low price or because of the personal circumstances of the predecessor or because of other circumstances. In those cases a bona fide purchase did not take place.

2.6. Possibilities of government to encroach upon ownership

The expropriation is the deprivation of property either wholly or in part for the public benefit.

Article 5 StGG (Staatsgrundgesetz) states that property is inviolable and that expropriation shall be only admissible in those cases and in the way determined by law.

Almost all laws regulating the expropriation provide a compensation for expropriation, allthough according to the Austrian Constitutional Court an expropriation without compensation would be not contrary to the constitution.

2.7. Possibilities of government to assist, obligations for assistance

As mentioned above all organs of the Austrian public service are obliged to mutual assistance. Especially in civil and criminal matters there exist various bilateral and multilateral agreements, regulating the mutual official assistance with foreign countires. 3. Special provisions for restitution of goods

Austria has set up many provisions for restitution of goods. Many of these laws have been enacted before 1954. The general tendency of this laws is that private rights are respected. If looted cultural goods are in the ownership of a public authority, the restitution is very liberal.

Seven restitution acts have been established in the years 1946 to 1949.

Laws upon the claims for restitution have been enacted in the years 1947 to 1961.

The latest law is the „2. Kunst- und Kulturgutbereinigungsgesetz", BGBl. 2/1986. It states, that owners, who lawfully prove their ownership of the regarding cultural goods, will receive these goods, if they are in the posession of public authorities or part of a state-owned collection of museum. This law is the basis for the restitution of any cultural goods being in the hands of public institutions to their original owners.

In the past years, heavy use has been made of these provisions. Austria has been very generous in handling these provisions. Only recently in April 2000 the Austrian National Bibliothek discovered 6000 books which had belonged to Nazi-victims and which will be returned to their owners respectively heirs.

Eisenstadt, 5th April 2000
Thomas Schreiner