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"The Government draft of the Second Restitution Act was prepared with
close reference to the First Restitution Act. During the discussions
in the Sub-Committee a further assimilation was made, in that decisions
on restitution claims were made a matter for the Land Directorates of
Finance, since experience gained in the execution of the First Act had
shown that this is a practical method and that the fears that shortage
of staff would prevent these authorities from carrying out the task
were unjustified."

V. The determination of competence laid down in the Second Restitution
Act leads, however, as a result of Austrian civil service
organisation,to a situation in which the deciding authority is given
an unusual dual function: it appears simultaneously as a representative
of one of the parties and as a judge. In other words, it becomes judge
in its own case.

In claims lodged under the Second Restitution Act, the Republic of
Austria is first of all the respondent, that is to say a party to the
proceedings. To that extent claims under the Second Restitution Act
differ not at all from those under the Third. In both cases the
proceedings involve two parties. In the one case the decision is
rendered by an independent and impartial tribunal, but in the other by
an administrative authority bound by instructions. The same authority,
which is representing the Republic of Austria as a party, is thus also
represented as the judge.

Admittedly, the fact that the party and the judge are sitting in the
same seat (the Republic's) is not entirely obvious during the
proceedings of first instance, but it its obvious enough before the
second instance. At this level there intervenes the Federal Ministry
of Finance, by whose instructions the restitution authority of the
first instance, i.e. the Land Directorate of Finance, is bound. The
second instance, the Ministry, has various departments at its service.
One of these is allotted power to decide appeals for restitution by
means of an administrative act of sovereignty (Bescheid), while another
is responsible for the private economic administration of property in
the ownership of the Republic. In all this, however, the organisation
principle of the Austrian Federal Authorities is of decisive
importance. The Federal Ministries are arranged in accordance with the
monocratic, otherwise termed bureaucratic or ministerial system. The
supreme power is exercised by the administrative chief, the Federal
Minister. He, the Minister, is the "Authority", the Federal Ministry
is only his auxiliary apparatus. All departments of the Ministry are
subordinate to the instructions and supervision of the Federal
Minister. Thus in his person are united all the various departments of
a Ministry, forming a single indivisible whole. But this also means
that the will of one man determines the conduct of business throughout
all the departments of the Ministry.

The consequences are clear. The Minister of Finance unites in his own
person the function of the judge, which he exercises in co-operation
with the departments responsible for taking decisions in restitution
questions, and the function of a party to the proceedings, which he
exercises in conjunction with the department responsible for
administering the property of the Austrian Republic. It is obvious that
where such a dual role is played, the principle of judgment by an
independent and impartial Court is not seen to be observed.

Austria's internal legal order does not prohibit such a combination of
the functions of judge and party in one and the same person. The
principle defined in Article 6, paragraph (1), of the Convention is not
immanent in the Austrian legal system. Furthermore, the decision of the
Federal Ministry is not subject to effective control by one of the two
Courts of Justice set up under public law - the Administrative or the
Constitutional Court. Thus it cannot be said that in the final instance
an impartial and independent judge (or college of judges) decides.

An appeal to either of these two Courts depends on very definite
conditions and is permissible only within narrow limits. The
Administrative Court may be appealed to only to investigate alleged
defects of procedure or to make a legal assessment of the matter in
dispute, but not in questions connected with ascertaining the facts
(appreciation of evidence). According to Article 41 of the
Administrative Court Act (Verwaltungsgerichtshof), it is bound, as to
the facts, by the findings of the administrative authority. An appeal
lies to the Constitutional Court, on the other hand, only in respect
of alleged violations of constitutionally guaranteed rights.
Defeasibility before either of these tribunals is no substitute for a
decision by an impartial and independent judge, who appraises the
evidence of disputed facts and makes impartial findings as to the
question at issue.

According to Article 6, paragraph (1), of the Convention everyone is
entitled that his civil rights and obligations are determined
(décidera) by an independent and impartial tribunal. Article 6
therefore provides for a decision in re by the court and not only for
a review by a court with the limited power to rescind the decision of
the administrative authority but with no power to amend. Neither the
Constitutional Court nor the Administrative Court have a jurisdiction
to decide in re i.e. to amend the decision of the administrative
authority. The independent and impartial tribunal provided for in
Article 6 must be free to base its judgment on its own findings of both
fact and law. A court cannot be regarded as determining a civil right
or obligation, if the finding of fact, which is conclusive upon the
court, is solely in the hands of an administrative authority, which is
neither independent nor impartial.

It follows from the foregoing:

(1) that the restitution claim of the Applicant company is a "civil
right" within the meaning of Article 6, paragraph (1), of the
Convention, and

(2) that the authority called upon to render a decision concerning this
civil right, under the Second Restitution Act, is not "an independent
and impartial tribunal".

VI. The proceedings in the present case illustrate how this combination
of judge and party in a single person may stultify any hope of a just
decision.

The right to restitution, which was ceded to the Applicant company by
the injured proprietor, the Assicurazioni Generali, was originally the
subject of proceedings pending before the Restitution Commission
attached to the Regional Court for Civil Cases (Landesgericht für
Zivilrechtssachen) in Vienna pursuant to the Third Restitution Act. The
parties to these proceedings were: plaintiff, the Assicurazioni
Generali; respondent, the "Alte Volksfürsorge Lebensversicherungs AG",
into whose ownership the disputed shares had originally fallen as a
result of Aryanisation (seizure consequent upon qualification of the
Assicurazioni Generali as a "Jewish undertaking").
The Assicurazioni Generali lodged their initial application for
restitution with the competent Court on 20th October, 1952. On 25th
July, 1955, or nearly three years later, the Federal Ministry of
Finance issued a declaratory decision (Feststellungsbescheid) to the
effect that the share capital of the Alte Volksfürsorge
Lebensversicherungs AG had lapsed to the Republic of Austria, because
that insurance company had been an institution of the former "Deutsche
Arbeitsfront", and thus a National-Socialist organisation.

On the basis of this finding the Restitution Commission now declared
itself to be incompetent, because under the provisions of the Second
Restitution Act claims for restitution of property which has lapsed to
the State (i.e. property in the ownership of the Austrian Republic)
come under the jurisdiction of the administrative authority.

It was purely as a result of this circumstance that the proceedings,
which at the outset had rightly been pending before an impartial and
independent Court, came up for decision before an administrative
authority bound by instructions which, in any case, cannot be regarded
as impartial, since it simultaneously functions as a judge and as the
representative of one of the parties to the dispute.

This transfer of competence plainly shows how unrealistic is the
relevant legal provision. There is no means of telling on what grounds
inherent in the case itself the decision has to be taken out of the
hands of the Court previously dealing with it and transferred to an
administrative authority. The fact that the Republic of Austria was now
to be regarded as the owner of the disputed shares (by virtue of the
subsequent notification of their lapsing) is not an objective
motivation. If the Republic had later become the owner, not because the
property had lapsed to it, but only because of some legal act with
constituent effect, the competence of the Court (i.e. the Restitution
Commission) would have continued to hold good; for example, if the
Republic had legally bought the shares from the Alte Volksfürsorge
Lebensversicherungs AG or become their owner under the terms of the
State Treaty. In all these cases the proceedings would have continued
without change before the Restitution Commission.

Transfer of competence from the Court to the administrative authority
led to the situation which is the subject of the present Application.
The Federal Minister of Finance manages property owned by the Republic
of Austria through "Department 2" of his Ministry. In this capacity he
is the legal representative of the respondent in restitution claims,
namely the Austrian Government. Simultaneously, in his sovereign
capacity, the Minister has to decide, through "Department 34" of his
Ministry, in the civil law dispute between the restitution claimant and
the respondent Government. The official who, in disputing our claim,
gives instructions to the Finanzprokuratur as counsel for the private
law person "the Republic of Austria", as well as the official who
decides the claim by means of sovereign procedure - thus exercising the
functions of a judge appointed by law - are acting only on behalf of
the Federal Minister of Finance and signing for him. This fusion of
judge and party in a single person (in other words the fact that
the judge decides in his own cause) has had very strange effects in the
present proceedings.

The original decision of the Land Directorate of Finance (an authority
which is also subject to the instructions of the Federal Minister of
Finance) was based on such defective and contradictory reasoning that
it had quite obviously not been rendered in any striving after realism
or objectivity. Apparently the authorities had been guided by the
intention of rendering a decision in favour of the Republic of Austria,
whatever might be the factual and legal position.

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