As I prepare for a trip to Vienna for next week’s International Bar Association Annual Meeting, there is some topical restitution news, but it is hardly good.  The imminent incarceration of Stephan Templ, a journalist and historian, for the omission of another relative from his mother’s application for Holocaust compensation, is as bizarre as it is disheartening.  One hopes that a pardon, his last available recourse, will soon be forthcoming.

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In the evolving world of European state museums’ confrontation with Nazi-looted art in their collections, Austria is a centrally important example.  Ensconced for years in the “first victim” myth, it was unwillingly and unhappily at the forefront of the resurgence in the 1990s of attention to the fate of looted art.  Between the Portrait of Wally affair, in which Egon Schiele’s paintings were seized in late 1997 while on loan to the Museum of Modern Art, to the refusal to return Gustav Klimt’s Portrait of Adele Bloch-Bauer and other paintings to Maria Altmann, to decades of application of a restitution law that returned title to the heirs of victims of persecution, Austria was a byword in many circles for a regressive approach.

Austria has tried to set an impressive example since then.  It amended its restitution law to confirm that the export prohibition was itself confiscatory.  It established a Restitution Committee to handle claims that rivals any in terms of output (its recommendations number in the hundreds), and which has often taken a refreshingly (but sadly rare) common-sense approach to uncertainty, concluding in one example concerning botanical drawings in the Natural History Museum that a gap in provenance between a Viennese Jewish owner and Baldur von Schirach did not require the heirs to prove persecution.  The thing spoke for itself, as we say.  And there was plenty of criticism of this year’s recommendation not to return the Beethoven Frieze, but certainly compared to the direction that the Limbach Commission in Germany has been heading, the Austrian restitution record in the last 15 years is generally (in my opinion) cause for optimism.

All this makes the news about Stephan Templ this week especially distressing.  Templ and Tina Walzer are the co-authors of Unser Wien: “Arisierung” auf österreichisch (Our Vienna: “Aryanization” Austrian Style) (2001), a meticulous cataloguing of the expropriation of Jewish property (real estate in particular, including some distressingly familiar landmarks).  The book (which is in German, but there is a good English language review here), is a must-have for any informed library about restitution.  Not surprisingly, it was not beloved by all in Austria (and Templ has written far more critically about Austria’s restitution record than I have).  Templ’s story of late sounds like fiction, however.

One of the buildings stolen from its Jewish owners was a sanatorium near the Ringstrasse owned by Templ’s relatives, Lothar Furth and his wife.  At the Anschluss in March 1938, Furth was subjected by the sanatorium’s concierge (his employee) to participate in one of the the humiliating “Reibpartie” (“Scrubbing Parties”) that broke out around the city, in which Jews were forced to clean the sidewalks with toothbrushes in front of leering and menacing mobs.  (As an aside, this sordid chapter is the subject of an excellent video installation outside the Albertinaplatz called “The Missing Image” by Ruth Beckermann.  (If you look at the far left of the first photograph accompanying the Der Standard article when the exhibit was revealed in March, you can actually see me).  The Furths committed suicide the next day.

Templ’s mother Helene was a descendant of the Furths’ grandparents.  After the sanatorium was restituted in 2010 to 39 heirs of Lothar Furth, the heirs decided to sell the building. Helene (herself a Holocaust survivor), had Templ file her claim for her share.

Elisabeth Kretschmer, Templ’s aunt, was advised by the bank disbursing the proceeds that she had missed out by failing to file a claim.  Kretschmer complained to Viennese prosecutor Kurt Hankiewicz that she had been misled.

At that point, Hankiewicz indicted Templ for failing to list his aunt as a potential heir when he made the claim on behalf of his mother.  The state argued that Templ had defrauded the Austrian Republic because Kretschmer might have given up her inheritance to the state.  Apart from the logical absurdity, in actual fact Kretschmer told the Austrian court that she would never have renounced her share of the proceeds.

Templ argued, not surprisingly, that he wasn’t representing anyone else and had not claimed to speak for all the heirs; he was filing a claim for his mother.  Nonetheless, Templ was convicted last year.  No other claimants (who presumably also, and understandably, did not identify Kretschmer) were prosecuted. The outcry was considerable, including from Eva Blimlinger, who led the Austrian restitution commission, who said:

Nobody can understand it, but when you isolate the case, it’s clear that the whole thing is stupid. Nowhere is it written that it is obligatory to list other heirs. So that’s the part that is the duty of the General Settlement Fund to look up and see if there are other heirs. It’s not the duty of Stephan Templ or his mother.

It seemed rational to hope that reason would prevail, but it was not to be.  Reports are that Templ is set to begin shortly or has begun serving a one-year sentence.  Apparently a presidential pardon is his only remaining hope.

For their part, Templ and his legal team are not taking this lying down.  On his website, attorney Robert Amsterdam writes the following about his client and the publication online of the recommendations of the National Fund of the Republic of Austria for Victims of National Socialism, under the title “Did Austria Try to Cover Up Exculpatory Evidence Against Stephan Templ?” (exculpatory evidence meaning evidence that tends to exonerate or show the innocence of someone) :

By law, the National Fund is under an obligation to publish all recommendations online. . . .

Mr. Templ, the investigative journalist that he is, was able to track down the paper copy of this one single missing decision. Interestingly, it contained a very important case precedence. In the penultimate paragraph of decision WA1/2007, the following is written:

In this regard, it should be merely be mentioned that a criminally (or otherwise) sanctioned obligation of an heir to reveal in probate proceedings the existence of other heirs does not exist. Only a wrong statement during a formal questioning in the matter, as for instance in the recording of the death could have relevance.

The implication is clear: the omitted passage is a statement of the law about the obligation of one heir to disclose the existence of another (i.e.,. none).  As a logical proposition, it is completely inconsistent with the prosecution.  As a legal matter, some caveats are important.  First, it is a statement of one government agency, which is not the law.  Second, it would not necessarily bind other agencies (just as would be the case here if the Department of Justice made a statement, it would not compel a court to rule a certain way).  I would not characterize that as exculpatory evidence so much as potential inconsistency, but it’s a minor distinction.  Regardless, if deliberately removed from public view, it is certainly odd at best.  Amsterdam also published an advertisement in Der Standard today that concludes in a call to Austrian citizens (my translation):

Since April 25, 2013, no one has produced any evidence that Stephan Templ did anything in any respect illegal when he applied for restitution for his mother.

Elsewhere, 75 scholars sent a letter last week to Austria’s ambassador to the United States demanding his release.  It reads:

Dear Ambassador Manz,

As scholars who have written or taught about the Holocaust or other genocides, we are deeply troubled by the impending imprisonment of an Austrian Jewish historian and journalist who exposed Austria’s failure to return Jewish property seized during the Nazi era.

The crime of which Mr. Templ has been convicted, and sentenced to one year in prison, was his omission of the name of an estranged relative from his application for the return of his family’s seized property. This matter could have been resolved by the Templ family in civil court. The Austrian government’s decision to intervene by prosecuting and jailing Mr. Templ will be seen as an extreme overreaction to Mr. Templ’s important book, Our Vienna: Aryanization Austrian-Style, which criticized Austria’s policy concerning the restitution of Jewish property.

Please convey to President Heinz Fischer our urgent request that he reconsider his rejection of Mr. Templ’s appeal against his prison sentence. 

Templ has provided an invaluable service to historians and heirs.  Even if the case against him is not subjectively in retaliation for his scholarship, the chilling effect of the prosecution is profound.  Here’s hoping he is released soon.