In Holocaust restitution affair, Austrian official's admission may undermine state's case

VIENNA (JTA)-An Austrian official's letter is threatening to undermine the central pillar of a controversial court decision that found a Jewish journalist guilty of defrauding the government.

On Sept. 9, senior state attorney Martin Windisch wrote that the government "makes no claims" against Stephan Templ, who was sentenced in April to three years in jail for cheating Austria out of half the value of a sanatorium confiscated by the Nazis from one of Templ's relatives. In May, the Austrian Supreme Court upheld the ruling but reduced Templ's sentence to one year.

The court found that Templ had defrauded Austria by failing in his 2006 restitution application to mention his mother's estranged sister, who would have been entitled to half the $1.4 million his mother received when she sold the property.

Templ rejected the allegation, but when he asked government officials where he should return the money, Windisch wrote to Templ's attorney, "The republic makes no claims against your client in connection with the conduct of your client."

Templ's attorney, the renowned human rights lawyer Robert Amsterdam, has petitioned prosecutors to have the case declared a mistrial.

"This statement basically voids the ruling," Amsterdam told JTA.

The letter is the latest twist in a case that generated an international uproar over what many in Austria and abroad saw as both a miscarriage of justice and a sign that Austrian society has not fully come to terms with its murky Holocaust record.

Templ, author of the 2001 book "Our Vienna: Aryanization, Austrian-Style," is a vocal critic of Austria's Holocaust-era conduct. In the book, he identified individual families that moved into Jewish homes in the 1930s after their lawful owners had been deported.

In the early 2000s, Templ led tour groups to see the stolen houses during which he toted a loudspeaker, occasionally calling out the names of the families that had come to live in them.

It was "unforgivable conduct," veteran Austrian Jewish journalist Karl Pfeiffer said, in a country that initially resisted offering restitution because it claimed to be a victim of the Nazis and acknowledged its Holocaust-era culpability for the first time only in 1993.

"The case against Templ is absurd," Pfeiffer said. "The only reason Templ was prosecuted is that he touched a nerve and reminded the Austrians of how they stole Jewish property with his book. So they put him in jail."

Critics of the original ruling noted that Austria never legally owned the property and therefore cannot be regarded as a victim of Templ's actions, as prosecutors claimed. Others point out that Austria's laws do not require restitution claimants to list other heirs.

"This case should have been a civil matter between the Templs and the sister," said Stuart Eizenstat, a former U.S. deputy secretary of the Treasury who led restitution negotiations with Swiss banks in the 1990s and helped set up Austria's restitution system. Eizenstat said the ruling is "almost inexplicable."

The notion that Templ's conviction was payback for his criticism was explored at length by reporters covering the affair. The Independent called Templ the "author who shamed Austria" and the trial was deemed "Kafkaesque" by the Austrian Tageszeitung Kurier. The Dutch weekly NIW described Templ as "the victim of a legalistic vendetta."

"Austria has taken a lot of criticism for many injustices in its treatment of Jews from the late 1930s onward," said Manfred Gerstenfeld, a Vienna-born researcher of anti-Semitism who lives in Jerusalem. "It may well be that what we are seeing is a decision by some officials to get rid of the headache that Templ's case has brought and may bring to them."

Windisch, the country's most senior attorney on financial issues, or Finanzprokuratur, denies this. In an email to JTA, Windisch said his letter was not intended to distance Austria from the conviction. However, he reiterated that the Austrian federal government had suffered no damage from Templ's action and that the Federal Real Estate Agency had ceded all claims to Templ's aunt, Elisabeth Kretschmer.

"In conclusion, it is clear from the above that my letter was not designed to distance the Republic of Austria or the Finanzprokuratur from the ruling against Mr. Templ, but to state in clear terms that only Dr. Kretschmer is entitled to a claim against Mr. Templ under private law, so that a possible adjustment of damages can only take place between Mr. Templ and Dr. Kretschmer," he wrote.

Eizenstat said he thought the letter gave "reasonable ground" for the case to be opened or for the Austrian Supreme Court to intervene. But Amsterdam isn't taking any chances.

"I'm focusing my attention on keeping Stephan out of jail," he told JTA. "There are good signs of movement in the right direction, but it remains a possibility and Stephan needs to prepare for it."