Stephan Templ, chronicler of Nazi looting in Vienna, set to begin jail term over suppo...

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Stephan Templ, chronicler of Nazi looting in Vienna, set to begin jail term over
supposed omission in his mothers holocaust restitution claim
Blog The Art Law Report

Sullivan & Worcester LLP

Austria September 29 2015

As I prepare for a trip to Vienna for next weeks 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 mothers application for Holocaust compensation, is as
bizarre as it is disheartening. One hopes that a pardon, his last available recourse, will soon be forthcoming.
Click here to view image.
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 Schieles paintings were seized in late 1997 while on loan to the Museum
of Modern Art, to the refusal to return Gustav Klimts 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 years 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 sterreichisch (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 Austrias restitution record than I have). Templs story
of late sounds like fiction, however.

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One of the buildings stolen from its Jewish owners was a sanatorium near the Ringstrasse owned by Templs
relatives, Lothar Furth and his wife. At the Anschluss in March 1938, Furth was subjected by the sanatoriums
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.
Templs 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, Templs 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 wasnt 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, its clear that the whole thing is stupid. Nowhere is it
written that it is obligatory to list other heirs. So thats the part that is the duty of the General Settlement Fund to
look up and see if there are other heirs. Its 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 its 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):

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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 Austrias 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 Austrias 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 familys seized property. This matter
could have been resolved by the Templ family in civil court. The Austrian governments decision to intervene by
prosecuting and jailing Mr. Templ will be seen as an extreme overreaction to Mr. Templs important book, Our
Vienna: Aryanization Austrian-Style, which criticized Austrias policy concerning the restitution of Jewish
property.
Please convey to President Heinz Fischer our urgent request that he reconsider his rejection of Mr. Templs
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. Heres hoping he is released
soon.

Sullivan & Worcester LLP - Nicholas M. O'Donnell

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