Decision in the field of Asylum law

Whether an exchange of notes between the Russian Federation and Austria or customary international law in the field of state succession determined that the Russian Federation was the sole successor to the USSR in a (domestic) land registration proceeding.
In the course of a land registration matter according to Austrian domestic law, the Russian Federation requested the amendment of the land register in the sense that it should be documented as the owner of the premises of the former embassy of the Union of Soviet Socialist Republics in Vienna (USSR) in Vienna. The Russian Federation based this request on the argument that it was the sole legal successor of the USSR, according to notably an exchange of notes between Republic of Austria and the Russian Federation and customary international law on the matter.
The Supreme Court confirmed the legal assessment of the lower courts and dimissed the claim, and notably stated that based on the exchange of notes as well as on customary international law on State succession it could not be established with sufficient certainty from that the Russian Federation was the universal legal successor of the USSR. The request for the amendment of the land register was thus rejected. Eine umfassende Falldarstellung ist kostenpflichtig unter der Webadresse ILDC - Oxford Law Reports abrufbar.

Whether a company incorporated by the Ukraine can invoke aspects of State succession in order to be registered in the domestic land register.

Qualification of the status of Austria during the Nazi regime on the occasion of a request for compensation by a victim of the National Socialist regime.
The Nazi regime had deported the complainant, a member of the Slovenian minority in Carinthia, Austria, to a “relocation camp” (“Umsiedlungslager”) in Germany, at age seven, where she staid from April 1942 to July 1945. Referring to these circumstances, she was denied a compensation based on the law of compensation for prisoners of war (“Kriegsgefangenenentschädigungsgesetz”, KGEG).
The Supreme Court upheld the findings of the court of appeal, which included a reference to diverging assessments of the status of Austria during the “Third Reich” in the context of the so-called “occupation” and the “annexation” theory. Yet, according to the court of appeal, “the term ‘foreign power’ as resulting from para 1 supara 2 KGEG did not refer to the authorities that had governed Austria or had been active in Austria, regardless of the qualification of the “Anschluss” according to international law”.
Further, “even if the wording of para 1 KGEG as such did not clearly express the restriction to an arrest or detainment by the Allied Forces, the genesis of para 1 KGEG and the comparison with the different versions” would “clearly indicate that the KGEG […] did not want to create a legal basis for those individuals who were directly harmed by the activities of the National Socialist Regime of the Third Reich by means of an arrest or detainment”. Another domestic piece of legislation, the Victims Welfare Act (“Opferfürsorgegesetz”, OFG”) would constitute the relevant legal basis for these individuals.

Kurzbeschreibung des Falles

Kurzbeschreibung des Falles

Kurzbeschreibung des Falles

Whether the signing of a payment summons for construction work can be interpreted as a waiver of functional immunity of an International Organisation.
The Supreme Court held that the construction work at the permanent seat of the defendant was closely linked to her functional activity, which is why she  enjoyed immunity in the present case, unless she had not waived her immunity pursuant to Article 9 of the Headquarter Agreement.
Upon assessment of this issue, the Court first addressed the question whether the illegal service of the payment summons signed by a “director” of the defendant constitutes a service via facti (and would thus “heal”, i.e overcome the illegality of the act of service to the International Organization). This was denied by the Supreme Court, stating that such “healing” could only occur if the defendant had previously explicitly waived her immunity. In the light of international law, purely passive behaviour, such as the receipt of the payment summons did not amount to a waiver of immunity. This is all the more true as the defendant had issued a “note verbale” addressed to the Austrian Ministry of Foreign Affairs stating that she had not waived her immunity.
In this context, the Court referred to case 9 ObA 14/03d and pointed out that in absence of an agreement addressing the respective details, the service of process in a foreign State is to be regarded as a sovereign act which concerns the sovereign rights of the foreign State. Therefore, in those cases, and equally in case of a service to an International Organization, the Ministry for Foreign Affairs needs to be addressed.

Kurzbeschreibung des Falles

Whether decisions of the Arbitration Panel for in rem restitution, established by Austrian restitution legislation pursuant to an agreement between Austria and the United States, were subject to review by the Austrian Constitutional Court.