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Austria: Expropriation of Hitler’s Birthplace Held Constitutional

(Sept. 8, 2017) On June 30, 2017, the Austrian Constitutional Court (Verfassungsgerichtshof Österreich, VfGH) held that the expropriation by law of the house in which Adolf Hitler was born was constitutional, thereby rejecting the application of the former owner of the house to declare the Expropriation Act void.  The Court stated that the expropriation was in the public interest, proportionate, and not without compensation. (VfGH, June 30, 2017, docket no. G 53/2017-23 (VfGH G53/2017-23), VfGH website (in German); Press Release No. G 53/2017, VfGH, Expropriation of Hitler’s Birthplace by Law Is Not Unconstitutional (June 30, 2017), VfGH website.)

Facts of the Case

In 2017, the Austrian parliament passed an act to expropriate the property located at Salzburger Vorstadt Nr. 15 in Braunau am Inn, the place where Adolf Hitler was born. (Bundesgesetz über die Enteignung der Liegenschaft Salzburger Vorstadt Nr. 15, Braunau am Inn [Enteignungsgesetz] [Federal Act on the Expropriation of the Property Located at Salzburger Vorstadt Nr. 15, Braunau am Inn] [Expropriation Act], BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I No. 4/2017, RIS (Legal Information System of the Republic of Austria).) The law was passed to implement the recommendations of an expert commission set up by the Federal Ministry of the Interior to determine the historically appropriate handling of Adolf Hitler’s birthplace. The expert commission recommended making fundamental architectural changes to the building in order to prevent the identification of the property and deprive it of its symbolic power. (VfGH G53/2017-23, supra, at 33.)

According to the Expropriation Act, the purpose of the expropriation was to “permanently prevent the cultivation, promotion, and dissemination of National-Socialist ideology or a positive commemoration of National Socialism.” (Expropriation Act, § 1.) The law provided for fair compensation for the former owner. (Id. § 3.)

In February 2017, the District Court of Braunau am Inn granted the government’s request to expropriate the property in question based on the Expropriation Act. (VfGH G53/2017-23, supra, at 3). The applicant appealed that decision and simultaneously brought an action in the Constitutional Court alleging that the lower court had applied an unconstitutional law. (Id. at 10-12.) In her application, she asserted that the Expropriation Act violated her right to property guaranteed by article 5 of the Basic Law on the General Rights of Nationals in the Kingdoms and Länder Represented in the Council of the Realm (StGG) and article 1 of the Additional Protocol to the European Convention on Human Rights (ECHR). (Id. at 5; Staatsgrundgesetz vom 21. December 1867, über die allgemeinen Rechte der Staatsbürger für die im Reichsrathe vertretenen Königreiche und Länder [StGG] [Basic Law of 21 December 1867 on the General Rights of Nationals in the Kingdoms and Länder Represented in the Council of the Realm], REICHSGESETZBLATT [RGBl.] [REICHS LAW GAZETTE] No. 142/1867, RIS; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, ECHR), Nov. 4, 1950, 213 U.N.T.S. 221, ECHR website.)

Decision

According to the jurisprudence of the Constitutional Court, an expropriation by legislative act is justified if it is in the public interest. An expropriation is in the public interest “if there is a concrete need whose fulfillment is in the public interest, if the object of expropriation is suitable to immediately meet that need and if it is impossible to meet the need other than by expropriation.” (VfGH G53/2017-23, supra, at 27.)

Public Interest and Concrete Need

With regard to the question of whether the measures taken were in the public interest, the Court first reiterated its settled case law that the unconditional rejection of National Socialism is a fundamental principle of the Austrian Republic restored in 1945. (Id. at 28.) The Court stated that the Austrian State Treaty, which has constitutional status, obligated Austria under international law to prevent national-socialist activities and propaganda to ensure the survival of the democratic system. (Id. at 29; Staatsvertrages betreffend die Wiederherstellung eines unabhängigen und demokratischen Österreich [State Treaty Concerning the Re-Establishment of an Independent and Democratic Austria], BGBl. No. 152/1955, as last amended in BGBl. I No. 2/2008, art. 9, RIS, English version available at CVCE.EU.)

The Court declared that all state organs have a special responsibility to prevent the dissemination of (neo) National-Socialist thinking in view of the historical context. (Id. at 32.) It further stated that the report of the expert commission found that the birthplace of Adolf Hitler has the potential to become a pilgrimage site for neo-Nazis and that right-wing extremist groups use their visits to the house to glorify national-socialist ideology. (Id. at 33 & 34.) The Court concluded that the government is therefore obligated to ensure that such criminal misuse of the property is prevented and that it is in the public interest to do so. (Id. at 34 & 35.)

Proportionality and Compensation 

The Court held that the expropriation was proportional. It stated that only the owner of the property has the power to deal with it at his or her discretion and can make the necessary architectural changes to the building to implement the expert commission’s recommendations.  In the Court’s view, the expropriation was necessary to prevent the sale of the property to a third party, especially given the fact that the federal government had unsuccessfully tried numerous times to purchase the property from the former owner. (Id. at 36.) As the Expropriation Act provided for fair compensation, the Court concluded that the right to property of the former owner was not violated. (Id. at 37.)