 I.
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BACKGROUND |
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Full details of the procedural history of this matter is set out in the First Order of the Claims Panel dated 16 March 1999. For the purposes of assessing the Claimant's entitlement to the Accounts, it is useful to review certain aspects of the way in which this matter has developed.
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On 23 July 1997, the Swiss Bankers Association published the name of the Account Holder as being the holder of a dormant account. The list on which the name of the Account Holder appears indicated that he was domiciled in Canada.
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On 19 September 1997, the Claimant submitted a Claim Form to the Dormant Account Contact Office. The Claimant stated that her father had a brother by the name of [Name], who may have been the Account Holder. In an alternative submission, which she later seems to have abandoned, the Claimant stated that the son of this relative, who was also named [Name], might have been the Account Holder. Apart from a copy of her passport, the Claimant did not provide any documents in support of her claim.
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The Bank provided a substantial number of account documents along with their response to the Claim Form dated 11 March 1998. Under cover of a letter dated 7 September 1998, the Bank provided a further set of documents concerning the Account Holder, stating that the documents were found in a sealed envelope which was part of a safekeeping account held by the Account Holder.
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The further documents provided by the Bank provide significant biographical information concerning the Account Holder. Among other things, those documents indicate that the Account Holder:
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was born in Slonim (in modern day Belarus) in 1897 |
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had a father named L. E., who was a factory owner |
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was qualified as an electrical engineer |
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studied from 1920 to 1923 in Germany, in Jena in 1924, and after that at the University of Zurich |
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lived in Lausanne, Switzerland, at [address]., in 1938 and 1939 |
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The documents do not appear to provide relevant information concerning the Account Holder during the late 1920s and the early to mid 1930s, or after the beginning of the Second World War.
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On 16 March 1999, the Claims Panel issued a First Order, asking the Claimant to consider this new information, and to consider whether, in the light of the information and any further information she has been able to obtain concerning her relative, she wished to continue with her claim. The Claimant was provided with all of the documents provided by the Bank, and with a translation of the document headed "Curriculum Vitae" (the "CV") in which most of the significant biographical information concerning the Account Holder appears to be contained. In the event that the Claimant did wish to continue with her claim, she was invited to make further submissions in relation to her claim, including any comment she wished to make in relation to the Bank documents. The Claimant was also invited to provide any further information she might be able to provide in relation to the identity of the relative(s) whom she believes to be the Account Holder.
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On 18 May 1999, the Claimant responded to the First Order. The Claimant gave further information concerning her claim, stating that her grandfather's name was L., which she states is equivalent to the English name "L.". She states that her family often used to discuss their relative [the Account Holder], and talk about how much they missed him. The Claimant also stated that her entire family in Europe was killed during the Holocaust, and that she has no living relatives.
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II.
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ENTITLEMENT |
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In order for a claim to be approved, a claimant must show that it is plausible in light of all the circumstances that he or she is entitled, in whole or in part, to the dormant account. In making its determination, the Claims Panel must bear in mind the difficulties of proving a claim after the destruction of the Second World War and the Holocaust, and the long time that has elapsed since the opening of these dormant accounts.
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In this case, the Claimant states that her father's brother was named [Name], which corresponds with the name of the Account Holder. The Claimant also states that her grandfather's first name was L., or L., which is consistent with the information contained in the bank documents. Although there are a number of other aspects of the information given by the Claimant which do not match the information contained in the bank documents, they are not, strictly speaking, inconsistent with that information. The Claimant's statement that her grandfather was a surveyor and land engineer by profession is not necessarily inconsistent with the fact that the Account Holder indicated in the CV that his father was a "factory owner". Similarly, the Claimant's statement that her uncle's family resided in Zamosc, Poland, prior to the Second World War, does not actually contradict the information in the CV that the Account Holder was born in Slonim, now part of Belarus. It is also relevant to note that these cities are not overly remote from each other, and that the western part of Belarus was under Polish control for a substantial part of the early 20th Century.
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The Claimant has stated that her family was killed in the Holocaust and that prior to these tragic events she was a young girl, and cannot clearly remember information she may have been told about her uncle and other relatives. These statements constitute an explanation as to why the Claimant has not provided further information in support of her claim - for example, why she might not have any specific information about her relative's educational history, or any connection he might have had with Lausanne - and as to why the information she does provide might not be completely accurate.
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Comparing the information contained in the bank documents with the information provided by the Claimant, it is far from certain that the Claimant is entitled to the assets of the Account Holder. However, taking the requirements of Article 22 into account, the Claims Panel is satisfied that the Claimant has shown that it is plausible that she is the sole surviving relative of the Account Holder, and that she is entitled to the whole of the assets of the Account Holder.
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For completeness, the Claims Panel also notes that it would not be possible for it to make an award in favour of the Claimant if:
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(i)
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any reasonable basis exists to suggest that fraud or forgery affect her claim; |
(ii)
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any reasonable basis exists that other persons may have an identical or better claim to the dormant account; or |
(iii)
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it is established that the Account Holder was acting as an intermediary for a victim of Nazi persecution, and the assets deposited in the account were looted from victims of Nazi persecution. |
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There is nothing in the information before the Claims Panel which suggests that any of these situations arise in this case. In relation to the question of whether other persons may have an identical or better claim to the Accounts, it is relevant to note that, along with the Claimant's statement that she is the sole surviving member of her family, all other claims which were made to the Accounts were dismissed or withdrawn at an earlier stage in the proceedings.
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III.
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THE ACCOUNTS |
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In its response to the claim form (Angaben zur Forderungsanmeldung) dated 11 March 1998, the Bank stated that Account Holder held an account with the Bank with a current balance of 47,966.20 Swiss Francs.
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In a telephone conversation with Peter Curry of the Secretariat on 14 June 1999, the Bank's Mr C. indicated that the Account Holder held two accounts with the Bank, and provided details of the balance of these accounts as at 14 June 1999, as follows:
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Account Number |
Type of Account |
Balance |
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XX |
Current Account |
1,200.00 Swiss Francs |
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XX |
Deposit Account |
50,200.00 Swiss Francs |
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The Claims Panel has not verified the amounts reported by the Bank.
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The Board of Trustees of the Independent Claims Resolution Foundation (the "Board of Trustees") is in the process of establishing guidelines dealing with the issue of whether balances of dormant accounts should be adjusted for unpaid interest and for bank fees previously deducted. The Tribunal has not yet received these guidelines. It is therefore premature to make a Final Award in respect of this matter. Rather, it is appropriate at this stage to make a Partial Award directing the Bank to transfer control to the Claimant of the assets currently in the Accounts, with the issue of any possible upward adjustment to current balances to be resolved in a later Final Award.
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IV.
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PARTIAL AWARD |
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Based on the submissions of the parties and the above considerations, the Claims Panel renders the following Partial Award:
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1.
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The Claims Panel determines that the Claimant has a valid claim to the Accounts. |
2.
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The Bank shall transfer to the Claimant, or at the Claimant's direction, control of the assets currently contained in the Accounts, without assessing any fees for so doing. |
3.
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The Claims Panel will issue a Final Award, in which compensation for unpaid interest, and for bank fees previously deducted, may be added on the basis of guidelines to be adopted by the Board of Trustees. |
4.
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This Partial Award shall be sent to the Claimant and the Bank by registered mail against receipt. |
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29 June 1999
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The Claims panel
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| [signature] |
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| Dr. Robert Briner, Chairperson |
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| [signature] |
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[signature] |
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| Professor William W. Park |
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L. Yves Fortier C.C.,Q.C. |
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