 I.
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CONSIDERATIONS |
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Submissions by Parties
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Claimant 1
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On 16 December 1997, Claimant 1 submitted a Claim Form to the Dormant Account Contact Office stating that the Account Holder was his father. According to Claimant 1, following a head injury sustained while he was a small child, he was taken from his parents in the ghetto in Sárvár and thereafter lost all contact with his family. He grew up in a foster home but states that, after years of research, he has been able to establish his identity as the third child of [Name] and [Name], both of whom perished in the Holocaust. In support of his claim, the Claimant submitted a copy of, among other documents, (i) a certificate from the Jewish Religious Community of Vezprém dated 2 October 1997 providing information regarding [the person identified as the Account Holder]; (ii) a Certificate of Change of Name from the Hungarian Ministry of Internal Affairs dated 26 February 1998; and (iii) a signature sample that matches exactly the signature of the Account Holder contained in the bank documents.
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The claim was forwarded to the Bank. On 3 June 1998, the Bank agreed that its name and the amount in the Account should be disclosed to the Claimant. The Bank further requested that the claim be resolved according to the Fast Track Procedure pursuant to Articles 11-13 of the Rules.
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On 16 October 1998, Judge Hadassa Ben-Itto, as Sole Arbitrator, issued a First Procedural Order in which she requested the Claimant to provide the following information and documents in support of his claim:
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i.
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His birth certificate; |
ii.
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Any document confirming his placement in the orphanage; |
iii.
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Any known German or English version of his mother's first name, Ilona; |
iv.
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The source of the sample signature submitted with the Claim Form; |
v.
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If known, the name of any close friend or relative of [Name] in Brasso/Brassov; |
vi.
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If known, any other address used by [Name] in Brasso/Brassov, other than that already set out in the Claim Form; |
vii.
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An account of how the Claimant came into contact with the friends of [his father and mother] and, through them, established his identity. |
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On 28 December 1998, the Claimant responded to the First Procedural Order. In his submission, he provided a copy of the Account Holder's marriage certificate, a document that confirms that he was placed in foster care at the [Name] (a children's home), and statements from two persons, I. F. and L. B.. I. F. states that in September 1945 she recalls a little boy at the foster home in St. Gallen, Switzerland who had a head injury and who was described by the foster mother as a Jewish boy from Vesprém. L. B. states that he recalls stories from his father that in 1944 his father had helped a little boy with a head injury who was brought from the Sárvár ghetto to Vesprém.
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Claimant 1 also relates conversations he had with L. F. in which he suggested that Claimant 1 resembled [his father] and a conversation with M. K. in which she stated that she knew the [Name] family well and that in July 1944, [Name] three-year old boy fell off a bed and hurt his head seriously. Despite the Sole Arbitrator's request, Claimant 1 did not provide a copy of his birth certificate, stating that it is not available because significant parts of Vesprém were razed to the ground or burned in February 1945. Claimant 1 also states in both his original claim form and his response to the First Order that the Hungarian Guardianship Authority that placed him in the children's home fabricated the names of his parents as A. F. and A. K.
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On 26 January 1999, the Bank responded to Claimant 1's submissions by requesting approval of his claim, stating that "the statement of the Claimant regarding his relationship to the Account Holder appears to be sufficient to support the plausibility of his Claim."
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On 17 February 1999, the Sole Arbitrator issued a Second Order to Claimant 1 in which she provided the Claimant with the Bank documents, joined the claim with that of Claimant 2, and referred the claim to the Ordinary Procedure. The Sole Arbitrator also requested that the Claimant provide information or documents (i) identifying any and all children of [his father], including their names and dates of birth; and (ii) concerning other relatives of [his father] who may still be living.
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Following the grant of an extension by the Tribunal, on 14 May 1999, Claimant 1 submitted a response in which he states that despite repeated efforts, he has not succeeded in locating his own birth certificate or the birth certificates of his siblings.
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Claimant 2
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On 24 October 1997, Claimant 2 submitted a Claim Form to the Dormant Account Contact Office stating that the Account Holder was his uncle by marriage. In support of his claim, the Claimant submitted copies of, among other documents, a Veszprém county court decision granting the Claimant's father trusteeship over the estate of [the Account Holder].
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The claim was forwarded to the Bank. On 26 January 1999, the Bank requested that the claim of Claimant 2 be denied in Fast Track Procedure because, although he had identified the Account Holder as his relative, Claimant 1 appears to have a better claim of entitlement as the son and rightful heir of the Account Holder.
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On 17 February 1999, Judge Hadassa Ben-Itto, as Sole Arbitrator, issued a First Procedural Order in which she provided the Claimant with the Bank documents, joined the claim with that of Claimant 1, and referred the Claim to the Ordinary Procedure. The Sole Arbitrator also requested that the Claimant provide the following information or documents in support of his claim:
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i.
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Identification of any and all children of [the Account Holder], including their names and dates of birth, and any information of which he is aware regarding a child who may have been injured or died or who became separated from [the Account Holder's] family as a child; |
ii.
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Any information and/or documents concerning the process by which the Claimant's father, I. K., became the owner of the property of [the Account Holder], rather than simply the trustee of that property; |
iii.
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Any information, last wills and/or official documents concerning the disposition of the estate of [the Account Holder]; |
iv.
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Any information, last wills and/or official documents concerning the disposition of the estates of the Claimant's father and mother, I. K. and P. R.; |
v.
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Any information concerning whether the Claimant has any brothers or sisters and, if so, whether they or any of their descendants are still living. If any such descendants are still living, the Claimant is requested to list the names and addresses of all such persons. |
vi.
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Any information concerning other relatives of [the Account Holder] who may still be living. If any such persons are still living, the Claimant is requested to list the names and addresses of all such persons. |
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On 30 April 1998, Claimant 2 responded to the First Procedural Order. He included a document which he asserts proves that his parents were officially the rightful heirs of the Account Holder. Claimant 2 also provided documents that identify the children of [the Account Holder] as S. M. and A. D.. Finally, Claimant 2 responded to the claim of Claimant 1, stating that the fact that Claimant 1 provided a document that bears the same signature as the Account Holder does not constitute evidence that he was related to the Account Holder.
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Information from Third Party
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On 19 December 1997, a third party, Dr. W. M., submitted an Information Form that provided details regarding the identity of the Account Holder. At the request of the Tribunal, on 8 February 1999, Dr. M. provided further information regarding the Account Holder. According to Dr. M., he was with the Account Holder in Auschwitz. He states that both he and [the Account Holder] were released from the concentration camp on 4 May 1945, but that the Account Holder died a few days later in a hospital in Wels, Austria. Dr. M. identifies [the Account Holder] as the owner of a furniture shop in Vesprém, Hungary. Dr. M. also included a document from the Veszprém Jewish Community which identifies two of the Account Holder's relatives, his spouse I. K., and son, A. D., as having been deported from Veszprém. This document also states that the brother of the Account Holder's spouse, I. K., recently died but that he had two sons who are living in Veszprém and Budapest.
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The Account
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The Bank submitted that the Account is a dormant account and identified the assets in the Account as:
| Number of Account |
Type of Account |
Value as Reported on 3 June 1998 |
| XX |
Current Account |
3446.30 Swiss Francs |
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The Claims Panel has not verified the amount reported by the Bank. The principal amount may be adjusted and compensation for unpaid interest and previously deducted bank fees may be added on the basis of guidelines to be established by the Board of Trustees of the Independent Claims Resolution Foundation.
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Jurisdiction of the Tribunal
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The Bank and each of the Claimants (together, "the Parties") have signed a Claims Resolution Agreement, thereby agreeing that this claim will be resolved by the Tribunal in accordance with the Rules. On 17 February 1999, the Sole Arbitrator referred the claims of both Claimants to the Ordinary Procedure. In the Ordinary Procedure, Professor Dr. H. M. Riemer, the Chairman of the Tribunal, has appointed himself as Chairperson, and L. Yves Fortier, C.C., Q.C., and Prof. Hans van Houtte as Co-Arbitrators in this matter. The Chairperson and Arbitrator Fortier hereby accept the Appointment and declare that they are independent of each of the Parties and intend to remain so throughout the proceeding. Arbitrator van Houtte has accepted the Appointment and has signed a qualified declaration, a copy of which is attached to this First Order, stating that he is independent of each of the Parties and intends to remain so throughout the proceeding.
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Summary of Claims
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For a claim in the Ordinary Procedure to be approved, a claimant must show that it is plausible in light of all the circumstances that he is entitled, in whole or in part, to the Account. In making this finding of plausibility, the Claims Panel must assess all information submitted by the Parties or otherwise available to it. The Claims Panel must also bear in mind the difficulties of proving a claim, given the destruction of the Second World War and the Holocaust and the length of time that has lapsed since the opening of the Account. Finally, a finding of plausible entitlement requires that no reasonable basis exists to conclude that other persons may have an identical or better claim to the dormant account.
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Claimant 1 bases his claim of entitlement on the fact that he is allegedly the only living son of [the Account Holder] and therefore is entitled to the assets in the Account. He has provided detailed information regarding [the Account Holder], including (i) a signature sample that matches exactly that of the Account Holder; (ii) a signature sample that matches that of the Power of Attorney Holder; (iii) the marriage certificate of the Account Holder and the Power of Attorney Holder; and (iv) a certificate from the Jewish Religious Community of Vezprém dated 2 October 1997 providing information regarding the Account Holder. In sum, the information provided by the Claimant matches or is otherwise not inconsistent with the information available in the Bank records regarding the Account Holder and the Power of Attorney Holder. In light of the detailed information provided by the Claimant regarding [the Account Holder] and [the Power of Attorney], and the fact that this information conforms with the available information in the Bank records, the Claims Panel finds that Claimant 1 has identified the actual Account Holder.
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Regarding whether Claimant 1 is the lost son of the Account Holder, Claimant 1 relies on numerous statements from persons who link him to Veszprém and to the Account Holder. He states that he has been attempting to determine his identity for over thirty years, and in the course of this investigation, he interviewed numerous individuals. The written statements provided by I. F. and L. B. regarding a small boy with a serious head injury from Vesprém make plausible Claimant 1's link to Vesprém, Hungary. The statements provided by L. F. and M. K. make plausible Claimant 1's link to the Account Holder. In particular, Ms. M. K. specifically recalled that the [Name] family's small boy had seriously injured his head from a fall while the family lived in the Sárvár ghetto. Moreover, Claimant 1 has distinguishing physical features that are consistent with this information: he has marks indicating that he suffered a serious head injury and he is circumcised (and therefore likely is Jewish). The Claims Panel notes that Claimant 1 does not provide official documentation, such as a birth certificate, to definitively establish his claim that he is the son of [the Account Holder and the Power of Attorney]. He has, however, provided a reasonable explanation for the absence of such official documentation: significant parts of Vesprém were razed to the ground or burned during the Second World War, thus explaining his inability to locate his own birth certificate or that of the other children of [the Account Holder and the Power of Attorney]. He also has provided documentation establishing that his parents died while he was very young and that he was placed in a foster home. Finally, the Hungarian Ministry of Internal Affairs authorized his name to be changed from [Name] to [Name]. Based on the information and documents provided by Claimant 1, the Claims Panel finds that it is plausible, in light of all the circumstances, that Claimant 1 is the son of the Account Holder. |
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Regarding the claim of Claimant 2, the Claims Panel finds that, as it is plausible that Claimant 1 is the son of the Account Holder, he therefore has a better claim of entitlement than that of Claimant 2. Claimant 2 appears to base his claim of entitlement on two grounds. First, he states that as the nephew of the Account Holder, he is the sole surviving relative and therefore is entitled to the assets in the Account. However, in the absence of evidence to the contrary, the Claim Panel notes that a claimant who is likely the son of the Account Holder has a better claim of entitlement than that of a nephew. Second, Claimant 2 appears to state that his father, I. K., was granted power of attorney over the estate of [the Account Holder], authorizing him to dispose of [the Account Holder's] assets. Claimant 2 has failed to provide any evidence as to why he believes his father's status as power of attorney/trustee over the estate of [the Account Holder] should entitle him to have such a status. Nor has Claimant 2 provided any response to the Sole Arbitrator's request that he provide information pertaining to the "last wills and/or official documents concerning the disposition of the estates of the Claimant's father and mother, I. K. and P. R.". Therefore, the Claims Panel is not convinced that the status of Claimant 2's father as trustee/holder of power of attorney over the estate of the Account Holder demonstrates plausibly that Claimant 2 has a better claim of entitlement than Claimant 1.
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In view of these considerations, the Claims Panel determines that it is plausible that Claimant 1 is the son of the Account Holder and that therefore he has a better claim of entitlement than Claimant 2 and is entitled to the assets contained in the Account.
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II.
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PARTIAL AWARD |
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Based on the submissions of the Parties and the above considerations, and in accordance with the Rules, the Claims Panel renders the following Partial Award:
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1.
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The Claims Panel recognises that Claimant 1 has a valid claim to the assets contained in the Account of the Account Holder and orders the Bank to transfer control of the assets to or at the direction of the Claimant. In making this payment, the Bank will not assess any fees. |
2.
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In light of the Claims Panel's findings in paragraph 1, the Claims Panel finds that Claimant 2 has not shown he is plausibly entitled, in whole or in part, to the assets in the Account. Accordingly, his claim to the Account is denied. |
3.
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The Claims Panel will issue a Final Award in the proceedings involving the claim of Claimant 1, in which compensation for unpaid interest and bank fees previously deducted may be added on the basis of guidelines to be established by the Board of Trustees of the Independent Claims Resolution Foundation. |
4.
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This Partial Award will be sent to the Parties by registered mail against receipt. |
14 October 1999
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| Chairperson |
Co-Arbitrator |
Co-Arbitrator |
| [signature] |
[signature] |
[signature] |
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| Prof. Dr. H. M. Riemer |
L. Yves Fortier, C.C.,Q.C. |
Prof. Hans van Houtte |
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