Monday, November 19, 2012

Vienna offers an important legal precedent

Last month, we published the decision of the State Archivist in the matter of the archives of the pre-Shoah Jewish community of Vienna. (See the summary here.) Last week, just as the news from southern Israel was pushing aside most other matters, Judge Gila Canfi-Steinitz of the Jerusalem District Court handed down her decision on this.

Initially it was a legal case, in which the Jewish community of Vienna claimed that it still owned this important collection of documentation, and wanted it back. When the Central Archvies of the Jewish People refused to hand it back, saying that the transfer in the 1950s was intended to be permanent, the community sued in court. Then the court did something unexpected, since it was unprecedented. Instead of ruling, it transferred the case to the State Archivist. After the State Archivist ruled, the case went back to the same court. The community continued to claim its property irrespective of what anyone might say, insisting this was the only relevant fact. The Central Archives, however, now said that the State Archivist, as a state official, had determined otherwise and his position was weightier.

The judge has now fully accepted the ruling of the State Archivist (the 4-page ruling is here, in Hebrew of course). Moreover, her reasoning shied away from resolving the issue of straight ownership, preferring the broader considerations of the State Archivist. According to his reasoning, the Law of Archives (first passed in 1955 and modified since) includes the authority to forbid the removal of documents and collections from public archives, irrespective of ownership. The philosophical underpinning of this is that a society needs to preserve the documentation of its actions and its heritage; archives are an important tool for executing this preservation; and once documents have been legally integrated into public archives and thus into the national heritage, they are not to be removed unless the top relevant official sees justification for such a removal. (In this case, no sufficient justification was found.)

At the end of the day, the case has had three important implications. One, the collection stays in Israel. Two, the legal standing of the State Archivist has been set in judicial precedence. And third, the original intention of the legislators has likewise been judicially strengthened.

2 comments:

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  2. The sounds like State Archivist tooting State Archivist's horn, no?

    -Anonymous Nephew

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