The Jewish community of Vienna has appealed to Israel's Supreme Court against the decision of the Jerusalem District Court, which ruled that the community's 300-year old archives will remain in Israel. The community's archives were transferred to the Central Archives for the History of the Jewish People in the capital decades ago in the wake of the Holocaust.
In a ruling in mid-November, Jerusalem District Court Judge Gila Steinitz (wife of Finance Minister Yuval Steinitz) in effect accepted the opinion submitted by Israel's State Archivist Yaacov Lozowick to the court, after Steinitz requested that he take a stand on the matter.
One of the main issues the Vienna community is basing its appeal on is the authority - or lack thereof - of the state archivist in such matters. The community is accusing Lozowick of exceeding his authority in applying Israeli law to an archive belonging to a foreign body. The appeal claims that by applying Israeli law to any public archive in Israel, including the Viennese one, Israel could become a refuge for documents stolen overseas. Lozowick says such a thing isn't possible.
The court has confused the state archivist's authority with that of its own, states the appeal. Lozowick told the district court the archive should not be removed from Israel, and the judge ruled according to the section of the 1955 Archive Law that states: "Removing archival material from a public archive without approval from the Chief Archivist is a criminal offense."
The main issue in the case was whether Israel, as the Jewish state, had "ownership" of the archives of a Jewish community in the Diaspora. Lozowick told the court that leaving the archive in Jerusalem is part of the "heritage of the entire Jewish people," and "removing it from Jerusalem would send it to the periphery of the Jewish world."
'Return to Vienna was agreed'
The collection includes thousands of papers stored in 200 containers, documenting 300 years of the Vienna community from the 17th century up to 1945. After the Holocaust, community leaders decided to transfer the archive to Jerusalem, fearing it would not be stored properly in Vienna, and they continued to add documents to the collection. Yet the Viennese community insists it sent the documents - in four shipments in 1952, 1966, 1971 and 1978 - with the explicit agreement, time after time, that the documents were only on loan and remained the property of the community.
Following the community's rehabilitation, its leaders requested the return of the archives, claiming they were on temporary loan. The Central Archives responded that the collection had been transferred permanently. An arbitration process headed by former Supreme Court Justice Mishael Cheshin produced no results. Thus, the community filed the lawsuit last year.
Attorney Gilad Maoz, who represents the Vienna community, said in response to the ruling: "The community insists that the documents belong to it, and its arguments are supported by unequivocal written documents." He said he had reservations about Lozowick's authority to decide on the matter.
While the archives law deems it illegal to remove materials from a public archive without the state archivist's approval, it also states that archival material in private hands belongs to its owners, and it protects their rights. The law even allows removing such privately-owned material from Israel, but does require that the owners allow the state archivist to examine the material, copy it and compile a list of the materials before it is removed from this country.
He said there was no written agreement regulating the archive's status and that during his work as head of the Yad Vashem Archives, he had often encountered similar situations.
"The decision is one of principle and of great importance because of the rare historical value of the documents," said Rami Goldstein, the attorney representing the Central Archives.
"The Central Archives were never asked and certainly never agreed to return the archive to Vienna," said Hadassah Assouline, director of the Central Archives for the History of the Jewish People in Jerusalem. "The opposite [is true]. The community expressed in writing and orally that it was not interested in keeping the material or in its return, and only asked to receive copies of documents it needed to manage its affairs. As a result, the [Central] Archives made a large investment in monetary and human resources to arrange, catalog, preserve and store the material," she added. The majority of Viennese Jews residing in Israel strongly object to returning the material to Vienna, added Assouline.
'They were proud of contribution'
"No one claims the Vienna collection was stolen. What was transferred from Vienna to Jerusalem was transferred openly and with full agreement of the two sides," said Lozowick. "In the years after the Holocaust and the establishment of the Jewish state, collections were transferred to Israeli archives without a written agreement. The sensitivities and social and judicial awareness of copyright issues were very different 60 years ago. The situation of the Jewish people at the time did not, to put it mildly, encourage comprehensive judicial work in these cases."
Concerning the Vienna collection, Lozowick contended, following his inquiry, that "the depositors felt they were strengthening the cultural importance of the young State of Israel as the center of the Jewish people; they were proud about their contribution; and they had no intention of the collection ever returning." The transfer was intended to add the history of the Vienna community to the general Jewish heritage in Israel and this hope was fulfilled, Lozowick said, noting that the archive is open to the public. For that reason, he concluded that the collection is subject to the Archives Law, which determines that it cannot be removed without the state archivist's approval.