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The Latest in Nazi-Era Restitution Efforts

March 24, 2016

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By Bianca Acquaviva

Over seventy years after the end of World War II and there is still much work to be done in the restitution of Holocaust-era looted art works. Even since 1998, the signing and adoption of the Washington Principles, many of the signatories are still doing very little in terms of finding “fair and just” solutions. See our Review of “Fair and Just?” The following is a summary of the recent flurry of activity both in the US and abroad in the realm of Nazi-era looted art disputes.

IN THE UNITED STATES…

California, USA

The long awaited trial in the case of Von Saher v. Norton Simon Museum of Art at Pasadena et al is now set for September 20, 2016. The case was filed by Marei Von Saher, a Connecticut resident, seeking the return of two paintings by Lucas Cranach the Elder that were seized from her family by the Nazis in 1940. Adam and Eve, which compose a diptych, were created in 1530 and were most recently appraised in 2006 for $24 million together. Norton Simon Museum of Art (“the museum”), represented by the firm Munger Tolles & Olsen, has vehemently opposed the claim brought by the legal team of Herrick, Feinstein. The efforts have continued for over a decade and have included countless appeals, motions, and filings.

Before the war, the paintings were owned by Jacques Goudstikker, a Dutch-Jewish art dealer. They were stolen by Nazi henchman Hermann Goering in a forced sale after Goudstikker fled the Netherlands and died on board a ship sailing for the US. Following World War II, the paintings passed through two sets of hands before the museum obtained the paintings. Confusion as to the rightful ownership of the diptych was created by George Stroganoff-Scherbatoff, who alleged in 1961 that the Soviet government had seized Adam and Eve from his family in the 1920s. Indeed, the paintings were auctioned with permission from the Soviet authorities, and Goudstikker was the highest bidder at the 1931 auction. After the war, the paintings were discovered by the Allied forces and transferred to the Dutch authorities to find the rightful owners, who transferred these paintings to Stroganoff-Scherbatoff. In 1971, Stroganoff-Scherbatoff sold the paintings to Norton Simon, founder of the Norton Simon Museum of Art. The museum argues that returning the artworks to private hands when there are legal grounds for it keeping them is contrary to its desire to keep works of art available for public view. However, supporters of restitution efforts argue that the Museum should not be allowed to keep works that were stolen from a family seeking to reclaim them.

It is unlikely that the case will settle before the opening statements, which will allow jurors to hear the astonishing details of the paintings’ journey after the war. When U.S. forces discovered Goering’s collection of stolen art, they sent the works back to the countries the works originated from, and those countries decided how to settle claims to the works. Thus, after the war, two paintings were returned to the Netherlands. Ms. Von Saher claims that when her mother-in-law, Jacques Goustikker’s wife Desi, went to claim the paintings, the Netherlands effectively slammed the legal door in her face, but she never gave up the right to bring a claim against authorities for the painting. In its defense, the museum counters that Desi Goudstikker had a chance to lay claim to the paintings with the Dutch government and failed to do so. Needless to say, the case has been further complicated by the Stroganoff’s claim and recently passed California legislation. The trial has been much-anticipated, akin to the litigation surrounding Egon Schiele’s Portrait of Wally against the Austrian Leopold Museum that was settled in 2010. Observers are eager to witness how the public and private interests are balanced and what the fair and just solutions are in this case.

In California, the statute of limitations for the recovery of stolen property is three years. However, aware of the unique circumstances surrounding many claims arising from looting during the Holocaust, the California legislature passed California Code of Civil Procedure §354.3 in August 2002. The law eliminated the statute of limitations for claims to recover Holocaust-era artwork as long as the action was commenced on or before December 31, 2010. The district court found the statute to be unconstitutional on the basis of field preemption, finding it in conflict with federal foreign affairs powers. The Ninth Circuit Court of Appeals affirmed this decision. Six weeks later, the California legislature amended California Code of Civil Procedure §338(c) to extend the statute of limitations from three to six years for claims concerning the recovery of fine art from a museum, gallery, auctioneer or dealer. The law was made explicitly retroactive and the statute of limitations did not commence until actual discovery of both the identity and location of the work.

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Source: Pissarro: critical catalogue of paintings (2005).

Oklahoma, USA

On February 23rd, the University of Oklahoma agreed to return a painting by Camille Pissarro to French Holocaust survivor Léon Meyer, whose father owned the painting when it was stolen in 1941 during the Nazi occupation of Paris. The painting, La Bergère Rentrant des Moutons/Shepherdess Bringing in Sheep, was created in 1886 and was estimated to be worth $1.5 million in 2008. In 2000, the University received the painting as a donation from the Weitzenhoffer family, who purchased it from a New York gallery in 1956.

The case was originally filed in the Southern District of New York in 2013 and then transferred to Oklahoma in 2015. The grassroots and legislative efforts to convince the University to conduct a thorough investigation into the true ownership of the work, ultimately lead to the parties negotiating a settlement. “Léone Meyer has agreed that, rather than getting the painting back for her own living room, to continue the public display of the painting for the public,” Meyer’s attorney, Pierre Ciric, said.

Under the terms of the settlement, the painting will still be accessible in Oklahoma and available for education purposes until it is transferred to France. In a few months, the painting will be moved to France, where it will remain in a museum for five years. After that period ends, the Pissarro will rotate in three year intervals between the University’s art museum in Oklahoma and a yet-to-be-determined museum in France. A label stating the painting’s history, its seizure by the Nazis, and its restitution will accompany the work.

The university never denied that the painting was looted by the Nazis. Instead, it resisted its return based on procedural rules and the statute of limitations. They argued that the donor had purchased the work in good faith, and that Ms. Meyer brought her case in New York instead of Oklahoma to avoid a more stringent statute of limitations. This settlement ends a three-year dispute between the parties.

IN THE INTERNATIONAL SPHERE…

Germany: Gurlitt Saga (See our previous coverage)

In January, the Gurlitt task force appointed by Ms. Grütters released the results of their two-year, almost $2 million investigation. They found the rightful owners of just five of the 1500 works in the Gurlitt collection, a conclusion that disappointed many. Of the works in the collection, about 30 to 50 are “of superior quality.” While Ms. Grütters has admitted her own disappointment, she seems to be taking the slow and steady approach, so as to ensure that the provenance of the works is correct and avoid “a second seizure” of the art, which would result if the works are improperly awarded. The collection is to be exhibited in Germany later this year.

In late February, Germany announced that it will pay for at least another year of research and hire additional people to assist in establishing the provenance of works in the Gurlitt collection. The German culture minister, Monika Grütters, reaffirmed Germany’s pledge to return any looted art to its rightful owners or their descendants and set the provenance research budget at 6 million euros, which is approximately $6.5 million.

Additionally, Ms. Grütters stated that she was discussing a law that would encourage individuals to return looted art with the German justice minister. She has also been encouraged by the German Jewish community to appoint a Jewish individual to the Limbach Commission, but stated that she would not do so because that individual “would be the only voice who would be prejudiced.” After receiving backlash and criticism for this comment, Grutters announced that 90 year old Michael Blumenthal, former director of the Jewish Museum in Berlin and United States Secretary of the Treasury, would be nominated to the Limbach Commission. Currently, the Limbach Commission is the only board that mediates restitution cases, and something else must be done seeing as how the board has been rife with controversy.

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Juan Gris, Violon en encrier (1913). Source: AlfredFlechtheim.com

Mediation with the Limbach Commission:

The heirs of persecuted Jewish art dealer Alfred Flechtheim have officially withdrawn from the state-run non-binding mediation process concerning Violon en encrier (1913) by Juan Gris, currently housed in the Stiftung Kunstsammlung Nordrhein Westfalen (Art Collections Foundation of Northern Rhineland/Westphalia) in Düsseldorf. The painting was sold in 1934 in London, and Flechtheim’s heirs have argued that this sale was the result of his persecution, which began even before the Nazis took power. The museum bought the work on the international market in 1964.

Flechtheim’s great-nephew, Dr. Michael Hulton of San Francisco, requested that his attorneys suspend the Limbach Commission due to concerns about the fairness of the proceedings and requested that the Commission not make any recommendations about the painting until these concerns are addressed. Dr. Hulton and the Düsseldorf museum agreed in 2014 to submit the matter to the Advisory Commission. This is not the first time that the German Advisory Commission considered a work originating from Flechtheim. In 2013, the Advisory Commission considered Portrait of Tilla Durieux, a painting by Oskar Kokoschka which was housed in the Museum Ludwig in Köln. The Advisory Commission affirmed the Nazi-persecuted loss of the painting absent any evidence to dispute that Alfred Flechtheim abandoned the painting because of his persecution. This put the burden on the museum to provide evidence as to the legitimacy of the museum’s possession of the painting.

Three years later, this is apparently no longer the case. In the Gris matter, only half of the panel was in attendance at the first hearing. After the hearing, Dr. Hulton’s attorneys told the Advisory Commission that they would be submitting a letter to the entire panel on the evidentiary matters discussed at the hearing. The letter was submitted three days later, but when they followed up with the Advisory Commission, they were told that the letter was not circulated to the panel and the panel was already deliberating its recommendation. Upon officially withdrawing from the process, Dr. Hulton released a statement detailing the procedural irregularities. In addition to the panel not receiving Dr. Hulton’s letter, half of the commission’s members, including its chairperson, not being present, a member left mid-hearing. As a result, Dr. Hulton halted the mediation process.

This comes soon after the 2015 filing of a civil action, Philipp et al v. Federal Republic of Germany et al,  against Germany and the Stiftung Preussischer Kulturbesitz (the SPK, which is responsible the administration of the Berlin museums, among other things) in U.S. District Court in Washington, D.C. after the Limbach Commission refused to recommend restitution of the Guelph Treasure to Alan Philipp and Gerald Stiebel. Mr. Philipp and Mr. Stiebel are blood relatives and successors of a group of Jewish art dealers who were threatened and forced to sell the Guelph Treasure for a fraction of its value in 1935. The plaintiffs seek the immediate return of the Guelph Treasure to their possession.

The Advisory Commission has received immense criticism, which will only continue unless they reform their procedures. On March 9, 2016, a group of lawyers from the United States and Europe sent an open letter to members of the German government asking for a reform of the Limbach Commission and advocating an international binding arbitration, stating, “[i]n its current form, the ‘Limbach Commission’ … is not a suitable forum to meet the demands of the victims. The lack of fairness, transparency and justice is evident.”

Switzerland:

There has been an increase in pressure on Swiss museums to recognize that works of art sold by Jewish refugees to help them escape from the Nazis were forced sales and should be returned to their heirs. Ronald Lauder, the president of the World Jewish Congress, has released a plan for the Swiss government to deal with claims resulting from forced sales, which, he advocates, should be treated the same as claims for looted art. Lauder is also calling for the establishment of a Swiss commission that can review art claims, as no such body exists. The Swiss have been generally unwilling to recognize fluchtgut cases––those arising from forced sales.

Last year, Isabelle Chassot, the Swiss culture minister, recognized that Switzerland is the only country that draws a distinction between fluchtgut cases and art that was lost due to Nazi persecution, and called for the latter term to be applied. However, the Swiss art community has strongly opposed this proposition. They argue that sales of art by Jewish refugees are different from those in Germany and Austria because Switzerland was a free country and sellers had full access to the proceeds. Good faith, Lauder states, does not make art clean, and Switzerland is behind the rest of the world in terms of provenance research. Switzerland has announced that 2 million Swiss francs will be available for provenance research, but Lauder believes the Swiss must also develop “a decent database and an independent commission which supervises this thing.” Switzerland is just beginning to take steps in the right direction.

Incidentally, the aforementioned Gurlitt collection has been accepted by a museum in Switzerland, the Kunstmuseum Bern.

Latvia:

Looting and cultural losses that occurred before and during World War II on the eastern front have been increasingly difficult to ascertain and remedy the further east the claims extend. Therefore the recent decision by the Latvian parliament to address the legacy of the Holocaust is very important. On February 25, 2016, Saeima, the parliament of Latvia, passed legislation to restitute five formerly Jewish-owned properties to the Council of Jewish Communities of Latvia. The legislation, which was supported by the World Jewish Restitution Organization and the U.S. government through Special Envoy for Holocaust Issues Nicholas Dean, will now go to the Latvian president for his signature. The five properties, owned by the Jewish community until World War II, are: a former Jewish school in Riga, a former Jewish religious school also in Riga, a former Jewish nursing home in Riga, and two former synagogues in Jurmala and Kandava. Though the restitution of these five properties is certainly a fantastic accomplishment, there are about 270 former Jewish communal properties that have yet to be returned to the Latvian Jewish community.

Property owned by private interests and individuals are not addressed by the new legislation. Elie Valk, chairman of the Association of Latvian and Estonian Jews in Israel, stated that the restitution of additional properties would “help the Latvian Jewish community sustain and revitalize itself as well as provide urgently needed assistance to Holocaust survivors from Latvia.”

Poland: 

Please see Center for Art Law recently published summary of restitution efforts in Poland, which can be found here.

* * *

As with most government efforts, funding is the perennial problem. The research and recovery of art works is sometimes prohibitively expensive, as some of the items that may have been identified as looted are worth a fraction of the costs that would be necessary to facilitate their return. Individuals, museums, governments, and nongovernment agencies must take a more active role in solving these problems. As we have seen throughout the Gurlitt investigation, which took two years and nearly $2 million, millions upon millions of dollars can be spent without very many results. Recently, more emphasis has been put on provenance through initiatives such as the Smithsonian Provenance Research Institute and the creation of the German Lost Art Foundation (Deutshes Zentrum Kulturgutverluste). It is the collective responsibility of the public to ensure that pressure is put on museums and governments so that the stolen property of Holocaust victims may be rightfully restored to their families.

Select Sources:

* About the Author: Bianca Acquaviva is a legal intern with Center for Art Law and a second year law student at the Benjamin N. Cardozo School of Law, where she serves as a staff editor on Cardozo’s Arts and Entertainment Law Journal. She may be reached via e-mail at acquaviv@law.cardozo.yu.edu.

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.

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