Restitutions and Case News:
Dutch Restitutions Committee Developments 2018-2019
Over the course of 2018-2019 there were a series of developments in the practice of restitution in Holland which atttracted a great deal of international attention and criticism. These are set out below. Press articles which focused on Holland's restitution practice began with an op-ed in NRC Handelsblad of 8 December 2018 by Anne Webber and Wesley Fisher and numerous responses can be found in the lootedart.com news rchive. The first article can be found at https://www.lootedart.com/news.php?r=TE2MRV184021.and succeeding ones in December here and for January here.
In its latest Binding Opinion issued on 1 November 2018 on a claim opened in 2013, the Committee considered the case of a Kandinsky painting acquired at auction in October 1940 from the Lewenstein family by the Amsterdam City Council on behalf of the Stedelijk Museum.
While acknowledging the 1940 sale 'cannot be considered in isolation from the Nazi regime' and that it had not been established that the 'loss of possession of the work was voluntary and that the loss of possession cannot be linked to the Nazi regime', the Committee considered that the sale was also due to pre-existing financial difficulties 'well before the German invasion' [of May 1940].
The Committee wrote that at that time family members had already left Holland or knew they would be subject to persecution there. In the Committee’s view this provided 'a less powerful basis for restitution than a case in which there was theft or confiscation'.
As regards the museum's acquisition, the Committee stated that 'the mere fact that at a sale in October 1940 the City Council purchased a work that came from a Jewish owner does not mean that this transaction did not take place in good faith'.
Consequently the Committee concluded that and, as regards the outcome of the claim, 'the determining factor is therefore the weighing up of interests' . This refers to the 'balance of interests test' in which the interest of the two parties in the art work is weighed against each other. In this regard, the claimant wrote, ‘For me, as far as it matters, I think the story simply may not end with people, institutions, governments, or anyone, getting away with what they wrongfully did. This is about more than the painting itself. Returning the ownership of the painting would do justice to the memory of [the family] and to those who stand near them’.
The Committee stated that the Stedelijk museum 'has had the work in its possession since [1940]. Its contention that the work has important art historical value and is an essential link in the limited overview of Kandinsky’s work in the Museum’s collection, has a corresponding place in that collection, and is included in the permanent display has been insufficiently contested by the [claimant] and is in accordance with the Committee’s own opinion. As regards the interests of the [claimant], all that is known is that she is acting as heir [of the owner] without declaring any past emotional or other intense bond with the work.
Taking all this into account, the Committee concludes that the interest of the [claimant] in restitution does not outweigh the interest of the City Council in retaining the work.'
To read the full decision RC 3.141, click here.
To read the keynote speech given by Ambassador Ronald Lauder on Monday 26 November 2018 at the Berlin conference '20 Years of the Washington Principles: Roadmap to the Future', click here.
3. 27 November 2018 Transcript of Exchange on Dutch Restitution Policy at the Berlin Conference between Alfred Hammerstein, Stuart Eizenstat, Avraham Roet and James Smalhout
Alfred Hammerstein, Chair, Dutch Restitutions Committee:
The Committee follows the Washington Principles and will do that in the future. So, there is no reason to worry about that. And my third remark is that in the balance of interests, in all cases where we see a Nazi-related confiscation of art, the balance will always be in the favour of the claimant. I'd like to say that today because I heard some remarks otherwise. Thank you very much and thank you for organising this conference.
Ambassador Stuart Eizenstat, Adviser to US State Dept, Negotiator of Washington Principles:
This is to my Dutch colleague. I think that your country has been a model at the outset of following the Washington Principles. Your definitions, the breadth of your research, the comprehensive nature of what you've attempted to do, the transparency of your Commission. But I have to say that the recent, and it's very recent, introduction of the ‘balance of interests’ is totally contrary to the Washington Principles. It's not sufficient to say that where there's a confiscation the balance will always be in the favour. The whole point is that 'just and fair solutions' was not intended to focus on the interest of the museum in keeping collections. It was entirely to focus on the claimants' just solutions. Now, that doesn't mean when a case is brought that the claimant will always be able to prove sufficiently that there was a compensation due or a restitution due or that it was a forced sale. That's a factual situation. But as a matter of policy, respectfully, the balance that you've tried to make of the emotional attachment of the particular claimant to the importance of the museum keeping the painting is completely contrary to our whole intention and it's out of step with the tradition that the Dutch have had in the beginning of the whole process and really up until the last year or so. It's almost unfathomable where this came from, and I would really urge you in the strongest way to try to take a look at this and go back to where you were up to this point. What occasioned this new balance is very hard to say, but it was not the way in which you proceeded and I would simply urge you to continue in the process that you had done so forcefully and been such a leader.
Alfred Hammerstein:
We certainly hear the critics and take that seriously. I don't want to discuss in this forum and on this moment of the day a singular case. So, we disagree about that and the discussion will go further, but I emphasise that we follow the Washington Principles as good as possible.
Avraham Roet, first chair of Israel's Restitution Agency:
I would like to make just one remark for Mr Hammerstein. In the year 2000 we had negotiations about the restitution in Holland, and in these negotiations that were held between the Jewish community in Israel and in Holland and the Dutch government. At this stage, there is no communication between the Dutch Jewish communities and art recovery in Holland and I would like to ask Mr Hammerstein to receive our delegation together with some people of your ministry, to receive a delegation with us and to argue about all what is going on in respect of lost art and heirless art in Holland. Thank you.
James Smalhout, claimant
Thank you. My name is James Smalhout. I am the descendant of Dutch Holocaust victims and I would like to clarify some of the points that have just been made here. There has always been a problem with restitution in the Netherlands and it stems from a misguided legal philosophy which applied a doctrine of voluntary action to property losses as though somehow Jewish persecutees had any say in the matter and there are many cases, some involving property that my family lost, that were adjudicated against us for that very reason. So, this is a longstanding problem in the Netherlands, despite many perceptions to the contrary.
4. 24 May 2019: Dutch Restitutions Committee (DRC): Lierens Recommendation
In a recommendation dated 16 April 2019, the DRC recommended the restititution of two NK paintings to the heirs of Jacob Lierens, an Amsterdam businessman with a substantial art collection. The DRC found that the Lierens family suffered increasingly as a result of the anti-Jewish measures taken by the Nazi occupation from forces from March 1941. Their house and contents were seized in March 1942 and Lierens and his wife were interned in Westerbork in 1943. On their release they went into hiding. The two paintings were sold at auction in Amsterdam in October 1941.
In making their recommendation, the DRC referred to the Ekkart principle:
In the assessment of the nature of the loss of possession, significance is attributed to the Ekkart Committee’s third recommendation of 26 April 2001, which stipulates that a sale by a private Jewish individual in the Netherlands after 10 May 1940 must be considered to be involuntary, unless the facts expressly show otherwise. The Committee concludes that there are no indications of such facts. It is plausible that the sale of the paintings was connected to the measures taken by the occupying forces against Jewish members of the population and took place in order to save the couple's lives. Given these measures and the threat they represented, Lierens was not able to continue running his business and he was robbed of his income and possessions. He was consequently forced to have part of his collection converted into cash. The sale at the auction in 1941 of NK 2584 and NK 2711 by Lierens must therefore be considered as involuntary.
In assessing whether restitution should be conferred, taking into account the need to refer to the principles of 'reasonableness and fairness', the DRC wrote:
The Committee has an obligation to advise on the present restitution application on the basis of the yardsticks of reasonableness and fairness, and it must therefore take all the interests involved into account. These yardsticks also imply that very great weight is given to the way in which possession was lost and to the need to right wrongs committed during, and as a result of, the Nazi regime. The restitution application concerns two works returned to the Netherlands after the end of the Second World War that were taken into custody by the Dutch State with the express instruction to return them – if possible – to the rightful claimants or their heirs. As explained in 20, the Committee is convinced that Lierens lost possession of the paintings under duress resulting from the dire circumstances caused by the occupying forces. In the Committee's opinion, giving advice about claims to works in the NK collection on the basis of the yardsticks of reasonableness and fairness does not change the underlying principle that if, as in this case, the requirements of ownership and involuntariness are met, the recommendation has to be to restitute without further weighing up of interests.
To read the recommendation in full, click here.
