For one thing, Gurlitt seems to have no intention of parting with the works for moral reasons. In an interview published on Sunday, he said he would not “voluntarily give back anything.” And though the paintings are now in the hands of German authorities pending investigation, he told the German newsmagazine Der Spiegel, “They have to come back to me.”
Because the discovery was so enormous — comprising a total of 1,406 artworks, including pieces by Picasso, Renoir and Matisse — there is no clear legal precedent for this case. But experts in the field of art recovery say it’s not simply a matter of returning stolen property. “The public perception is that Hitler’s art dealer must have kept looted art for himself, and Germany shouldn’t be hiding this stuff and protecting the people who did,” says Charles Goldstein, a lawyer at the New Jersey–based firm Herrick, Feinstein LLP, who has worked on the recovery of Nazi-looted art. “But that would be the layman’s take on the whole thing,” he says by phone from New York City.
From a legal perspective, the German government has no right to confiscate these artworks from Gurlitt, who seems to have legally inherited them after his father’s death in 1956. Even if the works were stolen from Jewish collectors during the Holocaust, the statute of limitations for theft would long have passed in Germany and the current possessor would have every right to claim the works as his own, says Goldstein.
The legal doctrine that protects Gurlitt’s ownership is called “adverse possession,” which is widely applied around the world. Informally known as the “squatter’s right,” it holds that if you take someone’s property and openly use it for long enough, it can become yours by law. In the U.S. that doctrine broadly applies to real estate, but not to art; in Germany it applies to both, says Goldstein.
After the Gurlitt hoard came to light, some Jewish rights groups have started calling for that legal nuance to change. In a statement earlier this month, Ronald Lauder, the president of the World Jewish Congress, urged Germany to abolish the statute of limitations on the theft of art during the Holocaust, calling it the “principal obstacle to the recovery of Holocaust-looted art.”
In Gurlitt’s case, this statute would lead to a “rather bizarre situation,” says Jutta von Falkenhausen, a Berlin lawyer who works on art-recovery cases. Even if a Holocaust victim can prove that the Nazis looted his paintings and that Gurlitt’s father came to posses them “in bad faith,” the victim would still not be able to get those paintings back through a civil lawsuit. “After 30 years, the owner’s claim to restitution would be barred by the statute of limitations,” von Falkenhausen tells TIME. “That is current German law.”
To get around this, Holocaust survivors could push for criminal charges against Gurlitt based on the so-called Nuremberg principles, the internationally accepted guidelines for what constitutes a war crime. Under these principles, which emerged from the Nuremberg trials of Nazi leaders in 1945, mass looting in the context of genocide constitutes a crime against humanity.
“Such a crime has no statute of limitations, and anyone who participates in it is an accomplice,” says Agnes Peresztegi, the European director at the Commission for Art Recovery, an organization devoted to returning art looted during the Holocaust. By continuing to hide the looted works, a German court could thus see Gurlitt as an accomplice to Nazi war crimes, Peresztegi says. “It’s a long argument, but you can definitely make it.”
But von Falkenhausen, the lawyer in Berlin, says that argument would be a stretch. Although the elder Gurlitt is known to have helped Hitler sell confiscated art, he was himself the victim of Nazi persecution. His own Jewish heritage and his devotion to modernist art, which the Nazis condemned as “degenerate,” cost him his job as managing director of a museum in Hamburg in 1933. So it would be difficult to argue that the elder Gurlitt “really actively participated in a crime against humanity,” says von Falkenhausen. And it would be even more difficult to argue the same about his son.
For his part, the younger Gurlitt denied that his father was involved in Nazi looting. In his interview in Der Spiegel, he claimed that all the art he inherited from his father was purchased legally from German museums or art dealers, and never from private individuals. “It’s possible that my father may have been offered something privately, but he certainly didn’t accept it. He would have found that unsavory.” As for the claims that the artworks were stolen property, Gurlitt professed his innocence. “I’ve never committed a crime, and even if I had, it would fall under the statute of limitations. If I were guilty, they would put me in prison.”
The fact that Gurlitt remains free — having been spotted shopping this month at a grocery store in Munich — clearly suggests that German authorities have no criminal claims against him. At a press conference earlier this month, the local prosecutor handling the case, Reinhold Nemetz, said it was being treated as a case of alleged tax evasion — the accusation over which German authorities searched Gurlitt’s apartment last year.
Goldstein, the American lawyer, says the government was on shaky legal ground when it decided to impound all the artworks found in the Munich apartment. “They’re holding it on suspicion that it might be stolen property, and suspicion doesn’t work very long,” he says. In his interview with Der Spiegel, Gurlitt said he has not yet hired a lawyer to demand the works be returned to him. But if that changes, Goldstein says, “The best [the authorities] can say is that they’ll give it back as soon as they make sure he has paid his taxes.”
Eventually, though, they will likely be forced to return the paintings to Gurlitt, who will be free to invoke the statute of limitations to fend off any civil lawsuits from the paintings’ former owners. The more likely recourse for the victims of Nazi looting would then be some kind of negotiated settlement, and there is at least one precedent for Gurlitt taking such a deal. In 2011, he tried to sell a painting by Max Beckmann, The Lion Tamer, at an auction in Cologne, but was informed by the auction house that the work had been looted by the Nazis. According to the report in Der Spiegel, he then reached a settlement to sell the work for nearly a million dollars; he kept more than half of that money for himself while the rest went to the Jewish collector who once owned the painting.
Peresztegi, from the Commission for Art Recovery, says Gurlitt could take such a deal if he is interested in selling the works. With all the negative publicity around his stash of paintings, she says, they are “unsellable,” because no buyer would give him anywhere near the full value for a work suspected of being Nazi loot. Goldstein agrees: “People want to buy art, not stolen property. And they don’t want to buy a lawsuit.” So a negotiated settlement would allow Gurlitt to provide restitution to victims of Nazi theft while keeping some of the profits for himself.
But from his interview in Der Spiegel, it seems that money is not what he’s after. “Saying goodbye to my pictures was the most painful of all,” he said — more painful than the death of his mother, father and sister. “There is nothing I have loved more in my life than my pictures.” His only wish, he said, is to enjoy them until he dies, at which point, “they can do with them what they want.” That prospect may be the simplest one for any claims of ownership over the paintings found in his apartment, as Gurlitt turns 81 next month and suffers from serious heart trouble. But under German law, his death could also make things more complicated. “There seem to be a lot of nephews and nieces around,” says von Falkenhausen. And they would have every right to inherit Gurlitt’s hoard after he dies — and to keep it long after.