Art Investigation: 'Empathy Alone Doesn't Help Us Any Further'

Der Spiegel 25 November 2013

Interview by Dietmar Hipp and Conny Neumann

An image of a drawing by Max Liebermann that was found in the Munich art trove Zoom

An image of a drawing by Max Liebermann that was found in the Munich art trove

Bavarian Justice Minister Winfried Bausback has defended the controversial handling of the trove of possibly looted art in a Munich apartment. He has also called for a new law to lift the statute of limitations in such cases in the future.

Winfried Bausback, 48, is a law professor who has been a member of the Bavarian state government with the conservative Christian Social Union party since October.

SPIEGEL: Mr. Bausback, has the public prosecutor's office in the city of Augsburg consistently conducted itself in an absolutely correct manner in the case of Munich art collector Cornelius Gurlitt?

Bausback: The confiscation was based on a court order. As a minister, I am in no position to comment on this. But there is another level that concerns our responsibility to come to terms with the crimes committed under the Nazi reign of terror, and this is important for the image of Bavaria and Germany around the world. Too much time has elapsed on this level since the paintings were confiscated in 2012 without us making sufficient progress in clearing up the provenance of many of these works. There is no doubt that everyone involved on the federal and state level should have tackled this challenge with more urgency and resources right from the start.

SPIEGEL: Who bungled it?

Bausback: As a minister who has just taken this office, I don't want to point the finger at anyone

SPIEGEL: Gurlitt came to the attention of officials during a customs inspection in September 2010. When was the Justice Ministry informed?

Bausback: Extensive investigations preceded the search of Gurlitt's apartment and the confiscation. During the period before the case was made public by the media, there were five reports here in the ministry, two of which reached the minister's office, although apparently not the top political level of our department.

SPIEGEL: What criminal allegations constitute the basis for the confiscation?

Bausback: Tax-related allegations in connection with art objects. The pictures and other things were confiscated as evidence.

SPIEGEL: Actually it had to do with the sale of a single painting. Did that mean that the authorities had to go ahead and cart off the entire art trove that Gurlitt had in his apartment?

Bausback: To protect tax confidentiality and Mr. Gurlitt's rights -- and because this is an ongoing investigation -- I don't want to make any public statements about the details of this case. As a general rule, every defendant in a criminal case has recourse to legal remedies to redress confiscations.

SPIEGEL: Gurlitt thinks that he will get the pictures back without resorting to such measures. Are you glad that he still hasn't hired a lawyer?

Bausback: He has every right to decide whether he wants to be represented by an attorney and how he defends himself.

Bavarian Justice Minister Winfried Bausback: "I presume that Mr. Gurlitt's rights will be safeguarded during this process." Zoom
Bavarian Justice Minister Winfried Bausback: "I presume that Mr. Gurlitt's rights will be safeguarded during this process."
SPIEGEL: If Gurlitt had evaded paying taxes when he sold the painting in question, it would have fallen under the statute of limitations. The sale was 20 years ago. The charge of embezzlement, which the public prosecutor is apparently considering, would also be barred by the statute of limitations. If Gurlitt has misappropriated someone else's property, then this happened in 1967, when he inherited the paintings. Isn't it inadmissible to confiscate evidence for offenses that exceed the statute of limitations?

Bausback: It is up to the public prosecutor to evaluate the legal situation.

SPIEGEL: Then you unfortunately cannot counteract the impression that the state has conducted a fairly big robbery here.

Bausback: Confiscating evidence during an investigation conducted on the basis of a court order is not, in my opinion, a robbery. The public prosecutor's office does not intend to illegally acquire the paintings for itself or for others.

SPIEGEL: But is it fair to come to terms with German history at Gurlitt's expense? Anyone who is of the opinion that he or she owns these pictures should take up the matter with Gurlitt. A public prosecutor does not normally confiscate a painting just because someone says: "That actually belongs to me." And you can only assign your task force to deal with the matter because this art trove is now in the hands of the state.

Bausback: Confiscations take place according to the code of criminal procedure for objects that are important pieces of evidence. You are mixing the two levels.

SPIEGEL: Pictures that are "unequivocally" Gurlitt's property are now to be returned. Isn't this turning the presumption of innocence on its head?

Bausback: On the contrary, this protects his rights. Evidence that is no longer required shall always be returned to the last individual who had it in his or her possession. But if there is reason to suspect that pictures actually belong to someone else, it's a different story. If the public prosecutor's office is aware of substantiated claims by third parties to looted art, for instance, it may not return the pictures to the last individual who had them in his or her possession.

SPIEGEL: Legal experts who we have questioned express serious doubt about this.

Bausback: I presume that Mr. Gurlitt's rights will be safeguarded during this process. These are complex legal questions, and they require complex solutions. Of course it also has to do with other issues -- particularly with regard to the paintings, which could be qualified as looted art and "degenerate art" -- and these matters should be resolved in a dialogue.

SPIEGEL: So far, there has been no dialogue with Mr. Gurlitt.

Bausback: I think I have sent out a very clear signal, and I will continue to endeavor to do so. To start with, I think it would now be advisable for someone from the task force who is knowledgeable about art to speak with Mr. Gurlitt.

SPIEGEL: What if he refuses to return looted art -- or paintings that were confiscated according to laws enacted under Nazi Germany -- to the heirs of the former victims? Even if these individuals could still be deemed the owners of the artwork, their civil claims to recover their property expired after 30 years. They lapsed a long time ago.

Bausback: It would be difficult for me to accept that our response to the restitution claims of such owners is that their demands are subject to the statute of limitations. I have therefore instructed my ministry to draw up draft legislation that we soon intend to put forward for debate. This legislation would prevent someone who acquired something in bad faith -- in other words, who knew that the pictures or other objects that he or she had purchased or inherited were sold under pressure by their owners -- from invoking the limitation period for claims under civil law.

SPIEGEL: Would this also apply retroactively, in other words also be valid for this case?

Bausback: Yes. It is constitutionally somewhat problematic, but we believe that it can be justified.

SPIEGEL: Do you want to increase the pressure on Gurlitt to force him to give in sooner?

Bausback: No. I don't want pressure; I want dialogue. But I want to tackle a general problem that is of great concern to me. I would also like to clarify that there will be no horse trading along the lines of immunity from prosecution in return for renouncing ownership of the paintings. This has to do with dialogue and how we now deal with the pictures, not with the criminal case. I hope that Mr. Gurlitt will be open to this.

SPIEGEL: Perhaps you would have more luck with Gurlitt if you showed greater understanding for his position?

Bausback: As a fellow human being, I can sympathize to a certain extent with Mr. Gurlitt. But showing empathy alone doesn't help us any further.

SPIEGEL: But perhaps you have a message for Gurlitt?

Bausback: I would appreciate it if he could manage to contribute to a constructive solution. I hope in any case that he has the strength to deal with the situation in such a manner that he is also satisfied with the outcome.

Translated from the German by Paul Cohen
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