France Rejects Poland’s Bad Faith Efforts to Extradite Art Dealer Alexander Khochinsky

Art Law Report 21 October 2019
By Nicholas O'Donnell

My client Alexander Khochinsky is safely back in the United States after an eight-month ordeal spurred by Poland’s retaliation for his assertion of restitution for his mother’s property lost in Poland during the Holocaust. The rejection this month by the French courts of Poland’s request to extradite my client for prosecution in the courts of Poland—courts called out as lacking judicial independence by the European Court of Justice—was the second failed attempt by Poland to abuse the international extradition system, and came directly on the heels of being held in default in Khochinsky’s lawsuit here in the United States for damages arising out of Poland’s bad-faith extradition effort that ended in 2015. Khochinsky is represented in France by Jean-Jacques Neuer.

On October 2019, the Paris Court of Appeal rejected the European Arrest Warrant issued by Poland against the Russian and American Gallerist Alexander Khochinsky. Khochinsky was accused by the Polish Government of holding a painting looted by the Nazis at the Poznan museum during WWII. Khochinsky had indicated to the Polish government that he was ready to discuss the possible transfer of the painting to Poland subject to the condition that Poland compensate him for the spoliation of his mother’s (a Holocaust survivor) land, which was expropriated by the communists after the war. He made a commitment to allocate the money he would have received to the carving of a statue dedicated to the Polish Righteous who helped the Jews during the war. Poland reacted by issuing an international arrest warrant. Russia first has refused the extradition, the United States refused it in 2015 after Khochinsky challenged it in the Southern District of New York.

Khochinsky was arrested in February this year at the Paris Charles de Gaulle Airport as he was boarding for New York. Khochinsky had traveled to Europe in February 2019 as he had several times since defeating the 2015 extradition. The difference this time was that we had then recently made clear to Poland that its failure to respond to our lawsuit would result in seeking default relief (which we since have). Khochinsky was required to stay in France until his legal challenge to extradition was completed.

The principle of the European Arrest Warrant is almost automatic, the legal system of each country trusting its counterpart within the European Community. Thus, it is extremely rare that a decision refusing the extradition is rendered. Jean-Jacques Neuer, Khochinsky’s French lawyer, pointed out that there was a political exception, considering that the underlying question was the indemnification/restitution of the Jewish properties by Poland and that beneath a common crime case it was in fact a political cause. In refusing extradition, the court cited a 2018 judgment by the European Court of Justice that calls into question the independence of the Polish judicial authorities, and the socio-political context in Poland that would deny the party concerned his right to a fair trial, if handed over to the requesting authorities. The decision refusing the extradition sets a precedent as it states that Europe before being constructed on proceedings is primarily based on moral values.

Khochinsky’s mother, Maria Ioelevna Knoll Khochinskaya, was a Polish Jew born in 1922. In 1939, pursuant to the secret protocol of the Molotov-Ribbentrop Pact between Germany and the USSR, Poland divided between those two forces. The boundary between the German and Soviet occupiers cut through the Polish city of Przemysl, where Maria’s family lived (in the Soviet-occupied part). On Friday, June 20, 1941, Maria traveled to Lviv (then in the USSR, now in Ukraine) to be with her mother for the Sabbath. She stayed with her mother through Saturday night. The next day — June 22, 1941 — Germany invaded the USSR. That month, Nazis executed forty-five Jews by firing squad. More than 10,000 Jews were deported to Belzec the next year.

By the time the Red Army re-took Przemysl in 1944, more than ninety percent of the city’s Polish Jewish community had been murdered.  All of Maria’s family members who remained in Przemysl were killed by the Nazis. Maria’s visit to her mother bought her enough time to flee, first to Kiev and eventually to Tashkent in Uzbekistan. She met a Soviet soldier (Jakov Solomonovich Khochinsky) whom she later married; Khochinsky is their son.

In the 1990s, Khochinsky returned to Przemysl and discovered that his mother’s home had been destroyed. Maria (who died in 1989) was never compensated for the property that was seized as her family was murdered. Poland has never made any meaningful effort to make restitution to the surviving Jews or to Holocaust victims’ families, and it has become even more intransigent in recent years; in 2018, Poland considered legislation that would prevent most Holocaust victims and their heirs from obtaining restitution. Fifty-nine U.S. Senators expressed their alarm in a bipartisan letter to Prime Minister Mateusz Morawiecki. Also last year, Poland criminalized speech regarding Polish responsibility for the Holocaust, and the U.S. Secretary of State reported that “Enactment of this law adversely affects freedom of speech and academic inquiry.”

In 2010, Khochinsky learned that a painting that had been reported missing from Poland was similar to a painting (Girl with Dove) that he had inherited from his father in 1991. Poland alleges that, during World War II, the painting was removed from a Polish museum for protection and then looted by Nazis. If the two paintings are the same (which is unclear), Khochinsky did not know that it had been taken from Poland or previously belonged to a museum. Jakov had told Khochinsky that he had acquired the painting after World War II. Jakov himself never entered Germany or Poland during or right after the war.

Under normal circumstances, Poland does not institute criminal proceedings against people who, in good faith, inherit or otherwise receive art that was once allegedly stolen. On January 25, 2013, however, a Polish Court accused Khochinsky of purchasing the painting unlawfully, and of knowing that the painting had supposedly been obtained illegally at the time he acquired it. (This was obviously false. Khochinsky never purchased the painting, and he had no way of knowing its supposed provenance at the time of his father’s death in 1991, when he inherited it.)  On February 25, 2015, the United States Attorney’s office filed a petition for a certificate of extraditability in the United States District Court for the Southern District of New York, “. . . for and on behalf of the Government of Poland.”

On August 3, 2015, the District Court found that the U.S. had failed to establish probable cause, which is a precondition of extraditability. In re Extradition of Khochinsky, 116 F. Supp. 3d 412, 422  (S.D.N.Y. 2015). The Court noted that there was no evidence that Khochinsky knew that the painting was stolen:

the only evidence in the record tended to corroborate Khochinsky’s claim that he inherited Girl with Dove from his father and only learned that Poland was seeking it in 2010. Both of Khochinsky’s nephews testified that they recalled seeing the Painting hanging in their grandparents’ apartment. Moreover, the undisputed evidence showed that Khochinsky openly displayed the Painting in his gallery in Moscow for many years and listed it in published catalogs. . . . This behavior is inconsistent with someone who knows his property is sought by a foreign sovereign.

On June 27, 2018, we filed suit in federal court in Washington, DC on behalf of Khochinsky for the destruction of his livelihood that flowed from this persecution. Poland was amenable to suit here in the United States, we have argued, because it waived its sovereign immunity pursuant to the Foreign Sovereign Immunities Act of 1976 (FSIA) and its so-called counterclaim exception,, 28 U.S.C. § 1607, as well as the implied waiver provision of 28 U.S.C. § 1605(a). Poland has since appeared through counsel to dispute this, the resolution of that question is pending.
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