On January 13, 2017 a Frankfurt District Court confirmed the legal use of Germany's statute-of-limitation in a Holocaust art restitution case, thereby muting the need for an exacting provenance of the artwork in question. This article questions what this decision indicates for other restitution cases in Germany, specifically the Cornelius Gurlitt case. This piece also explores possible legal amendments to current laws according to Marc Masurovsky*, co-founder of the Holocaust Art Restitution Project.    

In February 2012, German police and customs officials executed a warrant to search Cornelius Gurlitt's apartment located in Munich. Inside the apartment, officials discovered 121 framed and 1,285 unframed artworks by artists such as Picasso, Matisse, Renoir and Chagall. It was a collection that could be valued at more than a billion dollars. Gurlitt was first placed on a customs watch list in 2010, appearing suspicious to the officials that boarded his train crossing the Lindau border. Gurlitt remained largely untraceable, investigators found no trace of a state pension, health insurance, tax and employment records, or bank accounts. Yet, his name raised some questions with investigators. Cornelius Gurlitt shared a name with Hildebrand Gurlitt, a known art curator under the Third Reich. 

The relation was confirmed in December 2011, when Gurlitt surfaced after selling one of Max Beckmann's masterpieces, The Lion Tamer. Gurlitt split the proceeds of the sale with the heirs of the Jewish art dealer, Alfred Flechtheim, who, as Gurlitt acknowledged, sold the piece under duress to his father in 1934. It was then that authorities acted on the search warrant issued a few months prior, on the grounds of suspected tax evasion and embezzlement, and discovered the trove of art. 

For the next three days, officials packaged and moved the artworks out of Gurlitt's apartment to a customs warehouse in Garching. The discovery was kept from the press as public knowledge of Gurlitt's collection would have sparked mass outcry and an inundation of claims to the art. However, the covert case was exposed on November 4, 2013 when the German newsweekly, Focus, published the story on their front page. The expected firestorm ensued as restitution activists demanded the publishing of the art pieces to allow Holocaust decedents to lay claim to the looted works. 

German restitution laws are, quite frankly, unsympathetic to those who seek reprisal of Nazi looted artworks. Germany did sign the 1998 Washington Conference Principles on Nazi-Confiscated Art, which states that museums and other public institutions should return such works to their rightful owners. However, compliance is voluntary and excludes cases in which private citizens hold the pieces – as is the case with Cornelius Gurlitt. Furthermore, Germany enforces a 30-year statute of limitations on making claims to stolen property, thereby calling into question the ability of heirs to lay claim to pieces from Gurlitt's collection. 

Since the discovery, efforts have been made to conduct and complete a provenance trace for the 1,406 artworks found in Gurlitt's apartment. However, despite the possibility of solid, traceable provenance, under German law, there is no mandate to return the artworks to their original owners, or heirs. In November, 2013, the newly appointed Bavarian Minister of Justice, Winifried Bausback, initiated legislation to revise the statute-of-limitation law such that heirs to looted art could reclaim their familial property. Currently, the law is not automatically invoked, the defendant must expressly invoke the limitation in order to protect against the claim of the owner. The proposed legislation would install a two-pronged defense that the owner can employ to proceed with the requisition, despite the law's invocation. The first requirement would be that the property must have been lost in a legal sense. The second requirement would mandate that only the true possessor can rely on the statute, therefore, a bad faith possessor would not be able to invoke the statute and legal action can proceed. Such legislation would obviously aid in the return of looted works to their correct owner. 

Yet, while the status of the Bavarian Minister's legislative initiative is unknown, the District Court in Frankfurt recently handed down a decision that could have consequences for the Gurlitt case specifically, and other restitution cases, more generally. In Frankfurt, an heir of Robert Graetz, a Jewish textile manufacturer and art collector, brought a claim against the current owner of a Max Pechstein painting, which he believes Robert was required to forcefully sell prior his family's deportation to Auschwitz. The defendant invoked the statute-of-limitation and challenged this alleged provenance. The Frankfurt court ruled that the expired 30-year limitation took precedent over the need for an exacting provenance, thus the Graetz estate has no claim to the painting. This decision, in essence, upholds Germany's statute-of-limitation in regards to artworks.   

When asked about this recent decision, Marc Masurovsky, the co-founder of the Holocaust Art Restitution Project (HARP), said that this decision reflects a "traditional legal defense against restitution claims." However, he stresses that this decision should "in no way" prevent the drafting of an exacting provenance in such cases. He believes that this decision highlights a need for the "passage of stricter laws governing provenance," such adjustments may include setting "sufficient standards whereby objects with no provenance should not be introduced into the marketplace, or offered to museums." Instead, Masurovsky believes that such objects should, ideally, not be "traded, sold, bought, displayed, loaned, borrowed or donated." Yet, he acknowledges that this is "not even remotely possible to enforce," since most objects in the art market fall into these categories and the demand for a full provenance would kill the industry. Therefore, Masurovsky believes that new standards should be developed that "clearly define an acceptable provenance," in other words, outline what minimal criteria should be met in order for an object to be lawfully moved in the market. Masurovsky further believes that Germany, because of its history, "carries an unusual responsibility, an ethical burden if you will, to 'do what is right'" and initiate changes to its current laws. Currently, the German courts allow the statute-of-limitations to function as a "technical defense" or "convenient tool" which he believes allows defendants to "debunk and kill a claimant's request for restitution," as seen in the Graetz case. However, for Marc, all countries "regardless of their historical relationship with the Nazi/Fascist years, the Holocaust and WWII, should enact laws that protect victims of cultural plunder, that raise the ethical bar in the art market."  

Regarding the Gurlitt case specifically, Masurovsky confirms that the artworks discovered in Gurlitt's apartment are in the custody of the German government, yet, the entire collection was transferred to the Kunstmuseum in Bern, Switzerland in accordance with Gurlitt's last will. Gurlitt died on May 6, 2014 in Munich. However,  the special task force “Schwabinger Kunstfund”  processing the trove had not yet finished its restitution-based provenance research and so a compromise was made between the Kunst and the executors of Gurlitt's will. According to Masurovsky, any object deemed to be "clean" would be instantly transferred to Bern, while objects requiring additional research would remain with the German Task Force as they ascertain whether any evidence of plunder exists and if there is the possibility of identifying the plundered owners. Theoretically, this process is set to conclude in 2020, given the large number of works. This compromise is meant to ensure that only "clean" artworks end up in the Kunst. 

In accordance with the compromise, the Kunstmuseum Bern now owns the "clean" works, a reality that worries HARP. Since it is now the responsibility of the museum to conduct a more exacting provenance for these items, Marc argues that "how well Bern will do this job is pure conjecture." The fear, according to my interviews with Masurovsky is that un-restituted objects are indeed part of the hoard in Bern's possession, and their location in Switzerland, a country that "leaves no legal room for consideration of restitution for looted objects," will prevent the initiation of claims to the artworks. 

In sum, it appears that German courts are bowing to precedent in regards to restitution cases, allowing the statute-of-limitation to be used as a defense. Only time will tell if such precedent will be followed or ignored, in cases such as the Gurlitt case, as families continue to lay claim to what they believe has been wrongfully taken from them. 

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Editor’s postscript:  The Kunstmuseum Bern obtained exclusive jurisdiction over the 238 (arguably more significant) artworks that were seized in Gurlitt’s house in Salzburg (Aigen), Austria in February 2014. As the Germin remit does not extend to property held in Austria, these artworks have their own separate inventory and are the exclusive province of Bern regarding the research into their past ownership. ARCA hopes that these works will undergo the same moral and ethical due diligence required of the Munich grouping.

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* In 2017 Marc Masurovsky will be teaching provenance research training as part of ARCA's Postgraduate Certificate Program in Art Crime and Cultural Heritage Protection, as well as a short course affiliated with ARCA's June conference. 

MM: I thought Germany would handle the provenance. That's how I interpret most press reports from this morning. 

If this is correct, the research is being conducted by individuals hired by the German government under the auspices of the Gurlitt Task Force. 

Frankly, no one is certain about how the research is being conducted. If it were left to us, you'd have to make three distinct piles: auction acquisitions in the Reich, works de-accessioned from German State museums, and works acquired in occupied territories. Those piles lead you to different archives.  The most complex are the French records for works acquired in German-occupied France.  The fundamental weakness behind this process is its opacity and the refusal of the Germans to expand the scope of the research and reach out to those who know a thing or two about these types of losses.  From what we hear, there are only a handful of individuals covering the French archives.

Last but not least, the most complex items to research are the works on paper and especially prints and lithographs.  Who knows where those came from?  To ascertain whether or not they were looted, one would have to go through all files representing losses suffered by victims in France.  The task is staggeringly tedious and complex.

The Kunstmuseum Bern announced today in Berlin that it will accept the art collection from Cornelius Gurlitt. Lynda Albertson, ARCA's CEO, live tweeted (Ergo Sum @sauterne) during the conference: 

The Kunstmuseum Bern accepts the Gurlitt collection. This was decided by the Board of Trustees of the Art Museum.... Regarding the Gurlitt collection Schäublin says their own research centre at the Kunstmuseum Bern must be considered....  Schäublin on Gurlitt Collection: "On the threshold of the art museum is not stolen art".... Kunstmuseum pledges to fully investigate artwork restitution claims fully.... Central point of the agreement to accept Gurlitt's art collection.... Works of art looted or suspicious do not tread Swiss soil.... Berlin, Munich and Kunstmuseum Bern have signed an agreement on the management of Gurlitt's estate.... Schäublin agreement in accepting Gurlitt collection: Objects with suspicion of being Nazi-looted art will initially remain in Germany....  Bavarian Minister of Justice on the joint Gurlitt accord: "The agreement with the Kunstmuseum Bern is an important step in German history."...  Gurlitt case: The German Minister of Justice says Switzerland is the "right place" for the disputed collection....  Gurlitt press release concludes. Many questions being raised by attendees on state of task force investigation and limbo nazi loot objects.

Here are also two Swiss news outlets that covered the conference (held in German):

http://www.srf.ch/news/panorama/live-aus-berlin-kunstmuseum-bern-nimmt-gurlitt-erbe-an

http://www.swissinfo.ch/eng/bern-museum-accepts-controversial-art-hoard/41129776

The artworks will remain in Germany while provenance experts study the collecting history of the paintings suspected to have been looted during the Nazi-era.

Here's the latest news from BBC on the Gurlitt art collection and the conference.

Here's a chronology from the German-English news source DW.

Here's a link to the Kunstmuseum's media release (in German).

Christopher Marinello, founder of Art Recovery

“Sources ... said it was likely that the board members [of the Kunstmuseum Bern] would gather in Switzerland on Saturday to decide on Mr Gurlitt’s gift. Stuart E. Eizenstadt ... now special adviser on Holocaust issues to Secretary of State John Kerry, said Thursday that it was his understanding that the museum would accept the offer.”

Image Credit www.worldjewishcongress.org

What should happen, and immediately after the acceptance of the inheritance, is the creation by the Kunstmuseum Bern of an independent, well-resourced international tribunal to determine the fate of each and every one of the many art works. The tribunal itself should consist of international jurists and others with a range of art-crime related skills, assisted by a staff of independent provenance researchers, cataloguers, art and general historians, claimant advocates, and dispute resolution specialists.

After identifying each art work, promulgating identifying and other characteristics widely, and proactively inviting and assisting claimant contact with the tribunal, the tribunal should resolve the fate of each art work by employing first a range of appropriate dispute resolution processes so as to reach an agreed, just and fair solution. Failing agreement, the tribunal should determine each individual case by giving due weight and recognition both to the relevant legal factors, but also and crucially to the moral aspects as well.

A transparent and just process as outlined would avoid heaping future injustice on the top of past wrongs. It would propel the Kunstmuseum Bern to the forefront of efforts to undo some of the great harms done 70 years ago, amid the chaos and confusion of war.

“ ... this presents a real opportunity for the museum to raise its international profile by doing the right thing with regard to the portion of the collection that was stolen by the Nazis.”

There is clearly more to come on this continuing story early next week.

Read the full New York Times article here.

Swiss museum officials do not dispute that the painting was looted — they acknowledge the fact on a plaque below it. But they say that the museum accepted it in good faith, and that Swiss law does not require restitution in such circumstances. So Mr. Monteagle and his relatives have taken to the soapbox. They are using the local Swiss system of popular referendums — which require the signatures of at least 10 percent of registered voters, 2,500 in this case — to bring the issue before elected officials, since the museum is owned by the town. And they are taking the early, tentative steps required to force the local legislature to put an issue to a vote; if the legislature were to approve, more signatures could be gathered for a communitywide vote.

by Catherine Sezgin, ARCA Blog Editor-in-Chief

he had inherited a collection from his father that predominantly consisted of so-called degenerate art from former German Reich property in public collections and museums. Cornelius Gurlitt was not aware that his collection also includes a few works that today can be qualified as looted art. After the rightful return of the entire collection by the Augsburg public prosecutors and the customs authorities, he is prepared to review and arrive at fair solutions together with the claimants for those works that are suspected of being looted art in such instances where qualified, documented, and justified claims for their return are asserted by heirs of Jewish of persecution and where morally compelling grounds exist. This voluntary, morally driven commitment on the part of Cornelius Gurlitt applies to only very few works in the collection from the “Schwabing art discovery,” according to current information at most 3% of the 1,280 confiscated works. 

Several German museums have already made offers to repurchase the works in the collection considered “degenerate” art. Cornelius Gurlitt is quite willing to carefully consider such offers for repurchase, providing they correspond with the market value of the works in question and the legal and factual situation. This approach is in keeping with the historic truth that Dr. Hildebrand Gurlitt legally acquired by way of purchase or trade from the German Reich the works that had been confiscated as “degenerate” art. Due to his father’s secured acquisition of title to the “degenerate” art, no alternatives other than repurchase through German museums come under consideration. Cornelius Gurlitt will gladly review appropriate repurchase offers made by German museums for “degenerate” art.

With the death of Cornelius Gurlitt end both the court-ordered care, as well as the investigation. Our sympathy goes to the family of the deceased.

Born in 1890, Ms. Gurlitt was the elder sister of Hildebrand Gurlitt, a dealer who bought art for Adolf Hitler’s planned “Führermuseum” and acquired the cache of more than 1,200 works found in his son’s apartment. Ms. Gurlitt’s work is virtually unknown — partly because much of it is thought to have been hidden for decades in her nephew’s home, alongside the Matisses, Monets and Munchs. Those works remain out of public reach for now. Yet some of Ms. Gurlitt’s melancholy, Expressionist images, many of them lithographs, did find their way into the possession of friends and family members.

German officials are scrambling to recover from their mishandling of a trove of artistic masterworks, including pieces reputedly looted from Jewish collectors, that had been hidden away since the Nazi era. ...  The controversy is not likely to diminish under an agreement announced last week that provides for the art to be returned to Mr. Gurlitt’s technical ownership while a panel of art specialists is given a year to settle the provenance of questionable pieces. This may be no easy task. ...  More claims are certain to be made as the full content of the trove is finally made public. The discovery of the trove has caused the German government to relax its 30-year statute of limitations on making claims to stolen property. ... If more than a year is needed for a full and fair study of the Munich trove, the German authorities should make that happen.

Representatives of the Bavarian State Ministry of Justice and of the Federal Government Commissioner for Culture and the Media have reached an agreement with Cornelius Gurlitt and Christoph Edel, the lawyer who has been appointed by the court to look after Mr. Gurlitt's affairs, on what to do with the artworks of the "Schwabing Art Trove."... Mr. Gurlitt stated his willingness to allow provenance research on a voluntary basis once the works are released from police custody. Mr. Gurlitt will allow the Task Force to continue researching the provenance of those works in the trove suspected of having been confiscated from their owners by the Nazis or of being works the Nazis considered "degenerate art". To this end, these artworks will remain in secure custody and on the website www.lostart.de. However, the Task Force aims to complete the main substance of its provenance research within a year."

 For background on the Gurlitt Art Collection and it's recent controversy, please see this post.

Salzburg portion of the Cornelius Gurlitt collection is larger than at first thought - 238 works of art have been secured - first work justifiably suspected of being Nazi-looted art about to be returned - attorney Dr. Hannes Hartung discharged 

Munich/Salzburg, March 26, 2014. The Salzburg portion of the collection of Cornelius Gurlitt is more extensive than at first thought. It encompasses 238 works of art, including 39 oil paintings. 

Among the 39 oil paintings from the Salzburg portion of the collection, seven are by landscape painter Louis Gurlitt, Cornelius Gurlitt's grandfather, who died as long ago as 1897. Other oil paintings and watercolors were painted by artists including Monet, Corot, Renoir, Manet, Courbet, Pissaro, Gauguin, Toulouse-Lautrec, Liebermann, Cézanne, and Nolde. However, by far the largest portion of the Salzburg collection consists of drawings (by artists including Picasso and Munch). The Salzburg collection, which has since been removed from Cornelius Gurlitt's Salzburg home, also includes silver vessels, ceramic bowls, and bronze, marble, and iron sculptures (including by Rodin). All works of art are being stored in a secure location and where required are currently being professionally processed and accurately documented by restorers. 

As a next step in dealing with the Salzburg portion of the Gurlitt collection, renowned international experts will be hired to conduct provenance research in order to conclusively establish the origin of the paintings. 

"If we should succeed with this task, we will continue to pursue this approach on our own initiative. One thing is certain: we will present the results of our research to the public so that they can be verified and any claimants can come forward," explains Christoph Edel, Cornelius Gurlitt's legal guardian. 

Additional inspections of the Salzburg house led to the discovery of additional works of art 

During the inspection of the house in Salzburg on February 10, 2014, with the approval of Cornelius Gurlitt, more than 60 works were located and brought to a secure location to prevent the possibility of burglary and theft at the unoccupied house. Most of these works are oil paintings, some of them quite large. In later visits to the house on February 24 and 28, 2014, above all for the purpose of removing bulky and worthless items from both levels, a number of artworks were found in a previously inaccessible portion of the old house and were subsequently removed. These, too, were brought to the secure warehouse where the other works are already being stored. 

First work from Schwabing portion of the collection about to be returned 

"If the works in Salzburg or Schwabing should be justifiably suspected of being Nazi-looted art, please give them back to their Jewish owners." This is what Cornelius Gurlitt instructed his court-appointed guardian, Christoph Edel, on one of his recent visits to Cornelius Gurlitt. "Let there be no doubt that we will carry out the instructions of our client. We are about to return a work from the Schwabing portion of the collection that is justifiably suspected of being looted art. Discussions with other claimants have been constructive as well, and we expect to be returning additional works in the coming weeks," said attorney Christoph Edel. "Moreover, we are currently working on a restitution policy based on the Washington principles that we will rely on in the future as a reasonable and uniform basis for negotiating with claimants. We will apply it just as consistently in cases that likely involve looted art as in those cases that are less clear or not clear at all," says Christoph Edel. "But we would like to reiterate once more that in our opinion only a small percentage of the Gurlitt collection is suspected of being looted art. At the same time, we appeal to museums and the public sector in Germany to follow our example." 

Dr. Hannes Hartung discharged Attorney Dr. Hannes Hartung was discharged from his duties as Gurlitt's representative with effect from today. To date, he was responsible for the art law aspects of the Gurlitt case and also conducted talks with claimants. Potential claimants are kindly asked to address Mr Edel's office for the time being.

Richard Ellis, retired Scotland Yard detective

An act allowing the heirs of Holocaust victims get more powerful leverage to claim their property, i.e. the works of art looted by the Nazis, is being debated by Bavarian legislature.The bill is named after Cornelius Gurliit - a Munich pensioner and owner of a spectacular collection of modernist paintings, drawings and watercolors. The Art Management Group and former Head of the Art and Antiques Union of Scotland Yard Richard Ellis and Gurlitt’s representative Stephan Holzinger explained to the Voice of Russia the legal aspects of the intricate "treasure hunt".

Professor Tido Park and Derek Setz, the attorneys defending Cornelius Gurlitt in his criminal lawsuit, filed an appeal with the Augsburg local court on February 14 this year against the search warrant and seizure order issued by the Augsburg local court on September 23, 2011 regarding the Schwabing part of the Gurlitt collection.

Another section on the Gurlitt Collection website, written by Munich lawyer Dr. Hannes Hartung, discusses the "Structure of the Collection of Dr. Hildebrant Gurlitt" from Gurlitt's role 'as one of the most important dealers in the German Reich' who 'acquired'

works for the Führermuseum planned by Hitler in Linz, Austria. In the same year, Gurlitt purchased a very large quantity of works that had formerly been Reich property from the German Reich and that as “degenerate” art had been confiscated from German museums. After the totalitarian “integration” process (Gleichschaltung), the German Reich saw no difference, both practically and legally, between national, regional, and local governments as we have today in our federal structure. 

The works originally came from the property of the German Reich and were legally acquired by Dr. Hildebrand Gurlitt by way of purchase or trade. The collection of Cornelius Gurlitt confiscated in Schwabing now includes about 380 of these artwork.

Hildebrand Gurlitt’s avid acquisition activities, among other things motivated by the desire to save art labeled as degenerate from its destruction, is documented in the so-called Fischer List (see http://www.vam.ac.uk/content/articles/e/entartete-kunst/). This list shows that Dr. Hildebrand Gurlitt legally acquired many important works from former German Reich property. In many instances the works would have been destroyed if Dr. Gurlitt had not acquired them at bargain prices. The art that had been defamed as “degenerate” can therefore be considered the art historical focus of the Gurlitt collection. 

Private property of the Gurlitt family 

A large part of the artworks confiscated by the public prosecutors also includes works from the private collection of the Gurlitt family. Cornelius Gurlitt’s family is a major dynasty of German art historians. Some 330 works were already part of the family’s private collection before 1933 and are meant to be returned to their rightful owner, Cornelius Gurlitt, in the near future. 

“Looted art 

When the Nazis persecuted what they considered “degenerate” art, their target was the art itself and not its owners. Only in the case of looted art were the cultural assets bought up for far less than they were worth (compulsory sale), dispossessed, or confiscated. Only very few works in the collection of Cornelius Gurlitt are suspected of being looted art. 

Another 590 works are the solely property of Cornelius Gurlitt. Currently (as of February 14, 2014) only four claimants assert that the Gurlitt collection contains works that may have once been appropriated from Jewish owners in the context of Nazi persecution. Stated differently, the 1,280 seized works that are the property of Cornelius Gurlitt have attracted only four claimants who demand the return of so-called looted art from Cornelius Gurlitt. Specifically, the claimants are the Rosenberg, Friedmann, Glaser, and Littmann heirs.