Published on 25/02/2010
The City of Ghent rejects heirs’ request to restitute Kokoschka painting
On 12 January 2009 the Ghent Museum of Fine Arts received a request from German law firm Cramer von Clausbruch, Steinmeier & Cramer for the restitution of the painting ‘Portrait of Ludwig Adler’ (1913) by Oskar Kokoschka. The law firm was acting on behalf of the descendants of the heirs of Victor von Klemperer (1876-1943), a prominent Jewish banker and art collector who had sold the painting in 1937-1938. The Ghent Museum had bought the ‘Portrait of Ludwig Adler’ in 1987 from the Marlborough Fine Art gallery in London.
The descendants claimed that the von Klemperer family had fallen victim to the Nazi persecution in Germany, and that the sale of the painting should be considered a “forced sale” on the basis of the Allied restitution and reparation laws in force in post-war Germany and the Washington Conference Principles on Nazi-Confiscated Art (1998).
Ad hoc commission to advise the Ghent museum on its position vis-à-vis the claimants
To assess the restitution claim, the City council of Ghent – governing authority of the Ghent Museum – appointed an independent ad hoc advisory commission under the chairmanship of Mr. L. Buysse.(1) According to its terms of reference, the Commission was to study the claim in an in-depth and objective manner and on the basis of its findings issue a recommendation to the City council. The Commission was composed of experts from the Flemish and federal authorities, the museum community and the art trade, counting among its members legal experts and (art-)historians.
Not a “forced sale”
Research revealed that Victor von Klemperer had sold the ‘Portrait of Ludwig Adler’ between September 1937 and April 1938 to art collector Herbert E. Kurz. The Commission found that although the sale indisputably took place at a time where German Jews were increasingly oppressed and excluded, von Klemperer had not been forced or pressured to sell the painting. The Commission took into account, amongst other factors, that he had sold it while still enjoying his pension allowance and other earnings; that the family had not lacked scope for manoeuvre in managing their possessions, having transferred among other items another Kokoschka painting to Switzerland. The Commission also gave weight to a testimony by von Klemperer’s son in 1996 revealing that the reason for selling the painting was that his mother did not like it. For that matter, von Klemperer had already looked for potential buyers prior to the opening of the retrospective Kokoschka exhibition in Vienna in May 1937. As to the buyer Herbert E. Kurz, the Commission pointed out that he was not involved in Nazi art looting and that he had been a passionate collector of expressionist art already in the 1920s. Finally, it was noted that after the war, the family von Klemperer had not claimed or reported the painting with the authorities, although they had done so with regard to their china and antiquarian book collections that had been confiscated by the Nazis after November 1938. The family had not approached Herbert E. Kurz after the war either.
After these factual conclusions, the Commission proceeded with assessing the restitution claim from the viewpoint of binding Belgian and international law, as well as from the viewpoint of non-binding moral principles.
Firstly, the question of the Ghent Museum’s ownership was examined. As to which law is applicable to this international matter, art. 87 of the Belgian Private International Law Code (2004) states that the acquisition of the rights in rem in respect of an asset is governed by the law of the State on the territory of which the asset is located when the actions or facts that are invoked as basis of the acquisition occur. As the painting was exhibited in the Ghent Museum upon its acquisition by the latter, Belgian law was applicable. Art. 2279 Belgian Civil Code grants direct ownership title to the purchaser who acted in good faith upon the acquisition. The Commission found that the Ghent Museum had acted with due care when purchasing the painting, pointing at the Museum’s efforts to obtain the full provenance of the painting from the Marlborough gallery and even to inquire the Folkwang museum about its reason for de-accessioning the work in 1976. The latter had not revealed anything suspicious as to the ownership of the painting. The list of successive owners provided by the Marlborough gallery was detailed and free from gaps.
The Commission also paid attention to the Allied restitution and reparation laws, as these were expressly referred to in the restitution request. The Allied laws were in force in the different occupational zones in post-war Germany until 1949. Herbert E. Kurz having fled to the American zone in 1948 presumably with the painting in his possession, the Commission looked into Military Government law no. 59. This law conferred a rebuttable presumption of a “sale under duress” on every transfer of Jewish property from 1933 onwards, enabling a retroactive nullification of the sale. However, the restitution claim had to be filed with the Allied authorities by the end of 1948. The Commission found that the family had not filed such a claim, and therefore the Allied legislation could not be invoked.
The Commission concluded that in the light of binding law, the City of Ghent had been the indisputable owner of the ‘Portrait of Ludwig Adler’ since 1987, hence the claim for restitution in ownership should fail.
The Commission also examined the claim by reference to the Washington Conference Principles of Nazi-Confiscated Art (3 December 1998), to which Belgium is a State party, to assess whether financial compensation or restitution of the painting would be proper on grounds of equity. The Washington Principles are non-binding principles assisting member States in resolving issues relating to Nazi-confiscated art, encouraging them to achieve a “just and fair solution”. The Terezin Declaration on Holocaust Era Assets and Related Issues (30 June 2009) takes on the Washington Principles and clarifies that they do not only apply to “confiscations” but also to forced sales and sales under duress. Among the Commission’s findings nothing indicated that von Klemperer had been forced to sell the ‘Portrait of Ludwig Adler’, leading the Commission to conclude that there was no identifiable ground to restitute the painting or compensate it in whole or in part on grounds of equity.
In conclusion, the advisory Commission recommended to the City of Ghent that the latter did not have any restitution obligation nor any obligation, in the framework of the Washington or Terezin Declarations, to offer the von Klemperer descendants any compensation. On 16 June 2011 the City Council of Ghent decided collegially to follow the Commission’s recommendation, and communicated its decision to the von Klemperer descendants. To date the latter have remained silent.
See also our newsflash of 25 February 2010.
For more information or advice on the topics raised in this newsflash, please contact Lucie Lambrecht (email: email@example.com) at Lambrecht law Office (tel: +32 2 513 91 86)).
(1) Mr Buysse also chaired the Commission for the indemnification for the Belgian Jewish community’s assets, which were plundered, surrendered or abandoned during the war 1940-1945, which was set up in 2002 and delivered its final report on 4 February 2008 thereby ending its official mandate.