Lost for good?
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14 November 2013
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6 December 2013
HKFsi partner Daniel McClean examines the legal hurdles facing those trying to recover stolen Nazi art through the German courts
The announcement of the recovery of 1,400 works of stolen Nazi art by German authorities in Munich - the Gurlitt hoard - has brought the legal challenges of claiming stolen art to the forefront of the news.
As is well known, between1933 and 1945, the Nazis (Hitler and Goering particularly) amassed vast quantities of artworks from museums and the plunder of Jewish collections through theft or forced sale.
The latest discovery, which is estimated to value around €1bn and contains a Matisse painting, has generated much debate as to the law in claiming ownership of works of art.
Yet how likely is it that the victims, German museums and the heirs of dispossessed Jewish collectors, will be able to recover their artworks from the hoard?
Claimants face numerous potential evidential and legal obstacles. Whilst the evidential obstacles are clear: proving that one’s predecessors once owned artworks and that they were stolen or sold under duress can be difficult after long periods. This is particularly tough in cases where records of ownership may have been lost or destroyed – the legal obstacles are more difficult to fathom.
Under principles of international law, ownership claims involving artworks are generally brought in the courts of the state in which a defendant resides or where the property is situated at the time.
Therefore in respect to the Gurlitt hoard the likely scenario is that claims will need to be brought in the German courts and applying German law. This will make the case even more difficult for claimants.
For the German museums whose ‘degenerate artworks’ were seized there is the obstacle of The Forfeiture Act (1938), which was passed by the Nazis and ironically, still remains in force today. The Act enabled the Nazis to expropriate without compensation thousands of modernist paintings, sculptures and works on paper from German museums.
The Act was not repealed by the Allied forces after World War II (as they and the German authorities wished to avoid disputes) and it will need to be repealed if German museums are to now bring restitution claims.
For the heirs of Jewish collectors seeking the return of their families’ property there are also significant legal hurdles. The German Civil Code prohibits the transfer of stolen property that has not been acquired in ‘good faith’.
It would seem inconceivable that the Gurlitt hoard could fall under ‘good faith’ given the circumstances of it being acquired and the attempts of concealment. However, the hoard does fall under a special limitation defence. Due to the fact that Gurlitt had been in possession of the collection for more than 30 he could assert that all recovery claims are time barred. The 30-year rule astonishingly, seemingly applies in Germany even to bad faith possessors of stolen artworks in contrast to the laws of many other countries.
Whilst Gurlitt would be entitled to waive this defence should he wish – the indications from his public pronouncements to date are that he will choose to rely upon it.
The injustice caused by the 30-year rule has led the Bavarian minister of justice to propose that it should be scrapped and for this amendment to have retroactive effect, so that it can apply to the Gurlitt hoard.
Until this rule has been repealed do not expect any restitution claims in the German courts.
As unfair as it may seem to the victims who have long suffered from the acts of Nazis in World War II, the laws of ownership diverge significantly between jurisdictions and there may be a long fight ahead to be reunited with their stolen property.
Watch this space.