GURLITT – WHAT NOW?
REFLECTIONS OF A JURIST

By Henning Kahmann [first published in Kunstchronik, Monatszeitschrift für Kunstwissenschaft, Museumswesen und Denkmalpflege 2016, 328]

Translation by Charlotte Kreutzmüller under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License.

Cornelius Gurlitt and his father have been in the dock, figuratively speaking, since fall 2013. An article in [the German monthly] Focus of November 4, 2013, portrayed Cornelius Gurlitt as a compulsive hoarder and decrepit delinquent, and claimed that the history of every single artefact in the Gurlitts’ “Nazi treasure … involved suffering and injustice that could not be measured in numbers.” A prominent Berlin attorney suggested that Gurlitt should hand over the entire collection to the state in return for impunity. Since then, discussion of the Gurlitt case has been shaped by a combination of outrage and indecision. The Federal Council of Germany commissioned the Bundestag to review the possibility of amending the legislation, so far without result. Similarly, a Bavarian initiative to change the statute on limitations came to nothing.  The Regensburg Institute of Art History and its Faculty of Law held a symposium on the subject on May 22, 2015. Asking the right questions, the competent speakers helped form a more nuanced picture of the Gurlitt collection.

To open, art historian Christoph Zuschlag (Koblenz-Landau) explained the difference between often confused terms like “degenerate art” and “looted art”. He told attendees that among the 1280 artworks comprising the Cornelius Gurlitt collection, 310 could be ruled out as belonging to one of these categories because, for example, they are known to have belonged to the Gurlitts, a family of artists, collectors and art dealers, long before the Nazi era. 380 of the artworks, however, fell under the category “degenerate art”. They are primarily works that the Nazi Propaganda Ministry had seized from German public museums. During the Nazi era, Cornelius’ father, art dealer Hildebrand Gurlitt, had been responsible for the ‘liquidation’, or sale, of confiscated art (alongside Bernhard A. Böhmer, Karl Buchholz and Ferdinand Möller) and had acquired many such works from the German Reich. He subsequently sold most of them, but kept some.

The part of the collection which has been surrounded by the most misunderstandings consists of 590 works, which can be categorized as “possibly looted”. These works are listed in the data base www.lostart.de as found property. One speaks of looted art if the loss of a work was caused by Nazi persecution. The German term is “NS-Raubkunst”. It is far from clear that all of the 590 works fall into this category. With regard to many works there is not any concrete evidence for looting, let alone proof. It merely cannot be ruled out with any certainty that these works were looted. Concrete indications of looting exist in only a few cases.. Recently, the administrator of the Gurlitt estate provided restitution for two works that had been identified as looted art, a Matisse and a Liebermann. Gurlitt had bought the Matisse in 1953 and the Liebermann probably in 1950. In addition, the Gurlitt taskforce found that a drawing by Spitzweg, which Gurlitt had bought in 1940, fell under the category looted art. Likewise, a gouache by Max Beckmann, auctioned in 2011 by agreement between the former Jewish owners and Cornelius Gurlitt, was another apparent case of looted art.

THE LIMITS OF RESTITUTION LAW

Attorney at law Louis-Gabriel Rönsberg (Munich) talked about his work as an attorney in the field of looted art. He is representing a cousin of Cornelius Gurlitt’s who is contesting his will in favor of the art museum in Bern.

In general terms, injured parties rarely manage to assert claims in court for compensation or restitution in cases of looted art. However, out-of-court settlements can be achieved in Germany. This practice is based on the Washington Principles, as laid down at a conference in 1998 by representatives of 44 nations. These nations appealed to all those in possession of looted art to find “just and fair” solutions for such works. Representatives of the German government, federal states, and municipalities subsequently all made declarations on the implementation of this objective. In them, they commit to providing restitution for looted art from public museums. Similar commitments by private persons are rare, but one example is the Gurlitt case. In such cases, settlements can be achieved between the heirs of those who lost art assets during the Nazi era and the heirs of those who acquired them. The substance of such agreements depends on various factors, Rönsberg explained, especially the circumstances of the loss. On one end of the spectrum these entailed confiscation by the Gestapo prior to deportation, and on the other, the sale of salvaged assets in a foreign place of exile to cover living costs. Researching the history of an artwork is a very complex task, and gaps in knowledge will inevitably remain.

Meike Hoffmann is an art historian at Berlin’s Freie Universtität with many years’ experience of researching “degenerate art”, who was commissioned to investigate the provenance of the Gurlitt collection by the Augsburg public prosecutors in 2012. This was before a staff member at a Bavarian  authority ‘leaked’ news of the “Schwabing art trove” to Focus in fall 2013. At the Regensburg conference, Hoffmann described the relations between Hildebrand Gurlitt and the avant-garde artists and museum staff he dealt with, his work as a museum director in Zwickau and Hamburg, and how he was ousted from these posts for political and racial reasons (he was a “quarter Jew”, or a “second-degree Mischling”). Confined to working as an art dealer (for a time), in which capacity he was a welcome source of foreign exchange for Germany, Gurlitt acquired a few works from the Reich Propaganda Ministry after 1939 that he sold on to clients in Switzerland. Later, Gurlitt sold many works in Germany and abroad. After fall 2013, there was public speculation over whether Hildebrand Gurlitt had ever paid for the artworks he had taken over from the Propaganda Ministry. Hoffmann, however, had not found any evidence to corroborate the accusations of misappropriation. Several acquisitions were well documented; in these cases, Gurlitt had not taken the works into his possession on commission but as his own property. During the war, he bought artworks for many German museums, including the Special Commission (Sonderauftrag) Linz, i.e. Hitler’s personal collection) from 1943 onward. Most of these artworks came from Paris or the Netherlands. Around 80% of the works purchased in Paris were sold through the art dealer Theo Hermssen. Hoffmann did not comment on whether Gurlitt put his clients under duress, failed to settle accounts, or acquired works from persons directly under threat of Nazi persecution. To get an idea of the number of works that might be looted art, it would be interesting to know how many of them are the subject of restitution claims by families formerly persecuted by the Nazis. Hoffmann was not able to answer this question, but did not contradict the suggestion that the suspicion of looted art would only hold for a minority of the 590 works.

Johannes Wasmuth, head of the editorial office at Beck publishers in Munich, and an attorney active for several decades in the field of restitution, very forcefully made the point that regular civil law has been completely displaced by special restitution laws. He argued, moreover, that civil law is unsuitable for resolving such cases because of its high contingency rate. But claims cannot be asserted under restitution law either, as the applicable deadlines have passed. Partly for this reason, there was no point in calling for changes to the statute of limitations in civil law, as the state of Bavaria does. In a review of restitution law since 1946, Wasmuth stressed that although the state’s treatment of “degenerate art” during the Nazi period had constituted an injustice, the injured parties were not  victims of Nazi persecution (with the possible exception of some private lenders). He therefore speaks of “object-related” injustice, as opposed to “injustice caused by persecution”. He argued that these kinds of property transfers had not been reversed after the war due to the fact that the victims had not been Nazi persecutees. In Wasmuth’s view, practically all cases of art acquisition by Germans in occupied countries can be regarded as injustice, albeit ‘only’ object-related injustice, which typically did not involve Nazi persecution. The victims of such wrongful acquisition were in a sense the central banks of the occupied countries in question. They were forced to provide the German authorities with French francs etc. at especially favourable rates of exchange. This enabled German art dealers to pay the prices demanded by, for example, Parisian art dealers. The German central bank did not pay the foreign exchange difference back on any large scale. In this way, the central banks of occupied countries co-financed Germany’s art acquisition (as well as all other German imports). The Allies defined this as “looting”, hence “looted art”. Restitution law did not provide for restitution to the seller in cases of injustice between states, Wasmuth maintained, and proposed that such cases  have nothing to do with the German concept of Nazi looted art (“NS-Raubkunst”) or the Washington Principles (unless Nazi persecution was an additional cause of the sale). Wasmuth also commented on the legal situation in the Gurlitt case. He drew the conclusion that all the works were the property of Cornelius Gurlitt when they were confiscated by the public prosecutor in Augsburg, insofar as no unknown particularities applied.

As bad faith cannot be imputed to Gurlitt, the works can be regarded as having become his property by adverse possession, even if he had not acquired them through inheritance from his father. According to Wasmuth, there was never any reasonable suspicion of an actionable criminal offence – the starting point for any proceedings – in Gurlitt’s case.  An action on grounds of the embezzlement of foreign works, for example, would have been well passed the statute of limitations by 2012. In view of this, Wasmuth concluded that the entire proceedings, including the taskforce’s investigations (at least up to the point of the agreement with Gurlitt’s advisor), had been unlawful. He spoke of a “serious violation of human dignity” that Gurlitt, an old man who could no longer defend himself, had suffered. The public prosecutor had unlawfully taken his art collection, which was not only his property but also his purpose in life. From a legal and political point of view, Wasmuth called for the limitation periods under restitution law, which elapsed decades ago, to be lifted. He demanded this not only with respect to artworks but to all other assets held by the state, which were lost by their owners due to Nazi persecution. He did not go into the possible consequences for the many thousands of restitution proceedings concluded (both positively and negatively) in the last decades.

UNDISCOVERED SIMILAR CASES

Finally, Rolf Jessewitsch of Solingen art museum commented on the issue of whether a collection like Cornelius Gurlitt’s is the only one of its kind. He considered this to be implausible. The estates of art dealers active in the Nazi era, he believed, might still hide some surprises. One might justifiably speculate whether they kept the art they acquired at that time rather than sell it on. Indeed, several museum directors and Nazi functionaries are known to have extended their private art collections during the Nazi period. Jessewitsch also pointed out what might be considered the inverse situation: Only a few works from many reputed Jewish collections lost under the Nazis, such as the Hess and Westheim collections, have been found since the war. The whereabouts of most works from these collections is still unknown.

By discussing the legal situation in Regensburg, more concrete questions crystallized to put to Gurlitt in the dock. The state removed modern art from its collections and sold it: Did Hildebrand Gurlitt act reprehensibly when he bought such art and kept some of it, and sold some of it to clients in Germany and abroad? He did not, at least, act reprehensibly toward the perpetrator state, which in a sense was a victim of its own cultural policy and destroyed many artworks classified as “degenerate”. During the war, Hildebrand Gurlitt bought artworks from non-persecuted French and Dutch men. Did he act reprehensibly when he purchased the works at the agreed price because the German central bank did not pay back its foreign currency debts? He did not, at least, toward the buyer. The question of whether Gurlitt acted reprehensibly toward the occupied country, however, is more complicated.

Can it be claimed that the histories of the 586 works which cannot be classified as looted art with any certainty involved suffering and injustice? Not in blanket terms, in any case, because not enough is known about them. Only a few works – four at the time of the colloquium – can currently be presumed to be looted art. Over time, it will probably emerge that the acquisition of others also involved suffering and injustice. In these cases, Hildebrand Gurlitt presumably acted wrongly. But ultimately there are not enough grounds to formulate concrete charges here either.  The term “Nazi treasure” certainly carries inappropriately scandalous connotations where the provenance of the Gurlitt collection is concerned.

The art historians and jurists who came together in Regensburg counteracted such sensationalism with their unbiased questions and objective information. This was the conference’s main achievement. After all, the suggestion of scandal has to some extent worked to the detriment of families who are still waiting for fair compensation for the injustices they suffered. They depend upon the cooperation of those in possession of what might be looted art. But the insensitive handling of the Gurlitt case – especially by the prosecuting authorities and much of the media – has deterred even the most well-meaning owners of such art from going public. The controversy whipped up over the ownership of such art is perceived as part of a strategy to enforce compensation claims. Consequently, popular approval of such claims as legitimate threatens to dwindle. And public acceptance is crucial for asserting claims in accordance with the Washington Principles.