The procedure

The application for restitution was prompted by correspondence with the Origins Unknown Agency (hereafter referred to as ‘BHG’) which informed the applicants, in October 2004, that the works of art mentioned above may once have been owned by three of their relatives. In response, the applicants informed BHG that they remembered four of the paintings, after which they submitted an application for restitution to the State Secretary for OCW on 28 February 2006. The State Secretary submitted the application to the Restitutions Committee in a letter dated 28 March 2006. The Committee first of all found that the application for restitution concerns four paintings from the property of three owners, viz. Jesaia Hakker, Levie Hakker and Salomon Anholt. Given the specific family relationships and in line with the Minister’s request for a recommendation, the Committee has ruled that this application can be handled in a single recommendation. Below, a distinction will be made where necessary; otherwise, the former owners will be jointly referred to as Hakker/Anholt. In response to the request for recommendation, the Committee instituted a fact-finding investigation, the results of which were summarised in a draft report of 25 September 2006. This draft report was presented to the applicants, after which they responded to the contents of this report in a letter from their representative dated 4 December 2006. The draft report was also presented to the Minister for OCW, who informed the Committee that there was no additional information. The investigatory report, which is considered an integral part of this recommendation and to which the Committee refers as far as the facts of the case are concerned, was adopted in the Committee meeting of 12 March 2007. During the procedure before the Restitutions Committee, the applicants were represented by P.W.L. Russell, lawyer in Amsterdam. As regards the application for restitution of the painting Ice skating in a village by F. de Momper (NK 2256), special circumstances have arisen in the form of a contradictory claim from Mr AA. in the De Vries case (RC 1.50). The Committee will compare both claims to NK 2256 below (see under iii).

Special considerations

1. The applicants request the restitution of four seventeenth-century paintings from the Dutch National Art Collection, viz. Winter landscape with travellers crossing a bridge by J. de Momper II (NK 1821), Winter landscape with skaters by A. van Breen (NK 2178), Ice skating in a village by F. de Momper (NK 2256), and St. Paul and St. Barnabas at Lystra by W. de Poorter (NK 2786) from the former family property. According to the applicants, these works belonged to their grandfather Jesaia Hakker (NK 2256, NK 2786), their great-uncle Levie Hakker (NK 2178) and their father/uncle Salomon Anholt (NK1821). The applicants, who were both born in 1923 and are living in the United States of America, are cousins. Applicant R.S declared that she and her co-applicant R.J. A. (formerly: S.J. A.) are Jesaia Hakker’s only two grandchildren and, consequently, the sole heirs of Jesaia Hakker, Levie Hakker and Salomon Anholt. Applicant R.J. A. declared he is Salomon Anholt’s only child and one of Jesaia Hakker’s two grandchildren. In this context, the Committee has taken cognisance of a certificate of inheritance regarding Jesaia Hakker, drafted by notary-public J.D. Overberg in Amsterdam on 24 May 1947, in which certificate Judith Hakker, married to Jacques Lopes Cardozo, and Frederika Hakker, married to Salomon Anholt, are stated as the only children and – implicitly – the only heirs of Jesaia Hakker. Both applicants are Jesaia Hakker’s grandchildren and, as such, his heirs, at least for the statutory portion of the estate. Given the fact that at any rate one child, viz. applicant R.J. A., was born of the marriage between Frederika Hakker and Salomon Anholt, it is to be assumed that this child – barring the presence of any last will and testament that would disinherit him, in which disinheritance he would have acquiesced, but of which no proof has been found – is heir of Salomon Anholt and probably the sole heir. Although Levie Hakker could have disposed otherwise in a will, it can be considered highly likely, assuming that he had no descendants, that under the applicable statutory rules both applicants would be entitled to his estate by hereditary succession. This constitutes sufficient grounds for the Committee to issue a recommendation. In this case, the Committee conducted a provisional further search for possible heirs, with a view solely to establish the admissibility of the claim and to be able to issue a recommendation. It is not the Committee’s task to determine who is heir; this only becomes an issue upon implementation of the recommendation.
2. The investigatory report shows that, when the war broke out, the Jewish Hakker/Anholt family of diamond merchants were living at Apollolaan in Amsterdam and that they collected art. Head of the family was the applicants’ grandfather Jesaia Hakker (1882-1946), who ran the Gebroeders Hakker diamond trading firm in Amsterdam together with his brother Levie Hakker (1887-1960). His two sons-in-law, Jacques Lopes Cardozo and Salomon Anholt, also worked there. According to a statement by applicant R.M. S, her uncle Salomon Anholt and his wife and son (applicant) were travelling in France when the German army invaded the Netherlands in May 1940. The Anholt family did not return to the Netherlands and managed to escape to the United States. In the United States, Salomon Anholt released money to help bring members of his family left behind in the Netherlands to safety. This plan succeeded and in January 1942 Levie and Jesaia Hakker and Jacques Lopes Cardozo and their families managed to flee the country. When they fled the Netherlands, the occupying forces took away most of the family’s possessions. Post-war documentation that paintings owned by Salomon Anholt were confiscated by the “Sammelverwaltung feindlicher Hausgeräte”, while the paintings owned by Levie and Jesaia Hakker had ended up with Lippmann, Rosenthal Sarphatistraat. However, the investigation revealed that the Hakker/Anholt family may also have lost possession of works of art in other ways. After the war, the Hakker/Anholt family tried to regain possession of the missing works of art, but this only resulted in restitution of a small number of works. The considerations for each individual painting are given below.i) NK 1821 from the property of Salomon Anholt: 
3. It is a known fact that Winter landscape with travellers crossing a bridge by J. de Momper II (NK 1821) was owned by Salomon Anholt in 1936. However, the investigation of NK 1821 did not yield any concrete indications as to the ownership situation in the years between 1936 and 1944 and whether Salomon Anholt was still in possession of NK 1821 in 1940. In 1944, the work was in possession of art dealer Jan Dik jr., who sold it to auction house Dorotheum in Vienna that same year, after which it ended up in the collection of Hitler’s Führermuseum that was to be built in Linz. As stated above under 2, the works of art that were present in Salomon Anholt’s home in Amsterdam in 1940 when he left the country were confiscated by the Sammelverwaltung feindlicher Hausgeräte, a clearing house for stolen works of art. An inventory of these works of art no longer exists, so that it is uncertain whether NK 1821 was one of these stolen works of art. The Sammelverwaltung feindlicher Hausgeräte is known to have frequently brought looted Jewish possessions on the market, and art dealer Jan Dik jr. is known to have traded with the Germans on a large scale during the war, also in formerly Jewish art property.
4. The applicants, who were old enough to consciously experience the early part of the occupation, stated that the painting by De Momper was still in Salomon Anholt’s home when the Anholt family left the Netherlands. In her statement of 18 October 2005, applicant S. says: ‘My cousin R. A. and his parents Salomon and Frederika Anholt were travelling in France when the Germans invaded Holland in may 1940. At that moment the painting “Winter landscape with travellers crossing a bridge” by J. de Momper was still in their house.’ In a statement of 19 October 2005, R.A. says: ‘The painting “Winter landscape with travellers crossing a bridge” was hanging in my parents house when the war started in the Netherlands on May 10, 1940. I was not in the Netherlands at that time but I remember the painting was still in our home when I left the Netherlands with my parents and went travelling through France some weeks before the war started.’
5. In the light of the above, the Committee considers it highly likely that Winter landscape with travellers crossing a bridge by J. de Momper II (NK 1821) belonged to the Salomon Anholt’s stolen art property. It this context, the Committee would like to point out that there is no indication whatsoever that Anholt, a private art collector, had sold the painting in the period between 1936 and 1940.
6. As the case has not been previously settled, the Committee considers the current application for restitution of NK 1821 to the heirs of Salomon Anholt admissible.ii) NK 2178 from the property of Levie Hakker 
7. NK 2178 is a winter landscape with skaters by painter A. van Breen, previously attributed to E. van de Velde. The investigatory report shows that the looting bank of Lippman, Rosenthal & Co. (hereafter referred to as ‘Liro bank’) confiscated the painting from Levie Hakker’s property in 1941 or 1942. It is also known that ‘L. Hakker’ bought the work from art dealership P. de Boer in Amsterdam in 1937. The applicants recognised the painting by Van Breen from the photographs sent to them by BHG in 2004, and their statements confirm that this painting belonged to their great-uncle Levie Hakker, who still had it in his possession at the beginning of the war. The Committee finds this sufficient proof that NK 2178 was the property of Levie Hakker and lost involuntarily as a result of circumstances directly related to the Nazi regime.
8. After the war, the Hakker family contacted the Netherlands Art Property Foundation (hereafter referred to as ‘SNK’) about this work. The SNK was the institute that had since recovered the painting by Van Breen to the Netherlands. Despite attempts by the family members and a mediating attempt by art dealer P. de Boer to identify the recovered work (NK 2178) as the Hakkers’ property, the SNK failed to recognise at the time that NK 2178 was Levie Hakker’s painting surrendered to the Liro bank. The consideration of a previous application for restitution never took place.
9. Under these circumstances, the Committee is of the opinion that the conditions for returning NK 2178 to the heirs of Levie Hakker have been met.
   
   iii) NK 2786 and NK 2256 from the property of Jesaia Hakker
   
   – St. Paul and St. Barnabas at Lystra by W. de Poorter (NK 2786)
10. It is a known fact that the painting by De Poorter was confiscated from Jesaia Hakker’s property by the Liro bank at an unknown point in time prior to April 1942. The Liro bank then auctioned this painting off at the firm Mak van Waay in Amsterdam on 14 April 1942 for a sum of NLG 31,00, after which it ended up in the Kunsthistorisch Museum in Vienna. No details about the pre-war ownership situation are known, other than that NK 2786 was part of the trading stock of art dealership Wolff in Amsterdam in 1938. Applicant S. also stated that Jesaia Hakker had the painting by De Poorter in his possession when the war broke out. The Committee considers it sufficiently proven that NK 2786 came from the property of Jesaia Hakker and was lost involuntarily as a result of circumstances directly related to the Nazi regime.
11. It was not until 1951 that the Dutch authorities recovered the painting by De Poorter to the Netherlands, initially with the aim of using it for an exchange with works of art from the museum in Vienna. Upon its return in the Netherlands, however, the work was offered to a representative of the Hakker family, on condition that ‘the claim amounting to f. 3100 to liquidation of Verwaltung Sarphatistraat is assigned to my Bureau and, furthermore, an amount yet to be determined is paid to my Bureau for the expenses incurred for the recovery, administration, and stamp and registration costs’. On 11 December 1951, the representative of the Hakker family responded that they did not wish to receive the painting on these conditions. Applicant S. says the following about this:I know that fleeing to the US caused us all financial hardship. Both my grandparents had died by 1951, Mr. Anholt had a severe heart condition, and my father, who had been part of the Oranje Brigade and participated in the invasion from 1943 till well after the end of the war, had lost two brothers in Nazi concentration camps and was himself a prisoner in one of the early razzia’s in Amsterdam, did not feel able to deal with matters including the return of paintings. Most likely my uncle, L. Hakker, who had no children, and was close to seventy years of age, turned down the unacceptable and vague terms offered relative to the return of the painting. The painting simply had to be returned to the rightful owner being Jesaia Hakker.
12. The Committee is of the opinion that, under these circumstances, this previous settlement has no consequences for the admissibility of the applicants’ current claim. The ideas on financial conditions as imposed on the Hakker family at the time have since changed considerably and the Committee therefore considers this to be a new fact in the sense of restitution policy. The Committee refers to the second recommendation of the Ekkart Committee from 2001, which recommends that ‘the notion of new facts be given a broader interpretation than has been the usual policy so far and that the notion be extended to include (…) the results of changed (historic) views of justice and the consequences of the policy conducted at the time.’
13. The Committee considers the application for restitution of NK 2786 from the property of Jesaia Hakker to the heirs of Jesaia Hakker admissible.- Ice skating in a village by F. de Momper (NK 2256)
14. The painting by De Momper (NK 2256) for which the applicants in the case of Hakker/Anholt have filed an application for restitution is also subject to a claim by AA., who has applied for restitution of works of art from the property of his father, art dealer Marcus de Vries (RC 1.50). The Committee discusses both claims below.
15. The investigatory information gained on the work by De Momper (NK 2256) shows that the painting was purchased by a person by the name of ‘Hakker’ in 1936. In her letter of 18 October 2005, applicant S. stated that the painting was in the possession of her grandfather Jesaia Hakker: ‘I know that Jesaia Hakker still possessed the [painting] Ice-skating in a village by F. de Momper […] when the war started’. As there are no indications that the work by De Momper belonged to a different member of the Hakker family, the Committee believes that Jesaia Hakker can be considered the former owner of Ice skating in a village by F. de Momper. As there are no indications to the contrary, the Committee also considers it sufficiently plausible that he still had NK 2256 in his possession at the beginning of the occupation and that he lost it under circumstances that are not clear. The work may have been confiscated, but it is also possible that Jesaia Hakker sold the De Momper painting before he fled in January 1942. According to the Committee, both cases can be considered involuntary loss of possession as a result of circumstances directly related to the Nazi regime. In this context it refers to the Ekkart Committee’s third recommendation from 2001 on the basis of which sales of works of art by Jewish private persons in the Netherlands from 10 May 1940 onwards be treated as forced sales, unless there is express evidence to the contrary.
16. AA., applicant in the De Vries case (RC 1.50), bases his claim on statements from members of his family which indicate that Marcus de Vries, a Jewish art dealer from Amsterdam, purchased the De Momper painting from the Dutch art dealer Schretlen in 1941. The Committee observes that this statement is not inconsistent with the other investigation results and therefore assumes that Marcus de Vries purchased NK 2256 from art dealer Schretlen in 1941 and also lost it under circumstances that remain unclear. According to AA., NK 2256 was stolen from Marcus de Vries’ home in July 1942, after he was arrested and deported to extermination camp Auschwitz. This, too, could be considered involuntary loss.
17. The investigation has also shown that NK 2256 came in the possession of art dealer Jan Dik Jr. at an unknown point in time and in an unknown manner. In August 1944, Jan Dik Jr. sold the work for the Führermuseum that was to be built in Linz. Together with a painting by J. v.d. Capelle, Dik Jr. received a sum of NLG 155,000 for this transaction.
18. As regards these two contradictory claims, the Committee considers that current restitution policy gives priority to the first loss of possession. After all, in its recommendations of 2004, the Ekkart Committee determines that in the event of mutually conflicting claims the first loss of property should generally prevail but that the Restitutions Committee should be given room to consider the relative weight of such contradictory claims, depending on the specific circumstances. The Committee does not, however, see any specific circumstances in this case that would justify a deviation from the main rule and therefore concludes that the loss of possession by Jesaia Hakker is to be given priority.
19. As there has been no previous application for restitution, the Committee considers the claim by applicants S. and A. for restitution of NK 2256 to the heirs of Jesaia Hakker admissible and that the application by Mr AA. ( RC 1.50) is to be rejected in as far it concerns NK 2256.
20. The question that is finally to be discussed is whether restitution of NK 2256 is to be subject to a payment obligation with a view to any compensation received for any sale of the work. The Committee first of all finds that it is not certain that Jesaia Hakker sold the work by De Momper, and that no details of this sale are known, such as the amount of the sales price. According to current restitution policy, applicants should for this reason alone be given the benefit of the doubt. Perhaps superfluously the Committee adds that if Jesaia Hakker were to have sold the work in 1940 or 1941, the compensation received for it would no doubt have been used to help his family flee the Netherlands shortly afterward. In that case, there is no question of the owner having been able to freely dispose of the compensation in the sense of current policy.