It is clear that it will often be difficult to produce conclusive evidence of title and of the truth of the facts stated by the former owners concerning the loss of the property, among other things because in many cases the relative documentary evidence will have been lost due to the war situation. In assessing the evidence the benefit of the doubt should be given to the private person and not to the State. When it is proved that a claim is probably valid and there are no indications of the contrary, the claim should not meet with a blunt refusal. In this type of cases the judgment given by the Council for the Restoration of Property Rights in the Rebholtz judgment of 23 November 1953 may be taken as a precedent; one of the grounds taken in this judgment reads as follows: "Whereas with respect to this issue: in the first place the Council holds that the applicants have produced sufficient prima facie evidence that the painting at issue was the property of Mrs Rebholtz, while it is not possible to infer sufficient indications of the contrary from the exhibits submitted in evidence by the State after the oral hearing; furthermore ….".

Nevertheless, a more lenient interpretation of the concept of "proof" must leave fully intact one basic principle that was quite rightly applied by the SNK, namely that "there must be no mutually inconsistent claims submitted and there should be no reason to suppose that such claims will be entered in the future" (draft Guidelines SNK, article 11(b). This basic principle led to the requirement, which was also applied by the SNK, that the restitution of a work of art must be preceded by a careful examination whether there is sufficient certainty that the claim does in fact relate to the designated work of art. Based on the present research it may be added that it must also be examined, perhaps more thoroughly than was done by the SNK, whether the work of art in question may not have changed hands involuntarily a second time during the war. Cases of conflicting claims should be submitted to the regular courts or to arbitration.

Recommendation:

  • The Committee recommends that a work of art be restituted if the title thereto has been proved with a high degree of probability and there are no indications of the contrary.