1. The dispute

The painting Christ and the Samaritan Woman at the Well by Italian painter Bernardo Strozzi has been part of the collection of the Museum in Heino/Wijhe since 1964. The Museum claims that Dirk Hannema, the founder of the Museum, acquired the painting for his mother in 1933, then inherited it from her and finally donated it to the Stichting Hannema – de Stuers Fundatie in 1964 with the rest of his art collection.

The applicants state that Jewish entrepreneur Richard Semmel (1875-1950, hereafter also referred to as: Semmel) of Berlin owned the painting until November 1933.

They state that they are “the heirs of Richard Semmel” and claim restitution of the artwork on account of what they adduce was involuntarily lost possession due to circumstances directly related to the Nazi regime. The parties have submitted a joint request to the State Secretary for Education, Culture and Science (hereafter also referred to as: the State Secretary) to submit the applicants’ claim to the Committee for binding opinion.

3. The facts

In this procedure, the Committee assumes the following facts:

3.1. Richard Semmel was born in Zobten am Berge, located in Germany at the time but currently Sobótka in Poland, on 15 September 1875. He was a wealthy German entrepreneur and art collector of Jewish descent. When the Nazis assumed power in Germany in 1933, he owned the textile plant Arthur Samulon in Berlin and was living in a villa in this city with his wife, Clara Cäcilie Brück, where he had amassed a sizeable art collection. The couple did not have any children. The applicants stated that, while they were living in Berlin, their grandparents were close friends of the Semmels, and that this friendship dated back to the period during which the two families were still living in Zobten am Berge. On 27 June 2002, F.F., the applicants’ mother, gave evidence in the context of restoration of rights procedures regarding Semmel’s property in which she stated that, as a child, she often visited Semmel’s villa in Berlin.

3.2. Shortly after the Nazi’s coup d’etat in 1933, Semmel experienced the consequences of the anti-Jewish climate in Germany. According to the applicants, he came under such severe pressure from the Nazis that he fled the country in April 1933. In a post-war statement about his persecution during the Nazi regime, Semmel said the following about this:

‘Im Anschluß hieran will ich noch sagen, daß der Inhalt der Schreiben von Peck u. Gross nur zum kleine Teil zeigen, was ich durch den Beginn der Hitler-Zeit zu leiden hatte. Ich wurde buchstäblich Tag und Nacht mit Drohungen telefonisch und schriftlich bombardiert, unflätige Zettel kamen täglich in meine Wohnung, es war eine von der Nazipartei organisierte Hetze mit Hilfe der aufgepeitschten Angestellten.  Obgleich ich immer Demokrat war, hat man behauptet, ich konspiriere mit Severing u. Braun, weil Severing mal in meinem Kontor war und um Beisteuerung für einen Jugendbund bat, dessen Name mir entfallen ist. Man behauptete, ich hätte nicht nur mein Haus, auch Waren vom Geschäft ins Ausland verschoben. Ich war gerade geschäftlich in St. Gallen, als die Hitler-Katastrophe hereinbrach, sofort kam ich zurück, wurde schon auf dem Bahnhof bei der Ankunft gewarnt, in meine Wohnung zu gehen, so daß ich ein Zimmer in dem Hotel in der Fasanenstr. nahm. Wie richtig diese Maßnahme war, sollte sich bald zeigen, denn im Geschäft spielten sich die Vertrauensleute der Nazis als Herren auf und es kam so weit, daß ich, wie schon gesagt, im letzten Moment nach Holland entkam.’

According to the applicants, Semmel’s persecution at this early stage of the Nazi regime was because of his involvement in the Deutsche Demokratische Partei, but above all because he was a Jewish owner of a large textile plant in Berlin. The Nazi authorities’ attempts to control and aryanise the textile industry would have made Semmel, a leading figure in the industry, a key target. The applicants claimed that Semmel had incurred losses as a result of the economic crisis of the 1930s and that he had financial and other obligations going back to the period before the Nazi regime. However, according to the applicants, his business was sound enough to deal with this, had there been no anti-Jewish measures by the national socialists. The applicants state that the boycott of Jewish shops and business organised on 1 April 1933, the intervention in the company by the Treuhänder der Arbeit appointed by the Nazi authorities, and the financial measures taken by Deutsche Bank and Dresdner Bank under the influence of the Nazi regime ultimately led to Semmel losing his company and his capital.

After fleeing Germany in 1933, Semmel settled in the Netherlands. In 1939, he left the Netherlands again, to eventually settle in New York in 1941. Various sources suggest that Semmel had to pay Reichsfluchtsteuer when fleeing Germany. The applicants have stated that Semmel also paid the Nazi authorities Judenvermögensabgabe.

Semmel put up part of his art collection for auction by the firm Frederik Muller & Cie. in Amsterdam on 21 November 1933. One of the works of art put up for auction is the currently claimed painting. Documentation drawn up as part of a restoration of rights procedure by F.F. in Germany in the 1990s suggests that Semmel used the proceeds of the sales of these works of art to pay his costs of living, to continue to meet various financial obligations in Germany dating from before the Nazi regime, and in attempts to retain his capital in Germany. There is no further information on the time at which and way in which the works of art from the Semmel collection came to the Netherlands.

3.3. In her statement referred to above under 3.1, F.F. said that she emigrated to South-Africa in 1937, while her mother, Grete Gross-Eisenstädt (the applicants’ grandmother) fled to Cuba in 1939, and settled in New York two years later. In New York, Grete Gross-Eisenstädt renewed acquaintances with the Semmels, who were living there in destitute circumstances. Grete Gross-Eisenstädt is said to have cared for Semmel, who was in very poor health, on a daily basis after his wife’s death in 1945. F.F. stated that her mother was named sole heir as thanks for looking after him. The Committee’s file contains a certificate of inheritance dated 16 September 1997 as proof of this. Semmel died in New York on 2 December 1950. Grete Gross-Eisenstädt died in New York on 22 January 1958.

3.4. The painting in question was put up for auction on 17-20 November 1925 at the firm Frederik Muller & Cie. in Amsterdam (lot number and illustration 24). This auction concerned the auction catalogue ‘Collections Camillo Castiglioni de Vienne’. ‘Collection du comte de Spinola de Gênes’ is given as the provenance of this painting. Copies of the auction catalogue in the Netherlands Institute for Art History (RKD) include the handwritten annotations ‘2000’, ‘3700’ and ‘Douwes’ alongside the painting. ‘Douwes’ probably refers to art dealership Gebroeders Douwes of Amsterdam. In 1930, P. Wescher published an article on the paintings from the Semmel collection in the art magazine Pantheon. In this, the author notes that in the collection in question ‘Nur einige wenige Bilder, die aus der Castiglionisammlung stammen’ were of Italian origin, and mentions such paintings as a ‘Halbfigurendarstellung, Jesus und die Samariterin am Brunnen, von Bernardo Strozzi’. This is probably the currently claimed painting, especially considering the fact that Strozzi painted a number of paintings depicting Christ and the Samaritan woman at the well, and that, as far as is known, only the currently claimed painting belonged to the Castiglioni collection.

The painting was put up for auction on 21-24 November 1933 by the firm Frederik Muller & Cie. in Amsterdam. According to information from the RKD, the firm drafted two catalogues and two supplement catalogues for this auction. The work of art in question is mentioned in a catalogue of old paintings ‘provenant de diverses collections privées’ that were auctioned off on 21 November (lot number and illustration 60). The provenance name given is ‘Collection du comte de Spinola, Gênes / Collection Castiglioni, Vienne, vendue par notre maison en 1925’. The cover and title page of a copy of this catalogue from the RKD has the following hand-written annotation below ‘provenant de diverses collections privées’: ‘(including R. Semmel from Berlin)’. It is not known to which of the individual paintings mentioned in this catalogue the annotation refers. Photo documentation from the RKD and copies of the catalogue from the Amsterdam University Library state NLG 975 and ‘Hannema’ / ‘Hannema voor Boymans’ (for this name, see also 3.5) alongside the painting in question. An investigation by the Committee of the back of the currently claimed painting has not yielded any further provenance data.

3.5. The painting in question was acquired at the Frederik Muller & Cie. Auction of 21 November 1933 by Dirk Hannema, the then director of the Museum Boymans in Rotterdam, on behalf of his mother Lady Hermine Elise de Stuers. The Museum submitted a copy of the receipt for this acquisition that it had in its archive. Hannema’s auction house receipt is dated 2 February 1934. This receipt thanks Hannema for his payment of NLG 1078 ‘for our bill for the B. Strozzi painting purchased by you at our auction of 21 November this year’. After his mother died on 29 March 1940, Hannema inherited the currently claimed painting. On 12 November 1957, he set up the Stichting Hannema – de Stuers Fundatie, and then donated his entire art collection including the painting in question on 21 January 1964.

3.6. An investigation by the Committee did not yield any evidence that Semmel or the parties entitled to his inheritance tried to regain possession of the currently claimed painting after the war, or to obtain compensation for the loss of possession. The current painting is not mentioned in the archive of lawyer Benno J. Stokvis, who successively represented Semmel and Grete Gross-Eisenstädt in the Netherlands, which can be found in the Amsterdam City Archives. This archive does, however, refer to various other works of art from the Semmel collection, including objects that had been surrendered to the German looting organisation Lippmann, Rosenthal & Co. of Sarphatistraat in Amsterdam during the occupation of the Netherlands (1940-1945) and for which Semmel sought restoration of rights after the war.

5. The museum’s position

5.1. As regards the provenance of the painting, the Museum finds that there is a gap in the provenance history between 1930 and 1933. The Museum claims that it is very likely that Semmel owned this work in 1930, but that it cannot be precluded that he may have already sold the painting in question in the period between 1930 and 1933. In this regard, the Museum notes that it was unusual for collectors to sell works.

5.2. The Museum states that its founder, Dirk Hannema, purchased the painting for his mother and therefore it is closely linked with the Museum’s history. The Museum also states that Hannema bought in an intuitive manner and felt a personal connection with the works he collected. This resulted in a unique collection of approximately 3,500 objects with a number of international highlights. The Museum has 20 crucial works in its collection which are denoted as ‘diamonds’ which collectively provide an overview of 500 years of art history. The Museum also states that the current painting by Strozzi is an important piece in this selection. In the Museum, the painting is displayed as a companion piece to Dead Swan by 17^th-centruy Dutch painter Jan Baptist Weenix, and together they form the highlight of the Museum’s 17^th-century presentation. The Museum states that the above-mentioned two works depict two worlds: the Protestant Republic and the Reformation on the one hand and the Catholic Italy and the Counter-Reformation on the other. In this context, the Museum states that the two paintings belong together and that they represent the old part of the Museum. If the Museum were to lose the currently claimed painting, it would lose that which distinguishes it from other major Dutch 17^th-century art collections, namely its international dimension. The Museum also states that the painting is very popular among visitors.

5.3. The Museum has stated that it is not very clear for how much the painting was purchased in 1933. According to the Museum, Hannema probably paid in instalments, seeing as this was what he normally did for large purchases and seeing as the receipt (see 3.5) found in the Museum’s archive is dated a few months after the auction itself. The Museum also states that the Museum was not aware of the painting’s Semmel provenance.

5.4. And finally, the Museum has also stated that ever since it has been owned by the Hannema family, the painting has been restored a number of times.

7. Assessment of the dispute

7.1. The Committee has ascertained that the dispute between the applicants and the Museum has not already been definitively settled. In this case, the Committee has found no evidence of legal proceedings or a legal ruling in relation to the current dispute. Nor have the applicants at any point in the past explicitly relinquished their rights to the painting. As such, the Committee considers both parties’ cases admissible.

7.2. The applicants have no family ties with the original owner Semmel and argue that they are entitled to Richard Semmel’s estate because their grandmother, Grete Gross-Eisenstädt, was appointed Semmel’s sole heir in his will.
During the procedure it was discovered that, in the 1990s, a family member of the Semmel couple tried to challenge the claims of F.F., the applicants’ mother, to Semmel’s estate. In that light, the Committee asked the applicants further questions. The applicants provided adequate answers to these questions by submitting three certificates of inheritance to the estates of Richard Semmel (dated 16 September 1997), Grete Gross-Eisenstädt (dated 1 June 1993) and F.F. (dated 13 January 2011), respectively. The Committee concludes that the applicants are currently the only parties entitled to Richard Semmel’s estate.

7.3. As regards the matter of whether the painting Christ and the Samaritan Woman at the Well can be regarded as Semmel’s property, the Committee finds that it has been sufficiently shown that in all likelihood Semmel must have acquired this work between 1925 and 1930 and put it up for auction on 21 November 1933. For this conclusion, the Committee first and foremost refers to the catalogue of the auction of 21 November 1933 as described in 3.4, in which the work of art is included under lot number and illustration 60. While the title of the auction catalogue refers to multiple anonymous parties (‘provenant de diverses collections privées’), the annotation ‘incl. R. Semmel from Berlin’ on an annotated version of the catalogue and the provenance investigation conducted by the Committee (see below), suggest that Semmel at least put up a significant part of the works of art at this auction. Based on the following, the Committee also finds that the painting in question came from his collection. In the above-mentioned auction catalogue of 21 November 1933, the following is stated as provenance for the Strozzi painting: ‘Collection du comte de Spinola, Gênes / Collection Castiglioni, Vienne, vendue par notre maison en 1925’. This provenance reference ties in with the fact that the painting is mentioned in the catalogue ‘Collections Camillo Castiglioni de Vienne’, which was held at Frederik Muller & Cie. on 17-20 November 1925. As far as the Committee is concerned, the reference to the Castiglionisammlung in relation to the painting of ‘eine Halbfigurendarstellung, Jesus und die Samariterin am Brunnen, von Bernardo Strozzi’ in the 1930 Pantheon article on paintings in Semmel’s collection mentioned under 3.4, confirms that the currently claimed painting was owned by Semmel.

Further to the applicants’ claim that all 71 paintings at the auction of 21 November came from Semmel (see 4.2), the Committee finds the following. Further to this claim, the Committee performed a random check in the RKD of five paintings from this catalogue that are not part of the current claim. These are works of art whose quality would lead one to believe that further provenance details will be available. During this investigation, indications were found for three of the five works of art that they were part of the Semmel collection at one time or another. For the other two paintings, no such indications were found, but neither were indications found as to who owned them. Based on this, the Committee concludes that a significant number, yet not all, of the works certainly have Semmel provenance. This, then, does not demonstrate the correctness of the applicants’ claim. Nevertheless, the results of the investigation conducted into this may provide positive support for the degree of probability of ownership by Semmel, given that other sources suggest such probability.

Given the indications that the work did belong to Semmel’s collection in 1930 and in 1933, the Committee finds that the likelihood that Semmel would have sold the work in the interim period – which likelihood the Museum has alluded to – is negligible.

7.4. With regard to the nature of the loss of possession, the Committee considers the following. The investigation has shown that Semmel was persecuted at a very early stage of the Nazi regime. The applicants have argued that this had to do with Semmel’s involvement in the Deutsche Demokratische Partei, but particularly also the fact that he was a Jewish owner of a large textile plant in Berlin. The Committee considers it plausible that the Nazi authorities’ attempts to control and aryanise the textile industry made Semmel a key target and that the related pressure from the Nazi regime on Semmel himself and on his business eventually resulted in him losing his company and his capital. In the light of these complex facts, the Committee also considers it plausible that Semmel was forced to capitalise his art collection because he needed funds immediately. Semmel had to keep his business alive and support himself, his family and other dependents. The Committee therefore concludes that the sale of his paintings at the auction at Frederik Muller & Cie. in 1933, while at first sight prompted by economic factors, cannot be seen separately from Semmel’s persecution by the Nazi regime in Germany. The Committee therefore concludes that this sale must be considered to have been involuntary.

7.5. The Committee then comes to the Museum’s position. Under Dutch law, it has to be assumed that the Museum has owned the painting Christ and the Samaritan Woman at the Well since 1964, when the Museum’s founder Hannema donated the work to the Museum as part of his complete collection. Hannema purchased the artwork in 1933 at the auction in Amsterdam for the collection of his mother Hermine Elise de Stuers. The Committee has found no indication whatsoever that the Museum acted without due care upon acquiring the painting. As far as the Committee is concerned, the same applies to Hannema when he purchased the work in 1933. An acquisition at an auction in Amsterdam in November 1933, seven years before the Germans invaded the Netherlands, would not have raised any questions. The Museum was not aware of the Semmel provenance of this painting.

7.6. The Committee has now come to consider the parties’ interests in having the painting returned or retaining it. As regards this point, the Committee considers the following. The applicants’ interest in having the painting in question returned is a matter of ‘getting family history back’, and the applicants have shown the close friendship between their grandmother Grete Gross-Eisenstädt and the Semmel couple. Given the interwoven histories of persecution and flight of their own family and Semmel’s, the painting is connected to them. As Semmel’s heirs, the applicants deem it only just that they get back what belongs to them.

The Museum’s interest, on the other hand, is evident from the fact that the Strozzi painting has a prominent place in the collection and history of the Museum. It is an international highlight of the 17^th-century presentation in the Museum’s permanent exhibition, and has proven very popular among visitors. In the words of the director of the Museum, losing the painting would mean losing a major international piece and simultaneously losing that which distinguishes the Museum’s collection from other Dutch collections. Hannema purchased the painting for his mother at the auction of 21 November 1933, and as such the painting is closely tied to the (family) history of the Museum.

7.7. In considering this pursuant to the standards of reasonableness and fairness, the Committee concludes that, despite the involuntary nature of the loss of possession by Semmel in 1933, the interest the applicants have expressed in having the claimed painting returned does not outweigh the Museum’s ownership rights to this work.

The applicants are not related to Richard Semmel, never knew him and have no memories of the painting. Semmel’s undoubtedly major interest in the collection and the applicant’s interest in the work are two separate matters, given that, as far as the Committee is concerned, neither Semmel’s art collection nor this work embodied the special relationship between Semmel and the applicants’ grandmother Grete Gross-Eisenstädt. There is also the matter of Semmel’s relatively brief ownership of the work (acquired between 1925 and 1930 and auctioned off in 1933, see 3.4) and the fact that there is no evidence that Semmel or his heirs tried to retrieve the painting at an earlier stage.

On the other hand, the Committee concludes that the Museum has convincingly demonstrated that retaining the painting is of major importance for the Museum’s collection and to the Museum’s visitors. The painting has been part of the collection since the Museum was founded – and hence of the founder’s family collection – and so plays a central role in that collection.

Considering the above, the Committee concludes that the painting Christ and the Samaritan Woman at the Well does not have to be returned to the applicants.

7.8. As part of this binding opinion, the Committee recommends that the Museum highlight the history of the former owner Richard Semmel by some means, e.g. in a caption alongside the painting, in a publication or in an exhibition. The Committee leaves it up to the Museum how it wants to do this.