Recommendation

In a letter dated 27 January 2009, the Minister for Education, Culture and Science (hereafter referred to as ‘the Minister’) requested the Restitutions Committee to issue a recommendation regarding the decision concerning the application by M.H.-M. of N.Y.C. (hereafter referred to: as ‘the applicant’) dated 1 December 2008 for the restitution of the painting Landscape with classical temple by the artist Hubert Robert. This work is part of the Netherlands Art Property Collection (NK collection) and is administered by the Dutch government under inventory number NK 1432. It is currently on loan to the Dutch Embassy in Budapest, Hungary.

Considerations

1. The applicant is M.H.-M. of N.Y.C. The applicant states that she is entitled to the inheritance of her uncle Karl Mathiason (1899-1944), a Jewish businessman who lived in Germany in the 1930s. He is said to have lost possession of the currently claimed painting Landscape with classical temple by the artist Hubert Robert (NK 1432) as a result of confiscation by the occupying authorities in the Netherlands during the Second World War. The applicant is the only child of the couple Lilly Dobrin and Hermann Mathiason (later: Matson), who was Karl Mathiason’s brother. The couple divorced in 1944.The applicant declares that she is the only person entitled to the estate of her parents, Hermann Mathiason and Lilly Dobrin, and that of her uncle, Karl Mathiason. By way of proof, she sent the Committee copies of four legal inheritance documents.
2. The data relating to the provenance of the current NK 1432 before and during the war is as follows. On 6/7 March 1928, the current NK 1432 was offered for sale by the Rudolph Lepke auction house in Berlin. It has not been ascertained where and in whose possession the current NK 1432 was in the period from the auction until around 1943. The Committee has found indications that, in 1943, the current NK 1432 was in storage in the air-raid shelter of the Kröller-Müller Museum, among other places, from where it was transported to Germany by the Dienststelle Mühlmann of The Hague, a German organisation that purchased works of art for the Nazi regime. The sources show that, on 14 February 1945, E. Plietzsch of the Dienststelle Mühlmann collected the painting ‘HUBERT ROBERT. / “Italiaans landschap”. / Olieverf, doek, afm. 150 x 100 cm.’ [HUBERT ROBERT./ ‘Italian representation’ / Oil, canvas, dim. 150 x 100 cm’] from the said air-raid shelter, after which this painting, which was probably the current NK 1432, was sent to the Reichsbank in Würzburg, Germany, around 15 February 1945. The current NK 1432 was found there after the war and subsequently returned to the Netherlands.
3. According to the applicant, the currently claimed painting was owned by Karl Mathiason when war broke out. The applicant assumes that the current NK 1432 was the same object as the painting said to be in her family’s possession.
4. The following can be gathered from the applicant’s explanation and the other investigation data. In 1939, Karl Mathiason fled to the United States because of the anti-Jewish measures taken by the Nazi regime. His brother Hermann Mathiason and his wife Lilly Dobrin followed him in 1941, because it took longer for them to obtain their visas. In the meantime, their respective relocation properties had been exported from Germany with the intention of having them shipped via the Netherlands to their final destination. In a post-war notarial declaration, Dobrin stated that she and her husband had decided ‘unser Umzugsgut zusammen mit dem Umzugsgut des Herrn Karl Mathiason zur Absendung zu bringen, da wir befurchteten, dass es in Berlin von den Hitlerbehoerden beschlagnahmt wuerde’ [to dispatch our relocation property together with the relocation property of Mr Karl Mathiason, as we feared that it would be seized by the Hitler administration in Berlin].
5. Both Karl Mathiason’s and the Mathiason-Dobrins’ relocation property were then supposedly shipped under Karl Mathiason’s name from Germany to the Netherlands, from where the Holland Amerika Lijn (HAL) would transport them to the United States. Karl Mathiason’s household effects were probably actually sent on to their final destination, because Dobrin declared after the war that they had reached New York. According to Dobrin in her post-war statement, her and her husband’s property was kept in storage at the HAL under Karl Mathiason’s name, because they wanted to wait and see which country would grant them their visas first, England or the United States.
6. Around 1941, this relocation property stored at the HAL was confiscated by the occupying forces as Jewish property. It can be inferred from sources that the German clearing house for stolen works of art Sammelverwaltung feindlicher Hausgeräte (SFH) sold goods from this relocation property in 1942 and/or 1943. Although the confiscated property was addressed to ‘Herrn K. Mathiasson, 790 Riverside Drive, Apt. 8 N, New York, USA’ [Mr K. Mathiasson, 790 Riverside Drive, Apt. 8 N, New York, USA], Dobrin’s statements as referred to in considerations 4-5 indicate that it possibly also contained property of the Mathiason-Dobrin couple.
7. It is not known whether the confiscated painting belonged to Karl Mathiason or the Mathiason-Dobrins. When registering the confiscated relocation property, the German occupying forces probably took the fact that it was addressed to Karl Mathiason as their starting point. An SFH list dated 17 September 1942 and entitled ‘SAMMELVERWALTUNG FEINDLICHER HAUSGERAETE / DOSSIER 391 / EIGENTUEMER: K. MATHIASSON’ [Sammelverwaltung feindlicher Hausgeräte / dossier 391 / owner: K. Mathiasson] (hereafter referred to as ‘SFH list’) refers to ‘aus einem feindlichen Inventar aussortierter Kunstgegenstaende’[artworks taken from an enemy inventory], including the object ‘6117 1 Gemaelde, H. Robert, “Italienische Darstellung” f. 450.-’ [6117 1 painting, H. Robert, ‘Italian Representation’ NLG 450’]. The files from de Abteilung Feindvermögen from 1942 and 1944 seem to indicate that the SFH sold the painting in question to the Dienststelle Mühlmann in October/November 1942. In a letter dated 30 November 1942, the Dienststelle Mühlmann informed another German body that it had purchased the painting ‘Italienische Darstellung’ by H. Robert.
8. It cannot be conclusively determined from the documentation consulted that the painting referred to, ‘Italienische Darstellung’ by H. Robert, corresponds with the current NK 1432. ‘Italianate’ depictions are common in the oeuvre of artist H. Robert, and the applicant has been unable to provide a photograph of the painting or any other information that would facilitate identification.An indication that it definitely is the same work of art is the fact that the Dienststelle Mühlmann is mentioned as provenance in sources on both the current NK 1432 and the ‘K. Mathiasson’ painting. This is clear from the combined investigatory information under considerations 2 and 7: it is a known fact that the Dienststelle Mühlmann bought the painting ‘Italienische Darstellung’ by H. Robert in 1942, while it is also known that a painting by H. Robert that can be assumed to be the current NK 1432 was collected by the Dienststelle Mühlmann from storage in the Rijksmuseum Kröller-Müller in 1945.
9. Furthermore, while the Committee has found several declarations in post-war internal declaration forms of the Netherlands Art Property Foundation (SNK) that (could) relate to Italianate depictions by the artist H. Robert, the form on the current NK 1432 is the only one to mention Dienststelle Mühlmann as one of the provenance names. This is a further indication that the painting that the SFH in 1942 considered to be property of ‘K. Mathiasson’ and that was sold to the Dienststelle Mühlmann is indeed the current NK 1432.Taking all information on the identification into account, the Committee deems it highly probable that the current NK 1432 corresponds with the painting by the artist H. Robert that was confiscated in the Netherlands around 1941.
10. Based on the regulations on private art property, restitution is possible if the original owner of the claimed object lost possession involuntarily as a result of circumstances directly related to the Nazi regime. According to the Ekkart Committee’s eighth recommendation of 2001, the title to art objects has to be proved with a high degree of probability, and there can be no indications to the contrary.
11. Regarding the ownership rights, the Committee considers that the investigation did not conclusively ascertain whether the confiscated painting was owned by Karl Mathiason or Hermann Mathiason and his wife. The SFH list gives ‘K. Mathiasson’ as the owner and the Committee assumes that this was because the confiscated goods had been addressed to him. However, after the war Dobrin declared (as referred to in consideration 5) that the confiscated property contained effects that belonged to her and her husband and that Karl Mathiason had already received his property. In her explanation, the applicant assumes that the claimed work of art was owned by Karl Mathiason. At first glance, this assumption does not tally with Dobrin’s statements. It is also worth noting that the inventory list of her and her husband’s relocation property compiled by Dobrin in the war and ratified before a civil-law notary after the war apparently did not mention the painting claimed by the applicant. The descriptions used on the inventory list can, however, no longer be verified, and Dobrin later stated that her list possibly did not include all effects.
12. Given this state of affairs, the Committee deems it highly probable that at the time of loss of possession the current NK 1432 was owned by Karl Mathiason or Hermann Mathiason and Lilly Dobrin. In this case, no further decision is required, as it was ascertained in consideration 1 that the applicant is the sole heir to the estate of her parents Hermann Mathiason and Lilly Dobrin, as well as that of her uncle, Karl Mathiason. The Committee believes the finding that ownership rested with Karl Mathiason or Hermann Mathiason and Lilly Dobrin to be sufficient to issue a positive recommendation on the application for restitution of the current NK 1432.
13. As to the nature of the loss of possession, the Committee considers that this was a case of confiscation by order of the occupying forces around 1941 and, therefore, involuntary loss of possession due to circumstances directly related to the Nazi regime.
14. In 1964, the Wiedergutmachungskammer (Chamber of Reparation) of the Landgericht Berlin (District Court) granted the Mathiason family damages for the confiscated relocation property. The Committee is of the opinion that these damages do not stand in the way of the applicant’s admissibility in the claim to the work of art from the Dutch national collection, as it did not involve a waiver of rights and the State of the Netherlands was not a party to it.
15. The Committee thus deems all grounds for restitution to have been met.
    Regarding a possible payment obligation in the event of restitution, the Committee considers that the payment of damages referred to in 14 is a matter between the Mathiason heirs and the German state. In this context, the Committee is of the opinion that restitution of NK 1432 without repayment does not constitute unjust enrichment.