Four nineteenth-century landscapes
Advice concerning the application for restitution submitted by Mr M. in respect of four paintings from the NK collection (NK 2389, NK 2394, NK 2526 and NK 3072)
In the letter dated 16 December 2003, the State Secretary of Education, Culture and Science asked the Restitutions Committee for advice on the decision to be taken concerning the application of Mr M. of 29 September 2003 for restitution of the following four paintings from the Netherlands Art Property Collection (NK collection): B.C. Koekkoek Landscape with water mill and peasants driving cattle along a sandy road (NK 2389), A. Schelfhout Cottages on the edge of a wood (NK 2394), P.G. van Os Winter landscape with deer (NK 2526) and Anonymous or A. Govaerts Italian landscape in the evening (NK 3072).
Further to the application for restitution, the Committee initiated an investigation into the facts and the results were recorded in a report produced in February 2004 by the Origins Unknown Agency. This report was submitted to the applicant, who then responded in a letter dated 6 May 2004. In order to acquire greater insight into the aspects of the application for restitution that relate to family law and inheritance law, the Committee carried out a further investigation from February to April 2004. The results of this further investigation, in so far as they are relevant, have been incorporated into this advice.
a. The Committee has drawn up its opinion with due regard for the relevant (lines of) policy issued by the Ekkart Committee and the government.
b. The Committee asked itself whether it is acceptable that an opinion to be issued is influenced by its potential consequences for decisions in subsequent cases. The Committee resolved that such influence cannot be accepted, save in cases where special circumstances apply, since allowing such influence would be impossible to justify to the applicant concerned.
c. The Committee then asked itself how to deal with the circumstance that certain facts can no longer be ascertained, that certain information has been lost or has not been recovered, or that evidence can no longer be otherwise compiled. On this issue the Committee believes that, if the problems that have arisen can be attributed at least in part to the lapse of time, the associated risk should be borne by the government, save cases where exceptional circumstances apply.
d. Finally, the Committee believes that insights and circumstances which, according to generally accepted views, have evidently changed since the Second World War should be granted the status of nova (new facts).
- Mr M. (hereinafter referred to as ‘the applicant’) has applied for restitution of the above-mentioned paintings and in so doing has stated that these paintings belonged to his (biological) father V. who designated them as being for the applicant in a postcard sent in July 1942 to the applicant’s mother.
Because of his Jewish origin, V. was arrested in 1942 and shortly afterwards the Nazis killed him in the Auschwitz concentration camp. The text of the postcard dated 2 July 1942 that V. sent from Camp Westerbork is the basis for this application for restitution and was made available for examination during the investigation. This text reads as follows:
'Dear Anne, Remove D.Willinkplein 3-2, Schelfhout, Cottage with wood, Pieter G. van Os, Winter with deer, Jacob van Loo, Still life of flowers, Abram Govaerts, Italian Mountains, B.C. Koekkoek, Landscape with water mill and peasant cattle
Anne for [x.x.]. Kind regards, V.'
The applicant supports his claim as follows in his letter of 29 September 2003:
'At the end of August 2002 I contacted my biological mother (..) who was seriously ill at that time. On that occasion she confirmed something that I had already known for a long time, namely that V. was my natural father. (...). At the same time my mother gave me an envelope and a card, dated 2 July (?) 1942, which my father had sent to her from Westerbork (..). She also told me that the postcard had led to her and her brother going to my father’s former address in Amsterdam (D. Willinkplein 3-2) in around August of 1942 to collect the paintings indicated on the card, but that the house had already been looted. They reported the looting of the house at the time to the police in Sneek (..). Given that my father had written the words "Anne, for [x.x.]" on the postcard in question, thereby instructing my mother to collect the five paintings named on the card for me ([x.x.] is my birthday), I approached the Origins Unknown Agency a few months ago, after I had seen the exhibition in Leeuwarden about art stolen during the war, with the question as to whether it would still be possible to find the paintings in question. The Origins Unknown Agency (...) informed me that four of the five paintings concerned might be identical to paintings that are currently in the NK collection, namely paintings NK 2389, NK 2394, NK 2526 and NK 3072. During my visit I was shown photographs of these paintings, of which I was able to positively identify the first three (Koekkoek, Schelfhout and Van Os) as paintings that I saw in my father’s home at that time when I stayed with him during holidays at the end of the 1930s; as regards the fourth painting (Govaerts) I can only remember that my father had a similar painting hanging on the wall, but I cannot positively identify it.'
The Origins Unknown Agency carried out a historical (art historical) investigation in connection with the question that the Restitutions Committee first had to answer, namely whether the aforementioned four works of art from the NK collection can be identified as the paintings that disappeared from V.’s house in the summer of 1942. The investigation revealed that three of the paintings appeared on the Amsterdam art market after V.’s arrest, i.e. towards the end of 1942 and in the course of 1943; the investigation did not reveal whether the fourth painting – Italian landscape in the evening (NK 3072) – appeared on the Amsterdam art market before or after V.’s arrest in 1942. However, it is not possible to clearly answer the question as to where the paintings were before that time. Given this gap in the provenance history, it is possible that the NK paintings in question were in the possession of V. until 1942. Due to the infrequency of exhibitions of the work of the artists concerned, i.e. those artists named on V.’s postcard, the suggestion that the paintings were in the possession of V. is considered very probable in the case of NK 2389 (Koekkoek) and NK 2626 (Van Os) and certainly very possible in the case of NK 2394 (Schelfhout). As regards the painting Italian landscape in the evening (NK 3072; Anonymous, previously attributed to Govaerts), it is not possible to reach a judgement based on the documentation. During an interview with the applicant that was held as part of the investigation and on which a report is included in the report on the investigation, the applicant positively identified from the photographs shown to him the paintings by Koekkoek (NK 2389), Van Os (NK 2394) and Schelfhout (NK 2526) as being the paintings that were formerly owned by his father. In addition, the applicant knew particular details about these paintings, such as their dimensions. As regards NK 3072, Italian landscape in the evening, the applicant stated that a similar painting had hung on the wall at his father’s home, but he was not able to confirm that it had been this particular painting.
Based on the results of the investigation that are briefly reported above, the Committee considers that there is sufficient evidence to show that the paintings by Koekkoek (NK 2389), Schelfhout (NK 2394) and Van Os (NK 2526) are the paintings from V.’s collection described by V. in his postcard of 2 July 1942.
However, as regards Italian landscape in the evening (NK 3072), it is the Committee’s judgement that there is insufficient evidence to assume that it is highly likely to be the painting from V.’s collection that is described on the postcard as Italian mountains by Govaerts. Therefore the application for restitution of this painting must be rejected at this stage for lack of further evidence.
The Committee notes from, for example, a judgement of the District Court of Leeuwarden on 26 November 1931 that the applicant is the natural illegitimate child of V. In that judgement the District Court found that V. had a duty of maintenance towards the applicant, although that same judgement also indicates that V. disowned the applicant. One consequence of V. disowning the applicant is that, under Article 343 of the old Netherlands Civil Code, there is no civil relationship between the applicant and V. and the applicant is therefore not an heir of V.
As regards the assessment of the application for restitution of NK 2389, NK 2394 and NK 2526, the Committee considers the following to be important: given the text quoted above from the postcard of 2 July 1942 sent from Westerbork to the mother of the applicant who at that time was a minor, V.’s intention is clear, namely to give the paintings named on the card as a gift to the applicant.
However, it must be noted that this gift did not meet the requirements of Article 1719 of the Netherlands Civil Code that was valid at that time, namely that the gift be made by notarial deed. Given the special circumstances in which V. found himself at the time that he made the gift, namely that he had been interned in Camp Westerbork, it may be assumed that the informal manner in which V. attempted to accomplish the gift can be considered legally valid. The Committee bases this assumption in part on the fact that the report on the investigation and the letter quoted above from the applicant and dated 29 September 2003 both describe events that clearly indicate that V. wanted to make a contribution to the applicant.
Partly in order to determine whether this gift could be contested under inheritance law, the Committee initiated a further investigation. This investigation determined, as far as it is possible to do so, that V. did not leave behind any children other than the applicant. V.’s widow, Mrs Z., who V. married on 2 April 1941, can be considered V.’s sole heir given that V. did not draw up a will. Mrs Z., the Committee discovered, died childless on 19 May 1981 in A.A. (B.B.) and named Mr Y., who is currently resident in C.C., as her sole heir in her last will and testament, which was dated 17 October 1980. This shows in any case that there were no forced heirs to V.’s estate and, in connection with the gift to the applicant, that there can be no question of an infringement of forced shares.
Finally, the Committee would like to add the following. If the gift discussed above were not to be accepted under the civil law applicable at that time because of the lack of a notarial deed, the consequence would be that the claim on these paintings would fall to the aforementioned Mr Y.
The Committee does not find this consequence to be acceptable and rejects it on the basis of the letter from the State Secretary of Education, Culture and Science to the Speaker of the Lower House of the States General, dated 29 June 2001, in which the State Secretary included the following: "In its response to the Ekkart Committee’s recommendations, the Government has chosen to take a more policy-oriented approach, rather than a purely legal one, to questions relating to the restitution of property stolen during the Second World War".
- In view of the above the Committee considers the application for restitution of the paintings by Koekkoek (NK 2389), Schelfhout (NK 2394) and Van Os (NK 2526) to be sustainable.
The Restitutions Committee advises the State Secretary of Education, Culture and Science to grant the application for restitution of the three paintings Landscape with water mill and peasants driving cattle along a sandy road by B.C. Koekkoek (NK 2389), Cottages on the edge of a wood by A. Schelfhout (NK 2394) and Winter landscape with deer by P.G. van Os (NK 2526), and to reject the application for restitution of Italian landscape in the evening by an anonymous artist or A. Govaerts (NK 3072).
Adopted at the meeting on 18 May 2004.
J.M. Polak (Chairman)
B.J. Asscher (Vice Chairman)
E.J. van Straaten
H.M. Verrijn Stuart