Estate of Anne Frank
In a letter dated 12 July 2005, the Minister for Education, Culture and Science (‘the minister’) asked the Restitutions Committee to issue a recommendation regarding the application by Mr B.E. and the Anne Frank Fund, both of Basel (Switzerland), for the restitution of two letters, three photographs, a French textbook and a necklace from the estate of Anne Frank that are held by the Netherlands Institute for War Documentation (NIOD) in Amsterdam. The minister requested the Committee to first investigate whether the said objects could be considered items of cultural value within the meaning of the Decree establishing the Advisory Committee on the Assessment of Restitution Applications.
This application for recommendation is based on a claim by Mr B.E. for the restitution of the items in question, as put forward during a meeting between the NIOD and the Anne Frank Fund on 19 April 2005. In a letter dated 19 May 2005, the NIOD informed the minister of this claim. When the National Institute for War Documentation (RIOD) became part of the Royal Netherlands Academy of Arts and Sciences, continuing under the name NIOD, it was determined that the minister be directly responsible for matters relating to Anne Frank’s estate. In a letter dated 18 August 2005, the Restitutions Committee first of all responded as follows to the minister’s preliminary question:
In reply to this, I am able to report that the Committee is of the opinion that the items requested for restitution by Mr B.E. can, without a doubt, be considered items of cultural value and as such, there are no objections to investigating Mr B.E.’s claim. However, a detailed study is essential in order to provide a recommendation as to whether the items in question should be restored in accordance with our Decree. The Committee will undertake this investigation and, as stipulated in Article 2, paragraph 1 of the Restitutions Committee’s Decree, will address the question of whether this case involves an involuntary loss of possession due to circumstances directly related to the Nazi regime.
The Committee subsequently instituted a fact-finding investigation. During this investigation, it took note of the file the minister included in her letter of 12 July 2005. The Committee then got in touch with Mr B.E. in Switzerland, the NIOD in Amsterdam, and Mr G.S. in Germany. The results of the investigation were set down in a draft report on 6 March 2005, which was submitted to Mr B.E. and the NIOD for comment. After receipt of the comments by Mr N.D.J. Barnouw of the NIOD in a letter dated 20 March 2006, and those of Mr B.E. in a letter dated 30 March 2006, the draft report was modified and adopted at a Committee meeting on 24 April 2006. The contents of this report are considered an integral part of this recommendation.
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 in cases where exceptional circumstances apply.
d) 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 new facts.
e) Involuntary loss of possession is also understood to mean sale without the art dealer’s consent by ‘Verwalters’ [Nazi-appointed caretakers who took over management of firms owned by Jews] or other custodians not appointed by the owner of items from the old trading stock under their custodianship, in so far as the original owner or his heirs did not receive all the profits of the transaction, or in so far as the owner did not expressly waive his rights after the war.
Mr B.E., a cousin of Anne Frank and director of the Anne Frank Fund in Switzerland, requests the restitution of the following items:
1. A necklace that belonged to Anne Frank (Mazel Tow) with the engraving 12.6.1929 Frankfurt am Main.
2. A textbook entitled Franse Spraakkunst that belonged to Anne Frank, with an adhesive paper.
3. A letter Anne Frank wrote her grandmother, dated 18 December 1936 and written in German.
4. A letter Anne Frank wrote her grandmother, dated 9 May 1937 and written in Dutch, with the salutation Lieve Oma. The accompanying envelope is addressed to Mevr. A. Frakstern.
5. A photograph of Mrs Edith Frank-Holländer with Anne.
6. A photograph of Anne and Margot Frank with a third, unidentified, person.
7. A photograph of the interior of the Achterhuis.
Mr B.E. requests restitution of the above items in his capacity as a private person and as heir of Alice Frank, B.E.’s and Anne Frank’s grandmother and the addressee of the letters referred to above in 3 and 4. Moreover, Mr B.E. requests restitution on behalf of the Anne Frank Fund, in his capacity as director of the Fund. Mr B.E. wrote to the Committee on 14 December 2005, stating as one of the reasons for his claim the following:
Wir meinen, sowohl juristisch als archivistisch unsere Ansprüche geltend machen zu können und verweisen dabei auch auf die Holländische Archivgesetzgebung bezüglich des Umgangs durch Staatsorgane mit Privatarchiven, welche Ihnen nicht rechtens zustehen.
As specified by the minister in her letter to the Committee on 12 July 2005, the seven items and documents claimed above were presented as a gift to the NIOD, and hence became government property.
The following facts, in summary, came to light during the investigation of the acquisition of ownership by the Dutch government and the Frank family’s loss of possession:
The items at issue were acquired by Mr G.S., the then-editor of the German weekly Stern, from an unknown Dutchman on 21 April 1981. This unknown Dutchman, to whom S. had promised secrecy, informed him in writing that he had received the items as a gift from Otto Frank’s personal secretary. A letter from S. to the RIOD dated 20 April 1981 revealed that S. and Stern intended to donate the acquired items to the RIOD, an intention that was put into effect. The documents and objects were handed over to the RIOD on 7 May 1981.
According to a statement by Mr B.E., the objects and documents were taken from Otto Frank’s home in Switzerland, shortly before or after his death in 1980. As to the manner in which this loss of possession came about, Mr B.E. declared that:
Niemals im Leben hätte er persönliche Andenken und Unterlagen seiner Familie einem 'Freund' verschenkt, insbesondere nicht jene seiner jüngsten Tochter an seine geliebte Mutter. [...] Otto Frank hat die bei seinem Ableben in seiner Wohnung befindlichen Dokumente testamentarisch dem Anne Frank Fonds vermacht. Da die "Stern" illegal übergebenen Briefe von Anne Frank an meine Familie gerichtet waren, erhebe auch ich als erbberechtigter, letzter direkter Nachkomme der Familie E.-Frank Besitzanspruch.
A letter from Mr Barnouw, an employee of the RIOD, of 1 May 1981 to Mr S. attests that the institute also had its doubts regarding the lawfulness of this acquisition by an anonymous Dutchman:
Obwohl ich die Dokumente grundsätzlich für echt halte, [..] , rufen sie doch einige Problemen auf dem Plan. Von einem “Privatsekretär” des Herrn Otto Frank ist uns nämlich bislang nie etwas bekannt geworden. [...] Auch ist es fast unglaublich, dass Herr Frank, der alle Erinnerungen an seine Tochter so sorgfältig aufbewahrte, Sache wie diese aus der Hand gegeben hätte.
Mr B.E. had been aware of the fact that the objects were in the custody of NIOD since the publication of the photographs and the report on the transfer in Stern on 21 May 1981. At the time, he sent a letter to the editor in response to the article in Stern, in which he made no mention of the question of ownership. Mr B.E. stated in a letter to the Committee dated 14 December 2005 that the significance of these documents and items was not apprehended until the Anne Frank Fund started work on a scientific archive project in 2003. Various hitherto unknown documents were found in the course of this project. During the inventory of the Fund’s archive, to be completed in 2006, Mr Barnouw of the NIOD drew up a list of the Stern objects and documents. The Anne Frank Fund in Basel meanwhile regarded them as lacunae in the archive.
In connection with the ownership situation, the Committee took cognisance of an extract from the will of Otto Heinrich Frank, father and sole heir of Anne Frank, dated 15 December 1978, as well as additional information provided by Dr Hans Eckert, a lawyer in Basel and executor of this will, on 11 November 1980. The available documents reveal that Otto Frank appointed the Anne Frank Fund in Basel as his sole heir, and that pursuant to Article 9 of the will, the NIOD was appointed owner of all handwritten notes and Anne Frank’s photo album, as well as a number of objects related to her that were in the custody of the Anne Frank Stichting (Foundation) in Amsterdam. In a letter to the NIOD dated 11 November 1980, the executor of the will specified which of Anne Frank’s ‘handwritten notes’ Article 9 refers to. According to Mr Eckert, these are four diaries and a cash book entitled ‘Verhaaltjes en gebeurtenissen uit het Achterhuis’.
Referring to the provisions in Otto Frank’s will, Mr B.E. states that the seven claimed objects and documents are the property of the Anne Frank Fund or the Frank-E. family. In a letter of 30 March 2006 to the Restitutions Committee, he words this as follows:
It is, however, clear that pursuant to the last will of Otto Frank of December 15, 1978 only those documents or objects mentioned in sect. II 9 are given to NIOD or the Anne Frank Stichting. All other documents, photos and objects not specified in sect. II 9 are the property of the sole heir of Otto Frank and this is Anne Frank-Foundation in Basel (see sect. II of the Last Will). As a consequence the objects taken from the house of Otto Frank at the time of his death do not belong to the NIOD but rather to the Frank family. It is specially true for those objects which were not the property of Otto Frank at the time of his death but rather of the family E.-Frank.
Concerning the ownership situation, Mr Barnouw of the NIOD notes in a letter to the Committee dated 20 March 2006 that:
We are not familiar with the entire will, but article 1 specifies that ‘..'...... unterstelle ich die Erbfolge meinem Nachlass meinem heimatlichen niederländischen Recht, ...'
Before addressing the question of which person or organisation can be considered the party (originally) entitled to the seven items at issue, the Committee will first have to express an opinion whether it is competent to come to a substantive judgement in its recommendation. Pursuant to Article 2 of the Decree, the Committee’s remit is restricted to recommendations concerning items of cultural value the loss of which is due to circumstances directly related to the Nazi regime. In doing so, the Committee postulates that, as reported to the minister at an earlier stage, it believes that the claimed documents and objects are items of cultural value as defined in its Decree.
In the light of the facts set out above, none of which indicate loss of possession during the Second World War, but rather a loss of possession that occurred during the 1980s, the answer to the question in 4 must be that the loss of possession is not in any way related to the Nazi regime. Despite evidence suggesting that this loss of possession was involuntary, the Committee is obliged to refrain from voicing an opinion about Mr B.E.’s ownership claims.
By reason of a lack of any relationship between the loss of possession of the items in question and the Nazi regime, the Restitutions Committee deems itself incompetent to advise the Minister for Education, Culture and Science about Mr B.E.’s claim of 19 April 2005.
Adopted at the meeting of 24 April 2006,
B.J. Asscher (chair)
P.J.N. van Os
E.J. van Straaten
H.M. Verrijn Stuart
I.C. van der Vlies