Recommendation regarding the application for the restitution of three paintings from the estate of Hugo F. Kaufmann
In a letter dated 6 June 2006, the State Secretary for Culture, Education and Science (OCW) asked the Restitutions Committee to issue a recommendation regarding a decision to be taken on the application submitted by E.L. N. of R. B., C., USA, also on behalf of H.L. K. (hereafter referred to as ‘applicants’) for the restitution of three paintings from the former property of their uncle, Hugo Felix Kaufmann. The paintings in question are a sixteenth-century panel, River landscape with windmills and ships by Jan Brueghel the Elder (NK 1415), a seventeenth-century panel, Saint Peter in the style of A. van Dyck (NK 1675), and a seventeenth-century canvas, Still life with rummer, dish and rose by S. Luttichuys (NK 2296). Since their recovery from Germany by the Dutch authorities after World War II, these works have been part of the Dutch National Art Collection.
The application for restitution was the result of an exchange of letters and emails concerning the works of art in question between the applicants and the Origins Unknown Agency (hereafter referred to as ‘BHG’), initiated by the BHG in December 2004. The BHG drew the applicants’ attention to the fact that these works had probably been in the possession of Mr Hugo Felix Kaufmann, and that they had the possibility of applying for their restitution to the State Secretary for Education, Culture and Science. In response to the request for a recommendation presented to it, the Restitutions Committee instituted a fact-finding investigation, the results of which were summarised in a draft report dated 25 September 2006. This report was submitted to the applicants for comment, which they proceeded to give in a letter written by E.L. N. and dated 25 November 2006. The Restitutions Committee adopted the draft report at a committee meeting held on 18 December 2006. For the facts of the case, the Committee refers to its investigatory report, which is considered an integral part of this recommendation. In view of the age and the health of applicant E.L. N., the Restitutions Committee has given priority to this request for 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.
The applicants request the restitution of River landscape with windmills and ships by Jan Brueghel the Elder (NK 1415), Saint Peter in the style of A. van Dyck (NK 1675), and Still life with rummer, dish and rose by S. Luttichuys (NK 2296), which they claim were involuntarily sold by their uncle Hugo Felix Kaufmann (1886-1942, hereafter referred to as: ‘Kaufmann’) during World War II. The applicants are acting here in their capacity as heirs of Kaufmann. In this regard, the Committee has taken note of a certificate of inheritance dated 24 April 1952 and drawn up by E. Bennink Bolt, civil-law notary in Amsterdam, from which it appears that in 1952, the applicant E.L. N., and T.N.-K., the mother of applicant H.L. K., were among Kaufmann’s heirs.
The essence of the relevant facts, which are described in detail in the investigatory report, is as follows. Kaufmann, a Jewish banker of German origin, was a resident of Amsterdam from 1918 on. He was awarded Dutch nationality in 1924. It is an established fact that Kaufmann possessed all three claimed works and that he sold them in the course of 1941 in preparation for his intended departure from the Netherlands. The investigation revealed that Kaufmann sold one of the three claimed paintings – Still life with rummer, dish and rose by S. Luttichuys (NK 2296) – to art dealer D.A. Hoogendijk on 9 May 1941 for the presumed sum of NLG 7,000. On 25 June 1941, Kaufmann sold the other two works, River landscape with windmills and ships by Jan Brueghel the Elder (NK 1415), Saint Peter in the style of A. van Dyck (NK 1675), through the agency of Gustav Cramer, an art dealer of German extraction, to Dr Hans Posse for a total of NLG 45,000. Despite the fact that it can no longer be ascertained when Kaufmann acquired the three claimed works, there are indications that he bought them at the same time as he purchased his house on Oranje Nassaulaan in Amsterdam in the early 1920s.
The investigation has shown that in the period during which he sold the claimed paintings, Kaufmann made several attempts to escape to the United States with the help of the Nazi authorities. At first, it seemed that he would be able to secure an exit visa provided he fulfilled certain financial conditions set by these authorities. However, these requirements were repeatedly tightened up, so that by August 1941, it became clear that Kaufmann would have to transfer half of the assets he had in America to the Nazis, which came to a sum of about USD 240,000. From correspondence conducted between German officials in 1941 it emerged that the Nazi authorities were not willing to let Kaufmann go for fear that he would withdraw his assets from the German sphere of influence. In the end, Kaufmann’s attempts at leaving the country with his family failed, and he was arrested in July 1942. He was taken to transit camp Westerbork and subsequently deported to Auschwitz, where he perished in September 1942, together with his wife, children and many other close relatives.
After the war, F. N. – Kaufmann’s nephew and the brother of the applicant E.L. N. – as well as A.E. Meckmann, who was appointed administrator of the Kaufmann estate, made attempts to recover Kaufmann’s art collection. This led to contact with the Netherlands Art Property Foundation (SNK) in 1947 and to the filing of a request for the restitution of the painting by Brueghel (NK 1415). However, in a letter dated 6 December 1947, the director of SNK, Dr A.B. de Vries, rejected the request, mainly because he was of the opinion that at the time of the sale in 1941, no Jews had yet been forced to sell property. No further contact was made with the SNK about the two other claimed paintings and it may be assumed that neither the family nor the administrator had been alerted to the fact that the works had been returned to the Netherlands. As far as the Committee is aware, the paintings now claimed are the only ones found in Kaufmann’s art collection after the war. In a letter to the State Secretary dated 4 May 2006, the applicant wrote:
Over the years, I had thought that these paintings and other family belongings were in the possession of the Nazis. At the age of 90, I am happy to learn that these paintings have resurfaced.
With regard to the decision of the SNK of 1947 concerning NK 1415 cited above, the Committee first of all observes that this does not mean that the current application for restitution of NK 1415 should be regarded as a settled case. The Committee refers to the first recommendation of the Ekkart Committee of 2001 in which the concept ‘settled case’ is restricted to those cases in which the Council for the Restoration of Rights or another competent court has handed down a verdict or in which a formal settlement between entitled parties and the agencies that supersede the SNK has been reached. This shows that decisions taken by the SNK do not preclude the admissibility of claims filed under the current policy.
Pursuant to current national policy in respect of the restitution of works of art, the Committee is obliged to ask itself whether the works were originally the property of Kaufmann and whether possession thereof was relinquished involuntarily as a consequence of circumstances directly associated with the Nazi regime. In his letter to the Committee dated 25 November 2006, the applicant declares that:
The most important comment (...) is that my uncle’s paintings and possible other valuables (...) were sold under duress. The duress did not come from the actual buyer but from the German occupation powers that blocked my family’s assets. (...) The inability to access any of their assets probably forced my uncle to seek to obtain large amounts of cash by selling valuables both to survive day-to-day and for his plan to escape from Nazi-occupied territory.
Based on the above, the Committee considers it sufficiently plausible that Kaufmann was indeed the owner of the claimed works at the beginning of the war, and concludes that Kaufmann was the owner when the works were sold in 1941. Furthermore, the Committee believes that under current national policy, the sale of the paintings should be regarded as involuntary as a result of circumstances directly related to the Nazi regime. In this respect, the Committee refers to the third recommendation of the Ekkart Committee of 26 April 2001, adopted by the government, which stipulates that sales executed by Jewish private persons in the Netherlands after 10 May 1940 should be regarded as involuntary, unless explicitly proven otherwise. The Committee believes that the investigation has shown that Kaufmann was forced to sell the paintings in order to discharge the payment obligations imposed on him by the Nazis in connection with the exit visa.
In the light of the above, the Committee considers the application for restitution of the works River landscape with windmills and ships by Jan Brueghel the Elder (NK 1415), Saint Peter in the style of A. van Dyck (NK 1675), and Still life with rummer, dish and rose by S. Luttichuys (NK 2296) admissible. The Committee is of the opinion that no conditions should be attached involving restitution of the money paid at the time, given that Kaufmann was not free to use these funds at his own discretion. In connection with this, the Committee refers to the explanation to the recommendation of the Ekkart Committee of 26 April 2001, which states that ‘There are no grounds for repayment in all cases in which payment was received, and with regard to which it is probable that such payment was used solely in attempts, successful or otherwise, to leave the country or to go into hiding.’
The Restitutions Committee advises the State Secretary for Culture, Education and Science to return the paintings River landscape with windmills and ships by Jan Brueghel the Elder (NK 1415), Saint Peter in the style of A. van Dyck (NK 1675), and Still life with rummer, dish and rose by S. Luttichuys (NK 2296) to the applicants for the benefit of the heirs of Hugo F. Kaufmann.
Adopted at the meeting of 18 December 2006,
B.J. Asscher (chair)
P.J.N. van Os
E.J. van Straaten
H.M. Verrijn Stuart
I.C. van der Vlies