Riddle of Nijmegen
Binding opinion regarding the dispute about the return of the painting The Riddle of Nijmegen by Christiaen Coeuershof, currently in the possession of Nijmegen City Council
in the dispute between:
AA, living in L.,
BB, living in H.,
CC, living in A.,
DD, living in S.,
and EE, with its registered office in Amsterdam,
represented by D.J. Rowland, lawyer in New York, United States,
(hereinafter referred to as the Applicants),
Nijmegen City Council,
represented by FF, Head of the Legal Affairs Section of Nijmegen City Council’s Management Support Department
(hereinafter also referred to as the City Council),
issued by the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War in The Hague (the Restitutions Committee), hereinafter referred to as the Committee.
1. The dispute
The City Council has owned the painting The Riddle of Nijmegen (hereinafter referred to as the work) by Christiaen Coeuershof since 1971. The work is held by Stichting Museum Het Valkhof-Kam in Nijmegen (hereinafter also referred to as the Museum). The Applicants contend that the painting was part of the collection of the Jewish pharmacist Emanuel Vita Israël (1873-1940, hereinafter also referred to as Vita Israël) of Amsterdam and after his death it was the property of his beneficiaries until 5 November 1940. The Applicants state that they are the rightful claimants to the estate of Vita Israël and they claim restitution of the artwork on the grounds of their contention that there was involuntary loss of possession as a result of circumstances directly associated with the Nazi regime. The parties submitted a joint request to the then State Secretary for Education, Culture and Science (hereinafter also referred to as the State Secretary) in order to submit the Applicants’ claim to the Committee for a binding opinion.
2. The procedure
In a letter of 16 July 2012 the State Secretary requested the Committee to issue an opinion to the parties under the auspices of article 2 paragraph 2 of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War of 16 November 2001, as amended by an Order of the State Secretary for Education, Culture and Science of 4 July 2012 (hereinafter referred to as the Decree Establishing the Restitutions Committee). Pragmatic reasons prompted the intervention of the State Secretary, and the State of the Netherlands was not a party in the procedure at any time.
The parties declared in writing that they would submit to the Regulations for the Binding Opinion Procedure in accordance with article 2, second paragraph, and article 4, second paragraph, of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (approved by the Committee on 3 December 2007, most recently amended on 19 September 2011 , hereinafter referred to as the Regulations) and would accept the Committee’s opinion as binding. The Committee satisfied itself of the identity of the parties.
The Committee took note of all the documents submitted by the parties. It forwarded to the other party copies of the documents submitted by the parties and the documents it sent. The Committee also conducted additional independent research. As part of its investigation the Committee put questions in writing to the parties and requested information. The findings of the investigation are recorded in a draft investigation report dated 31 July 2014. The Applicants responded to it in a letter dated 11 September 2014. The Applicants submitted a further response in a letter of 26 February 2015.
The case was heard on 9 March 2015. CC, BB and their authorized representative D.J. Rowland were present on behalf of the Applicants. FF was present on behalf of the City Council. GG, the Museum’s Curator of Old Master Paintings, was also present. After the hearing the Applicants sent additional information upon request. The Committee also conducted additional research, the results of which—together with the minutes of the hearing—were sent to the parties with a letter dated 21 May 2015. The Applicants responded in a letter of 26 May 2015. Together with a letter of 2 June 2015 the Committee sent the parties the inheritance-law-related documents it had requested. The Applicants responded in an e-mail of 6 June 2015.
The Committee gave its final approval to the investigation report in its meeting of 20 July 2015.
3. The facts
In this procedure the Committee based its considerations on the following facts.
3.1 Emanuel Vita Israël, the son of a diamond dealer, was born on 21 February 1873. From 1896 Vita Israël ran a pharmacy at Muiderstraat 14 in Amsterdam. Vita Israël married Leonore Fanny Frederika Jacobs (1873-1943, hereinafter also referred to as Leonore Jacobs) in 1902 after making a prenuptial agreement. The couple had two sons. In 1938 the older son, Joost Vita Israël (1903-1944) married Catharine Magdalena Frederika Borghmans (1904-1998, hereinafter also referred to as Catharine Borghmans) in community of property. They had two daughters, CC (born in 1939, one of the Applicants) and Jacqueline Charlotte (1940-1973). In 1934 the younger son, Gerrardus Vita Israël (1905-1943) married Esther van Gelder (1899-1943) in community of property. This couple had no children.
Vita Israël committed suicide on 15 May 1940, shortly after the German invasion. The only members of his family to survive the war were Catharine Borghmans, who was not of Jewish descent, and both her daughters. Leonore Jacobs was interned in Westerbork transit camp on 19 May 1943. This was followed on 1 June 1943 by deportation to Sobibor, where she was murdered on or around 4 June 1943. Joost Vita Israël was interned in Westerbork transit camp during a period in the spring and summer of 1943 and died from meningitis in Amsterdam on 13 February 1944. Gerrardus Vita Israël and his wife Esther van Gelder were interned in Westerbork transit camp on 26 May 1943. On 8 June 1943 the couple were deported to Sobibor, where they were murdered on or around 11 June 1943.
3.2 Vita Israël was a passionate art lover and had a collection of paintings and antiquities, to which he gave members of the public access in period rooms in his home above the pharmacy. He also had a collection of Judaica, items from which he lent for exhibitions staged by the Genootschap voor de Joodsche Wetenschap in Nederland (society for Jewish scholarship in the Netherlands). Vita Israël played an important part in the Portuguese-Jewish Congregation. He was one of the founders of the Jewish Historical Museum (JHM), which opened in 1932 and to which he lent various items from his collection.
In a will drawn up on 30 June 1939 before S. Teixeira de Mattos, at the time a notary in Amsterdam, Vita Israël revoked all previous wills made by him. In the will concerned he bequeathed a life interest in one third of his estate to his wife and he appointed his two sons as his only beneficiaries. As regards his collection of antiquities, Vita Israël stipulated that it had to be auctioned off within six months of his death, as follows. ‘Finally the testator declared to his beneficiaries, to the usufructuary and to the executor or executrix, or the person in the capacity thereof, of his last will that he imposes the express obligation to sell at public auction the antiquities belonging to his estate within six months after his death.’
There is no comparable provision in his previous wills.
3.3 After Vita Israël’s death on 15 May 1940, on 10 June 1940 the dealer J.A. van Bever prepared a private valuation report of the movable goods belonging to his estate. Among other things this report provides an overview of the antiquities among Vita Israël’s possessions. The currently claimed work, The Riddle of Nijmegen by Coeuershof, is in all probability the item described as an ‘antique painting by an UNKNOWN MASTER: Noblemen and pages / [f.] 40.--ʼ in the ‘Room with stone floor’. The work, like various other works referred to in the valuation report as being in the ‘Room with stone floor’, can be recognized in a photograph in the Amsterdam City Archives of an interior.
In accordance with the aforementioned testamentary provision, Vita Israël’s antiquities, with a few exceptions, were sold at auction within six months of his death. Between 5 and 7 November 1940 445 lots from this collection went under the hammer at auctioneers Frederik Muller & Co. One of the objects in the sale was the currently claimed work. The aforementioned photograph of the interior of Vita Israël’s home was printed in the sale catalogue. The artwork concerned is recognizable. It is not known who bought the work. It was sold and the proceeds were probably NLG 180.
3.4 An article by the journalist HH in the NRC Handelsblad newspaper on 4 July 2008 (hereinafter referred to as the NRC article) addressed, among other things, the fate of the Vita Israël collection. The following was stated about the proceeds of the auction.
‘In November 1940, shortly after his suicide, the "Collection of the late E. Vita Israël", comprising 440 lots, was sold at auction in Amsterdam. At the end of the nineteen-thirties the Dutch art trade was in the doldrums, but immediately after the start of the German occupation there was substantial demand from Germany for Dutch Old Master paintings. So the trade flourished and prices rose. At the beginning of the war the possessions of the Jews had not yet been seized. The proceeds of the auction, which were not disappointing, went to the family and ultimately ended up with the non-Jewish daughter-in-law, who—together with her two small daughters—survived the war. " CC told me in the past that when she was young the family could live well on them," says BB now.’
3.5 Nijmegen City Council purchased the work in January 1971 from II of Z. for NLG 3,000. II bought the work during the 1942-1943 period from JJ in L, who in turn had purchased it in 1942 from the antiques dealer H.J. van der Kamp in Zwolle. It is not known from whom and when this last person acquired the work.
3.6 No indications were found that the Vita Israël family made efforts after the war to regain possession of the artworks sold at auction at Frederik Muller & Co. in November 1940, or to obtain compensation for the loss of their possession. In so far as it has been possible to check, no objects were registered as missing by the family or its representatives with the Netherlands Art Property Foundation (SNK). There is no management file relating to the Vita Israël family in the SNK archive.
However, in 2001 and 2007 items from two Dutch museums, the aforementioned JHM and the Gemeentemuseum Den Haag (GMDH) were handed over to the Vita Israël family. The transfer by the JHM concerned items that Vita Israël had loaned this museum before the war. CC had approached the JHM about them in 1998 and, after archival research by the JHM, fifteen objects were handed over to the Vita Israël family in 2001. The objects were bought back in 2002.
The handover by the GMDH concerned three artworks that this museum had purchased at the sale of the Vita Israël collection at auctioneers Frederik Muller & Co. in November 1940. In 1998 The Hague City Council instructed the municipal archivist to investigate the development of the collection during the Second World War and restitution after it. CC contacted the City Council after publication of the investigation’s findings. In response the City Council launched an investigation whose findings were summarized in the publication EINDRAPPORTAGE. Herkomst & Restitutie. 22-12-2000 (FINAL REPORT. Provenance & Restitution. 22-12-2000) by D. Brongers and M. van Houten-de Kom. Using this publication as a reference, on 30 January 2007 the GMDH wrote to the Lead Councillor for Culture of The Hague City Council asking for permission to restitute three artworks. This letter contained the following statements. ‘According to the report Herkomst & Restitutie by D. Brongers published in 2000 it cannot be proved that this concerns a forced sale (see pp. 20‑21), but for ethical reasons the Gemeentemuseum has no objections to the return of these three items (…)’.
4. The positions of the parties
4.1 The Applicants have argued that the sale of the work at auction in November 1940 cannot be considered a normal sale. They point out that this auction would not have taken place if Vita Israël had not committed suicide. According to them this suicide was a direct consequence of the German invasion. In this context they submitted documentation showing that a large number of Jews in the Netherlands committed suicide soon after the German invasion. According to the Applicants it is probable that Vita Israël feared being murdered by the Nazis and therefore he killed himself.
The Applicants do not know what happened to the proceeds of the auction at Frederik Muller & Co. According to them it is unlikely that the beneficiaries of Vita Israël had free disposal of them in view of the anti-Jewish measures taken by German occupying forces. The Applicants dispute that BB said the words reported in the NRC article, which are given in the form of a quotation at the end of section 3.4 above. In a letter dated 17 March 2015 BB declared to the Committee that he had received a part of the article prior to publication and immediately afterwards told HH over the telephone in no uncertain terms that this passage was completely wrong. When it emerged after publication that the remarks attributed to him that he had contested were still in the article, he protested about this part of the article in a letter dated 22 July 2008 to the NRC’s editor. In addition the lawyer G.J.T.M. van den Bergh sent a letter dated 23 July 2008 on behalf of Muggenthaler Research and Vita Israël’s heirs of similar import to the editors for publication in the NRC. The newspaper refused to publish
this letter to the editors. Copies of both letters were submitted to the Committee.
According to the Applicants there can be no objection about the fact that Vita Israël’s heirs made no attempts immediately after the war to get his art collection back. They point out that only three members of the Vita Israël family survived the war.
4.2 After it received the Applicants’ request for return of the work, the City Council decided to submit the case to the Committee for investigation and a binding opinion so that the Committee can determine whether the requirements for restitution are met. The City Council stated that it has confidence in the Committee’s judgment in this matter. The work has been in the City Council’s possession since 1971. The work’s importance to the City Council is that it belongs to a collection of various painted and numerous printed versions of the theme ‘The Riddle of Nijmegen’, of which the best known version has hung in Nijmegen town hall for centuries. The work now being claimed is one of the least important versions with regard to both its condition and art historical value. The work has virtually always been in the Museum’s repository.
5. The Committee's task
5.1 On the grounds of article 2 paragraph 2 of the Decree Establishing the Restitutions Committee, the Committee is tasked at the request of the parties to issue an opinion about disputes relating to the return of items of cultural value between the original owner who involuntarily lost possession as a result of circumstances directly linked to the Nazi regime, or his or her heirs, and the current owner, not being the State of the Netherlands. This opinion is a binding opinion within the meaning of article 7:900 of the Dutch Civil Code
5.2 With regard to applications relating to items of cultural value in the NK collection that are submitted to the Minister before 30 June 2015, on the grounds of the relevant national policy if there is compliance with the requirement that the original owner lost possession involuntarily due to circumstances directly related to the Nazi regime, the Committee recommends restitution of the item of cultural value concerned. The interests of the current holder or owner are not taken into account in this assessment. This rule is completely justifiable with regard to artworks in the NK collection because generally speaking these objects were returned to the Netherlands after the Second World War and taken into the custody of the State of the Netherlands with the express instruction to restitute them – if possible – to the rightful claimants or their heirs.
5.3 There is a different assessment framework for items of cultural value that are not part of the NK collection. In these cases the Committee advises on the basis of the yardsticks of reasonableness and fairness (article 2, fifth paragraph of the Decree Establishing the Restitutions Committee). The justification for this difference in assessment framework lies in the difference between the provenance of items of cultural value in the NK collection on the one hand and other items of cultural value on the other. The latter category also contains, for example, artworks that—unlike those in the NK collection— were not acquired by the current owner until many years after the Second World War and were purchased through normal channels and in good faith. Advising on the basis of the yardsticks of reasonableness and fairness then provides scope to take these and other circumstances into account and to weigh up the interests of the different parties involved.
In its advisory role pursuant to article 2, second paragraph of the Decree Establishing the Restitutions Committee, the Committee—in accordance with article 3 of the Regulations—may in any event take account during its considerations of the circumstances in which possession of the work was lost, the degree to which the parties requesting restitution have made efforts to recover the work, as well as the timing and the circumstances of the acquisition of possession by the current owner and the investigation conducted by the current owner before the acquisition. It can in addition take account in its considerations of the importance of the work to both parties and of public art treasures. Nationally and internationally accepted principles, such as the Washington Principles and the government’s guidelines concerning the restitution of looted art, may be included in the considerations in so far as they, in the Committee’s opinion, are correspondingly applicable in the specific case.
This broad assessment framework also does justice to the Washington Principles, according to which the restitutions policy must be aimed at achieving ‘a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case’.
6. Assessment of the dispute
6.1 The Committee has satisfied itself that the dispute between the Applicants and the City Council has not previously been definitively dealt with. The Committee has not found a legal procedure or a judicial ruling relating to the work. Nor have the Applicants previously renounced their rights to the work. The Committee therefore considers the parties and their request to be admissible.
6.2 The Applicants have asserted that they are the rightful claimants to Vita Israël’s estate. In this context they submitted a number of inheritance-law-related documents, including a certificate of inheritance drawn up on 14 October 2013 by A.C.W. van Limburg Stirum, notary in Hilversum, and a certificate of inheritance dated 1 October 2014 drawn up by G.W. Gramser, notary in Amsterdam. Looked at together it follows from these certificates that the natural persons and legal entities referred to below are entitled to all goods, property and rights originating from or belonging to Emanuel Vita Israël and/or Eleonore Frederika Jacobs:
a) CC, living in A., a 1200/3200ths share;
b) AA, living in L., a 600/3200ths share;
c) BB, living in H., a 600/3200ths share;
d) DD, living in S., a 200/3200ths share;
e) KK, living in A., a 300/3200ths share;
f) LL, living in A., a 240/3200ths share;
g) the association MM, with its registered office in A., a 12/3200ths share;
h) the foundation NN, with its registered office in A., a 9/3200ths share;
i) the foundation EE, with its registered office in A., a 9/3200ths share;
j) the foundation OO, with its registered office in X., a 6/3200ths share;
k) the foundation PP, with its registered office in B., a 6/3200ths share;
l) the association QQ, with its registered office in A., a 6/3200ths share;
m) the foundation RR, with its registered office in A., a 6/3200ths share;
n) the association SS, with its registered office in L., a 3/3200ths share;
o) the foundation TT, with its registered office in A., a 3/3200ths share.
The natural persons and legal entities referred to above under e, f, g, h, j, k, l, m, n and o have each separately declared that they are aware that they are entitled to part of all goods, property and rights originating from or belonging to Emanuel Vita Israël and/or Eleonore Frederika Jacobs. Each of them has also separately declared that they want to transfer their share of the entitlement to any possible rights in this case (RC 3.135) to the other heirs and that they want to relinquish any possible rights in this case (RC 3.135).
The remaining natural persons and legal entities under a, b, c, d and i are the Applicants in this case.
6.3 In the committee’s opinion it can be concluded from the facts referred to in consideration 3.3 that the currently claimed work belonged to the Vita Israël collection.
6.4 The Committee needs to answer the question of whether in this case the loss of possession can be designated as involuntary, caused by circumstances directly related to the Nazi regime. A complicating factor in this case is that the loss of possession took place through the auction at Frederik Muller & Co. At that time Vita Israël’s sons were the owners of the work. However, the auction was a direct result of the inclusion by Vita Israël in 1939 of the provision in his will quoted in consideration 3.2 and his suicide on 15 May 1940. Taken together, these circumstances must play a role in answering the present question. In the Committee’s opinion the loss of possession in November 1940 cannot be considered in isolation from these circumstances and therefore the testamentary provision and the suicide also play a part in answering the question of whether there was involuntary loss of possession caused by circumstances directly related to the Nazi regime.
In answering this question the Committee first of all points out that, according to the Ekkart Committee’s third recommendation of 26 April 2001 as adopted by the government, sales of artworks by private Jewish individuals in the Netherlands from 10 May 1940 onwards must be considered to be involuntary, unless the facts expressly show otherwise. Although this recommendation is not directly applicable in this binding opinion case, it follows from it that a strong suspicion exists in this case that the loss of possession was involuntary. After all it concerns private Jewish individuals who had the work sold at auction after 10 May 1940.
This suspicion of involuntary loss of possession is confirmed by the course of events that resulted in the currently claimed work being put up for auction. As described in consideration 3.2, in 1939 Vita Israël had a provision included in his will that his collection of antiquities had to be auctioned off within six months of his death. Although it is not known why he had this provision included, it did emerge from the Committee’s investigation that there was no comparable provision in his earlier 1931 will. Vita Israël took his own life on 15 May 1940, shortly after the German invasion on 10 May 1940. The Applicants have pointed out the large number of suicides among Jewish Dutch nationals immediately after the German invasion. Like the Applicants, the Committee assumes that Vita Israël’s suicide was prompted by the German invasion. One of the consequences of Vita Israël’s death was that, pursuant to the testamentary provision, the work had to be put up for auction within six months. This is what happened. This course of events has to be attributed to the Nazi regime. In view of the facts and circumstances, the Committee comes to the conclusion that the loss of possession of the work by Vita Israël’s sons should be designated as involuntary, caused by circumstances directly related to the Nazi regime.
6.5 The Committee now comes to weighing up the interests of the parties in the restitution or retention of the work. Given the City Council’s position with regard to the importance of the work, as described in consideration 4.2, little weight is given to the City Council’s interest. Set against this slight interest of the City Council is the interest of the Applicants in the work’s restitution. The Applicants are the heirs of a Jewish Dutch national who committed suicide immediately after the German invasion, as a result of which the work ceased to be in the family’s possession. In view of this the Committee considers the interest of the Applicants in restitution of the work to have greater weight than the City Council’s interest in retaining it.
6.6 This brings the Committee to the question whether something in return from the Applicants should be linked to surrender of the work. It is important in this regard that the City Council purchased the work in 1971 for a sum of NLG 3,000 and that there are no indications that the City Council did not act in good faith at the time. The City Council also incurred costs for restoration of the work, albeit that the amount involved is not known. The Committee takes the view that the purchase price was a relatively modest sum, and that the City Council has after all had the benefit of the work since 1971. This is not affected by the fact that the work has mainly been in the repository because this has been the choice of the Museum. In these circumstances the Committee sees no reason to link surrender of the work to something in return from the Applicants.
6.7 In view of the NRC article and the comments made about it by the Applicants, together with other reasons, the Committee did research into the proceeds of the auction. The outcome of this research is that it cannot be established with certainty what happened to the proceeds of the auction and therefore whether or not these proceeds ended up at the free disposal of Vita Israël’s surviving relatives. Hence the Committee sees no reason to make allowances in this binding opinion for the proceeds of auctioning off the work.
6.8 On the grounds of the foregoing the Committee will advise restitution of the work to the Applicants.
The Committee advises Nijmegen City Council to restitute the painting The Riddle of Nijmegen by Christiaen Coeuershof to the Applicants.
This binding opinion was issued on 20 July 2015 by W.J.M. Davids (Chairman), J.T.M. Bank, R. Herrmann, P.J.N. van Os, E.J. van Straaten, H.M. Verrijn Stuart and I.C. van der Vlies (Vice-Chair) and signed by the Chairman and the Acting Secretary.
(W.J.M. Davids, Chairman) (R.A.M. Nachbahr, Acting Secretary)