Recommendation regarding Bachstitz III
In a letter dated 13 March 2014 the Minister of Education, Culture and Science (hereinafter referred to as the Minister) asked the Restitutions Committee (hereinafter referred to as the Committee) for advice about the application for restitution of 27 November 2013 from AA and BB (hereinafter referred to as the Applicants). They are acting as heirs of their grandfather Kurt Walter Bachstitz (hereinafter referred to as Bachstitz) and are represented in this procedure by Dr H. Kahmann, a lawyer from Berlin. The application concerns a gold bracelet and a gold Serapis head. Both objects are part of the Netherlands Art Property Collection (hereinafter referred to as the NK collection) under registration number 865 and are currently in the Dutch National Museum of Antiquities, Leiden.
Pursuant to article 2, paragraph 1, of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, as amended, there is a Committee that is tasked with advising the Minister at the Minister’s request about decisions to be taken regarding applications for the restitution of items of cultural value whose original owner involuntarily lost possession due to circumstances directly related to the Nazi regime and which are:
a. part of the NK collection or
b. among the other possessions of the Dutch State.
Pursuant to paragraph four, the Committee advises about applications as referred to in paragraph 1, under a, submitted to the Minister before 30 June 2015 with due regard for government policy in this respect.
Previously, on 14 September 2009, the Committee issued advice to the Minister about an application from the Applicants for the restitution of 25 objects in the NK collection. That recommendation (RC 1.78) was to reject the restitution application in so far as it related to 24 artworks and to restitute NK 1892, Roman Capriccio by P. Cappelli. On 28 October 2009 the Minister made a decision about the restitution application in accordance with recommendation RC 1.78.
The Applicants requested the Minister to revise this decision in so far as it related to thirteen NK works. In letters of 11 January 2013 and 7 May 2014 the Minister asked the Committee for revised advice. This case is registered at the Committee as RC 4.138.
The Committee has dealt with RC 1.143 and RC 4.138 jointly, but separate recommendation is being issued in each case. In so far as necessary this recommendation refers to the recommendation with regard to case RC 4.138.
The Committee conducted an investigation into the facts in case RC 1.143 in response to the Minister’s request. This investigation was combined with the investigation relating to case RC 4.138. The results of the investigation are recorded in a draft overview of the facts dated 8 September 2014. The Applicants responded to it in letters of 29 and 30 March 2015.
There was a hearing on 15 June 2015 at the Committee’s offices in The Hague. On behalf of the Applicants the hearing was attended by Dr Kahmann, CC and DD, both sons of the applicant BB, and E. Dolev and Dr R.K. Krul, investigators. Minutes of the hearing were sent to the Applicants. The Applicants sent further documents with a letter of 19 June 2015 and an e-mail of 8 July 2015.
1. The request for advice from the Minister of 13 March 2014 states that the application concerns a gold object with number NK 865 and a gold object with number Prec 162. It emerged from the Committee’s investigation that both objects were recovered together and were then listed together as number 162 on the ‘precious items list’ of the Netherlands Art Property Foundation (SNK). They were subsequently jointly given the NK number 865. In this recommendation NK 865 therefore refers to both of the claimed works.
2. The Applicants are requesting the return of the claimed works in their capacity as heirs of their grandfather Kurt Walter Bachstitz (1882-1949), who according to the Applicants lost the artworks involuntarily as a result of circumstances directly related to the Nazi regime. In this context the Committee took note of a few inheritance-law-related documents, on the grounds of which the Committee sees no reason to doubt the Applicants’ status.
3. As regards the relevant facts, the Committee refers first of all to considerations 2 to 9 inclusive of recommendation RC 1.78. The following can be added here with regard to the claimed works.
The claimed works were sold by the Bachstitz Gallery in May 1941 to Dr Hans Posse on behalf of the Sonderauftrag Linz. In a letter of 28 April 1941 Posse wrote to Martin Bormann about the currently claimed objects as well as two gold snake bracelets (NK 864a-b; subject of RC 1.78 and RC 4.138). It emerges from this letter that the asking price of the gold bracelet (NK 865) was NLG 4,500. The asking price of the gold Serapis head (NK 865) was NLG 3,500 and the asking price of the NK 864a‑b was NLG 20,000. On 6 May Posse wrote to Bormann confirming that the purchase of the objects (NK 864a-b and NK 865) had taken place, ‘und zwar zu den reduzierten Preis von hfl. 24.000’. This sum is also referred to in a bill from Bachstitz concerning the sales of the objects.
4. After the war Bachstitz’s wife, Mrs Bachstitz-Hofer, made a declaration to the SNK about the sale of works of art to Germans, including NK 865. The objects are described in a letter of 2 July 1945 from Mrs Bachstitz-Hofer to Dr J.G. van Gelder of the SNK. The internal declaration form filled in by the SNK for the gold Serapis head states that the object was originally in the possession of ‘Bachstitz, ‘s-Gravenhage’ and as a result of a voluntary sale it came into the possession van ‘Dr. H. Posse’.
On 3 January 1950 SNK Director J. Jolles asked the Bachstitz Gallery for information about twenty artworks, about which he stated as follows.
‘You have registered most of the objects, apart from those listed under 1, 8, and 14 and 15. In respect of these latter I have reason to believe that these objects were in your possession or were sold by you. Would you be so kind as to tell me whether [all] these objects were your property before the German occupation and, if not, when and from whom you bought them.’
The letter also refers to two gold objects, which are very probably the currently claimed works. Mrs Bachstitz-Hofer replied on 11 January 1950, informing the SNK that the artworks listed in their letter were ‘all from our collection where they had been since 1920, 1931 and 1937 respectively […]’.
On 30 January 1950 Jolles asked for more detailed information about the artworks referred to in the letter of 3 January 1950 and asked the art gallery to state whether the sale of the works had been voluntary or had taken place under duress. On 6 February 1950 Mrs Bachstitz-Hofer responded as follows with regard to the nature of the sales.
‘In reply to your letter of 30 January last, I can inform you that during the enemy occupation my husband had to sell the works of art listed - like the sales registered at the time - under undue influence.’
Assessment of the claim
5. On the grounds of the facts referred to in considerations 3 and 4, the Committee considers it highly likely that the currently claimed artworks (NK 865) were the property of the Bachstitz Gallery during the occupation.
6. The Applicants argue it is plausible that Bachstitz lost his shares in the Bachstitz Gallery at some point, which from an economic point of view resulted in the loss of the works of art that were in the possession of gallery. According to the Applicants it is plausible that when Bachstitz stepped down as supervisory director of the Bachstitz Gallery (17 February 1941) in order to save his art gallery, he had to transfer his shares to his non-Jewish wife.
The Committee points out the following with regard to this contention. The identities of the shareholders in the gallery did not emerge from the Committee’s investigation, but it is probable that Bachstitz himself had a substantial interest in the business. As regards the assertion that Bachstitz had to transfer his shares to his wife at some point, however, the Committee found no indications of this. Furthermore, even assuming that Bachstitz did transfer his shares to his wife, it makes no difference to the assessment of the restitution application.
7. It has been established that the claimed works were not stolen or confiscated. They were sold by the Bachstitz Gallery to Posse in May 1941. As regards the question of whether this sale should be designated as involuntary, the Committee has to answer on the basis of the Ekkart Committee’s sixth recommendation for the art trade. This recommendation is as follows.
‘In all cases in which after the war the party involved, his heirs or his immediate representative appointed by him or his heirs filled in the qualification "involuntary sale" on a declaration form and there are no indications that contradict this qualification, such a qualification should be accepted. In all cases in which such a declaration form is missing, indications that make it highly probable that coerced sale took place serve as the point of departure for the restitution policy.
Indications of involuntary sale in any event include the threat of reprisal and the promise of the provision of passports or safe conduct as part of the transaction. Involuntary sales are also taken to mean sales by Verwalter or other managers not appointed by the owner from the stocks under their management in so far as the original owners or their heirs have not fully benefited from the transaction and explicitly waived their rights after the war.’
8. The Applicants assert that in this case the first sentence of recommendation 6 above is applicable. According to them the rationale behind this sentence is that the original owner’s assessment is decisive. According to them the statements made by Bachstitz and his wife after the war suggest that at the time they perceived the sale of the claimed works as involuntary.
First the Committee states that after the war Bachstitz did not state on a declaration form that the sale of the claimed works was involuntary. Strictly speaking the first sentence of the aforementioned recommendation 6 is therefore not applicable in this case. The Committee notes that as early as 2 and 18 July 1945 Mrs Bachstitz-Hofer reported to the SNK the sale of art by the gallery to Germans, which was therefore before the announcement on 24 July 1945 of the declaration obligation. It is plausible that for this reason she was not able to make use of the SNK declaration forms on which, among other things, a declaration of involuntary sale could be made. Nevertheless the Committee sees no reason for the broader interpretation of the first sentence of the aforementioned recommendation 6 that the Applicants apparently have in mind. In the first place it is important in this context, contrary to the Applicants’ contention, that in his letter of 21 July 1945 SNK employee Van Gelder did not tell Mrs Bachstitz-Hofer that, in the Applicants’ words, ‘the formal requirements of the SNK have been met’. It is furthermore important that the statement by Mrs Bachstitz-Hofer referred to by the Applicants is dated 6 February 1950, in other words more than four and a half years after she had reported to the SNK in July 1945 that the gallery had made sales to Germans. During this period Bachstitz and his wife did not ask the SNK for restitution of the claimed works, which they did do, for example, in regard to three works that Hermann Göring had appropriated (see consideration 9 of recommendation RC 1.78). The statement in the letter of 6 February 1950 was in response to the explicit question from the SNK in the letter of 30 January 1950 as to whether the sale of the claimed works, among other items, was voluntary or took place under duress. Given these circumstances, Mrs Bachstitz-Hofer’s statement in her letter to the SNK of 6 February 1950 that her husband had had to sell the claimed works ‘under undue influence’ cannot be equated with a declaration after the war on an SNK declaration form that there had been an involuntary sale.
Similarly the statement by Bachstitz himself, as quoted in consideration 7 of recommendation RC 1.78, cannot be equated with such a declaration.
9. In keeping with government policy in this regard, the Committee will check whether there are indications that make it highly likely there was a sale under duress. In this connection the Applicants have argued that Bachstitz sold the claimed works to Posse because he was afraid of the consequences of any refusal to do so. The Applicants point out that it was known that Posse purchased art on behalf of Adolf Hitler. According to the Applicants, Posse was able, in view of his position, to haggle over the asking prices to such an extent that it is no longer possible to talk about voluntary sales.
The Committee notes that the Applicants also put forward these arguments in case RC 4.138 with regard to the works claimed in that case. The Committee was able to discuss these arguments comprehensively in considerations 10 to 13 inclusive of the recommendation about case RC 4.138 and it came to the conclusion that no indications can be found in these arguments for a sale under duress. The Committee sees no reason to come to a different conclusion in this case (RC 1.143) with regard to the sale of NK 865.
10. The Applicants argue that the circumstances in which Bachstitz did business right from the beginning of the German occupation - or in any event after the issue of Regulation 48/1941 on 12 March 1941 - were such that it is no longer possible to talk about voluntary sales. The Applicants refer to consideration 18 of the recommendation concerning case RC 1.78, in which the Committee concluded that restitution of NK 1892 was advisable. According to the Applicants the circumstances in which Bachstitz sold NK 1892 already existed at the beginning of the occupation.
The Committee cannot concur with this. The Committee found indications of duress in regard to the sale of NK 1892. These are described in consideration 18 of the recommendation concerning case RC 1.78, but they only relate to the circumstances of that sale. For example the Committee considered the declaration that Bachstitz was a Volljude (full Jew) to be important. The sale of NK 1892 took place shortly afterwards. The circumstances in which NK 1892 was sold on 10 June 1943 also differ from those in which the currently claimed works were sold in May 1941. In so far as the Applicants refer to the persecution of the Jews in the Netherlands in general, the Committee points out that the Ekkart Committee’s recommendations for the art trade are based on the assumption ‘that the art trade’s objective is to sell trading stock, so a significant fraction of transactions, even by Jewish art dealers, in principle constituted ordinary sales’.
11. In consideration 17 of the recommendation concerning case RC 1.78 the Committee concluded, among other things, with regard to the sale of NK 864a-b that no indications had been found that this sale was under duress. Since the sale of the currently claimed works took place in the same circumstances, the Committee finds, also in view of what has been considered above and the recommendation concerning case RC 4.138, that there is no reason to come to a different conclusion with regard to the currently claimed works.
12. The Applicants have furthermore argued that, if the Minister rejects their claim, this would lead to the result that ‘they would be held liable for German war reparations’. Leaving aside the fact that this line of reasoning is based on the incorrect assumption that the claimed works were seized on the grounds of Decree E 133, government policy in this regard does not provide for the possibility of taking this into account. This line of reasoning can therefore not result in a different recommendation.
13. The upshot of the foregoing is that the Committee will advise rejection of the Applicants’ claim.
The Restitutions Committee advises the Minister of Education, Culture and Science to reject the Applicants’ claim to NK 865.
Adopted on 1 December 2015 by W.J.M. Davids (Chairman), 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 Secretary.
(W.J.M. Davids, Chairman) (R.A.M. Nachbahr, Secretary)