Constitutional Expressionism Legal Questions Overwhelm Art Find

There is much consternation among investigators, politicians and academics about how to handle the trove of artworks found in Munich this month. Criticism by Jewish groups abroad is growing, but complex provenance questions could take years to resolve.

In September 2010, shortly after passing through the Bavarian town of Lindau, customs inspectors asked an elderly man named Cornelius Gurlitt  for identification on an express train from Zürich to Munich. One of the officers remembered having seen him a few hours earlier, on the way to Switzerland. The inspectors suspected that he was a German citizen who had gone to Switzerland to withdraw funds from a Swiss bank account. He claimed that he was not carrying any money, but when they performed a body search in the train toilet, the officials discovered €9,000 ($12,140).

They notified the public prosecutor's office in Augsburg, which has jurisdiction over Lindau. Gurlitt apparently told the customs inspectors he was an art dealer and gave them his Munich address. But when they checked the information later, it turned out that he wasn't even registered in Munich despite a national law in Germany that requires people to report their addresses with the local authorities. And when they searched for other identifying information relating to Gurlitt, such as bank accounts, social security, health insurance and tax records, they found nothing. Gurlitt didn't even have a bank debit card. These are all red flags in the world of customs and tax investigators.

After that, the officials apparently placed him under observation until finally, in September 2011, a judge in Augsburg issued a search warrant. His apartment wasn't searched until five months later. So far, officials have offered no explanation as to why it took them so long, but it was presumably because the customs investigators were uncertain about what sort of case and potential suspect they were dealing with.

Finding Fault with Germany's Approach

Now no one actually seems to know the answer to that question anymore: not the investigators, not the public prosecutors, not the officials at government ministries in Bavaria and Berlin and certainly not the public. A large number of paintings and drawings were removed from Gurlitt's apartment, many of unknown origin. Attorneys from all over the world -- about 100 so far -- are filing claims to these artworks  on behalf of their clients. The United States government has found fault with Germany's approach to the case . The authorities have confiscated all of the works formerly in Gurlitt's possession, but he is not suspected of committing a crime. Finally, there are constitutional concerns over how to manage the case.

Government spokesman Steffen Seibert indirectly confirmed this when he announced the need to square the public's interest in clearing up the case with the interests of the judiciary. "We must find a process that is in keeping with the rule of law," he said. In other words, they do not have one so far.

Officials haven't spoken with Gurlitt since the initial interrogation.

The customs investigators must have been bewildered when they began searching the apartment on Feb. 28, 2012 and discovered artworks, given that suspected tax evasion and embezzlement were the initial grounds for the search. Apparently their suspicions quickly changed when they saw the art collection. Two days later, they consulted with an expert in provenance research with the Bavarian State Picture Collections, who was familiar with works that had been looted from their Jewish owners during the Nazi era.

On March 1, 2012, the expert and a freelance consultant with extensive knowledge about so-called Nazi looted art, spent two hours in the apartment. But they hadn't brought along any gloves and were unwilling to touch the delicate pages from the drawing cabinet. Besides, with all the boxes and furniture in the apartment, there was little room to maneuver. When the initial expert examined the paintings, which were packed tightly together on shelves, she recognized that they included valuable originals by famous painters, and that some could be Nazi looted art. She advised that the valuable pieces be placed into a temperature-controlled art storage facility, but certainly not an evidence room.

The chief public prosecutor's office in Munich was notified, as were the Bavarian Justice Ministry and the Federal Office for Central Services and Unresolved Property in Berlin. The Berlin agency, part of the Finance Ministry, consists of experts who deal with property expropriated during the Nazi period. The federal commissioner for cultural and media affairs was notified in late March. The Finance Ministry itself was apparently not kept in the dark for very long, and the early notification of some officials there appears to be an embarrassment. It almost seems as if the Munich discovery was being treated like a political hot potato.

Attempting to Keep the Secret for Years

Hartmut Koschyk, a member of the conservative Christian Social Union (CSU) and a state secretary in the Finance Ministry, confirms that he was "very briefly and vaguely informed" about the "seizure of pictures" when he visited the Munich customs investigation office in June 2012. "I was not given any details about the origins of the works, the number of works or the artists," says Koschyk. "I was asked to keep the matter strictly confidential. I never heard anything about the issue again after that."

It was also odd that the officials had apparently wanted to keep the discovery a secret for years. Following advice from the government, the Augsburg investigators had engaged only a single art historian to examine well over 1,000 artworks, and she was expected to provide them with precise information about the origins of the works. That could have taken an eternity.

And Cornelius Gurlitt? Is this old, shy, 80-year-old man, who has now gained worldwide notoriety, truly a criminal? And if he isn't, or if he is and his alleged crime is now past the statute of limitations, do authorities have the right to continue depriving him of his art? And to simply post images of his collection online?

What is known with certainty, and what the authorities apparently discovered very quickly and were transfixed by, relates primarily to the fact that his deceased father, art dealer Hildebrand Gurlitt, worked hand-in-hand with the Nazis. He was permitted to deal in avant-garde art, which they described as "degenerate," and he also purchased classic works for Hitler 's planned museum in Linz, Austria; old masters for German museums. He became involved in a sinister market, which profited significantly from the suffering of the persecuted and from their property. The Nazis were endlessly greedy, and he helped to satisfy this greed. He also squirreled away a significant number of works of art  for himself.

Hildebrand Gurlitt died in a car accident in 1956, and his wife died in 1967. How does one deal with his morally and politically sensitive estate, and with the heirs to that estate?

Three Categories of Confiscated Artwork

Cornelius Gurlitt has apparently been the custodian of the collection since his mother's death at the latest. He sold some of the works now and then. Did he have the right to do so? Are the artworks he hid for decades in the apartment he had inherited from his mother his rightful inheritance, or do they belong to the heirs of those persecuted by the Nazis?

According to the Bavarian justice ministry, some 1,280 paintings and drawings were found in the apartment, although a figure of more than 1,400 works had been mentioned previously. The collection can be roughly divided into three groups:

  • First, there were the pictures that Hildebrand Gurlitt sold on behalf of the Nazi dictatorship, which it classified as "degenerate" and which he was expected to turn into hard currency abroad. The Bavarian investigators estimate that this category includes 380 works of art.

  • The second group consists of those works that were "seized in connection with acts of persecution," or the so-called looted art. These are works that were stolen from their Jewish owners. The Nazis confiscated entire collections, often forcing their sale. Top Nazi officials obtained some of the works, while others ended up with art dealers. Cornelius Gurlitt's collection apparently contained some 590 works that officials want to investigate as possible looted art.

  • The third group, which includes 310 artworks, appears to be more innocuous. Hildebrand Gurlitt's acquisition of some of the pieces may be above suspicion, perhaps because he purchased them before the Nazi era or because they were part of the family estate.

But is it right to treat his son as a criminal and simultaneously turn him into an object of ridicule? This is precisely what officials in Bavaria did when they removed and confiscated the entire art collection from Gurlitt's apartment, despite the fact that the search warrant probably did not authorize them to do so -- and when they released information that painted Gurlitt as a compulsive hoarder of a huge number of Nazi paintings. Officials are now claiming that part of their objective was to protect a collection that was neither secured nor insured.

According to the search warrant, Gurlitt was initially suspected of tax evasion and embezzlement. If the charge of embezzlement is applied to the time at which Gurlitt acquired the art collection after his mother's death in 1967, it would now be past the statute of limitations. In other words, if the authorities suspected him of selling individual works without paying taxes and wanted to investigate the circumstances or secure the government's tax claims, it would not have made sense to confiscate the entire collection. A single work would have been sufficient as collateral. Perhaps this is why the authorities are now considering leveling new charges against Gurlitt, including fraud and dealing in stolen goods.

The case ultimately revolves around the culpability of the deceased father, Hildebrand Gurlitt. Can the son be held responsible for his father's misdeeds? Do the authorities intend to paint him as a co-conspirator of sorts? Cornelius Gurlitt was only 12 at the end of the war. It's conceivable that Cornelius Gurlitt, still a boy, remembered his father as an honorable person because he behaved and was perceived as one.

'I Did Not Exploit Jews Who Wished to Emigrate'

After the war ended, Hildebrand Gurlitt was placed under house arrest. The Americans confiscated crates  filled with artworks that were found in his possession. The occupying forces questioned him repeatedly, and they were aware of his dealings with the Nazis, and yet they eventually released him and returned the artworks.

During the so-called denazification process, Gurlitt denied having cheated Jewish customers. In a written statement, he insisted: "I did not exploit Jews who wished to emigrate. Instead, I tried to help them exchange German pictures for others that were valuable on the international market. I never bought anything from Jews who were deported. On the contrary, I tried to help them as much as I could."

Hildebrand Gurlitt was eventually declared denazified, and everything seemed to have been resolved. In 1948, he was appointed director of the Kunstverein museum in Düsseldorf. A portion of his collection was exhibited in New York in 1956. The catalog includes an image of a drawing by Kandinsky, an artist whose works had been considered "degenerate." Gurlitt apparently continued buying and selling art, but so did other gallery owners who had collaborated with the Nazis, and they were viewed as respected figures.

Besides, dealing in art that had once been confiscated for being "degenerate" was not prohibited after 1945. Most of the avant-garde works that were seized had been state property and were taken from public museums. In other words, the state had stolen from itself, and its museums couldn't insist on restitution later on. As odd as it may seem, the Law on the Confiscation of Products of Degenerate Art, enacted May 31, 1938, was not repealed after 1945.

And the looted art, that is, the works that were stolen from their Jewish owners? The Allies returned some works to their rightful owners, and West Germany paid compensation to a small degree in its early years. But the situation is more complex and much more tragic than that. The Nazis murdered many of the owners, while a few managed to escape. Of course, they didn't leave with files containing documents to prove what had belonged to them. At some point, all deadlines to file applications for restitution or compensation expired.

Returning Looted Art to Its Rightful Owner

By the 1950s, dealings in what is now referred to as looted art were common. As provenance expert Monika Tatzkow learned, some auction houses noted in their catalogs that the previous owners of the art had been victims of the Nazis, "presumably to enhance the value." Suddenly the name of a Jewish collector was worth something again. On the whole, people were interested in the authenticity of the artworks, not their past.

A debate unfolded in the 1990s that ended in the Washington Conference Principles on Nazi-Confiscated Art. Germany agreed to examine the art collections of its state-owned museums and, in cases of looted art, return the works to their rightful owners, even if the statute of limitations had expired. But efforts to do so remained cursory. It was only in 1998 that Germany began to more seriously consider the moral issues involved in the way it dealt with its art collections. At that point, Hildebrand Gurlitt had been dead 40 years and his widow Helene 20. Cornelius Gurlitt was in his mid-60s and had apparently made it his life's work to keep his collection hidden.

Contrary to widely held views, the Bavarian Justice Ministry, which must now justify the seizure of the Gurlitt collection, is not assuming that third-party claims are necessarily beyond the statute of limitations. To be on the safe side, the ministry is examining whether limitation periods should be extended in cases of doubt. If they were, it would be a sensation.

The authorities are also stressing that the heirs of the true owners must present evidence. Their attorneys will attempt to track down documents, catalogs of the artists' works in which owners are named and letters from gallery owners. But such evidence will not always exist, leading the attorneys to raise other questions, such as whether Hildebrand Gurlitt purchased individual works from the Nazis or took them on commission. In the latter case, he would never have truly owned the artworks. Questions will also be raised as to whether the family acted in good faith after the war, when Hildebrand Gurlitt, and later his wife, claimed that all records had been burned.

A Private Person

Conversely, an attorney for Cornelius Gurlitt could argue that his client had acquired everything in good faith, and that he, like so many others, had believed that his father -- for whom a street was named in Düsseldorf in 1965 -- was a man of integrity and, therefore, hadn't known better, despite old lists of names that were apparently found in his apartment. In that case, would the entire collection be returned to him?

How could this scenario be explained to the heirs of the Jewish attorney Fritz Glaser, who apparently have a claim to at least 13 works, or to the well-known French journalist Anne Sinclair, a granddaughter of the Jewish art dealer Paul Rosenberg? Her attorney says that Sinclair has documents that clearly prove that at least one of the paintings, a Matisse, was part of Rosenberg's collection.

Gurlitt, with whom the attorneys will have to negotiate, is a private person. This makes everything more complicated, and it requires a more aggressive legal approach than that taken with museums, which are somewhat obligated to return artworks, because of the Washington Conference. It's possible that each of the 590 works currently suspected of being looted art will turn into a court case, leading to a process that could take years.

In the week before last, after revelations had emerged about the art discovery, there was a meeting of an unofficial crisis team from the relevant government agencies. The large contingent included representatives of the Finance Ministry and the Bavarian Justice and Culture Ministry, a delegate from the state of North Rhine-Westphalia and officials with the Federal Commission for Cultural and Media Affairs. The Bavarians, who had made a mess of the matter, apparently tried to blame everything on the officials from Berlin, noting that they had been notified from the start.

Forming A Task Force

The group agreed to form a task force. Under the plan, the collection will be examined by an entire team of experts instead of a single art historian, under the leadership of attorney Ingeborg Berggreen-Merkel, the former deputy to the state minister for culture. Will all of this be sufficient? Officials at the Foreign Ministry are apparently worried that Germany is humiliating itself and alienating the heirs of victims of the Holocaust.

Rita Kersting, a German curator working at the Israel Museum in Jerusalem, recently met with a number of the museum's Jewish patrons in the United States. She says she is asked about the case wherever she goes, and that many are appalled by it. According to Kersting, no one understands "how unprofessionally and with how little sensitivity" the Germans have behaved, and that there is even talk of latent anti-Semitism.

The Jewish Claims Conference (JCC) in Germany, which represents the claims of Holocaust victims and their families, has also asked to be included in the task force. The JCC hopes that Gurlitt will voluntarily relinquish the looted art, eliminating the need for legal action. Officials at the organization's Frankfurt office say that they intend to write him a letter.


Translated from the German by Christopher Sultan
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