Advisory Committee Restitutions and Second World War.
Recommendation RC 1.53
Date  :
4 February 2008
Case number
:
RC 1.53
    Recommendation concerning the application for the restitution of:
    Hunting still life by D. de Coninck
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In a letter dated 31 October 2006, the Minister for Education, Culture and Science (OCW) asked the Restitutions Committee to issue a recommendation regarding a decision to be taken on the application submitted on 2 October 2002 by B.E., as the authorised representative of J.A. van Brabant’s grandchildren (hereafter referred to as ‘the applicants’), concerning the restitution of the painting Hunting still life by D. de Coninck. Since its return to the Netherlands after the Second World War, the claimed object, previously attributed to J. Fyt, has been part of the Netherlands Art Property Collection (hereafter referred to as ‘NK collection’) under inventory number NK 2149. According to information provided by the Netherlands Institute for Cultural Heritage (hereafter referred to as ‘ICN’), the claimed work of art is currently on long-term loan in the Ridderzaal at the Binnenhof (Dutch Parliament building) in The Hague.


The procedure


On 2 October 2002, B.E., the deputy advisor of the Department for the Restitution of Stolen Goods at the Belgian Ministry of Economic Affairs (hereafter referred to as ‘Restitution Department’) in his capacity as the authorised representative of J.A. van Brabant’s six grandchildren, sent an application for the restitution of NK 2149 directly to the Restitutions Committee. After having received it, the Committee forwarded the application to the Ministry of OCW, due to the fact that it can only issue a recommendation at the request of the Minister. On 31 October 2006, the Minister requested the committee to issue a recommendation on this application for restitution. In response to this request, the Committee instituted a fact-finding investigation, the results of which have been recorded in a draft report of 11 June 2007. This draft report was submitted to the applicants, who responded to the contents of the report in a letter of 14 August 2007. The report was subsequently adopted on 4 February 2008. For the facts of the case, the Committee refers to the investigatory report, which is considered an integral part of this recommendation.


General considerations


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 if the art was privately owned, 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)    It is highly probable that loss of possession was involuntary if the object was sold 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.


Explanation of general considerations c and e1


In line with the recommendations with regard to art dealing and the explanation thereof, the Committee has come to the conclusion that consideration c should only apply to the ownership of art by private parties. Consideration e has been modified accordingly and, furthermore, this consideration should be taken to mean that only those objects that were effectively part of the old trading stock are eligible for restitution.


Special considerations:


  1. The applicants request the restitution of the painting Hunting still life by D. de Coninck, formerly attributed to J. Fyt (NK 2149). The applicants are the six children of E.J. M. v. B., who died on 10 June 1991, son of J.A. van Brabant, who died on 25 December 1965. According to the applicants, their grandfather sold the painting involuntarily during the Second World War. The aforesaid Mr E. is acting on behalf of the six Van Brabant grandchildren and is therefore considered by the Committee to be a private person and not a representative of the Belgian government. The committee has also taken cognisance of a number of documents regarding the position of the applicants with regard to the law of inheritance.

  2. The relevant facts are stated in the investigatory report dated 4 February 2008. The following summary of events will suffice for the present purposes. In 1940, the Belgian engineer James Alexandre van Brabant lived in Brussels and was married to Marguerite Gaullet. According to the applicants’ statement, the Van Brabant family did not belong to a persecuted group. Research in the Netherlands Institute for Art History (hereafter referred to as ‘RKD’) brought to light an auction catalogue for an auction that took place on 6 and 7 December 1938 in Egmont Palace in Brussels. This catalogue contains a painting by J. Fyt entitled ‘Trophée de chasse au fusil’. The pictures and descriptions in this catalogue clearly refer to NK 2149 and indicate that this work came from the J.A. van Brabant collection in Brussels.

  3. On 30 November 1940, James van Brabant wrote a letter to the Dutch art dealer W.M.H. Paech offering to sell him four of paintings from his collection, including the painting in question, NK 2149. Based on this, the Committee concludes that the painting was not sold at the 1938 auction and that it was still in Van Brabant’s possession in 1940. Van Brabant subjected the sale of the Fyt painting to an unspecified condition, which he intended to explain in person. Evidence from the Netherlands Art Property Foundation archives (hereafter referred to as the ‘SNK archive’) and the Centraal Archief Bijzondere Rechtspleging (Central Archives for Special Criminal Jurisdiction, hereafter referred to as ‘CABR’) shows that Paech often did business with Germans who purchased art for prominent Nazis. The investigation also shows that Paech mediated art acquisitions for Hermann Göring and that had he accompanied the Reichsmarschall on a visit to Brussels at the time. After the war, the Amsterdam Tribunal convicted Paech for his activities during the occupation.

  4. According to documents found in the archives of the Dienst voor Economische Recuperatie (Office for Economic Recovery, hereafter referred to as ‘DER’) in Brussels, a claim form was filled out for the Jan Fyt painting ‘Trophée de chasse au fusil’ after the war. The form names Van Brabant as the owner of the painting and Paech as the buyer. Furthermore, it states that the work ended up in the Hermann Göring collection. It cannot be determined from the form whether the sale was voluntary or involuntary because both choices were checked. However, the form does state that the work was sold for 2,000 RM under the condition that Van Brabant’s son, who was a Belgian prisoner of war in Germany, would be released early. The name of the person who filled in the claim form is not given.

  5. In the Netherlands, a claim form concerning the Fyt painting was found in the SNK archive, which was filled in on behalf of art dealer W. Paech in Amsterdam on 14 February 1946. This form states that Paech voluntarily sold Fyt’s Hunting still life to H. Bangert in Düsseldorf during the war. This is confirmed by other documents found in the SNK archive. After the war, W.A Hofer, who had been responsible for the Göring collection, declared that NK 2149 had not been part of Göring’s art collection.

  6. In 1971, Marguerite Gaullet, the then 83-year-old widow of James van Brabant, wrote a letter to the Belgian Minister of Foreign Affairs concerning the painting in question after heaving heard a radio programme on stolen art. It can be deduced from this letter that the son of the Van Brabants was taken prisoner of war by the German occupation forces in 1940. According to the widow, the married couple found out after some time that their son had been operated on for sinusitis by a German doctor. Worried about their son and depressed over the recent death of their daughter, they decided to sell the Fyt painting on the condition that the buyer would arrange for their son’s early release from captivity via Göring. The widow also stated that this condition was never met after the sale and that her son did not return home until 1943.

  7. On the basis of current restitution policy, the conditions for restitution have been met if the claimed object was sold involuntarily due to circumstances that are directly related to the Nazi regime. In this regard, the Committee noted that the applicants indicated that their grandfather James van Brabant did not belong to a persecuted group. Therefore, the reversal of the burden of proof for persecuted populations as contained in the third recommendation of the Ekkart Committee of April 2002 does not apply. The question, then, is whether the applicants have sufficiently demonstrated that the sale of the painting was involuntary due to circumstances that are directly related to the Nazi regime. In this context, the applicants refer to the intended buyer, Hermann Göring, who would have the son of the Van Brabants released from captivity if Van Brabant sold him the painting.

  8. The Committee answers this question in the negative. The Committee is of the opinion that there is not sufficient evidence of a connection between this sale and the Nazi regime now that it is clear that it cannot be proven that the claimed work was part of the Göring collection and that Van Brabant’s son was not released from captivity early. Moreover, the committee deems that the involuntariness of the sale has not been proven because Van Brabant had already put the painting up for sale at a public auction before the war in 1938. Therefore, the committee is of the opinion that it is not sufficiently likely that it is a case of involuntary loss of possession due to circumstances directly related to the Nazi regime.


Conclusion


The Restitution Committee advises the Minister for Education, Culture and Science to reject the application for restitution of the painting Hunting still life by D. de Coninck (NK 2149).


Adopted at the meeting of 4 February 2008 by R. Herrmann (chair), J.Th.M. Bank, J.C.M. Leijten, P.J.N. van Os, E.J. van Straaten, H.M. Verrijn Stuart, I.C. van der Vlies (vice chair), and signed by the chair and the secretary.


(R. Herrmann, chair)   (E. Campfens, secretary)

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1 Until 12 November 2007, general considerations c and e read:

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.

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, insofar as the original owner or his heirs did not receive all the profits of the transaction, or insofar as the owner did not expressly waive his rights after the war.



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