Advisory Committee Restitutions and Second World War.
Recommendation RC 1.72
Date
:
 3 July 2008
Case number
 :
 RC 1.72
    Recommendation concerning the application for restitution of:
    Fishermen on the beach by J.H.B. Koekkoek
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In a letter dated 10 April 2007, 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 24 March 2007 by N.S.-D. and R.S.D. (hereafter referred to as ‘the applicants’) for the restitution of the painting Fishermen on the beach by J.H.B. Koekkoek (previously attributed to B.C. Koekkoek). The claimed object is part of the Netherlands Art Property Collection (hereafter referred to as the ‘NK collection’) under inventory number NK 2064 and according to information from the Netherlands Institute for Cultural Heritage, is currently on loan to the Institut Néerlandais in Paris.


The procedure

The reason for the application for restitution was the Geroofd, maar van wie? [Looted, but from whom?] exhibition in the Hollandsche Schouwburg theatre in Amsterdam. The applicants claim that they recognised the painting in question in a digital database as a work that possibly belonged to their grandfather S.D. during the Second World War. In response to the request for a recommendation, the Restitutions Committee instituted a fact-finding investigation, the results of which were summarised in a draft report dated 6 May 2007. This draft report was sent to the applicants for comment in a letter dated 15 May 2008, with the request to take the problems concerning identification of the claimed work into consideration. The applicants failed to respond to this request. The draft investigatory report was sent to the Minister for OCW on the same date to give the Minister the opportunity to add information. The draft investigatory report was subsequently adopted on 3 July 2008. For the facts of the case, the Committee refers to this 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 are requesting restitution of the painting Fishermen on the beach (NK 2064) by J.H.B. Koekkoek (previously attributed to B.C. Koekkoek). The applicants claim to be the children and heirs of B.D.D. (1917-2006), son of S.D. (1890-1943). Accordingly, the Committee has taken cognisance of several legal inheritance documents. According to the applicants, their grandfather S.D. lost possession of the painting in question involuntarily during the war.

  2. The relevant facts are described in the investigatory report of 3 July 2008, and are summarised here as follows. At the outbreak of the Second World War, S.D., who, according to the applicants, was the previous owner of the currently claimed work, was married to B.v.M., his third wife. The couple lived with the children from D.’s first marriage, B.D.D. and C.D., on the xxx in Amsterdam. A document submitted by the applicants and written by their father, B.D.D., states that the D. family was arrested by the Germans in August 1942. Because the occupying authorities deemed S.D. to be indispensable at that time, he was temporarily permitted to return home with his wife and son, B.D., who possessed what was known as an Ausweis. However, the couple’s daughter, C., was transported to Auschwitz where she died in September 1942. The couple went into hiding but were betrayed, arrested and transported to Auschwitz, where they died on 27 August 1943. Moving from safehouse to safehouse, their son, B.D.D., was the only family member to survive the war. After liberation, he returned to Amsterdam.

  3. Documentation submitted by the applicants shows that, on 30 June 1986, B.D.D. made a claim to a painting under the administration of the Austrian state. This claim involved a work from the ‘Mauerbach’ list, which contains several hundred abandoned works of art that were found by the allied forces in Austria in 1945 and for which the Austrian government was trying to trace the owners. The description of the painting on the Mauerbach list reads: ‘Koekoek Gestrandetes Schiff in der Brandung Öl/Lwd. 58,5x38 sign.’. In a letter that B.D.D. sent to the Austrian authorities on 11 August 1986, he describes the work he was claiming as follows: ‘(…) ein Ölgemälde des Mahlers Koekoek (JH. Oder H.) Abmessung 58,5 x 50cm, darstellend “ein gestrandetes Schiff in der Brandung”’. In support of his request, he included three testimonies from people who claimed that they could remember seeing the painting in D.’s parental home. In these statements, the painting is described by the three witnesses. C.R.-P. described the painting as follows: ‘Es stellte ein Seestück vor, mit einem Schiff auf den Wellen’, S.L.R. described the work as: ‘eine Seeansicht mit einem sich im not befindlichen Schiff darstellend’ and M.J.T. described it as a ‘Seascape.’ The claim was rejected by the Austrian authorities because of conflicting claims to the same painting.

  4. The Committee has determined that the descriptions provided by B.D.D. and the three eyewitnesses of the painting lost by S.D. during the war do not match the currently claimed work. NK 2064 depicts a sandy path between low dunes with a beach in the background, featuring a fishing boat on the right which has been grounded, a shed on the left and in the centre horses feeding from a trough and several people. There is no suggestion of a ship in the surf or of a ship in distress. Moreover, in NK 2064, the sea or the surf as described in all the abovementioned descriptions is only partially visible on the horizon in the background. The Committee has also concluded that several distinctive elements featured in NK 2064 are missing in the statements that B.D.D. sent to the Austrian authorities, including the horses, the people and the small shed, all of which feature prominently in the painting.

  5. Little is known about the provenance of the currently claimed work. Investigations instigated by the Origins Unknown Agency (hereafter referred to as the ‘BHG’) and the Restitutions Committee have failed to uncover any archival material that sheds light on who owned NK 2064 at the outbreak of the Second World War. Similarly, no information has been found about the whereabouts of the painting prior to 10 May 1940. Conclusions concerning the provenance drawn by the BHG and the archival material consulted only suggest that, at an undefined moment during the Second World War, NK 2064 was sold by the German art dealer G. Paffrath of Düsseldorf at Fredrik Muller & Co auction house in Amsterdam. There is no evidence to suggest that the currently claimed painting by Koekkoek (NK 2064) was the property of S.D. The applicants have also been unable to furnish the Committee with further information.

  6. In accordance with the Ekkart Committee’s eighth recommendation of April 2001, current restitution policy dictates that art objects can only be returned if a plausible case has been made for ownership rights and there are no indications to the contrary.

  7. Based on the above summary, the Committee deems it unlikely that NK 2064 was owned by S.D.


Conclusion

The Restitutions Committee advises the Minister for Education, Culture and Science to reject the application for restitution of the painting Fishermen on the beach by J.H.B. Koekkoek (NK 2064).

 

Adopted at the meeting of 3 July 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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