The current restitution policy of the Dutch government in respect of items from the NK collection is based on the principle that a claim may be submitted only if it is a new claim or if new facts have become available in respect of a claim already dealt with before. Another condition is that the rightful owner must have lost the property involuntarily. Of these requirements only the notion of new claim is capable of unambiguous and systematic application. Different views may be held of the concept of new facts, while different interpretations of the concept of involuntary loss of the property were already used as early as in the period 1945-1952.
The general government position on World War II Assets dated 21 March 2000 is based on the principle that the process of restoring property rights will not as such be repeated. It follows that settled cases will not be reopened. Since there may be serious uncertainty about the question what must be considered to fall within the category of settled cases, the committee, having examined a large number of files, recommends that the term "settled case" be restricted to the two categories regarding which a general consensus does exist, namely judicial decisions and formal settlements made between the bodies which in hierarchy rank above the SNK (Council for the Restoration of Property Rights and the Netherlands Custodian Office) and claimants and signed by both parties. Formal settlements made at a later date with the Kingdom of the Netherlands likewise belong to the category of settled cases. According to this view a decision taken by the SNK does not make a case a settled case, and even less does an unsigned note made by an SNK official on a document stating that the case has been (officially) settled. On the same principle decisions of the SNK followed by a letter from the claimants communicating that under the conditions stipulated by the SNK they have decided not to accept restitution, likewise do not fall within the category of formal settlements.
It has been found that in only a few cases claims refused by the SNK were eventually submitted to the court, in this case the Judicial Division of the Council for the Restoration of Property. This happened mainly in a period in which the SNK already considered most cases as closed. It is the opinion of the committee that the judgments given in these cases must be viewed as containing criterions for reviewing the assessments by the SNK that were never submitted to the court by the claimants concerned. The resulting differences between judicial judgments and SNK decisions must be considered to constitute new facts in any claims that may be submitted. A judgment like the one given in the Gutmann case (1952), for instance, expresses a clearly broader interpretation of the notion of involuntary loss of the property than was usually given to the notion by the SNK. This is expressed in the finding that a sale "under the influence of the special circumstances of the war" also qualifies for annulment. Although the other judicial judgments may operate less directly as precedents, they do make it clear that the courts took a more lenient view of the matter than the SNK (see e.g. the judgment in the case of Rebholtz, 1953, which annulled the decisions of the SNK and the Netherlands Custodian Office). Whenever a claim is submitted by a claimant who invokes such a judgment and makes a reasonable case for the view that the application of the norms used in that judgment might have resulted in a different decision than the one taken by the SNK, such claim should qualify for consideration on these grounds.
The concept of new facts must likewise be given a broader interpretation than has been customary so far, since at present only new, hard facts about the history of the work of art, i.e. new information obtained from the provenance research, are considered to be new facts.
Although we must take great care that the application of new norms does not result in legal inequality in comparison to cases fully disposed of at the time, it must also be examined whether according to our present-day sense of justice the methods used by the SNK at the time are sufficiently in agreement with the then existing legal principles as laid down in Royal Decree E 100. There is no need to call into question these basic principles of the restitution policy, but we should examine their implementation by the SNK. In this connection it is important to point out that the ministries involved never gave the draft guidelines set up in late 1946 by the SNK based on the informal 1945 guidelines to help establish the foundation's actual procedure, the official status of instructions to the SNK. It is clear, moreover, that these draft guidelines, which the SNK by all appearances used in practice as rules of conduct, also left much room for different interpretations.
Summarising, it may be stated that the criterions used by the government for not pleading the statute of limitation in respect of claims are practicable, but that the notions of settled case and new facts need to be given a broader interpretation.
In addition the committee would like to make recommendations for the following points:
- the interpretation of the term forced sale (§ 4)
- the need to repay the sales price (§ 5)
- the use of the concept of proof (§ 6).
Furthermore, a recommendation will be made in respect of a rule which is not laid down anywhere but which the investigations show the SNK to have applied in practice, viz. that where the SNK was willing to restitute an object, the right to "repurchase" the object was valid only for a short period (§ 7).
- The committee recommends that the notion of "settled cases" be restricted to those cases in which the Council for the Restoration of Property Rights or another competent court has pronounced judgment or in which a formal settlement was made between the lawful owners and the bodies which in hierarchy rank above the SNK.
- The committee recommends that the notion of new facts be given a broader interpretation than has been the usual policy so far and that the notion be extended to include any differences compared to judgments pronounced by the Council for the Restoration of Property Rights as well as the results of changed (historic) views of justice and the consequences of the policy adopted at the time.