Recommendation

In a letter dated 23 April 2010, the State Secretary for Education, Culture and Science (hereafter referred to as: the State Secretary for OCW) requested the Restitutions Committee (hereafter referred to as: the Committee) to issue a revised recommendation regarding a previously rejected application for restitution filed by X.X. of Y. (hereafter referred to as: the applicant) concerning the following ten paintings from the Netherlands Art Property Collection (hereafter referred to as: NK collection).

• NK 1756: G. Lundens, Interior of an inn with hunters and other figures
• NK 2047: A. Eversen, View in a Dutch town
• NK 2059: F.A. Breuhaus De Groot, Farmhouse near a sandy road
• NK 2160: A. Schelfhout, Landscape with the ruins of Brederode castle
• NK 2251: B.C. Koekkoek, Winter landscape
• NK 2380: J. Ekels I, The Haarlemmersluis and the Haringpakkerstoren in Amsterdam
• NK 2508: F. de Braekeleer I, A farm yard
• NK 2727: J.H. Steen, Fortune teller
• NK 2933: K. Dujardin, Horse and two cows in a hilly landscape
• NK 3303: H. van Streek, Interior of the Oude Kerk in Amsterdam

The previous application for restitution of the above paintings was rejected by order of the Minister for OCW on 8 February 2008, in accordance with the recommendation of the Committee of 3 December 2007(RC 1.50).^[1]

[1] See also the recommendation RC 1.18 of 18 May 2004, in which, further to a previous claim from the applicant, the Committee recommends the restitution of three paintings.

Considerations

1. The current revised recommendation relates to case RC 1.50 concerning paintings belonging to Jewish businessman Marcus de Vries (hereafter referred to as: De Vries), the applicant’s father. Regarding case RC 1.50, the Committee advised the Minister for OCW on 3 December 2007 to grant the request for restitution for one work (NK 3072) and to reject it for the above ten paintings.
2. In his explanation the applicant states that after receiving the Minister’s decision on the application for restitution RC 1.50, he conducted further research. The applicant claims that during this research he found new, relevant factual material indicating that the ten paintings in question were part of the private collection of De Vries. The applicant argues that his claim should be assessed in accordance with the standards of the restitution policy for private art property and not, as in RC 1.50, according to the – far stricter – guidelines of the art dealership policy. With regard to the loss of possession, the applicant states that eight of the claimed paintings were stolen on 16 April 1941 or in the days after 8/9 June 1942. According to the applicant, his brother-in-law, M.L.J. Lemaire, was forced to sell paintings NK 1756 and NK 3303, one of the reasons being to ensure the livelihood of De Vries’s next of kin who had gone into hiding.Review criteria

3. The Committee assesses the request for a revised recommendation by applying two review criteria, namely:
   a. whether there are any new facts, which, had they been known when the recommendation on RC 1.50 was rendered, would have led to a different conclusion, and/or
   b. whether any errors were made during the procedure in case RC 1.50 as a result of which the applicant’s fundamental interests were prejudiced.Seeing as the applicant’s explanation does not concern procedural objections but is based on alleged new facts, the current revised recommendation is limited to a review of criterion a.

4. As regards the question whether these are indeed new facts, the Committee first finds that the various sources submitted by the applicant in the current procedure were already part of the file in case RC 1.50. These documents were also used as a basis for the summary of the facts as included in the RC 1.50 investigatory report of 1 October 2007 and, insofar as relevant for assessing the application for restitution, were described and considered in the recommendation on RC 1.50.The following documents now submitted by the applicant can be regarded as new:a. notes made by the applicant on pages of his diary of 1998 (letter from the applicant dated 25 November 2011, Appendix 3);
   b. a letter from E.J.M. Douwes Sr. of Douwes Fine Art B.V. dated 24 September 2009 (ibid., Appendix 5);
   c. the cash book summary “M.F. de Vries, here” from the archive of Douwes Fine Art B.V. (ibid., Appendix 10);
   d. a letter from RBZ Recherche, a private detective agency, dated 22 October 2009 (ibid., Appendix 12);
   e. a letter from P.L. Zevenbergen Schrift- en Documentonderzoek, a document research company, dated 24 November 2008 (ibid., Appendix 13);
   f. a letter from the Amsterdam Municipal Archives dated 17 October 2011 (ibid., Appendix 15);
   g. a copy of a letter written in pencil and dated 14 October 1986 and sent by Mietje Lamaire-de Vries, and a copy of an envelope (ibid., Appendix 17);
   h. copies of the “Guidelines for levies on income and capital” and the corresponding letter from the Jewish Council with handwritten notes (ibid., Appendices 19 and 21);
   i. a letter from P.P.M. de Boer of art dealership P. de Boer B.V. dated 30 September 2009 (ibid., Appendix 22);
   j. a “1941 cash register overview 1941” concerning M.F. de Vries from the archive of Douwes Fine Art B.V. (ibid., Appendix 24);
   k. a statement by P. Knolle, head of collections of Rijksmuseum Twenthe concerning painting NK 2380 (presented by the applicant during the hearing on 25 April 2012);
   l. two documents concerning art dealership Katz from the Netherlands Art Property Foundation (hereafter referred to as: SNK) (ibid.);
   m. a written statement by Dr M. de Keizer, senior researcher at NIOD, dated 3 May 2012 (enclosure in letter from the applicant dated 3 May 2012);
   n. a statement signed by the applicant and dated 31 July 2012 (enclosure in letter from the applicant dated 1 August 2012);
   o. a signed letter to the applicant from G.J.T.M. van den Bergh dated 18 August 2008 (ibid.);
   p. a statement signed by Marina Lemaire and dated 25 July 2012 (ibid.).
5. In the opinion of the Committee, the documents cited under 4 a, d, e, f, h, and l do not contain any information relevant for the questions at issue. Based on these documents the applicant merely provides a new interpretation of facts that are already known and have already been weighed up, or the documents in question merely concern aspects that are not relevant to the recommendation process. Said documents therefore do not contain any new facts, which, had they been known when the recommendation was adopted, would have led to a different conclusion.
6. The substantial part of the applicant’s argumentation is based on the letter written in pencil and referred to in consideration 4 g. This letter was written to M. de Keizer and is dated 14 October 1986. Given as sender is ‘Wed. Mvr. M. Lamaire de Vries’, which must be the sister of Marcus de Vries and the widow of M.L.J. Lemaire, who died on 26 October 1986 at the age of 98.The letter reads as follows:Source: Netherlands Institute for War, Holocaust and Genocide Studies, NIOD, archive 185c Het Parool newspaper, inventory number 214

7. According to the applicant, the letter concerns a ‘novum ten opzichte van RC 1.50 aangezien daarin alle zeven werken worden genoemd terzake waarvan de Restitutiecommissie in RC 1.50 de eigendom van De Vries niet aannemelijk heeft geacht’. The applicant states that it follows from the letter that ‘een aantal met name genoemde schilderijen behoorden tot de privé-collectie van De Vries’. The applicant is of the opinion that in the letter ‘een duidelijk onderscheid [is] gemaakt tussen werken die behoorden tot de kunstverzameling van De Vries enerzijds, en werken die De Vries bij Lemaire voor eventuele verkoop had ondergebracht anderzijds’. The applicant’s representative has stated that the applicant has not had this letter for very long and that it was written by his aunt in connection with De Keizer’s research. This research was part of De Keizer’s dissertation, which was published in 1991 under the title Het Parool (1940-45). Resistance paper in time of War.However, during the hearing of the case, the applicant stated that he did not consider it likely that his aunt wrote this letter herself seeing as it was dated twelve days before she died and she was seriously ill at the time. The applicant suggested that the text was dictated to her son Frits Lemaire, but also stated that he had no further information about this at all. In his response dated 1 August 2012 and supported by a statement of Marina Lemaire, a granddaughter of Mietje Lemaire-de Vries, the applicant then stated that the handwriting was not that of Frits Lemaire or his sister Trees Lemaire, but that someone else close to Mietje Lemaire-de Vries helped her draft it, such as an employee of the care home where she lived in 1986.

8. The Committee noticed several spelling mistakes in the letter, such as two occasions on which the name “Lemaire” would seem to have been spelled as “Lamaire”, the inconsistent spelling of the name “Marcus” and “Markus”, and the incorrect spelling of Joseph de Vries, the brother of Marcus and Mietje, who is referred to as “Josef”. Moreover, the well-known Amsterdam auction house Mak van Waay is also referred to as “Mak en van Waay”.This makes it unlikely that the letter was written by a member of Mietje Lemaire-de Vries’s family, or by someone well versed in the Amsterdam circle of art and antiques, of which the Lemaire family was a part. The applicant’s assumption that someone close to Mietje Lemaire-de Vries assisted her in writing the letter is therefore too vague to be deemed significant. There is, after all, insufficient certainty that Mietje Lemaire-de Vries instigated the writing of the letter herself. The Committee observes that in terms of the content and the actual writing, the authorship of the letter remains unexplained.

9. As well as the authorship issue discussed above, the letter also contains some ambiguities and raises some questions that remained unexplained and unanswered during the investigation. This concerns the following points.
   • It is not clear what is meant by: ‘Rest gestolen: zegt dochter en zoon in begin april 1941’.
   • The purport of the remark that paintings that were ‘verkocht door mijn man Lamaire in opdracht van Markus de Vries, eigendom [zijn] van Josef de Vries in Australië.’
   • During the hearing, the applicant stated that Mietje Lemaire-de Vries’s letter has nothing to do with the documents of the Jewish Council described in 4 h. The applicant stated that he himself found the letter in the NIOD archive and the document from the Jewish Council in a family archive. However, when investigating the NIOD archive, the Committee found that the original letter from Mietje Lemaire-de Vries was written on the back of a copy of the Jewish Council’s ‘Guidelines’. In his letters dated 14 June 2012 and 1 August 2012, the applicant’s representative gave an explanation for this that differs in key points from what the applicant said during the hearing. This explanation is not supported by any factual information and is merely based on assumptions.
   • During the conversation that the Committee had with Dr De Keizer, she stated that she did not remember actually receiving the letter in 1986 and explained what she meant by her statement drafted by Van den Bergh on 3 May 2012, as evident from the email dated 4 May 2012, which appeared to deviate from this. With regard to the contents of the letter, Dr De Keizer indicated that information about paintings was of no relevance to her research in 1986, given that it focused exclusively on the newspaper Het Parool. She has never spoken to Mrs Lemaire-de Vries.
   • Regarding the copy of an envelope which was said to have contained Mietje Lemaire-de Vries’s letter to Dr de Keizer as sent on 14 October 1986 and which the applicant presented during his explanation (consideration 4 g; hereafter referred to as: copy A), the Committee investigated the original envelope as last seen by the Committee on 10 May 2012, at the NIOD archive. It was found during the investigation that the original envelope had been visibly sealed and reopened at the top, which differs from copy A presented by the applicant, the top edge of which is intact. Given some striking identical details such as a few stains, creases and some specific damage, the Committee has the impression that this is one and the same envelope. The Committee also observed that in October 2006, during the procedure in case RC 1.50, the applicant also presented a copy of an envelope featuring the same spots, creases and damage (hereafter referred to as: copy B). Copy B from 2006 is, however, an open envelope. On the basis of the above, the Committee observes that copy B would also seem to have been made of the same envelope but that it has remained unexplained why and by whom changes were made to the envelope in which Mietje Lemaire-de Vries’s letter was said to have been sent after 24 October 2006, at a time when there was no mention of a letter from her.

10. Given the uncertainty about the said envelope, about who wrote the letter, and about the question from whom the information contained in the letter came, the Committee is insufficiently able to judge the reliability of the information contained therein. This, and the unresolved ambiguities regarding the contents of the letter, leads the Committee to the conclusion that the letter cannot be deemed a source of new, relevant information which, had it been known when the recommendation concerning RC 1.50 was being drafted, would have led to a different conclusion. The applicant’s response on 1 August 2012 and the appendices it contained, as described in considerations 4 n to p, have not resolved these ambiguities.
11. The documents described in 4 c and j originate from the accounts of Amsterdam-based art dealership Douwes Fine Art B.V. During the hearing, art dealer E.J.M. Douwes gave an explanation of the documents in question, repeating the point of view set out in his letter of 24 September 2009 (cited in consideration 4 b) that as far as he knew, Marcus de Vries was an art collector and not an art dealer. In the context of Douwes’ statement, the Committee also refers to the letter from art dealer P.P.M. de Boer of 30 September 2009 (cited in consideration 4 i), in which the latter states that based on an inventory card contained in his archive, there is no reason to assume that De Vries was a dealer. With regard to the said documents and statements, the Committee finds that the way in which both art dealers describe De Vries’s activities is not inconsistent with the opinion expressed in case RC 1.50 that De Vries was an occasional dealer. As set out in consideration 4 of the recommendation in case RC 1.50, the recommendations of the Ekkart Committee regarding the art trade state that ‘naast de reguliere kunsthandelaren, die voor het merendeel reeds lang voor het begin van de oorlog gevestigd waren, in de jaren vanaf 1940 een groeiend aantal “gelegenheidshandelaren” werkzaam was, zowel joodse als niet-joodse personen, die zich niet hadden gevestigd als kunsthandelaar, maar zich op meer of minder intensieve wijze bezig hielden met de in- en verkoop van kunstwerken’. The Committee points out that from the perspective of renowned art dealerships with a long tradition, it is perhaps not easy to consider occasional dealing a professional form of art dealing. In the Committee’s opinion, neither statement affects the conclusion in RC 1.50 that the archive material found demonstrates that De Vries was active as occasional art dealer during the war years.
12. All in all, the Committee concludes that the applicant has not provided or otherwise put forward sufficient new facts that would merit a revised recommendation to the State Secretary for OCW to reconsider the rejection of the application for restitution RC 1.50.
13. In this matter, the Committee therefore reiterates the following considerations:
    • firstly, that if attention is paid to what would appear to be sufficiently clear from the letter (cited in 4 g.), the letter does not support the argument that Marcus de Vries was exclusively an art collector and not an “occasional dealer” and
    • furthermore, that, as considered in the RC 1.50 recommendation, insufficient information has come to light regarding the property situation of the claimed works and the involuntary nature of the loss of possession by Marcus de Vries.

14. With regard to the painting by J. Ekels I, The Haarlemmersluis and the Haringpakkerstoren in Amsterdam (NK 2380), Mr P. Knolle, head of collections at Rijksmuseum Twenthe, stated in his letter dated 17 April 2012 (consideration 4 k) that the applicant visited the museum with his wife on 9 and 10 October 2004 in connection with a loan of a painting that had previously been returned to him. In one of the museum galleries, the applicant saw a townscape by Jan Ekels the Elder entitled Haarlemmersluis and the Haringpakkerstoren in Amsterdam , about which ‘hij aangaf dat het vroeger in het huis van zijn vader had gehangen’.
    During the hearing, the applicant spoke of his memories of that painting. Following that, the Committee conducted further investigations in various archives to determine its origin, which did not result in additional information about its ownership, however. The Committee considers that on the basis of the statements referred to above and the statements made in the context of RC 1.50 alone it cannot be concluded that in the relevant period NK 2380 was still the property of Marcus de Vries and separate from his trading stock. Insufficient information has come to light about the circumstances surrounding a possible loss of property to be able to meet the conditions for restitution. In connection with this, the Committee also notes that the applicant’s memories date from the period of his last visit to his father’s house, which took place well before the occupation of the Netherlands (see also the recommendation in case RC 1.50).