The proceedings

A letter from the Origins Unknown Agency (‘BHG’) dated 8 October 2004 and addressed to the applicant requesting information about the work of art by G. Reni (NK 2863) in the Institute Collection of the Netherlands gave rise to the application for restitution. The letter indicated that the work had been in the possession of the applicant’s father, Mr E.S. Simon, and had been sold to Alois Miedl during the occupation. BHG drew the applicant’s attention to the possibility of applying for restitution assuming that the sale of the painting had been involuntary.

In response to this, the applicant said that she had not found any information about the G. Reni painting in the family archive, though she had found information about the painting Poultry by M. d’Hondecoeter, which is registered in the Dutch National Art Collection under number NK 1985. This painting was on long-term loan to the Centraal Museum in Utrecht. In letters dated 3 and 14 November 2004, and in several meetings with BHG, the applicant provided further details concerning the circumstances under which the painting by D’Hondecoeter had been sold during the occupation in addition to information about her father’s later attempts to regain possession of it. In the application for restitution dated 28 February 2005, the applicant requests restitution not only of the Reni painting but also that of M. d’Hondecoeter.

In response to the request for a recommendation presented to it by the State Secretary on 2 May 2005, the Restitutions Committee instituted a fact-finding investigation, the results of which were summarised in a draft report dated 13 January 2006. The draft report was submitted to the applicant for comment, which she proceeded to give in a letter dated 5 February 2006. The Restitutions Committee adopted the draft report on 24 April 2006. As regards the facts of the case, the Committee refers to its research report, which is considered an integral part of this recommendation.

Special considerations

1. In her capacity as heir of her father Erwin Samuel Simon, who died in 2001, the applicant requests the restitution of the paintings Poultry by Melchior d’Hondecoeter (NK 1985) and Saint Peter repentant by Guido Reni (NK 2863). In this context, the Committee learned about the existence of a notarial certificate of inheritance, which is contained in the Committee’s research file and which states that the applicant is the sole heir.
2. In brief, the fact-finding investigation revealed the following: Erwin Samuel Simon was born on 14 January 1903 of Jewish extraction and with German nationality. Until early 1938, he lived and worked in Berlin and was in possession of a collection of art. As a consequence of anti-Jewish legislation, he and his wife left Berlin in early 1938 and moved to the Netherlands where they became stateless. The couple finally settled in Enschede and took an active part in the resistance movement. From the end of 1943, Simon and his wife were forced to go into hiding. Their daughter, the applicant, was born at about this time. Simon was arrested and detained at the end of October 1944. He survived the war, as did his wife and daughter.
3. The investigation showed that in 1941 and 1942, Simon sold a number of works from his art collection to various art dealers in the Netherlands, among which the works claimed. It is highly likely that these paintings were in his possession when he left Germany. Where the work by G. Reni is concerned, the investigation was not able to provide a decisive answer as to how and when this painting was acquired by Simon. It has been established, however, that Simon sold this painting on 10 February 1941 to the art dealers ‘Kunsthandel Voorheen J. Goudstikker N.V.’ (Gallery formerly known as J. Goudstikker N.V.), established in Amsterdam and run by the German Alois Miedl, for the sum of NLG 3,500. The gallery’s purchases and sales journal mentions the transaction and an invoice was found in the archive. The work made its way to Munich in 1942, from where it was sent back to the Netherlands after the war. No further details were found in the archive with respect to possible attempts on the part of Simon to recoup this painting after the war. Nor is it known when Simon came into possession of the painting Poultry by D’Hondecoeter, though it has been established that on 13 April 1942, Simon sold the work to art dealers Paul Cassirer & Co. in Amsterdam for the sum of NLG 13,500. As proof, the applicant submitted a statement from the said art gallery dated 5 March 1963. The gallery itself states that it sold this work voluntarily to the Wallraf-Richartzmuseum in Cologne a few days later, a fact evidenced in a declaration submitted to the Netherlands Art Property Foundation by Cassirer & Co. in October 1945. The painting was recovered in 1947 and added to the Netherlands Art Property Collection. The Committee regards a closer investigation of the loss of possession of the work by the art dealers Paul Cassirer & Co. as unnecessary, given that after the war, the gallery itself stated that the sale of the work to the Cologne museum had taken place voluntarily. Moreover, the Committee observes that the Dutch national policy gives priority to first loss of possession, in this case that of Simon.
4. Material in the archive shows that between 1946 and 1963, Simon made repeated attempts to recoup the D’Hondecoeter painting, as well as various other works of art that he had sold during the occupation years. However, contacts with the Netherlands Art Property Foundation, the Council for the Restoration of Rights and the Ministry of Finance did not bring the matter to a final conclusion. In 1963, Simon was informed that the ministry was prepared to return the work on condition that the consideration received by him be repaid. After this, correspondence ceased. The Committee considers the applicant’s argument that Simon was forced to relinquish restitution of the work on financial grounds sufficiently demonstrated. In view of the fact that attempts to recover the work did not lead to a judgement by a competent court or a settlement with a competent authority, the Committee is of the opinion that, by virtue of the applicable national policy, this matter was not resolved at any time in the past. It therefore considers the application for restitution of both works of art admissible.
5. In view of the fact-finding investigation described above, the Committee considers it sufficiently proven that Simon owned the claimed works at the start of the occupation of the Netherlands.
6. Furthermore, the Committee considers that under current national policy, the sale of both works should be regarded as involuntary, as a consequence of circumstances directly associated with the Nazi regime. With regard to this opinion, the Committee refers to the third recommendation of the Ekkart Committee of 26 April 2001, adopted by the government, which stipulates that sales executed by Jewish private persons in the Netherlands after 10 May 1940 should be regarded as involuntary, unless explicitly shown to be otherwise. In this respect, the Committee considers it plausible that as a stateless resident of Jewish origin, Simon was not in a position to practise his profession in the Netherlands during the occupation and was therefore forced to sell the works of art to support and protect himself. Of further consideration was the fact that he and his wife took part in the resistance movement. A note written by Simon on his personal stationery in around 1964 attests that at the time he himself believed he was forced by the circumstances of the war to sell the D’Hondecoeter painting:Given the circumstances of war, occupation and persecution, sold to art dealers Paul Cassirer & Co., Keizersgracht 109, Amsterdam, on 13 April 1942.In view of the involuntary loss of possession of the Reni painting, the Committee draws attention (perhaps unnecessarily) to the figure of Alois Miedl who, as purchaser of the painting, was known to pressure Jewish art owners into selling their works during the early stages of the occupation, a fact to which the Committee has referred in previous recommendations. In preparing its recommendation, the Committee also takes into consideration that which the applicant put forward in her application of 28 February 2005:With my father, it was indeed a case of being put under pressure as he was not able to practise his profession and could therefore only support himself, my mother and me with the help of private funds. It is highly unlikely that my father was able to dispose of the proceeds of the sale as he saw fit. In view of what he himself had experienced in Germany between 1933 and 1938, he had every reason to suspect that the Jews in the Netherlands would face much the same fate. It is plausible that he not only needed money to live on but also to ensure his safety, especially since my parents were stateless. The fact that my mother received an unknown sum from the resistance movement at some point in time, shows just how precarious their financial situation was after 1943.
7. In the light of the above, the Committee considers the application for restitution of the works NK 1985 and NK 2863 admissible. The Committee is of the opinion that no conditions should be attached involving restitution of the money paid at the time, given that in all likelihood, Simon had to use these funds for his impending flight into hiding and was therefore not free to use them at his own discretion. In connection with this, the Committee refers to the fourth recommendation of the Ekkart Committee of 26 April 2001, which states that there are no grounds for repayment in cases in which payment was received and, in all probability, used exclusively in an attempt, successful or otherwise, to leave the country or go into hiding. In accordance with the same recommendation, repayment of the proceeds of a sale would only come under discussion had the seller indeed been free to use these proceeds. Where this is open to doubt, the previous owner should be given the benefit of that doubt. The Committee also includes in its considerations the fact that in 1951, the Dutch state auctioned a work by Jan Steen that had belonged to Simon and which the latter had sold under pressure of war. After it had been recovered, the painting was sold for the benefit of the national treasury. Simon was neither informed about this nor did he receive any compensation.

Summary RC 1.28

POULTRY BY M. D’HONDECOETER AND THE PENITENT SAINT PETER BY G. RENI

In this case, an information request from the Origins Unknown Agency (BHG) about a single work of art eventually led to the restitution of two works to the daughter of the original owner.