Recommendation

In a letter of 27 January 2014 the Minister of Education, Culture and Science (hereinafter referred to as the Minister) requested the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (hereinafter referred to as the Committee) for revised advice about a previously rejected application for restitution from AA (hereinafter referred to as the Applicant) concerning the following fourteen paintings from the Netherlands Art Property Collection (hereinafter referred to as the NK collection):

NK 1537 – B.G. Cuyp, Card Players
NK 1557 – H.M. Sorgh, Hearing, Personified by a Couple Singing
NK 1559 – H.M. Sorgh, Taste, Personified by a Couple Eating
NK 1597 – Ph. Wouwerman, Landscape with Two Men on Horseback
NK 1667 – Follower of L. Cranach, Madonna and Child
NK 1704 – Ph. Wouwerman, Italianate River Landscape with a Hunting Party
NK 1760 – W. Verschuur the Elder, A Horse Fair
NK 1914 – Circle of S.J. van Ruysdael, River View with Fishing Boats
NK 2245 – S.J. van Ruysdael, Winter Landscape with Skaters near a Town
NK 2264 – A. Bloemaert, The Triumph of Neptune
NK 2824 – Master of 1518, The Adoration of the Magi
NK 2835 – J.G.C. Coclers, Still Life with Flowers in a Vase
NK 2866 – Studio of A. van Utrecht, Still Life with Game
NK 2882 – In the style of A. van der Neer, Village on a River

In a decision of 3 November 2011 the then State Secretary for Education, Culture and Science rejected the earlier application for restitution of the paintings referred to above in accordance with the Committee’s advice of 13 October 2011 (RC 1.106).

Considerations

1. If a decision has been taken in regard to a request for advice about restituting works of art from the NK collection or other parts of the Dutch National Art Collection, in principle the handling of the application has definitively terminated. The restitution policy does not provide for the option to ‘repeat’ the handling of a case, or to lodge an appeal so to speak. However, in 2010 the Committee did create the option, in consultation with the Ministry of Education, Culture and Science, to submit ‘requests for revised advice’. The intent of this procedure is limited. In the case of revised advice, there is no assessment of facts that were already known and are submitted once again to support different arguments, but there is evaluation of new facts that are relevant to the outcome of the advice. In addition, account is taken of the possibility of serious errors of a procedural nature, in particular in regard to the principle of hearing both sides. Summarizing, when handling a request for revised advice, the Committee assesses a case on the basis of two criteria, which are:
   (a) new facts that, had they been known at the time the earlier advice was formulated, would have led to a different conclusion, and/or
   (b) errors during the earlier procedure that resulted in harm to the applicants’ fundamental interests.
2. The Applicant is the only heir of her uncle Simon de Haan (1901-1943; hereinafter referred to as De Haan). Summarizing, the basis of the Committee’s advice of 13 October 2011 to reject the application (RC 1.106; hereinafter referred to as the earlier advice) was that it had not become highly likely that the fourteen paintings claimed by the Applicant had been De Haan’s property, as the Applicant had asserted. In this regard the Committee took the view that De Haan had to be deemed an art dealer and the Applicant’s claim therefore had to be assessed in accordance with the art trade guidelines. In so doing the Committee took into account that there were no clear indications of private ownership. In a consideration that was not necessary for the outcome of the case, the Committee also concluded that insufficient information existed to assume that the sale of the paintings had been involuntary.
3. The Applicant’s request was explained in her letters of 23 December 2013, 11 March 2014 and 29 May 2014 and during the hearing. The Applicant enclosed the following documents with her request:
   a.   an overview of purchases made by De Haan during sales at the Mak van Waay auction house during the 1934-1940 period;
   b.   the Abgangsliste (exit list) of Scheveningen prison;
   c.   a printout from the Netherlands Institute of Military History about Brigadier General J.L.H.A. Antoni;
   d.   a part of a 1951 letter from Antoni;
   e.   a background check card from The Hague City Police;
   f.   a written statement from EE (NIOD Institute for War, Holocaust and Genocide Studies) dated 19 May 2010;
   g.   a part of the RC advice concerning Katz (RC 1.90B);
   h.   a document with the address of Eduard Hollander;
   i.    an article from the newspaper Het Vaderland dated 30 January 1937;
   j.    a printout from the website www.herkomstgezocht.nl about NK 2569;
   k.   a part of Goudstikker-Miedl’s purchase and sales ledgers (NBI 861);
   l.    a part of Goudstikker-Miedl’s stockbook (NBI 867);
   m.  a part of the Gefangenenbuch (prisoner register) of Scheveningen prison
   n.   a letter from H.F.J. Weijers to the SNK (Netherlands Art Property Foundation) of 4 October 1945;
   o.   transcripts of two SNK declaration forms dated 8 November 1945 filled in by H.F.J. Weijers.
4. The Applicant asserts that there are both new facts, as referred to in criterion (a), and errors as referred to in criterion (b). The Committee finds that what the Applicant has submitted relates to the procedure followed in general, to the conclusion in the earlier advice that it had not become highly likely that the fourteen paintings claimed by the Applicant had been De Haan’s property, and to the conclusion in the earlier advice that insufficient information existed to assume that the sale of the paintings had been involuntary. The Committee will first of all address the Applicant’s complaints with regard to the procedure in general and her assertions that could affect the conclusion that it had not become highly likely that the fourteen paintings claimed by the Applicant had been De Haan’s property.The procedure in general
5. The Applicant argues that the discussion that took place on 7 March 2011 between her, her husband and her legal adviser on the one hand and a Committee delegation on the other hand was a very unpleasant experience for her because she got the impression that the Committee’s opinion had already been formed. Also according to the Applicant it was improper that this discussion was not minuted.
   On the basis of the first draft investigation report in case RC 1.106, which was adopted on 31 January 2011, in its meeting on that day the Committee had to note that more concrete evidence was needed than what had been shown to be available at that time. It was clear to the Committee that the Applicant was in a position to conduct her own investigation. The Committee decided to invite the Applicant for a discussion with the Chairman, Secretary and a Committee researcher in order to put concrete questions to the Applicant that specifically addressed the ownership of the claimed paintings. This discussion was also intended to safeguard the Applicant from being surprised should her request be rejected.
   The Applicant accepted that invitation and was accompanied during the discussion on 7 March 2011 by her husband, BB, and her lawyer, R.W. Polak from the firm De Brauw Blackstone Westbroek.
   The Chairman explained the goals of the discussion and stated that it was not a formal hearing and that it would not be formally minuted. After the discussion the Applicant gave substantive responses to questions relevant in this case in letters of 4 April 2011, 6 April 2011 and 26 August 2011. In her letter of 6 April 2011 the Applicant withdrew her claim with regard to nine artworks on the grounds that ‘it has become clear to me that the chance of positive advice for nine of the 23 works is not very great’. The Applicant did not request a hearing in any of the aforementioned responses or in any other way.
   Her letter of 4 April 2011 begins as follows. ‘I would like take advantage of the opportunity you offered me in your letter of 7 February to make some comments concerning the investigation report about De Haan. I shall furthermore address the points that your Committee raised during the discussion on 7 March last.’
   It thus emerges that the Applicant clearly understood the objectives of the discussion. Neither the Applicant, her husband nor her lawyer stated during the discussion or in the aforementioned written responses or in any other way that she was not given every opportunity to say what she wanted to say. There are no indications of a shortcoming, let alone intimidation, in the discussion of 7 March 2011. It is regrettable the Applicant has feelings of dissatisfaction and disappointment about the way her original application was handled, but they do not justify the conclusion that there was an error within the meaning of criterion (b). The fact that the discussion was not minuted does not justify this conclusion either because it was not a formal hearing and the Committee took account of the Applicant’s letters about the issues that arose during the discussion.
6. In so far as the Applicant argues that there is unjustly no summary in either the revised version of the draft report of 11 July 2011 or in the final investigation report of 11 September 2011 whereas there is in the draft investigation report of 31 January 2011, this cannot be considered as an error as referred to in criterion (b). It is after all up to the Committee to include a summary in the investigation report or not. It is furthermore not clear that the Applicant’s interests were harmed by not including a summery in the investigation report since she could have examined its complete contents.Ownership
7. The Applicant argues that in its preparation of the earlier advice the Committee unjustly did not respond to her letter of 26 August 2011. The Applicant wrote this letter in response to the revised version of the draft report issued in case RC 1.106 sent to the Applicant by the Committee on 11 July 2011 for her information. In her letter the Applicant pointed out, among other things, the use of the expression ‘the de Haan Collection’ in the ‘List of paintings supplied by Mr Miedl to the Goudstikker gallery’. According to the Applicant, by not devoting any attention to the content of her letter the Committee drew the unjust conclusion that it is not highly likely that the fourteen claimed paintings had been the property of De Haan.
   The said letter of 26 August 2011 was appended to the final adopted investigation report of 19 September 2011, which was sent to the State Secretary together with the earlier advice adopted by the Committee. It furthermore emerges from the statement on page 2 of the earlier advice that the Committee had taken note of the said letter of 26 Augustus 2011. The fact that the Committee did not respond explicitly to this letter in the earlier advice cannot be considered as an error within the meaning of criterion (b). The fact that the Committee’s assessment of the sources found and submitted by the Applicant during the investigation was different from the Applicant’s assessment can similarly not be designated as such as an error.
8. The Applicant furthermore argues that it has been proved conclusively that De Haan was the owner of two paintings (NK 1667 and NK 2264) and that he bought them from H.F.J. Weijers. According to the Applicant the Committee unjustly gave weight to the post-war statements made by Weijers, an interested party, and on the grounds of these statements unjustly concluded that De Haan did not purchase the paintings concerned for himself.
   Weijers’s statement was addressed in consideration 8 of the earlier advice. What the Applicant’s complaint comes down to is that she cannot agree with the Committee’s assessment of this statement, namely that De Haan bought the two paintings concerned on the instructions of Alois Miedl. However, this cannot be considered as an error as referred to in criterion (b).
   Neither can this be considered as new facts within the meaning of criterion (a).
9. The Applicant argues that in the earlier advice the Committee unjustly considered that De Haan worked in the art trade as an expert and intermediary, and on the grounds of this unjustly concluded that her application had to be assessed according to the standards for the art trade. The Applicant refers in this context to new facts. She points out, for example, that it has been established that De Haan did not have a gallery, was not registered at a Chamber of Commerce and was not a member of the Association of Fine Art Dealers in the Netherlands. She also points out that information from discussions with those closest to De Haan and information from her mother – De Haan’s sister – demonstrates that De Haan owned art as a private individual. She moreover points out that it has emerged from research into sales at the Mak van Waay auction house that during the nineteen-thirties De Haan purchased at these auctions twelve times. According to the Applicant the items bought were exclusively purchases that can be considered as typically intended for private use. Among other things there were a desk, a carpet, crockery and silver. According to the Applicant it emerges from these purchases that De Haan bought artworks for private use.
   The Committee assesses these new facts furnished by the Applicant as follows.
   The factors put forward by the Applicant, namely that De Haan had no gallery, in 1940 was not registered with a Chamber of Commerce and was not a member of the Association of Fine Art Dealers in the Netherlands, are not mentioned in the investigation report and in the earlier advice. The committee explained in considerations 3 and 4 of the earlier advice why it regarded De Haan as an art dealer. Here the Committee gave weight to the fact that until 1934 De Haan had been registered in the Commercial Register of the Chamber of Commerce as managing director of an art gallery and to statements from individuals involved that De Haan also acted as an art purchaser/intermediary. The new facts that the Applicant has now brought forward do not lead to a conclusion that is different from the one the Committee adopted.
   In so far as the Applicant refers to information from discussions with those closest to De Haan and information from her mother, the Committee notes that previously the Applicant referred, among other things, to her letter of 26 August 2011. The Committee was familiar with this letter when the earlier advice was adopted. Section 3.7 of the investigation report also refers to the Applicant’s statement that according to De Haan family members, including the Applicant’s mother, De Haan owned paintings privately. To this extent there are therefore no new facts.
   The facts put forward about De Haan’s purchases at the Mak van Waay sales are new. It can be seen from the overview submitted by the Applicant that this relates to twelve purchases. These acquisitions concern everyday objects with prices between 5 and 50 guilders, a painting for 11 guilders, a grisaille for 6 guilders, a panel for 16 guilders and a Ferahan carpet for 280 guilders. Even if one assumes, like the Applicant, that these are private purchases, this does not support her conclusion that De Haan also bought the fourteen claimed paintings for himself and in his private capacity. This therefore does not concern new facts as referred to in criterion (a).
10. According to the Applicant, in the earlier advice the Committee unjustly disregarded the conclusion of the Origins Unknown Agency (hereinafter referred to as the BHG) with regard to NK 1704, which was that Miedl probably bought this painting from De Haan in a private capacity. According to the Applicant the Committee also disregarded her assertion that this direct sale to Miedl in his private capacity is the explanation for why the sales by De Haan were written in pencil in the Goudstikker-Miedl stock book and also for the existence of various lists with supposed commission since this commission ended up in Miedl’s personal possession.
    The Applicant put forward this last contention in her letter of 26 August 2011. As taken into consideration previously, the Committee took note of this letter during the preparation of the earlier advice. The Committee was also familiar with the BHG’s conclusion quoted by the Applicant with regard to NK 1704, since this conclusion is mentioned on page 21 of the investigation report of 19 September 2011. Reference to the name De Haan in the BHG database is mentioned in considerations 6 and 13 of the earlier advice. It is stated in consideration 8 that documents described in the investigation report show that there was 10% commission linked to the purchase of different paintings from or through De Haan. These paintings probably included six of the fourteen paintings being claimed. The fact that in the earlier advice the Committee made a different assessment of the mention in the BHG database and did not explicitly address the possible course of events advanced by the Applicant in her letter of 26 August 2011 cannot be designated as an error within the meaning of criterion (b).
    Neither can this be considered as new facts within the meaning of criterion (a).
11. During the hearing it was also argued on behalf of the Applicant that on the grounds of the Elte report referred to in section 4.2 of the investigation report, it cannot be concluded that commission was paid in respect of all claimed paintings, that the Goudstikker-Miedl stock book was sufficient in the Hollander case (RC 1.97) for advice to grant a claim, and that in the Mautner case (RC 1.89-A) ownership was accepted on the grounds of the reference in the Linz database.
    In these complaints the Applicant is challenging the Committee’s interpretation of documents that emerged during the investigation. Such asserted incorrectness of an interpretation adopted by the Committee cannot be considered as an error as referred to in criterion (b). In this regard the Committee points out, no doubt superfluously, that the facts in the cases of Hollander (RC 1.97) and Mautner (RC 1.89-A) referred to by the Applicant are not comparable to those in De Haan (RC 1.106).
    Neither can this be considered as new facts within the meaning of criterion (a).Interim conclusion
12. It follows from what was considered previously that what the Applicant has argued, in so far as discussed, does not lead to the conclusion that during the preparation of the earlier advice there were errors within the meaning of criterion (b), or that there are new facts as referred to in criterion (a) that are relevant to the conclusion from the earlier advice that it had not become highly likely that the fourteen paintings claimed by the Applicant had been De Haan’s property. Besides this conclusion, in the earlier advice the Committee also concluded that insufficient indications existed to assume that the sale of the paintings in the summer of 1940 had been compulsory or involuntary. As stated in consideration 11 of the earlier advice, this concerned a conclusion that was not necessary for the outcome of the case. Even without this conclusion and considerations 11 and 12 leading up to it, the opinion that it had not become highly likely that the fourteen paintings claimed by the Applicant had been De Haan’s property must by itself result in advice to the State Secretary to reject the application.
    In view of this there is no reason to test further arguments that the Applicant has put forward against the aforementioned criteria (a) and (b) and it is sufficient to state the reasons that the further arguments that the Applicant has put forward are not relevant to the earlier advice with regard to ownership.Other assertions
13. In point 5 of her letter of 23 December 2013 the Applicant argues that the Committee unjustly conducted no further research into the course of events relating to De Haan’s arrest in the summer of 1940. In this regard the Applicant refers to the results of the additional research she carried out, which produced the following new facts. De Haan’s trial took place in Utrecht, where he was also being held. As regards Scheveningen prison, he arrived on 6 December 1940 and left on 17 February 1941. His prisoner number was 309. The Applicant points out the similarity with the account given by Brigadier General Jean Antoni (prisoner number 307), which makes the date of De Haan’s arrest – 2 Augustus 1940 – even more certain. The Applicant also contests the Committee’s opinion in consideration 12 of the earlier advice that even if De Haan’s arrest were to have been the result of betrayal, there can be no link to the sale of the paintings.
    It is not possible to regard the contended connection between De Haan’s arrest and the sale of the paintings as being relevant to the conclusion in the earlier advice with respect to his ownership of them. Also the said link did not emerge from the supplementary investigation conducted by the Committee, the results of which are recorded in the draft supplementary investigation report dated 9 October 2014.
14. The Applicant is also opposed to the descriptions in consideration 11 of the earlier advice of the sale of the paintings as ‘normal business transactions’ and the prices paid for paintings as ‘in line with market conditions’. In this consideration the Committee also allegedly unjustly made no distinction between the sale of the claimed paintings and the transaction between Miedl and the D. Katz gallery in the same period.
    As explained previously, consideration 11 of the earlier advice related to the involuntary nature of the loss of possession. The argument used by the Applicant against this consideration is therefore not relevant to the conclusion in the earlier advice with regard to ownership.
15. According to the Applicant the Committee uses arguments on an arbitrary basis. By way of illustration she refers to the advice in the case of Weijers II (RC 4.118), in which the Committee reasoned in consideration 11 that while the situation for Weijers and his family was difficult, he was not persecuted, imprisoned or sent to a camp. In view of this, according to the Applicant the fact that De Haan was imprisoned and then murdered in Auschwitz has to be an argument for granting her claim, but this argument was unjustly not discussed in the earlier advice.
    The Committee points out that the consideration concerned in the case of Weijers in RC 4.118 related to the question of whether Weijers’s loss of possession could be designated as involuntary as a result of circumstances directly related to the Nazi regime. Apart from the fact that the two cases are not comparable, this argument is not relevant to the conclusion in the earlier advice with regard to the ownership of the claimed works.
16. The Applicant argues that during the preparation of the earlier advice the Committee unjustly devoted no attention to the relationship between E. Hollander and De Haan. It emerged from the Applicant’s own research that Hollander and De Haan knew each other well, that they lived at the same address and that Hollander acted as De Haan’s defence lawyer during the trial in 1937 referred to in the investigation report. According to the Applicant, by not conducting supplementary research into the relationship between Hollander and De Haan the Committee did not give consideration to the real possibility that two works sold by Hollander to Miedl were De Haan’s property and were kept by Hollander for De Haan in view of the predicament De Haan found himself in during the summer of 1940. The Applicant sent the Committee a number of documents as underpinning for this contention.
    The Committee finds that the Applicant’s argument does not relate to the claimed works but to two works sold by Hollander to Miedl. This line of reasoning is therefore not relevant to the conclusion in the earlier advice with regard to the ownership of the claimed works.
17. In view of the considerations given above, the Committee will advise the Minister not to reconsider the decision regarding RC 1.106.