6. Assessment of the dispute
6.1 The Committee has satisfied itself that the dispute between the Applicants and the City Council has not previously been definitively dealt with. The Committee has not found a legal procedure or a judicial ruling relating to the work. Nor have the Applicants previously renounced their rights to the work. The Committee therefore considers the parties and their request to be admissible.
6.2 The Applicants have asserted that they are the rightful claimants to Vita Israël’s estate. In this context they submitted a number of inheritance-law-related documents, including a certificate of inheritance drawn up on 14 October 2013 by A.C.W. van Limburg Stirum, notary in Hilversum, and a certificate of inheritance dated 1 October 2014 drawn up by G.W. Gramser, notary in Amsterdam. Looked at together it follows from these certificates that the natural persons and legal entities referred to below are entitled to all goods, property and rights originating from or belonging to Emanuel Vita Israël and/or Eleonore Frederika Jacobs:
a) CC, living in A., a 1200/3200ths share;
b) AA, living in L., a 600/3200ths share;
c) BB, living in H., a 600/3200ths share;
d) DD, living in S., a 200/3200ths share;
e) KK, living in A., a 300/3200ths share;
f) LL, living in A., a 240/3200ths share;
g) the association MM, with its registered office in A., a 12/3200ths share;
h) the foundation NN, with its registered office in A., a 9/3200ths share;
i) the foundation EE, with its registered office in A., a 9/3200ths share;
j) the foundation OO, with its registered office in X., a 6/3200ths share;
k) the foundation PP, with its registered office in B., a 6/3200ths share;
l) the association QQ, with its registered office in A., a 6/3200ths share;
m) the foundation RR, with its registered office in A., a 6/3200ths share;
n) the association SS, with its registered office in L., a 3/3200ths share;
o) the foundation TT, with its registered office in A., a 3/3200ths share.
The natural persons and legal entities referred to above under e, f, g, h, j, k, l, m, n and o have each separately declared that they are aware that they are entitled to part of all goods, property and rights originating from or belonging to Emanuel Vita Israël and/or Eleonore Frederika Jacobs. Each of them has also separately declared that they want to transfer their share of the entitlement to any possible rights in this case (RC 3.135) to the other heirs and that they want to relinquish any possible rights in this case (RC 3.135).
The remaining natural persons and legal entities under a, b, c, d and i are the Applicants in this case.
6.3 In the committee’s opinion it can be concluded from the facts referred to in consideration 3.3 that the currently claimed work belonged to the Vita Israël collection.
6.4 The Committee needs to answer the question of whether in this case the loss of possession can be designated as involuntary, caused by circumstances directly related to the Nazi regime. A complicating factor in this case is that the loss of possession took place through the auction at Frederik Muller & Co. At that time Vita Israël’s sons were the owners of the work. However, the auction was a direct result of the inclusion by Vita Israël in 1939 of the provision in his will quoted in consideration 3.2 and his suicide on 15 May 1940. Taken together, these circumstances must play a role in answering the present question. In the Committee’s opinion the loss of possession in November 1940 cannot be considered in isolation from these circumstances and therefore the testamentary provision and the suicide also play a part in answering the question of whether there was involuntary loss of possession caused by circumstances directly related to the Nazi regime.
In answering this question the Committee first of all points out that, according to the Ekkart Committee’s third recommendation of 26 April 2001 as adopted by the government, sales of artworks by private Jewish individuals in the Netherlands from 10 May 1940 onwards must be considered to be involuntary, unless the facts expressly show otherwise. Although this recommendation is not directly applicable in this binding opinion case, it follows from it that a strong suspicion exists in this case that the loss of possession was involuntary. After all it concerns private Jewish individuals who had the work sold at auction after 10 May 1940.
This suspicion of involuntary loss of possession is confirmed by the course of events that resulted in the currently claimed work being put up for auction. As described in consideration 3.2, in 1939 Vita Israël had a provision included in his will that his collection of antiquities had to be auctioned off within six months of his death. Although it is not known why he had this provision included, it did emerge from the Committee’s investigation that there was no comparable provision in his earlier 1931 will. Vita Israël took his own life on 15 May 1940, shortly after the German invasion on 10 May 1940. The Applicants have pointed out the large number of suicides among Jewish Dutch nationals immediately after the German invasion. Like the Applicants, the Committee assumes that Vita Israël’s suicide was prompted by the German invasion. One of the consequences of Vita Israël’s death was that, pursuant to the testamentary provision, the work had to be put up for auction within six months. This is what happened. This course of events has to be attributed to the Nazi regime. In view of the facts and circumstances, the Committee comes to the conclusion that the loss of possession of the work by Vita Israël’s sons should be designated as involuntary, caused by circumstances directly related to the Nazi regime.
6.5 The Committee now comes to weighing up the interests of the parties in the restitution or retention of the work. Given the City Council’s position with regard to the importance of the work, as described in consideration 4.2, little weight is given to the City Council’s interest. Set against this slight interest of the City Council is the interest of the Applicants in the work’s restitution. The Applicants are the heirs of a Jewish Dutch national who committed suicide immediately after the German invasion, as a result of which the work ceased to be in the family’s possession. In view of this the Committee considers the interest of the Applicants in restitution of the work to have greater weight than the City Council’s interest in retaining it.
6.6 This brings the Committee to the question whether something in return from the Applicants should be linked to surrender of the work. It is important in this regard that the City Council purchased the work in 1971 for a sum of NLG 3,000 and that there are no indications that the City Council did not act in good faith at the time. The City Council also incurred costs for restoration of the work, albeit that the amount involved is not known. The Committee takes the view that the purchase price was a relatively modest sum, and that the City Council has after all had the benefit of the work since 1971. This is not affected by the fact that the work has mainly been in the repository because this has been the choice of the Museum. In these circumstances the Committee sees no reason to link surrender of the work to something in return from the Applicants.
6.7 In view of the NRC article and the comments made about it by the Applicants, together with other reasons, the Committee did research into the proceeds of the auction. The outcome of this research is that it cannot be established with certainty what happened to the proceeds of the auction and therefore whether or not these proceeds ended up at the free disposal of Vita Israël’s surviving relatives. Hence the Committee sees no reason to make allowances in this binding opinion for the proceeds of auctioning off the work.
6.8 On the grounds of the foregoing the Committee will advise restitution of the work to the Applicants.