Recommendation

Introduction

In a letter dated 12 January 2010, the Minister for Education, Culture and Science (hereafter referred to as: ‘the Minister’) requested the Restitutions Committee (hereafter referred to as: ‘the Committee’) to issue a recommendation regarding the application for restitution submitted by Mr J.A.C.M.V. on behalf of ‘erven van wijlen H. Weijers uit Tilburg’ [the heirs of the late H. Weijers of Tilburg] (hereafter referred to as: ‘the Weijers heirs’ or ‘the applicants’). This application for restitution concerns nine paintings from the Netherlands Art Property Collection in the custody of the Dutch government (hereafter referred to as: ‘the NK collection’) with inventory numbers NK 1667, NK 1870, NK 2069, NK 2183, NK 2264, NK 2476, NK 2477, NK 2509 and NK 2774. The application referred to here was rejected by the Minister on 14 January 2009 in accordance with the recommendation issued by the Committee on 1 December 2008 (case number RC 1.68).
This request for a new recommendation is the result of a letter sent by the Weijers heirs to the Minister on 26 August 2009, in which objections were raised against the recommendation issued by the Committee in case RC 1.68 and in which the Minister was asked to reconsider his rejection of the application for restitution. In his letter of 12 January 2010, the Minister asked the Committee “om een hernieuwd advies te vernemen op basis van hetgeen door de erven Weijers in voormelde brief is aangevoerd.” [to issue a new recommendation on the basis of what the Weijers heirs adduce in the above-mentioned letter]. This request was dealt with under case number RC 4.118.
Following this request, the Committee looked into the objections raised by the Weijers heirs as well as additional sources and documentation. An account of this is laid down in a report, the final version of which was adopted on 6 September 2010. This report looks into whether there are
(i) objections against the procedural aspects of the case, as a result of which fundamental interests were harmed, or
(ii) new facts, which, had they been known at the time of the original recommendation, would have led to a different decision.

Special considerations

Procedural objections

1. 1. As stated in the report regarding RC 4.118, section 2, the Weijers heirs raised objections with regard to how their application for restitution was handled by the Committee and against the recommendation regarding RC 1.68. The applicants claim that evidence was ignored. They also raised an objection against the fact that the Committee did not hear every applicant, in particular Mrs H.F.E.-W. They also claim that the Committee disregarded their reaction to the draft investigatory report regarding RC 1.68.
   2. During the procedure, a draft investigatory report is drawn up. This report (only) contains facts that are relevant for the assessment of the application for restitution in the recommendation. For its investigation, the Committee makes use of information provided by the applicants, the Ministry and the Origins Unknown Agency (BHG), supplemented with internal independent research. The final assessment in a case is not made in the draft investigatory report but in the recommendation.
   3. During the procedure regarding RC 1.68, the Weijers heirs were given the opportunity to provide the Committee with relevant information and clarify their application for restitution. Firstly, on 20 December 2007, the applicants were sent a questionnaire with the request to fill this in and to report or send any other information that they considered to be of importance. In the accompanying letter, the Committee asked the applicants for copies of specific documents as well as other more detailed information based on the various specific questions. The applicants responded in a letter with enclosures on 1 April 2008. A day later, on 2 April 2008, the Committee also received a ‘verklaring onder ede’ [sworn statement] by H.F.E.-W. Secondly, on 13 May 2008, the Committee sent the Weijers heirs its draft investigatory report. The applicants used the opportunity to respond by sending their reply in writing on 24 June 2008.
   4. Contrary to what the applicants claim, the Committee did not “volledig naast zich neergelegd” [completely disregard] the sworn statement submitted by H.F.E.-W. on 2 April 2008. The recommendation regarding RC 1.68 contains three quotes from the above-mentioned statement (cons. 11) and the argumentation also pays attention to the statement (cons. 14). Neither, as the applicants claim, were the documents or sources provided by them ignored. The ‘Report regarding Weijers RC 1.68’ dated 6 October 2008 repeatedly quotes from these documents and sources. In so far as the applicants’ criticism pertains to the assessment of the facts in the recommendation and the related selection of relevant factual material, the Committee considers that this assessment is the responsibility of the Committee alone and that its opinions have not changed since 2008. The Committee is treating the case-related opinion written by Dr G. Aalders, a researcher at the Netherlands Institute for War Documentation (NIOD), which was drawn up at the request of the Weijers heirs and given to the Committee during the review procedure (report regarding RC 4.118, section 4), in a similar manner.
   5. With regard to hearing the applicants, the Committee states the following. The Committee invites applicants to clarify their claim verbally if it deems this to be necessary. This was communicated to the applicants in the letter outlining the Committee’s procedure dated 14 May 2007. Hearings are rarely held in practice. During the procedure, the applicants indicated their willingness to clarify their application for restitution, but failed to comment on the necessity or desirability of a hearing (“should you deem it proper to have a personal hearing of my clients, please do not hesitate to contact me”, letter dated 1 April 2008). The Committee deemed a verbal explanation in addition to the written documents provided unnecessary for the assessment of the application for restitution.
   6. The choice to include the applicants’ comments in the draft investigatory report in their entirety as an enclosure in the final report is usually made if the response provided by the applicants is substantial, if it constitutes an independent addition to the draft investigatory report, and/or if, due to the mention of a certain context, it is not or barely consistent with the report. In such cases – and so in this one – the enclosure is an integral part of the report sent to the Minister. This means that the substantive response can be conveyed in full but remains the view of the applicants. In addition, while the response provided by the Weijers heirs contained further details, for example with regard to the period in which Weijers acquired his paintings, these do not render the factual account in the investigatory report incorrect.
   7. The way in which the Committee handled the response to the draft investigatory report by the applicants did not harm any of the applicants’ fundamental interests.
      Objections concerning policy framework and contents
   8. The applicants’ objections concerning the policy framework and the contents of the recommendation are presented in the report regarding RC 4.118, sections 3 and 4. The objections are essentially a further clarification of opinions already stated during the procedure regarding RC 1.68, supplemented with additional source material. This provides insufficient new facts relevant to the assessment criterion in the recommendation regarding RC 1.68. Accordingly, the conclusion, as stated in the recommendation regarding RC 1.68, remains unchanged.
   9. The assessment of the contents of the investigatory report regarding RC 1.68 and the applicants’ response was part of the recommendation. A determinant fact was the criterion for loss of possession, for which several specific facts, or the lack thereof, prompted the final outcome. Efforts made by the Weijers heirs since then, namely sending additional sources and documents as stated in the report regarding RC 4.118, section 5, have not changed the assessment based on the criterion for loss of possession. Although the material provided by the applicants contributes to a more accurate picture of the Weijers family before, during and after the war, it leaves key questions regarding the art collection unanswered – particularly the moment at and circumstances in which the claimed works were acquired and then lost again. Even though this has created a more accurate picture of the Weijers family and their personal circumstances during the war, these additional sources and documents do not shed any more light on the facts with regard to the acquisition and loss of possession on which the recommendation regarding RC 1.68 is based.
   10. The following is intended to provide further clarification. With reference to the criterion for involuntary loss of possession (cons. 5) formulated in the recommendation regarding RC 1.68, the Committee believes that Weijers did not belong to a social group persecuted by the Nazis and that, as a result, it is the duty of the applicants to prove that the sale of the claimed works of art during the war was involuntary as a the result of circumstances directly related to the Nazi regime. The applicants have provided a substantial amount of information concerning Weijers’ circumstances during the war, but the existence of a direct relationship between a specific threat or coercion by the Nazis and the sales of the claimed works of art (cons. 14) has nevertheless not been established.
   11. For the Committee, it is indubitable that Weijers would have liked to have kept his art collection but that this proved to be impossible for him given the circumstances of war. In his case, this meant that he was considered an adversary by the Germans, which was part of the reason he had to surrender his house to the occupied forces in November 1940. It is also clear to the Committee that the Germans had an interest in art collections such as Weijers’ since the outbreak of the war and that they tried to get hold of these collections. Weijers was also faced with the threat of arrest in 1943/44. New statements about the Weijers family provided to the Committee, including that given by Weijers’ daughter in her diary and by Straeter, a neighbour at that time, confirm the image of a family drama that often befell people who were unwilling to cooperate with the Nazis during the war. But although the situation for Weijers and his family was difficult, Weijers was not persecuted, arrested or sent to a camp.
   12. For the Committee, this important finding extends to other statements given by the applicants (report regarding RC 4.118, section 4). The applicants claim that “Weijers zijn schilderijen noodgedwongen en onder grote druk heeft moeten afstaan” [Weijers was forced to surrender his paintings under duress], due to “the requisition of his house in Tilburg in November 1940 by the occupying forces, since Weijers refused to join the party (NSB); the use of threats by De Haan, Kieslinger, Sijperda and other art dealers in order to make him sell the paintings; the shabby smear campaign against Weijers as shown by the article in “De Opstand” the constant threat of imprisonment; the announced confiscation of the Jan Steen”.
   13. Almost every aspect mentioned in the above quote is related to the general circumstances of war. With regard to the works of art sold by Weijers, there is a lack of concrete evidence to suggest that their confiscation was imminent (cons. 14 of the recommendation regarding RC 1.68). With regard to the work by Jan Steen (not claimed in case RC 1.68, but mentioned by the applicants nonetheless), it does appear as if there was a real threat at a certain moment, namely when the Germans demanded that Weijers provide a statement that he had not purchased the work from German Jews, a danger that Weijers subsequently averted. This, and other sales, including that involving the German Kieslinger at a certain moment, were always made on Weijers’ own initiative.
       Final consideration

1. With reference to the criterion mentioned in the third paragraph of the introduction above, the Committee concludes the following. In so far as the objections raised by the applicants are directed at the course of events during the handling of their application for restitution regarding RC 1.68, these have proven to be invalid. Moreover, no new facts have been found, which, had they been known at the time of the original recommendation, would have led to a different decision. All in all, this means the Committee will recommend that the Minister not reconsider his decision regarding RC 1.68.