Four gilded silver chalices and a fiftheenth-century silver crosier
Recommendation regarding the application for the restitution of four gilded silver chalices (NK 498 A-D) and a silver crosier (NK 738)
In a letter dated 12 July 2006, the Minister for Education, Culture and Science (‘OCW’) asked the Restitutions Committee to issue a recommendation on the application submitted by H.G.S. (hereafter referred to as ‘the applicant’) dated 6 June 2006 for the restitution of four gilded silver chalices and a fifteenth-century silver crosier. The claimed objects form a part of the Netherlands Art Property Collection (hereafter referred to as ‘NK collection’) in the custody of the national government under inventory numbers NK 498 A-D and NK 738. The chalices are on long term loan to the Bonnefantenmuseum in Maastricht and the crosier is in the Limburgs museum in Venlo.
The application for restitution was filed in response to a letter to the applicant dated 11 May 2006 from the Origins Unknown Agency (hereafter referred to as ‘BHG’), containing a request for information regarding the aforementioned objects. According to the BHG, the objects had belonged to the applicant’s mother, K.H.A.A. Carstens, who had sold them during the war. In response to the request for recommendation, the Committee instituted a fact-finding investigation, the results of which were recorded in a draft report dated 6 November 2006. This draft report was submitted to the applicant, to which she responded by telephone on 4 December 2006. The applicant also furnished additional information regarding the applicant’s position with respect to the law of succession. The report was subsequently adopted on 14 May 2007. For the facts of the case, the Committee refers to the report, which is considered an integral part of this recommendation. The Committee has given priority to this application because of the advanced age of the applicant.
a) The Committee has drawn up its opinion with due regard for the relevant (lines of) policy issued by the Ekkart Committee and the government.
b) The Committee asked itself whether it is acceptable that an opinion to be issued is influenced by its potential consequences for decisions in subsequent cases. The Committee resolved that such influence cannot be accepted, save in cases where special circumstances apply, since allowing such influence would be impossible to justify to the applicant concerned.
c) The Committee then asked itself how to deal with the circumstance that certain facts can no longer be ascertained, that certain information has been lost or has not been recovered, or that evidence can no longer be otherwise compiled. On this issue, the Committee believes that if the problems that have arisen can be attributed at least in part to the lapse of time, the associated risk should be borne by the government, save in cases where exceptional circumstances apply.
d) The Committee believes that insights and circumstances which, according to generally accepted views, have evidently changed since the Second World War should be granted the status of new facts.
e) Involuntary loss of possession is also understood to mean sale without the art dealer’s consent by ‘Verwalters’ [Nazi-appointed caretakers who took over management of firms owned by Jews] or other custodians not appointed by the owner of items from the old trading stock under their custodianship, in so far as the original owner or his heirs did not receive all the profits of the transaction, or in so far as the owner did not expressly waive his rights after the war.
The applicant requests the restitution of four gilded silver chalices and a fifteenth-century silver crosier as the heir of his parents, Leopold Salomon (1875-1935) and Kätchen Henny Alma Auguste Carstens (1892-1976). According to the applicant, his mother sold the objects against her will during the Second World War. The applicant states that he is also acting on behalf of the other heirs. The Committee has taken cognisance of a number of documents concerning the applicant’s position with regard to the law of succession.
The investigation shows that the claimed objects were originally the property of the Lübeck diocesan chapter in Germany. The objects subsequently came into the possession of a member of the House of Oldenburg, who probably sold them to Leopold Salomon sometime between 1930-1932. Since 1914, Salomon had been married to Carstens, the daughter of the governor of Eutin Castle, the residence of the Dukes of Oldenburg. The Committee assumes that Carstens had a mediating role in the sale. Salomon, who was of Jewish extraction, was a wealthy lawyer and the son of an art dealer from Dresden. According to the applicant, he sold the objects to prepare for the family’s departure from Nazi Germany to the Netherlands during the period when taking money abroad had already been severely restricted. The investigation shows that the Reichsfluchtsteuer (‘escape tax’ imposed by the Third Reich) referred to had indeed been in force from March 1931. The Committee has taken cognisance of a statement by the then director of the St. Annen Museum in Lübeck dated 1946, in which this provenance information is confirmed. The Committee therefore considers it proven that the claimed objects had been the property of Salomon from 1930-32.
Around 1933, the family settled in the Netherlands. After Salomon’s death in 1935, the objects were inherited by Carstens and her four children, one of whom being the applicant. According to Carstens, the objects were sold for the sum of NLG 42,500 during the Second World War, in late 1941, to Dr. Hans Posse, the man assigned to acquire art for Hitler. This sale of the objects to Posse is confirmed in other sources. As to the nature of this loss, Carstens declared after the war that:
‘[...] Shortly after the occupation, I was visited by German members of the Higher SS and told that these objects were to be returned to Germany, where they were under ‘Museumschutz’(museum protection). At the same time, the objects were confiscated from the Rotterdamsche Bank, Kneuterdijk, where they had been stored until the proceedings. Afterwards, I was summoned to the Plein on various occasions and, after having been threatened with expropriation, sold the items to Prof. Posse. [...]’.
After the war, the objects were returned to the Netherlands from Germany. In 1949, in an attempt to regain possession of the objects from the Dutch government, Carstens reported to the Netherlands Art Property Foundation (hereafter referred to as ‘SNK’) that the sale to Posse had taken place under duress. Because the SNK required Carstens to repay the sum they were sold for before it would return the items, and he did not, at the time, have the financial means to do so, the procedure was probably terminated. Regarding this, the applicant declared that the sum obtained for the sale of the objects during the war was no longer at his disposal and that this was partially due to a tax assessment to be paid immediately after the war on the selling price received. The Committee does not consider this a case that was settled in the past and deems the application admissible.
The current restitution policy allows claimed objects to be returned if they were sold involuntarily and due to circumstances that were directly linked to the Nazi regime. In accordance with the Ekkart Committee’s third recommendation from April 2001, the sale of a work of art by a Jewish private party, or a member of another persecuted minority, in the Netherlands after 10 May 1940, is considered a sale under duress, unless conclusive evidence to the contrary is provided. The committee is of the opinion that Carstens, though not of Jewish extraction, was in such a vulnerable position that she can be considered equivalent to a member of a persecuted minority. Moreover, the Committee refers to the fact that her children were part-Jewish and therefore the family was continually under threat. The applicant declares, for example, that during the war, he and his brother could not live in their home in The Hague but that they were forced to find lodgings elsewhere. It is important to note here that Carstens provided assistance to Jewish acquaintances and was put in Scheveningen prison for doing so from fall 1942 to spring 1943. Therefore, the Committee considers Carsten’s sale to fall under the scope of the aforementioned Ekkart Committee recommendation, so that the sale to Posse of the claimed objects can unreservedly be classified as a sale under duress. The objects are therefore eligible for restitution on the basis of current national policy.
The next question to be dealt with is whether the payment of a sum of money is in order in the case of restitution. In accordance with the Ekkart Committee’s fourth recommendation of April 2001, the refund of sales proceeds should be discussed ‘only if and to the extent that the seller or his heirs actually obtained the free disposal of said proceeds’. If there is any doubt as to whether the proceeds were actually enjoyed, the claimant should be given the benefit of the doubt as stated in the sixth recommendation.
The Committee is of the opinion that, given the family’s vulnerable position during the war as described in 5 above, it is feasible that Carstens and her children were not able to spend the sum they received of around NLG 42,500 at will, but that it was necessary to use it for the protection of her family and possibly to finance the assistance to her Jewish acquaintances. In this regard, the Committee would like to specifically refer to the position of Carsten’s four half-Jewish children and her own imprisonment. In addition, the investigation revealed that after the war, Carstens was assessed for the sum she received in 1941 based on the capital gains tax. This tax could range from 50% to 90% of the capital gains obtained during the occupation. It is no longer possible to ascertain from the archive records how much exactly Carstens had to pay; however, it is likely that she was required to refund the Dutch government a substantial portion of the sales price. Based on the foregoing, the Committee assumes that it is out of the question that the sum received at the time could be freely disposed of and also that a substantial part of the money was probably paid to the Dutch government after the war. The Committee therefore recommends that no conditions be imposed with respect to the repayment of money received.
The Restitutions Committee advises the Minister for Education, Culture and Science to return the four chalices (NK 498 A-D) and the crosier (NK 738) to the heirs of Kätchen Henny Alma Auguste Carstens.
Adopted at the meeting of 14 May 2007,
B.J. Asscher (chair)
P.J.N. van Os
E.J. van Straaten
H.M. Verrijn Stuart
I.C. van der Vlies