Bachstitz (II)

Advies inzake Bachstitz II

Report number: RC 1.88

Advice type: NK collection

Advice date: 12 January 2009

Period of loss of ownership:

Original owner: Art dealership

Location of loss of ownership:

NK 1892 – Roman capriccio by P. Cappelli (photo: RCE)

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Recommendation

On 3 April 2007, E. Dolev of Dolev Consulting in Tel-Aviv (hereafter referred to as: Dolev), ‘on behalf of the heirs of Kurt Walter Bruno Bachstitz and on behalf of the Nussbaum family’, sent a letter to the Ministry of Education, Culture and Science (hereafter referred to as: OCW) requesting restitution of 31 objects. The objects in question are part of the Netherlands Art Property Collection (hereafter referred to as: the NK collection) under inventory numbers: NK 394, NK 602, NK 604A-B, NK 615, NK 620, NK 631, NK 636A-B, NK 864A-B, NK 1552, NK 1553, NK 1618, NK 1627, NK 1664, NK 1763, NK 1787, NK 1798, NK 1892, NK 1940, NK 2402, NK 2436, NK 2441, NK 2447, NK 2462, NK 2484, NK 2577, NK 2581, NK 2707A-B NK 2904, NK 2905, NK 2919, and NK 3230.

The procedure

In a letter dated 11 June 2007, the Minister requested the Restitutions Committee to issue a recommendation regarding this application for restitution. The Minister informed the Committee that a large number of the currently claimed works were also the subject of an earlier claim, RC 1.78. On 21 October 2008, the Restitutions Committee sent Dolev a letter asking him to provide the names and powers of attorney of those people he claimed to be representing by 26 November 2008 at the latest. Dolev replied by email on 6 November 2008, stating that he was unable to supply these details. He also stated that he was now of the opinion that members of the Nussbaum family were not the heirs of K.W. Bachstitz. In a letter dated 12 November 2008, the Restitutions Committee asked Dolev a second time to supply the names and powers of attorney of his clients before 26 November 2008. He, however, again failed to do so. Dolev re-established contact with the Restitutions Committee in an email dated 3 January 2009, but, like before, failed to divulge the persons for whom he was working.

General considerations

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 if the art was privately owned, 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) It is highly probable that loss of possession was involuntary if the object was sold without the art dealer’s consent and 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.

Special considerations

Dolev requested restitution of 31 works of art from the national collection. He claimed to be acting ‘on behalf of the heirs of Kurt Walter Bruno Bachstitz and on behalf of Nussbaum family’. However, it is not clear from the documents received that he is authorised to do so, which is why the Committee is of the opinion that insufficient evidence has been presented to show that Dolev is acting on the instructions of a possible heir or claimant. This means that Dolev’s claim is inadmissible and must be rejected.

Conclusion e

The Restitutions Committee advises the Minister for Education, Culture and Science to reject the application in question.

Adopted at the meeting of 12 January 2009 by W.J.M. Davids (chair), J.Th.M. Bank, J.C.M. Leijten, P.J.N. van Os, E.J. van Straaten, H.M. Verrijn Stuart, I.C. van der Vlies (vice-chair), and signed by the chair and secretary.

(W.J.M. Davids, chair)
(E. Campfens, secretary)

Related recommendation:

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Bachstitz