Cornelius Gurlitt the owner of a hoard of Nazi era ‘degenerate art’ which was confiscated by German officials in 2012 has lashed out at critics by setting up a website to counter the media frenzy, that has reached fever pitch since the discovery of the 200,000,000 euro collection. Works by Picasso, Matisse, Chagall, Renoir and Kirchner were among the masterpieces uncovered in his two homes, when Mr Gurlitt was stopped at the German/Swiss boarder and found to be carrying a large amount of cash.
The statement reads as follows: John Doe Complaint Filed in Case of the Schwabing Art Treasure Munich, February 3, 2014. “Violation of judicial secrecy” is the accusation made in a John Doe complaint filed last Thursday (January 29, 2014) with the Public Prosecutor’s Office in Munich by Dr. Tido Park and Derek Setz, the two defence attorneys of Cornelius Gurlitt, in consultation with the court-appointed guardian of Cornelius Gurlitt, attorney Christoph Edel.
“The disclosure of internal investigation information to the press and the related serious violation of Mr. Gurlitt’s personal rights are in no way tolerable for him. This is a blatant violation of judicial secrecy,” comments Professor Dr. Tido Park.
“Our client cannot develop any confidence in the professionalism and integrity of the investigating authorities if they leak confidential investigation information to the media in a manner that can be considered punishable under criminal law,” adds Derek Setz.
The disclosure of internal investigation information took place at a time when the defense attorneys he had appointed did not yet have any access to records.
One of the triggers of the complaint was a report published by the magazine FOCUS on January 20, 2014, containing internal investigation information and contents of the investigation records, including photographs made during the search of Cornelius Gurlitt’s private apartment.
Background Structure of the Collection of Dr. Hildebrand Gurlitt By Dr. Hannes Hartung, attorney-at-law, Munich
Dr. Hildebrand Gurlitt was appointed as director of the König-Albert-Museum in Zwickau, Germany, on April 1, 1925. He was dismissed on April 1, 1930, due to his active purchasing and promotion of modern art. Gurlitt moved to Hamburg and in May 1931 was appointed as managing director of the Hamburg Kunstverein. Due to his partially Jewish origins he vacated his position on July 14, 1933, in response to Nazi pressure. In Hamburg, Dr. Hildebrand Gurlitt established a successful gallery for modern art. In no other German city were artists like Munch, Nolde, Barlach, Kirchner, and Schmidt-Rottluff collected and traded as avidly as in Hamburg.
‘Degenerate Art’: Since 1925, Gurlitt had outstanding contacts to the leading private and public collections in Germany. In 1937, a campaign was launched to confiscate “degenerate” art from German museums. The confiscation was retroactively legitimized through the Confiscation Act of May 31, 1938.
In 1940, Gurlitt advanced to become one of the most important art dealers in the German Reich. In this capacity he acquired works for the Führermuseum planned by Hitler in Linz, Austria. In the same year, Gurlitt purchased a very large quantity of works that had formerly been Reich property from the German Reich and that as “degenerate” art had been confiscated from German museums. After the totalitarian “integration” process (Gleichschaltung), the German Reich saw no difference, both practically and legally, between national, regional, and local governments as we have today in our federal structure.
The works originally came from the property of the German Reich and were legally acquired by Dr. Hildebrand Gurlitt by way of purchase or trade. The collection of Cornelius Gurlitt confiscated in Schwabing now includes about 380 of these artwork.
Hildebrand Gurlitt’s avid acquisition activities, among other things motivated by the desire to save art labeled as degenerate from its destruction, is documented in the so-called Fischer List (see http://www.vam.ac.uk/content/articles/e/entartete-kunst/). This list shows that Dr. Hildebrand Gurlitt legally acquired many important works from former German Reich property. In many instances the works would have been destroyed if Dr. Gurlitt had not acquired them at bargain prices. The art that had been defamed as “degenerate” can therefore be considered the art historical focus of the Gurlitt collection.
Private property of the Gurlitt family
A large part of the artworks confiscated by the public prosecutors also includes works from the private collection of the Gurlitt family. Cornelius Gurlitt’s family is a major dynasty of German art historians. Some 330 works were already part of the family’s private collection before 1933 and are meant to be returned to their rightful owner, Cornelius Gurlitt, in the near future.
When the Nazis persecuted what they considered “degenerate” art, their target was the art itself and not its owners. Only in the case of looted art were the cultural assets bought up for far less than they were worth (compulsory sale), dispossessed, or confiscated. Only very few works in the collection of Cornelius Gurlitt are suspected of being looted art.
Another 590 works are the solely property of Cornelius Gurlitt. Currently (as of February 14, 2014) only four claimants assert that the Gurlitt collection contains works that may have once been appropriated from Jewish owners in the context of Nazi persecution. Stated differently, the 1,280 seized works that are the property of Cornelius Gurlitt have attracted only four claimants who demand the return of so-called looted art from Cornelius Gurlitt. Specifically, the claimants are the Rosenberg, Friedmann, Glaser, and Littmann heirs.
Nonetheless, the authorities who through indiscretion made the case public in the first place placed the entire collection under suspicion of being looted art without any compelling evidence. To this day there are no concrete proofs or indications for these wholesale allegations.
Legal background By Dr. Hannes Hartung, attorney-at-law, Munich
At most 3% of the works in the collection are genuinely suspected of being loot art
All of the decisions to return works have not been made on the basis of legal considerations, but voluntarily in consideration of the respective history and provenance of the work and, in particular, from the perspective of moral factors. At most 35 of the 1,280 works seized by the German authorities are critical works that could have a background of being Nazi-looted art from former Jewish property.
No special or enforceable laws exist for the treatment of looted art
Irrespective of the legal situation in terms of rights in rem, which clearly and unambiguously demonstrates that Mr. Cornelius Gurlitt is the sole owner of his entire collection, in the case of genuine instances of dispossession in the context of Nazi persecution (“looted art”) the collector is willing to review each claim for return without asserting his rights as owner with a view to jointly arrive at fair and just solutions together with the claimants. Aside from a return of the works, fair and just solutions could consist in the payment of appropriate compensation or the joint sale of the work with a division of the proceeds.
Under German law, any enforceable right to force Cornelius Gurlitt to release the so-called looted art, and in particular the so-called degenerate art, has long expired.
Conversely, to this day many German museums have not exhibited any willingness whatsoever to negotiate with claimants seeking the return of potential examples of looted art or even discuss appropriate fair and just solutions. In 1998, the Washington principles were adopted, according to which participating member states are recommended to jointly find fair and just solutions for dealing with looted art. In February 2001, the government museums in Germany under the sponsorship of federal, state, or local bodies issued a joint declaration in which they committed themselves to identify looted art in their collections and seek fair and just solutions for such works. The guideline referred to above recommended that in the implementation of the joint declaration the German Restitution Act be applied and that the deadline for notification that expired in 1957 for the examination of requests for restitution be waived in the case of cultural assets dispossessed in the context of Nazi persecution. Since then, several restitutions have been granted or refused on the basis of this nonbinding and voluntary guideline.
Inadequate solution of looted art problems in Germany
The criticism is justified that private individuals are treated harshly while museums are treated leniently. Ronald Lauder
Just what such fair and just solutions should look like in an individual case was not mutually defined in Washington at the time. Rather, the participants agreed on the minimum consensus that all museums and public institutions should endeavor to find fair and just solutions on a case-by-case basis in instances of looted art. The Washington declarations or principles are not laws that can be enforced in a court in Germany. They are exclusively binding for the public sector, but not for Cornelius Gurlitt and his collection.
In 2001 the Federal Republic of Germany adopted a joint declaration to implement the Washington declaration. That document made the recommendation that requests for the return of artworks should be reviewed from the perspective of the Restitution Act, which has not been in force for decades. As of 2001, all museums and collections were called upon to review their holdings and on their own initiative publish announcements seeking claimants on the Internet. To date, many museums in Germany categorically refuse to even examine their collections for looted art and publish related notifications on the Internet. The Lehmbruckmuseum in Duisburg, for instance, has categorically refused for more than 14 years to return Emil Nolde’s painting Buchsbaumgarten to the Littmann heirs. The same heirs are also demanding the return of two works by Otto Dix from the Gurlitt collection.
Cornelius Gurlitt’s position
Cornelius Gurlitt considers it his duty to preserve and maintain his father’s collection. And yet, Cornelius Gurlitt is open to historic responsibility.
There are no legal grounds that would compel Cornelius Gurlitt to return the so-called looted art. In most instances, the present owners or their legal heirs have acquired title to the works taken away from them as looted art by way of acquisitive prescription. In addition, the right to seek the return of looted art has long ago expired since the German Civil Code provides a statute of limitations of thirty years after the first instance of theft.
Cornelius Gurlitt was at all times convinced that he had inherited a collection from his father that predominantly consisted of so-called degenerate art from former German Reich property in public collections and museums. Cornelius Gurlitt was not aware that his collection also includes a few works that today can be qualified as looted art. Until the claims for return were asserted, Cornelius Gurlitt was in good faith. He was in good faith when he inherited the collection from his mother and remained in good faith when he originally acquired ownership of the works by way of acquisitive prescription. In this context, it should be taken into consideration that Hildebrand Gurlitt had first left his collection to his wife Helene. In 1968, Cornelius Gurlitt and his sister Benita inherited the collection. In accordance with German law, Cornelius Gurlitt has therefore long been the sole rightful owner of all 1,280 of the works seized.
After the rightful return of the entire collection by the Augsburg public prosecutors and the customs authorities, he is prepared to review and arrive at fair solutions together with the claimants for those works that are suspected of being looted art in such instances where qualified, documented, and justified claims for their return are asserted by heirs of Jewish of persecution and where morally compelling grounds exist. This voluntary, morally driven commitment on the part of Cornelius Gurlitt applies to only very few works in the collection from the “Schwabing art discovery,” according to current information at most 3% of the 1,280 confiscated works.
Several German museums have already made offers to repurchase the works in the collection considered “degenerate” art. Cornelius Gurlitt is quite willing to carefully consider such offers for repurchase, providing they correspond with the market value of the works in question and the legal and factual situation. This approach is in keeping with the historic truth that Dr. Hildebrand Gurlitt legally acquired by way of purchase or trade from the German Reich the works that had been confiscated as “degenerate” art. Due to his father’s secured acquisition of title to the “degenerate” art, no alternatives other than repurchase through German museums come under consideration. Cornelius Gurlitt will gladly review appropriate repurchase offers made by German museums for “degenerate” art.
Recommended Literature for Further Reading
Hannes Hartung, “Kunstraub in Krieg und Verfolgung: Die Restitution der Beute- und Raubkunst im Kollisions- und Völkerrecht,” in Schriften für Kulturgüterschutz, De Gruyter Recht, Berlin 2005
Guideline for the implementation of the “Declaration of the federal, state, and local organizations in charge of locating cultural assets seized in the context of Nazi persecution, in particular from Jewish owners” published in December 1999 and February 2001, revised in November 2007