Your lawyerPaul W.L. Russell, LL.M.
Paul Russell is a lawyer for international and national businesses, art dealers, museums, and affluent individuals. He specializes in corporate governance, contracts and corporate litigation. He has been a lawyer at Russell since 1976.
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Dutch restitution policy has gone too far in the protection of Netherlands art property
On 7 December 2020, the committee appointed to evaluate Dutch restitution policy on Nazi-looted art (Commissie evaluatie restitutiebeleid cultuurgoederen Tweede Wereldoorlog) published its Striving for Justice report. This report is very critical of the policy of the Restitutions Committee in the last few years. So critical, in fact, that the chairman of the Restitutions Committee, Prof. Fred Hammerstein, even resigned prior to the presentation to the report. What are the main points of criticism?
Dutch restitution policy no longer complies with the Washington Principles
The main conclusion is that, after a good start, the restitution policy no longer complies with its own rules, i.e. to do justice to the suffering of those who involuntarily lost their property as a result of war and the Nazi regime. Criticism concerns in particular the taking into account of the interest of the current owner and public art possession. This was given an increasingly prominent place by the Ministry in the various amendments to the regulations of the Restitutions Committee.
We noted this shift as early as 2009, in our article “Policy changes in the Restitutions Committee?” (in Dutch). In subsequent years, we have regularly come back to this issue, for example in “Kunstrecht (g)een vak apart?” in which we stated that this actually meant the more valuable the work of art, the less likely it was to be returned. Even in the case of involuntary loss of possession as a result of war. This was confirmed, among other things, by two decisions on paintings by Jan van Scorel (2013) and Wassily Kandinsky (2018). In both cases the weighing of interests was to the disadvantage of the heirs.
Last Friday, we pointed out that even in the event of a binding advice it is not certain that a work of art will actually be returned. It still has to go through the procedure for alienation of works of art and can be designated as protected cultural property that may not leave the Netherlands. On page 29 of its report, the evaluation committee rightly says that the designation procedure shall not be part of the restitution policy.
What is clear is that the Restitutions Committee has made mistakes in its assessment of claims made and the essence of restitution, namely to do justice to those who, as a result of the Nazi regime, lost their property. The evaluation committee leaves aside whether this means that old cases have to be re-examined. That is unfortunate and unjustified. Especially, because there is no independent possibility of appeal in restitution proceedings. For example, the advice in the Van Scorel case in proceedings initiated by Russell Advocaten was annulled by the District Court Midden-Nederland (in Dutch). As a result, the same Restitutions Committee had to re-examine the case. As, of course, no other decision was to be expected, the case was not pursued at the time. Complaints were made to the Minister, but without success. Unfortunately, the evaluation committee does not recommend to provide for the opportunity to appeal, but to include an extra round of hearing both sides before the draft of the binding advice will be finalized (see p. 38).
More research and better information
The other recommendations of the evaluation committee mainly concern the resumption of research into the original owners of possible looted art and the improvement of the information on restitution policy. It is not only a question of establishing a helpdesk, but also of informing those concerned during the restitution procedure.
Russell Advocaten has been conducting legal proceedings on the restitution of Nazi-looted art to the owners and their heirs for decades. Would you like assistance in submitting a request for restitution? Do you have any questions about the restitution policy? Or any other questions related to art and law? Please contact Paul W.L. Russell, LL.M. at 020-301 55 55, email@example.com, or by using the form below:
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