Kline, Thomas

English

Digital Commons @ American University Washington College of Law

American University International Law ReviewVolume 14 | Issue 1 Article 191998The Recovery of Stolen Art sold in the UnitedStates from a "Neutral" CountryThomas KlineFollow this and additional works at: http://digitalcommons.wcl.american.edu/auilrPart of the International Law CommonsThis Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ AmericanUniversity Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorizedadministrator of Digital Commons @ American University Washington College of Law. For more information, please contactfbrown@wcl.american.edu.Recommended CitationKline, Thomas. "The Recovery of Stolen Art sold in the United States from a "Neutral" Country." American University InternationalLaw Review 14, no. 1 (1998): 243-248.THE RECOVERY OF STOLEN ART SOLD INTHE UNITED STATES FROM A "NEUTRAL"COUNTRYTHOMAS KLINE*I began work in this area-representing theft victims in the recov-ery of stolen art and cultural property-by representing the GreekOrthodox Church of Cyprus in a case involving mosaics stolen fromthe Turkish-occupied area of northern Cyprus that showed up in In-dianapolis.Indianapolis and Amsterdam dealers were involved in the transac-tion, and the art moved through Switzerland on its way to Indianapo-lis. So, in my first case, I saw the sweep of the wonders of the artworld and the movement of stolen art, learning that theft of art is at-tendant on all war, and that displacement of art and movement of artis attendant on theft. I also learned that enormous profits can bemade and that the art can sit for long periods of time.After representing the Greek-Orthodox Church of Cyprus, I repre-sented the Quedlinburg Church that recovered medieval treasuresthat had been stolen by an American serviceman at the close ofWorld War II and shipped home to Texas. Many of you may haveseen that other members of the family just escaped from a criminalindictment for transporting stolen property on statute of limitationsgrounds. This was a case that went on for some time.But in the civil case that we settled, we laid claim to, and ulti-mately recovered, a number of medieval treasures that this Americanserviceman had taken at the end of the war.* Mr. Kline is an attorney at Andrews & Kurth. This paper is a transcript ofthe proceedings that took place at the Conference on Neutrality. Morality. and theHolocaust, which took place at the American University Washington College ofLaw on April 23, 1998.AM. U. INT'L L. REV.My lesson there was that the looting attendant on World War IIwas not limited to Nazis. I now handle about a half-a-dozen of thesecases; half of them or so are Holocaust-related cases and the othergroup involve thefts by Americans and by Soviets.If we inventory the unfinished business of World War II, we haveto say that all of these thefts belong on the list; not merely the theftsby the Nazis, but the other thefts as well, which are also considerablein volume.In looking at the role of the neutral nations-I appreciate follow-ing Ms. Nicholas, who I work closely with on some matters-it isimportant to appreciate the scope of theft by the Nazis that she de-scribed.It was Nazi policy to steal art. It was, in particular, the policy ofthe German government to steal abandoned Jewish art. Numerousgovernment institutions were actuated to accomplish that purpose.The art was gathered and shipped back to Germany.Now, if you can visualize government agencies that were tasked tosteal art, you can also imagine what happens on the fringes. Therewere multiple overlapping patterns of theft and movement of art withpeople stealing for Germany and for German institutions, peoplestealing for their own account, and people engaging in forced sales ortheft for high level German officials.Where did all of this art go? As Ms. Nicholas mentioned, much ofit was recovered at the end of the war through heroic efforts by theUnited States Monuments, Fine Arts and Archives troops, and effortsby other countries. We really do not know, however, how much sto-len art was not recovered.The lists of thefts that you can see are so enormous that it leavesus with the impression that large amounts of art have never been re-covered.Given what we know about art, we know that it has moved. AsMs. Nicholas mentioned, and it was mentioned this morning, muchof the art that moved has been the subject of multiple transactions,moving from one person to another. Given the "Don't ask, don'ttell," "No questions asked" policies of the art world, the art moveswith less and less information attaching to it about its origins. Re-244 [14:243RECOVERY OF STOLEN ARTcovery of any art at this point, fifty or sixty years later, is an ambi-tious undertaking. Finding it alone is very difficult.In terms of this notion of successive transactions coupled with artmoving through neutral countries, this raises one of the most difficultissues in any art recovery lawsuit.I mentioned the Greek-Orthodox Church of Cyprus case notmerely to qualify myself and to review my background, but becausethat is a case in which we were required to litigate a claim underSwiss law. Because the mosaics had passed through Switzerland andhad changed hands in Switzerland, the defense was made that therewas a good faith transaction governed by Swiss law.To take a step back. In the United States, our guiding principle isthat a thief cannot pass title. Someone who buys an object from athief and anyone further down the chain, takes only what rights thethief had, which is possession but not a possessory interest. The sameis not true in civil law countries, particularly in Switzerland. In Swit-zerland, five years after the theft a good faith purchaser can obtaintitle.In looking at any case now, whether it is a Holocaust case or someother case in which the art has moved through Switzerland orthrough any other neutral country, the question would be: Does thatcountry's law apply?In the case of Switzerland, it i's law would generally apply if therewas a transaction consummated in Switzerland. Our first principle isif the art merely moved through Switzerland or through a neutralcountry, then that movement would not necessarily change the legalrelationships with respect to that property. The Swiss would viewtheir own law as not attaching.If there is a transaction and the art does change hands in Switzer-land, that fact alone does not necessarily dictate that Swiss lawwould apply. Indeed, in the Greek-Orthodox Church case that I men-tioned, the mosaics actually changed hands in Switzerland; but thecourt ultimately decided, however, that United States law would ap-ply because the connections with Switzerland were just transitory-there was no substantial connection to Swiss commerce.With regard to Switzerland, if there is a good faith purchase, titlecan pass. Good faith is defined as lack of actual knowledge of the19981 245AM. U. INTL L. REv.theft, a situation that would give an honest and careful purchaser asense that there might be a problem.Now, when we litigated the Cyprus case, we were looking at twoquestions: Were there suspicious circumstances? And, if so, weresufficient steps taken to resolve those doubts?In the case of a Holocaust theft and art moving through Switzer-land, you might look at such things as: Did the art come out of an oc-cupied country? Who were the individuals involved? Were theyknown to be involved with art looting? Was there any indication thatthe art came from a Jewish family? The inquiry might proceed thatway to see whether the seller might be seen by the purchasers not tohave title.Then we look at the actions of the purchaser in Switzerland. Didhe take steps to allay any doubts that were there? Did he make anyinquiry? Did he talk to people other than the seller? Did he researchon the provenance and on the history of the art?The Swiss have taken their knocks today so I do want to say frommy perspective, in the nine years since I have litigated the Cypruscase, the law has developed in Switzerland. Litigating under Swisslaw now, the inquiry would be somewhat different because the Swisshave recognized their unique role as a market for art.Art has continued to move through Switzerland since World WarII with great freedom. I have had many cases in which art has movedthrough Switzerland into the United States.Based on a recent decision of the highest court, the Swiss law is-with regard to objects of a type where there often is a problem, suchas art that is being resold-the purchaser needs to do some inquiry. Itis no longer necessary for there to be concrete suspicious circum-stances present to trigger the need for an inquiry. Some inquiry isalways needed, which I think is a very positive step forward in Swisslaw.The other feature of Swiss law that I wanted to call attention to-because I think it plays very prominently in current thinking aboutthese events-is the notion that five years after the theft the goodfaith purchaser can acquire title.What we seem to see in many of these cases is that art moved intoNew York in the early 1950s. I do not believe it is a coincidence.246 [14:243RECOVERY OF STOLEN ARTThere does seem to be a pattern that, slightly more than five yearsafter World War I, a great deal of art moved into the United Statesand was the subject of transactions in New York.Now, we take a step back from the straight litigation context andask ourselves: What should museums be doing? What should col-lectors be doing? Where are these unanswered questions and unre-solved problems of World War II? The question can be raised bylooking at the provenance of artwork.The provenance is the history of possession of an object. If you goto a museum and you see an impressionist work that came out ofFrance and the dates of transactions between 1935 and 1950 are alittle bit rubbed out and you cannot read them very well, and itshowed up in New York in the early 1950s, then you have a piecethat you have to ask some questions about. I would give the sameadvice to anybody in the art market.Focus for a moment on the rest of the burden of recovering art inthe United States. When art does come here, is found, and claims aremade, the issues in the lawsuit include such obvious matters as proofof initial ownership or at least quiet possession, proof of theft, andissues related to the statute of limitations.The ownership issues are often addressed through research into ar-chives. There are many art dealer archives around. Even thoughfamilies may not have the records, initial ownership or possessioncan be proved through historical research.I also want to emphasize a point that Ms. Nicholas made. Immedi-ately after World War II, in addition to the efforts made to return artthat could be found, there was a process for claims to be made onGermany through the countries in which the art was stolen. If, forexample, you had art that was stolen in France, you made a claim onFrance, and they pursued the claim to Germany.Through the process, an enormous amount of documentation hasbeen generated and is available now to provide evidence that, for ex-ample, the work was viewed as being within the family's collectionimmediately after the war.In terms of theft, obviously most theft occurs when there are nowitnesses present. Usually theft is proven by showing that an objectdisappeared without the permission of the owner. In fact, that is the1998]AM. U. INT'L L. REv.legal standard. You do not actually have to prove theft, but only aloss without authorization, just as you do not have to actually proveinitial ownership, merely quiet possession.In some cases, we have pictures of paintings on the wall to showquiet possession. In other cases, we have storage records as the basisfor a claim of theft.Issues related to the statute of limitations are very complicated. Ido not want to go into them in any detail, but the question of whetheran American statute of limitations has been triggered typically turnson an analysis of whether the victim has been diligent in looking forart. Sometimes these inquiries might be a comparison of the dili-gence of the victim in looking for the art to the diligence of the buyerin trying to determine whether the art was legitimately on the marketat the time that was purchased.Just from this brief recitation, I think you can see that recoveringart through private litigation in the United States is a problematicprocess. Although it gets a tremendous amount of attention in themedia, it is very labor intensive and very expensive. It is a very diffi-cult process.I always say that litigation is the dispute mechanism of last resort,no one would use it who did not have to. So, this is a situation thatreally does call out for further government action, as well as other in-stitutional action. We know that major museums in the United Statesare looking at their collections.It is hard for me to make predictions about the direction things areheaded. There are really only a few families who have the resourcesand the history to recover their art through this cumbersome process.I do join Ms. Nicholas in suggesting that opening of archives willhelp, particularly if the Swiss have records about the movement ofart through their country, such as the abuse of the diplomatic pouchby the German Embassy during the war.I think any effort by the United States or other countries to acceptsome responsibility to help victims solve these problems would bevery well received.Thank you.[14:243

The Recovery of Stolen Art sold in the United States from a  Neutral  Country

https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1313&context=auilr

The Recovery of Stolen Art sold in the United States from a Neutral Country

Abstract

Similar works

Full text

Available Versions

Digital Commons @ American University Washington College of Law