Art Litigation: Jewish Property Declarations: The Law of April 26, 1938

Today is the anniversary of the April 26, 1938 decree by Goering requiring Jews to declare their property.  It is important that any student of the Holocaust read the text of the decree, reproduced in italics below.  There is very little written about this law, which was a critical turning point in the Nazis' adoption of the Final Solution.  First robbery, then murder of the despoiled victims.

Today, the consequences of this law are still being litigated in the United States.  US museums are successfully clinging to artworks stolen pursuant to the April 26, 1938 decree and the subsequent measures.  The Jewish Property Declarations were sealed by Austria from 1945 until 1993.   Now US museums are suing Jewish descendants of Holocaust victims to "quiet title" to the artworks in their collections, in violation of international law and the United States' commitment to return Nazi spoils  to their victims.

DOCUMENT 1406-PS
1938 REICHSGESETZBLATT, PART I, PAGE 414
~ Decree for the Reporting of Jewish Owned Property of 26 April
1938
On the basis of the Decree for the Execution of the Four Year Plan of 18 October 1936 (RGBl I, 887) the following is hereby decreed:
Article 1
1. Every Jew (Article 5 of the First Regulation under the Reich Citizenship Law of 14 November 1935 (RGBI I, 1338)) shall report and evaluate in accordance with the following instructions his entire domestic and foreign property and estate on the day when this decree goes into force. Jews of foreign citizenship shall report and evaluate only their domestic property
2. The duty to report holds likewise for the non-Jewish marital partner of a Jew.
3. Every reporting person's property must be given separately.
Article 2
1. Property in the sense of this law includes the total property of the person required to report, irrespective of whether it is exempt from any form of taxation or not.
2. It does not include movable objects used by the individual or house furnishings as far as the latter are not luxury objects.
Article 3
1. Every part of the property shall be valued according to the usual valuation it has on the effective date of this regulation.
2. No report is necessary when the total worth of the property to be reported does not exceed 5000 marks.
Article 4
The report is to be presented on an official form by 20 June 1938, to the administrative official responsible at the place of residence of the reporting individual. When such a report is not possible by this date the responsible official can extend the period. In such case, however, an estimate is to be presented by 30 June 1938, together with a statement of the grounds of delay.
Article 5
1. The reporting individual must report, after this decree goes into force, to the responsible office, every change of said individual's total property as far as it exceeds a proper standard of living or normal business transactions.
2. The reporting requirement applies also to those .Jews who were not required to report on the effective date of this regulation but who have acquired property exceeding 5000 Reichsmarks in value, after this date. Article 1 (1) clause 2, shall apply respectively.
Article 6
1. The administrative offices responsible under this reguhttlon are in Prussia-Highest Administrative Officer [Reierungspraesident] (in Berlin the Police President) ; Bavalria Administrative Officer [Regierungspraesident] ; Saxony---Tivoli District Head [Kreishauptmann]; Wurtemberg-The Minister of the Interior; Baden-The Minister of the Interior; ThueringenReich Governor [Reichsstatthalter]; Hessen-Reich Governor; Hamburg-Reich Governor; Mecklenburg-Ministry of the State, Interior Department; Oldenburg-Minister of Interi01•; Braunschweig- Ministry of Interior; Bremen-Senator for Administration of Interior; Anhalt-Ministry of State Interior Department; Lippe-Reich Governor (Land Government); SchaumburgLippe-Land Government; Saarland-The Reich Commissioner for the Saar.
2. Austria-The Reich Governor has jurisdiction. He may transfer his authority to another board.
Article 7
The Deputy for the Four Year Plan is empowered to take such necessary measures as may be necessary to guarantee the use of the reported property in accord with the necessities of German economy.
Article 8
1. Whoever wilfully or negligently fails to comply with this reporting requirement, either by omitting it, or making it incorrectly, or not within the time specified, or whoever acts contrary to any instruction issued pursuant to Article 7 by the Deputy of the Four Year Plan shall be punishable by imprisonment and by a fine or by both of these penalties, in particularly flagrant cases of wilful violation the offender may be condemned to hard labor up to ten years. The offender is punishable notwithstanding that the action was in a foreign country.
2. Any attempt to commit such actions is punishable.
3. In addition to the imposition of the penalties under (1), the property may be confiscated, insofar as it was involved in the criminal action. In addition to hard labor confiscation may be made. Where no specific individual can be prosecuted or convicted, confiscation may be decreed independently, where the prerequisites for confiscation warrant it.
Berlin, 26 April 1938
The Deputy for the Four Year Plan
Goering
General Field Marshal
The Reich Minister of the Interior
Frick

Adolph Eichmann set up the Zentralstelle in Vienna in August 1938.  He described it as a "conveyor belt".  You put a Jew and his property on one end and the Jew emerged with a passport and no property on the other end.  Eichmann is considered the "father" of spoliation for profit and the creation of the "Vienna model" of despoiling Jews before exporting them or murdering them.   The problem arose that no country wanted to accept Jews that had been completely spoliated.  Murder thus became the next logical step.

Nazi Era Laws - Nazi Conspiracy and Aggression - Translated


More information on Bakalar v Vavra, a recent Second Circuit case interpreting the April 26, 1938 Jewish Property declaration decree here.

More on Austria's violations of the Austrian State Treaty here.

A report on how the Museum of Modern Art in New York is the largest repository in the nation of Nazi looted art coming in through Switzerland here.


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Art Litigation: Stolen Art and Austria's "Jewish Exception" To the 1955 Austrian State Treaty

Rudolph Leopold's death on the eve of a criminal trial in the U.S. should have brought Austria to its senses.  Instead, yesterday it installed Leopold's family members as part of a continuing charade to conceal Austria's ownership of stolen Jewish property in the Leopold Museum.  More on Rudolph Leopold here.

Dead City III was stolen from Fritz Grunbaum, a Jewish cabaret performer murdered in Dachau in 1941. In violation of Art. 26 of the Austrian State Treaty of 1955, Austria has thus far failed to return the work, although Dr. Christoph Bazil, the head of an Austrian Commission that was founded because of the Dead City III scandal keeps promising me that he is investigating the matter.
This so-called "Commission for Provenance Research" recently came to NY, program here and claimed that they were reviewing every single item in Austrian museums. Apparently they have not reached "S" for Schiele in the alphabet, something that might safely occur in the next century.
This is of course a preposterous sham.

Dr. Bazil, who works for Minister Claudia Schmied, takes the opinion (that he has refused to put in writing) that Art 26 of the Austrian State Treaty does not require Austria to return property stolen from Jews. But it is written in English and is quite clear and unconditional, so there is no reason that the Austrian police should not simply enter the Leopold Museum and secure and restitute the property. In the United States we have police and prosecutors to handle stolen property. The situation is shocking to me because in Austria it appears that police and prosecutors refuse to act when property has been stolen from Jews, and this "Jewish exception" is nowhere in writing.

In contravention of Art 26 of the Austrian State Treaty, Austria has permitted its civil remedies for Jews to recover property to lapse. Additionally, Austria failed to restore property as required by the Austrian State Treaty, instead dragging its feet for 45 years.
I have included below the text of the Austrian State Treaty, you can easily see for yourself that Austria is in gross violation for failing to return the stolen artworks at the Leopold, the Albertina, and in private collections throughout Austria.
The Austrian State Treaty of 1955 was a contract between the English, the Russians, the French and the US, on the one hand, and Austria on the other. Nowhere in our jurisprudence can one find support for Dr. Bazil's "oral" interpretation of this Treaty, and Dr. Bazil's failure to cite any Austrian jurisprudence in support of his view casts doubts on his assertions.

The Austrian State Treaty of 1955 is the equivalent of the U.S. Constitution.   What is the remedy for a breach?  Should we re-occupy Austria?

Emphasis below is mine.

Article 26
PROPERTY, RIGHTS AND INTERESTS OF MINORITY GROUPS
IN AUSTRIA
1. In so far as such action has not already been taken, Austria undertakes that, in all cases where property, legal rights or interests in Austria have since13th March, 1938, been subject of forced transfer or measures of sequestration, confiscation or control on account of the racial origin or religion of the owner, the said property shall be returned and the said legal rights and interests shall be restored together with their accessories. Where return or restoration is impossible, compensation shall be granted for losses incurred by reason of such measures to the same extent as is, or may be, given to Austrian nationals generally in respect of war damage.

2. Austria agrees to take under its control all property, legal rights and interests in Austria of persons, organizations or communities which, individually or as members of groups, were the object of racial, religious or other Nazi measures of persecution where, in the case of persons, such property, rights and interests remain heirless or unclaimed for six months after the coming into force of the present Treaty, or where in the case of organizations and communities such organizations or communities have ceased to exist. Austria shall transfer such property, rights and interests to appropriate agencies or organizations to be designated by the Four Heads of Mission in Vienna by agreement with the Austrian Government to be used for the relief and rehabilitation of victims of persecution by the Axis Powers, it being understood that these provisions do not require Austria to make payments in foreign exchange or other transfers to foreign countries which would constitute a burden on the Austrian economy. Such transfer shall be effected within eighteen months from the coming into force of the present Treaty and shall include property, rights and interests re quired to be restored under paragraph 1 of this Article.

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On the Eve of Criminal Trial in U.S., Rudolph Leopold, Collector of Artworks Stolen from Jews, Dies in Vienna

Egon Schiele's Dead City

Art collector Rudolph Leopold died today in Vienna, Austria.

In 1998, D.A. Robert Morgenthau seized two stolen artworks at the Museum of Modern Art that Leopold had loaned to the MoMA:  Egon Schiele's Dead City and Schiele's Portrait of Wally.

Leopold was scheduled to stand criminal trial this summer before the Hon. Loretta A. Preska in the U.S. District Court for the Southern District of New York after Judge Preska determined that Portrait of Wally was stolen.

But MoMA returned the stolen Dead City to the Leopold Museum in Austria.  The Austrian Provenance Commission's head Dr. Christoph Bazil, has repeatedly promised to investigate Dead City's provenance and those of other Schiele's stolen from Fritz Grunbaum that are in the Leopold and Albertina Museums in Vienna, but after 11 years, no report has issued.

Austria purchased Leopold's collection and made Leopold director of the Leopold Museum for life.  It remains to be seen whether Austria will carry through on its promises to investigate and return the stolen works in Leopold's collection.

Article 26 of the 1955 Austrian State Treaty requires Austria to return all property stolen from Nazi persecutees.  Yet Austria has not only failed to return the property, but repeatedly set up enabling legislation designed to frustrate claims and then let the legislation lapse.

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Audio Recording and Powerpoint of Nazi Art Looting Presentation at Yad Vashem

Egon Schiele's Self-Seers - Stolen from Fritz Grunbaum and Still Missing

Last week I gave a lecture at Yad Vashem International Institute for Holocaust Research in Jerusalem.   I dealt with the problems faced by attorneys who need to prove that the Holocaust happened and to prove that transactions involving Nazi persecutees during the period 1933-1945 were presumptively duress transactions.

If you would like to listen to my presentation, the link is here.   The Powerpoint presentation that illustrates the audio is here.  The invitation reproduced below.

The International Institute for Holocaust Research-Yad Vashem


cordially invites you to attend the lecture

Egon Schiele's Dead City

Current Issues In Nazi Art Looting and Recovery
Raymond Dowd, Esq.

Partner - Dunnington, Bartholow & Miller LLP New York

Wednesday, 24 February 2010

10:00-12:00

Lecture Hall, Room 223, Administration and Research Building

Yad Vashem, Mount of Remembrance

In 1998, Manhattan District Attorney Robert Morgenthau seized Egon Schiele's Dead City and Portrait of Wally at New York's Museum of Modern Art, creating a scandal that changed the legal landscape of Europe and the United States for victims of Nazi persecution and their survivors. Ray Dowd represents the heirs of Fritz Grunbaum, a Jewish cabaret performer murdered in the Dachau Concentration Camp. Fritz's wife Lily died in the Minsk Death Camp. Grunbaum's art collection surfaced in Switzerland in 1956 under disputed circumstances, and in the first Holocaust-era art recovery trial in U.S. history, Bakalar v. Vavra, the District Court found that passing the artwork through Switzerland gave it clean title. The case is on appeal. Many of Fritz's artworks are in the Leopold Museum and the Albertina Museum in Austria. In over ten years, Austria has not even bothered to respond to the heirs' claims.

Austria and Fritz Grunbaum's Stolen Schieles at the Albertina Museum

In 1955, Austria signed a treaty with the United States promising to give back all of the property it stole from Jews during the period of Nazi "occupation" of Austria.   Ever since, Austria has treated this obligation largely as a joke, thumbing its nose at Jews who attempted to get their property back.  Only in the 1990's through a combination of class action lawsuits and the actions of the Clinton Administration spearheaded by Amb. Stuart Eizenstat, did Austria instead agree to pay pittances to Jewish persecutees in lieu of giving them their property back.   The sad tale is well told in Eizenstat's book Imperfect Justice.

But the class action settlements did not cover stolen artworks in Austria.  In 1998, in reaction to D.A. Morgenthau's seizure of Egon Schiele's Portrait of Wally and Dead City (Dead City belonged to Fritz Grunbaum), Austria passed an Art Restitution Law that permitted claims to be made against artworks in Austria's federal museum collections.  On April 13, 1999, the heirs of Fritz Grunbaum made claims to the following works by Egon Schiele that were stolen from Grunbaum while he was in the Dachau Concentration Camp:

Egon Schiele, Female Nude Seated on Red Drape, Back View
Sitzender weiblicher Rückenakt mit rotem Rock

Jane Kallir: Egon Schiele, The Complete Works 1998, New York №:1504
Gouache, watercolor, and pencil. Signed and dated, lower right. (48.2 x 31.8 cm).
Gutekunst & Klipstein, Nov. 24, 1955, lot 107 1

Exhibitions: London, 1964, no. 67, ill.; Hamburg, 1981, no. 214, ill.
Inventorylist Albertina: 39.931

Jane Kallier: Egon Schiele, The Complete Works 1998, New York №:1797: Heinrich Rieger; Gutekunst & Klipstein, Bern; Galerie St. Etienne, New York; Rudolf Leopold;

Provenance as per Catalog: "Egon Schiele" Würthle Gallery, Vienna 1925:
"Mutter und Kind", sign Egon Schiele 1915 Sammlung Fritz Grünbaum
Austria never responded to the claims of Fritz Grunbaum's heirs.  From 2000 through 2009, Austria claimed that it was "investigating" the status of the works.  In 2006, Mag. Eva Blimlinger was called in to oversee the investigation together with Mag. Annaliese Schallmeiner.


 Blimlinger is a respected Austrian historian and oversaw the Austrian Historian Commission's report found at http://www.provenienzforschung.gv.at/    The Blimlinger and Schallmeiner Report, which was supposed to have issued in the fall of 2009, never has seen the light of day, apparently the victim of the Austrian Federal Ministry for Education, Arts and Culture.   Why was that report killed and what did it say?
 
In the summer of 2009, at the Prague Conference on Holocaust Era Assets, Minister Claudia Schmid promised Congressman Wexler that she would investigate the status of the Grunbaum works at the Albertina.  I spoke to Dr. Christophe Bazil and Dr. Thomas Baier, who reassured me that they would investigate the issue and be in contact.   I wrote to them and never got any response.
 
In February, a client alerted me to a forum to take place in New York on Austrian Restitution.  The program is here.    I was rather shocked that the very Austrian officials who had promised to look into the Grunbaum affair and who did not have the time to answer my communications were to be speaking in New York City.
 
By failing to return property belonging to Jews, Austria has breached its obligations under the Austrian State Treaty of 1955.  This treaty was a condition of Austria's existence, like our Constitution.  The Allies - Russians, French, British and Americans - pulled out of Austria on the promise that all property would be returned to Jews.   Instead, Austrians continue to live in homes stolen from Jews, operate businesses stolen from Jews, and to buy, sell and enjoy art stolen from Jews.
 
Since the Allies left Austria, Austria has enacted successively a system of inadequate and insulting postwar laws that failed to restore property to Jews.   To understand Austria's obligations clearly (the treaty is written in plain English), we look to the actual writing. Article 26 of the 1955 Austrian State Treaty states as follows:

PROPERTY, RIGHTS AND INTERESTS OF MINORITY GROUPS IN AUSTRIA

1. In so far as such action has not already been taken, Austria undertakes that, in all cases where property, legal rights or interests in Austria have since 13th March, 1938, been subject of forced transfer or measures of sequestration, confiscation or control on account of the racial origin or religion of the owner, the said property shall be returned and the said legal rights and interests shall be restored together with their accessories. Where return or restoration is impossible, compensation shall be granted for losses incurred by reason of such measures to the same extent as is, or may be, given to Austrian nationals generally in respect of war damage.

The full text of the Austria is found here, courtesy Wikipedia.  You will see that there are no "if's" ands or "buts" in the Treaty.  Its language is unconditional and does not depend on enabling legislation.  Indeed, any enabling legislation that fell short of the absolute terms of the Treaty would be unconstitutional in Austria.

It is to be hoped that the U.S. State Department will assist the heirs of Fritz Grunbaum in obtaining a copy of the Blimlinger/Schallmeiner Report and in facilitating conversations through the U.S. Embassy in Vienna, consistent with the Washington Principles on Holocaust-Era Assets.   It is to be hoped that President Obama's Ambassador to Austria, Amb. William Eacho will take a personal interest in the plight of Jews dispossessed in the Holocaust.