United States: Time To Go—Flechtheim Heirs Withdraw From Limbach Commission That Has Outlived Its Usefulness

Last Updated: March 1 2016
Article by Nicholas M. O'Donnell

Two days after suspending their participation in the Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property, often called the "Limbach Commission" after its presiding member Jutta Limbach (the Beratende Kommission im Zusammenhang mit der Rückgabe NS-verfolgungsbedingt entzogenen Kulturguts, insbesondere aus jüdischem Besitz), the heirs of Alfred Flechtheim withdrew from the proceedings entirely. The dispute concerns Violon et encrier (Violin and Inkwell) (1913) by Juan Gris in the Stiftung Kunstsammlung Nordrhein-Westfalen (Art Collections Foundation of North Rhine-Westphalia) in Düsseldorf.

Dr. Michael Hulton, Flechtheim's great nephew, issued a press release through his lawyers this morning in German, citing the opaque information involved and procedural irregularities before and during the February 12, 2016 hearing. The press release notes the background of calls to reform the Advisory Commission—in particular the inclusion of a Jewish member—calls that have come from all sides.

Dr. Hulton issued an English-language press release later this morning that made the irregularities clear. After flying from California to make his case, he was shocked to find that members of the Advisory Commission were not even present, among others, the chairperson Prof. Jutta Limbach. As if that were not enough, one of the members who was there simply left during the hearing, citing a prior engagement. Thereafter, the Advisory Commission's office claimed not to have received a letter, sent by email beforehand, that Dr. Hulton's attorney Markus Stoetzel sent with supplemental information (a message that Mr. Stoetzel and Mel Urbach, Dr. Hulton's other attorney at the hearing, had advised would be forthcoming), but declined to delay its deliberations.

The Advisory Commission's response was even stranger. Rather than simply register its disagreement with Dr. Hulton's decision, the Advisory Commission actually tried in a press release to defensively excuse this proceeding. It argued that presiding member Jutta Limbach's absence was meaningless because she was represented by another member. With regard to the mid-hearing departure, the Advisory Commission's press release stated (my translation):

The parties were informed at the start of the hearing that a member would have to leave the hearing because of a competing obligation that could not be moved. Here too, none of the parties objected. The departure from the meeting had no effect on the orderly conclusion of the hearing, as no adjournment was sought.

This should be the end of the Advisory Commission in its current form. This kangaroo court atmosphere makes last year's National Football League fiasco look like a paragon of due process. Suggesting that a claimant who has flown halfway around the world must decide on the spot whether to present those committee members who deigned to show up (or stay), or try again later, is outrageous. The heirs of victims—and Germany—deserve better, for the simple reason that the current process is no process at all. The fact is, the Advisory Commission has outlived its initial conception as a low-key recommendation forum for museums. It is not equipped to adjudicate factual and legal disputes, and the cracks are showing beyond repair.

According to a report by the Commission for Looted Art in Europe, Dr. Hermann Parzinger, president of the Stiftung Preussischer Kulturbesitz proposed the following changes on November 28, 2015 at the first conference of the new Deutsches Zentrum Kulturgutverluste (DZK, or German Center of Cultural Property Losses):

  1. That the Commission should also act if it is called upon by only one of the two parties to a dispute. Currently it only acts if both sides agree.
  2. That the administration of the Commission should be carried out by an independent secretariat and not the DZK.
  3. That there should be more transparency in the research of museums, as many currently do not publish their findings if they come to the conclusion that a work was not lost due to Nazi persecution.
  4. That the Commission should have procedural rules like any arbitration body.
  5. That a representative of a Jewish organization be on the Commission.

This is no small thing. Dr. Parzinger, after all, has touted the Advisory Commission's recommendations with regard to his own organization, most importantly my clients' claims for the Welfenschatz, or Guelph Treasure.

The Flechtheim heirs—who, remember, have been more successful than many—are not the first to question publicly the proceedings of the Advisory Commission. In addition to the Guelph Treasure lawsuit, the heir of the collector Hans Sachs recently questioned the neutrality of the Commission in a lawsuit at the Magdeburg Administrative Court, arguing that the Koordinierungsstelle, a predecessor of the DZK, had originally advised the Deutsches Historisches Museum, assisting it on how to handle the restitution claim, while it later, in 2008, acted as the secretariat of the Commission which decided on the claim. Sachs was unable to get a favorable recommendation on the claim from the Advisory Commission, but later won a judgment in court in 2011 compelling the return of the poster collection that had belonged to his father.

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Nicholas M. O'Donnell
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