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The Return of Ernst Ludwig Kirchner's Berliner Straßenszene

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The Return of Ernst Ludwig Kirchner's Berliner Straßenszene Kunstrechtsspiegel 02/07 - 51 - 23. 541 U.S. 677 (2004). Juristische Wochenschrift 2006, 689. 24. Republic of Austria v. Altmann, 541 U.S. 677, 711 (2004), Ju- 29. See Christian Baldus, Internationaler Kulturgüterschutz: Re- stice Brenner, with whom Justice Souter joins, concurring. naissance der Ersitzung, in Klaus Grupp/Ulrich Hufeld (eds.), 25. See also Hess, supra note 3, 273. Recht, Kultur, Finanzen, Festschrift Mußgnug (2005), 525 s. 26. Marina Mahler, Gustav Mahler's granddaughter, has asked fort 30. Dieter Krimphove, Das europäische Sachenrecht - Eine he restitution of a painting by Munch, now in the Belvedere, rechtsvergleichende Analyse nach der Komparativen Institutio- which belonged to Alma Mahler-Werfel, see Daniela Gregori, nenökonomik, Lohmar-Köln (2006), 381, favours such flexible Mein Munch - Kunst-Krimi: Marina Mahler fordert die Rückga- compensation solutions from the standpoint of a comparative be eines Bildes, Frankfurter Allgemeine Zeitung (2 March economic analysis of law. 2006), 37. 31. UNIDROIT Convention, Explanatory Report, in Acts and Pro- 27. The Detroit Institute of Arts and the Toledo Museum of Arts, ceedings of the Diplomatic Conference fort he Adoption of the see Jordan Meijas, Jetzt klagen die Museen - Erbfälle: Neuer Draft UNIDROIT Convention on the International Return of Streit um Gemälde aus jüdischem Besitz, Frankfurter Allge- Stolen or Illegaly Exported Cultural Objects, Presidenza del meine Zeitung (28 Jan. 2^06, 37. Consiglio die Ministri, Dipartimento per l'informazione e l'edito- 28. German Federal Court (Bundesgerichtshof), 24.10.2005, Neue ria, Roma (1996), 30. The Return of Ernst Ludwig Kirchner ‘s Berliner Straßenszene - A Case Study* Matthias Weller** I. Introduction Chancellor’s Office in Berlin in order to learn the lesson from the Kirchner case. 7 What could this The Berliner Straßenszene (street scene) of lesson possibly be? Any evaluation has to start 1913, one of the leading paintings of the famous from the underlying facts of the dispute. On the German group of expressionist artists Die Brücke basis of the information available to the public, (the bridge) including Ernst Ludwig Kirchner, 1 these facts are the following: heralds - and mirrors in its painting technique - a new modern, bustling way of city life in Berlin at II. Provenance of the Painting the eve of the First World War and, to a certain extent, represents Berlin as such as well as pre- Originally, the painting formed part of the proba- sumably one of the most important contributions bly most important collection of German expres- to modern art of German origin. The Brücke Mu- sionists at the time including seven paintings by seum in Berlin acquired the painting in 1980 for Ernst Ludwig Kirchner, the collection of the Jew- 1.9 million DM after all Berlin Museums had ish shoe manufacturer and entrepreneur Alfred agreed to abstain from any other acquisitions for Hess in Erfurt, Germany. Due to the Great De- the period of two years in order to raise the nec- pression in 1929, his company faced financial dif- essary money. The decision of the Berlin Senate ficulties, 8 and the family was forced to sell pieces at the end of July 20062 to return the painting to of the collection for their living, for example an- Anita Halpin, grand-daughter and heir of the for- other Kirchner painting, the Potsdamer Platz that mer Jewish owner Alfred Hess, has rightly been Anita Halpin also recently claimed for restitution deplored as an "amputation” 3 of the "unique col- - a claim the New National Gallerie (Neue Na- lection ” of the Brücke Museum and an ines- tionalgallerie) Berlin turned down once it could timable loss for Berlin and probably even the present a photo of the buyer ’s living room in work of art itself, since a painting of a "Berliner 1930 including the Potsdamer Platz.9 When Al- Straßenszene ” will not assume the same charis- fred Hess died in 1931, his son Hans inherited ma outside Berlin. Most notably, however, the the collection. Shortly after the so-called Berlin Senate’ s decision has faced severe criti- Machtergreifung on 30 January 1933, he left cism, and many commentators held it to be Germany for Great Britain, and his mother wrong and far from constituting a "fair and just Thekla, Alfred ’s wife, administered the collection. solution ”4 in the sense of the Washington Princi- She could relocate parts of it to Switzerland, and ples. 5 The strongly controversial public debate the Berliner Straßenszene was displayed at the and the fact that Anita Halpin raised further Kunsthalle Basel in 1933 as well as at the Kun- claims for the return of paintings of the Hess col- sthaus Zurich in 1934 for sale for the price of lection from German museums 6 convinced the 2,500 RM.10 On 4 September 1936, the Kun- German Government to convene a "crisis sum- sthaus Zurich, acting on behalf of Thekla Hess, mit” of art law as well as art market and museum sent the painting to the Cologne Art Society (Köl- experts whose first part took place on 20 Novem- nischer Kunstverein) from where it was sold to ber, the second on on 11 December 2006 at the Carl Hagemann for the price of 3,000 RM.11 Kunstrechtsspiegel 02/07 - 52 - When Hagemann died in 1940, the family donat- IV. The Steps towards a “fair and just ed the painting to the then director of the Frank- Solution ” furt Städel Museum, Ernst Holzinger, and after the latter ’s death in 1970, his widow eventually It was clear from the outset that there was no le- sold the painting to the Brücke Museum in Berlin gal claim under the German restitution legislation in 1980. because, inter alia, the time limits for filing such claims had expired a long time ago.18 The Berlin 111. Reasons for the Sale in Germany Senate therefore relied on the Washington Prin- ciples of 3 December 1998,19 the Statement by One of the crucial issues of this provenance is of the Federal Government and other public enti- course the question why exactly the painting re- tites on the tracing and return of Nazi-confiscated turned to Germany in 1936. It has been submit- art, especially from Jewish property of 14 De- ted that Thekla Hess sought to sell the painting in cember 199920 declaring the need to implement Germany because the works of German expres- the Washington Principles and, in particular, the sionists were not appreciated outside Germany ministerial manual on the details of this imple- at the time and attempts to receive a good price mentation, the so-called Handreichung 21 that pro- in Switzerland had failed. The Berlin Senate how- vides for a scheme of examination of claims in- ever, relied, inter alia, on an affidavit signed by cluding explanations and comments on its appli- Thekla Hess on 1 April 1958 in the course of the cation to specific issues. This scheme expressly administrative proceedings that her son Hans builds on the substantive rules of the German Hess instituted at the then Berlin Restitution and restitution legislation 22 that in turn relies on the Compensation Agency in which he eventually re- restitution legislation of the Allied Forces in order ceived, by decision of 8 July 1961, the highest to continue the lines of case law that have possible compensation of DM 75,000 on the ba- emerged over the decades about the interpreta- sis of the German Act on Compensation of Vic- tion of core concepts in this context, in particular tims of the Nazi Persecution (Bundesentschädi- the conditions for the application of the rebuttable gungsgesetz). 12 In this affidavit, Thekla Hess de- presumption of the loss of an asset due to Nazi clared that, on the occasion of her numerous persecution and the evidentiary rules applicable journeys from Switzerland to Germany until to rebut the presumption. 1936, she was coerced under threat against her- self and her family members in Germany by In order to benefit from the rebuttable presump- agents of the German secret state police, the so- tion that the loss of an asset is attributable to called Gestapo, to have the Hess collection re- Nazi persecution, the claimant has to show that turned to Germany. 13 On the basis of the sources firstly, he or his legal predecessors were subject publicly available it appears unclear whether this to persecution for racial, political or religious rea- incident took place prior or subsequently to the sons between 30 January 1933 and 8 May 1945, transport of the Berliner Straßenszene to the and secondly that he or his legal predecessors Cologne Art Society and, if the former was the lost property by forced sale, expropriation or in case, how this work of art then could, in light of other ways attributable to Nazi persecution. In the "interest ” the Gestapo had expressed, be ulti- the case of a loss of property due to a contractu- mately transferred to and stay with a person, Carl al transaction the presumption applies to the Hagemann, who is believed to have kept dis- benefit of either individually or collectively perse- tance to the Nazis and is known for supporting cuted persons that the loss of property in the expressionist art and artists,14 how the painting course of the relevant transaction is attributable could be sold for a price considered to have been to Nazi persecution, however rebuttable on the above market value 15 and be saved from destruc- cumulative production of evidence that (1) the tion together with other pieces of "degenerate price of the sale is adequate, (2) the seller could art” hidden in the archives of the Frankfurt Städel freely dispose of the received money, and (3), in Museum, why Ernst Ludwig Kirchner congratulat- the case of sales after 15 September 1935, that ed Hagemann to his acquisition in February (i) the conclusion of the transaction would have 1937,16 and why Thekla herself never raised a taken place, in its core conditions, also in the ab- claim to this painting during her life-time but only sence of the Nazi regime or (ii) the transaction her grand-daughter Anita Halpin now.17 successfully served the financial interests of the persecuted person, as is, according to the manu- al, the case for example, if the buyer assists the seller to transfer assets abroad.
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