Czech Republic Sued in Florida for Return of Art

National Gallery in Prague.
Source: Chmee2.  CC.

A newly created Florida entity filed a civil complaint on April 19 in federal district court against the Czech Republic and two of its cultural institutions.  The lawsuit of Victims of Holocaust Art Theft v. Czech Republic; National Gallery in Prague; Museum of Decorative Arts of Prague seeks the return of Nazi looted art, according to a complaint filed in the United States District Court, Southern District of Florida, Palm Beach Division. (Docket 12-80420-CIV)

The suit claims that 125 pieces of art were plundered during World War II, but the plaintiff specifically seeks the return, or the cash equivalent, of at least 50 pieces valued at over $50 million.  The complaint states that the “Popper Collection” was “among the valuable art and other objects that was looted and seized by the Nazi authorities . . . .”

Richard and Regina Popper, owners of the “Popper Collection,” are said to have been “stripped of their nationality and citizenship rights” and “were deported from Prague to the Lodz Ghetto and murdered in Lodz after arrival (in 1941 or 1942); however the exact date of their murder is not known.”

According to the court complaint, Victims of Holocaust Art Theft is a Florida business formed by Edward D. Fagan and Michal Klepetář, who is a descendant of Richard and Regina Popper.  Documents submitted to the Florida secretary of state's office show that Fagan, listing a a Boca Raton address, registered the fictitious name (i.e. trade name) on April 18, one day before filing the federal lawsuit on behalf of Victims of Holocaust Art Theft.

The lawsuit claims jurisdiction over the Czech Republic because of its commercial activities in the United States.

CONTACT: www.culturalheritagelawyer.com

U.S. House Passes Foreign Cultural Exchange Jurisdictional Immunity Clarification Act

Congressman Steve Chabot

The U.S. House of Representatives by voice vote yesterday passed the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA).  The legislation seeks to protect foreign artwork on loan to American museums by clarifying a part of the Foreign Sovereign Immunities Act (FSIA).

The legislation was introduced by Judiciary Committee member Rep. Steve Chabot (R-OH) on February 24 and co-sponsored by Rep. John Conyers (D-MI), Rep. Lamar Smith (R-TX), and Rep. Steve Cohen (D-TX).  Their intent is to have a law that encourages more foreign lending of art to America without the fear of lawsuits.

Under the current federal statute known as Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (the Immunity from Seizure Act (IFSA), 22 U.S.C. § 2459), foreign lenders are encouraged to lend cultural objects to museums in the United States without risk that those objects will become targets of litigation while on American soil.  The statute protects imported objects determined by the State Department to be (1) of cultural significance, (2) intended for temporary, nonprofit exhibition, and (3) in the national interest.  Museums importing objects into the U.S. for temporary display must apply for this legal protection.  The notice of immunity is then published in the Federal Register.

The FSIA, meanwhile, is a law that generally protects foreign states from lawsuits.  The FSIA embodies a long held principle of American jurisprudence.  But the law has been interpreted to sometimes grant jurisdiction to the courts over foreign governments when their artwork is displayed in the U.S. because such loans are deemed “commercial activity.”  Specifically, 28 U.S.C. 1605(a)(3) of the FSIA states:

 “A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.”

By way of example, in the 2005 case of Malewicz v. City of Amsterdam the heirs of Kazimir Malevich sued Amsterdam in federal court in Washington, DC to either recover artworks that the city’s Stedelijk Museum loaned to American museums or to acquire $150 million in damages.  The heirs claimed that the foreign museum unlawfully obtained the paintings.  Amsterdam argued that the Immunity from Seizure Act protected it from a lawsuit, but the federal district court ruled that Amsterdam had engaged in “commercial activity” under the FSIA by loaning the art to American institutions.  While IFSA may protect artwork from seizure, the FSIA did not protect Amsterdam from related damages said the court.  So the lawsuit moved forward.

The FCEJICA was introduced in order to remedy potential conflicts between IFSA and the FSIA.  The bill adds a new section to the FSIA that protects foreign nations from lawsuits in American courts related to loaned artwork.  The bill that passed the Judiciary Committee on February 28 and the full House on March 19 states:

“If a work is imported into the United States from any foreign country pursuant to an agreement that provides for the temporary exhibition or display of such work entered into between a foreign state that it is the owner or custodian of such work and the United States or one or more cultural or educational institutions within the United States, [and] the President, or the President’s designee, has determined . . . that such work is of cultural significance and the temporary exhibition or display of such work is in the national interest; and the notice thereof has been published . . . any activity in the United States of such foreign state, or of any carrier, that is associated with the temporary exhibition or display of such work shall not be considered to be commercial activity by such foreign state . . . .”

The bill adds that art stolen by the Nazis shall not be protected from legal claims filed in federal court.

A House report attached to the bill notes that "the intent of IFSA is being frustrated by the Foreign Sovereign Immunities Act (FSIA). Recent court decisions have interpreted a provision of FSIA in a manner that opens foreign governments up to the jurisdiction of U.S. courts if foreign government-owned artwork is present in the United States in connection with a commercial activity and there is a claim that the artwork was taken in violation of international law." The report adds: "This has led, in many instances, to foreign governments declining to export artwork and cultural objects to the United States for temporary exhibition or display. Future cultural exchanges may be seriously curtailed by foreign lenders' unwillingness to permit their artwork and other cultural objects to travel to the United States. In order to keep the exchange of foreign government-owned cultural objects flowing, this legislation clarifies the relationship between the immunity provided by IFSA and the exceptions to sovereign immunity provided for in FSIA."

The Congressional Budget Office reported that enactment of the legislation "would have no significant impact on the federal budget."

The bill now goes to the Senate for its consideration.

This link contains a video of Judiciary Committee Chairman Rep. Lamar Smith's remarks on the floor of the House.

CONTACT: www.culturalheritagelawyer.com

PART II OF II: US Attorney Reveals Legal and Factual Claims in Forfeiture Lawsuit Against Cristo Portacroce – Case Reveals Italy’s Refusal to Turn Painting Over to Gentili di Giuseppe Family



Portrait of Girolamo Romano,
painter of the disputed artwork known as
Cristo Portacroce Trascinato Da Un Mangoldo.

In support of the warrant seizing Christ Carrying the Cross Dragged by a Rogue (Cristo Portacroce Trascinato Da Un Manigoldo) from The Mary Brogan Museum of Art and Science and in support of the civil complaint seeking forfeiture, the US Attorney for the Northern District of Florida supplies important details about the artwork’s asserted history.  Homeland Security Investigations (HSI) agent Phillip Reynolds describes facts in an affidavit submitted to the federal district court that permits the construction of the following timeline and details:

June 1914 - Art collector Federico Gentili di Giuseppe, Italian and of Jewish descent and living in Paris, purchased the Cristo Portacroce from the Crespi family collection. The 16th century painting by artist Girolamo Romano, was lawfully exported from Italy.

April 20, 1940 - Just before the Nazi invasion of France, Federico Gentili di Giuseppe died and left his estate to his son and daughter. They fled Paris without their possessions.

March 17, 1941 - The French Vichy government ordered the liquidation of the entire Gentili di Giuseppe estate.

April 23, 1941 - The Cristo Portacroce, and dozens of other paintings once in the Gentili di Giuseppe family’s possession, were auctioned. “Lemar” of Paris reportedly bought the Cristo Portacroce.

1994 - A Girolamo Romani catalog raisonné published by Alessandro Nova listed the Cristo Portacroce as having been owned by Federico Gentili di Giuseppe.

1997 – Descendants of Federico Gentili di Giuseppe sued the Louvre for the return of five paintings sold during the same auction as the Cristo Portacroce.

1998 - The Brera Art Gallery (Pinacoteca di Brera) took possession of the painting, although no details are provided regarding this transfer.

June 2, 1999 – a French court ordered custody of the five paintings at the Louvre to Federico Gentili di Giuseppe’s descendants, acknowledging that the 1941 auction was a “nullity” in that several painting were purchased by Nazis, including Luftwaffe chief Hermann Göring. The court also ordered the Louvre to pay 40,000 francs (approximately $8300).

After June 2, 1999 – The Art Institute of Chicago, the Boston Museum of Fine Arts, and the Art Museum of Princeton University all returned works of art to the Gentili di Giuseppe family heirs. Institutions in Berlin, Cologne, and Lyons did the same.

January 10, 2000 and March 14, 2000 – Lawyer Jean Pierre Sulzer twice contacted the the Brera Art Gallery by mail on behalf of Gentili di Giuseppe’s descendants, receiving no reply.

2001 – The Brera Art Gallery referred the restitution claims of the Gentili di Giuseppe heirs to the Italian Ministry of Culture, and attorneys for the family wrote a letter to the ministry on October 3, 2001 asking for the painting.

June 6, 2002 – The Commission for Art Recovery of the World Jewish Congress, a New York based group that seeks to restitute cultural property taken from Holocaust victims, wrote a letter to Italian President Silvio Berlusconi after the Ministry of Culture reportedly rejected the claims of the Gentili di Giuseppe family. The letter urged the president to reconsider Italy’s position.  (The contents of the letter suggest that the Brera made an earlier reply stating that it acquired the painting--and a second painting--in good faith.  The Brera's letter is not contained in court documents).

March 14, 2003 – The Italian Ministry of Culture responded to the Commission for Art Recovery’s intervention by saying that it carefully reviewed the matter in light of the Washington Principles and could not find that it could accommodate the request for repatriation. (See the Washington Principles here).

2006 – The Commission on Looted Art in Europe reportedly contacted the Italian government in an effort to have the Christo Portacroce returned.

March 18, 2011 – The Brogan placed the painting on display at its museum in Tallahassee, Florida.

November 4, 2011 – The loan contract between the Brera and the Brogan was due to terminate on November 6, and the painting was to be delivered to Italy.  Immigration and Customs Enforcement (ICE seized the painting on November 4, 2011 to prevent its return to Milan, and the US Attorney filed its in rem action against the artwork seeking its forfeiture.

The prosecution will seek to prove these alleged facts as it attempts to convince the federal district court that it has the evidence to forfeit the Cristo Portacroce.  Time will tell if any party steps forward to contest the claim.

See Part I for a discussion of the US government's asserted legal claims in this case.

CONTACT: www.culturalheritagelawyer.com

PART I OF II: US Attorney Reveals Legal and Factual Claims in Forfeiture Lawsuit Against Cristo Portacroce – Argues That Painting Loaned to The Brogan by The Brera Was Stolen, Smuggled, and War Material



"The Brera,"
which once possessed the Romano painting
seized by ICE in Florida on November 4, 2011.
Author: Masi27185. Creative Commons License

Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) seized the painting known as Christ Carrying the Cross Dragged by a Rogue pursuant to a court authorized warrant on Friday, November 4, 2011. Judicial records reveal that federal officials chose to seize the painting at that time because the artwork, which was on loan to and openly displayed at The Mary Brogan Museum of Art and Science, was about to be returned to the Brera Art Gallery (Pinacoteca di Brera) in Milan, Italy. The Brera originally possessed and loaned the artwork, painted by Girolamo Romano around 1543.

The US Attorney’s Office for the Northern District of Florida filed a civil forfeiture action in federal district court in Tallahassee the same day as the seizure. Seizure permits the government to take possession of the painting, but a forfeiture order issued by the court would allow the government to gain title of the painting. That is why the US Attorney’s Office filed an in rem (against the thing) lawsuit, naming the artwork as the defendant. The case is captioned and docketed as United States of America v. Painting Known as Cristo Portacroce Trascinato Da Un Mangoldo, 4:11-cv-00571-RH-WCS.

Federal prosecutors argue in their civil complaint that forfeiture of the painting is proper under multiple legal theories. They cite the typical ones under the criminal statutes (Title 18 of the United States Code) and the customs statutes (Title 19 of the United States Code). But the government also makes a claim under Title 22, the foreign relations section.

First, prosecutors allege that the painting was smuggled pursuant to 18 USC § 545 and therefore must be forfeited under the terms of this criminal statute.

They also say that the artwork must be forfeited because it was illegally imported in contravention of the customs law at 19 USC § 1595a(c)(1)(A) since the painting was “stolen, smuggled, or clandestinely imported or introduced” into the United States.

Next, federal attorneys claim that the painting was about to be exported in violation of 19 USC § 1595a(d), a customs law requiring that the painting “shall be seized and forfeited to the United States” because its export would be “contrary to law.”

Federal lawyers also make a claim under the Illegal Exportation of War Materials statute at 22 USC § 401(a), saying that it mandates forfeiture of the painting: “Whenever an attempt is made to export or ship from or take out of the United States any arms or munitions of war or other articles in violation of law, or whenever it is known or there shall be probable cause to believe that any arms or munitions of war or other articles are intended to be or are being or have been exported or removed from the United States in violation of law” then the article may be seized and shall be forfeited.” (Emphasis added by the author).

Finally, the government makes the claim that the painting was stolen under 18 USC § 2314, the National Stolen Property Act, which criminalizes conduct whereby a person “transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud.”

The court will decide if prosecutors possess the evidence to prove their case.  To date, the information prosecutors possess appears considerable. That material is discussed in Part II.

CONTACT: www.culturalheritagelawyer.com

ICE Seizes Stolen Art From Florida's Brogan Museum - Said To Be Taken During WWII

ICE seizes Romano painting said to be stolen by the Nazis.  Photo courtesy of ICE

Immigration and Customs Enforcement (ICE) officials in Tallahassee, Florida yesterday served a seizure warrant on "Christ Carrying the Cross Dragged by a Rascal."  The painting had been held at the Mary Brogan Museum of Art and Science at the request of the US Attorney's office, northern district of Florida, while prosecutors determined whether the painting by Girolamo Romano’s was unlawfully taken from a Jewish family during World War II.  Now the artwork is now in federal custody.

Who will have final title and possession of the artwork ultimately will be determined by a federal district court judge.

[UPDATE: November 9, 2011 - Read more details here.]

Find the complete press release describing the seizure and issued by ICE here.  Also, listen to Chucha Barber, the Brogan Museum’s chief executive officer, who provides a short audio sketch of the ownership claims to the painting on PRI's The World.

Thanks go to Gary Nurkin for alerting me to this news.

CONTACT INFORMATION: http://www.culturalheritagelawyer.com/.

Stolen Art Repatriated to Poland Following Default Judgment in U.S. v. One Julian Falat Painting Entitled “Off to the Hunt” and One Julian Falat Painting Entitled “The Hunt”

U.S. Immigration Customs and Enforcement’s (ICE) Homeland Security Investigations (HSI) and the U.S. Attorney’s Office for the Southern District of New York repatriated two Julian Falat paintings on September 22, transferring them to President Bronisław Komorowski of Poland in a ceremony held at the Polish Consulate in New York. American and Polish officials said that the Nazis stole “The Hunt” and “Off to the Hunt” from Warsaw’s Polish National Museum during the era of World War II.

In 2006, the Polish government found the paintings at two auction houses in New York, which removed them from sale when notified. Authorities acquired the paintings this past August after a federal district court in Manhattan entered a default judgment in the U.S. government’s favor. Federal officials then turned the paintings over to Poles.

"No one can ever provide just compensation to the victims of the Nazis' atrocities, but it is very gratifying for our office to play a role in returning the art that they looted during World War II to its rightful owners," said U.S. Attorney Preet Bharara in a statement. "After 60 years, these national treasures will finally be returned to the Polish Government—a repatriation that would not have been possible without their help."

The U.S. Attorney’s Office filed an in rem forfeiture action against the paintings on December 13, 2010 in order to acquire the artworks. (In a court proceeding for civil forfeiture, the defendant is the property, not a person.) In its complaint, the prosecution alleged that there was probable cause for forfeiture. Assistant US Attorney Kan Nawaday specifically described how “Off to the Hunt” was removed from the National Museum without its frame during World War II. A frame for the artwork originally contained an inked inventory mark, the number 345, when the Society for the Encouragement of Fine Arts in Warsaw placed it there in 1904. The frame survives. “The Hunt,” meanwhile, was also transferred to the National Museum when the German SS confiscated the painting. A catalog record and photograph of the artwork still exists.

The Polish government published a catalog of looted art in 1951 following the Second World War. It described both paintings. Since 1989, the Polish government continued to post the loss of “Off to the Hunt” and “The Hunt” on the internet. The paintings surfaced when Christie’s and Doyle New York, respectively, offered them for auction.

The federal complaint explained that an HSI agent spoke with the consignor of “Off to the Hunt,” whose name was supplied to the Polish government by Christie’s. The consignor had no purchase records and no import paperwork, according to the complaint. Additionally, HSI’s own search of customs records could not find any information related to the import.

HSI was also in contact with the attorney for the consignor of “The Hunt.” The federal complaint described how HSI “spoke with employees of Doyle . . . who informed them that the consignor . . . had brought the painting in for appraisal unframed and wrapped in an old sheet. Additionally . . . employees advised that [the consignor] had provided conflicting stories about how she came in possession of the painting.” HSI itself could find no importation records relating to the painting, according to court papers.

The federal forfeiture complaint stated that each Falat painting was valued at $50,000.

The U.S. Attorney’s Office argued that the paintings could be lawfully forfeited under four alternative legal theories. First, the works of art could be forfeited under 18 USC 981(a)(1)(C) because they were proceeds arising from a violation(s) of the National Stolen Property Act. Second, they could be forfeited under 19 USC 1497(a)(1) because there was no declaration of entry made on any customs form when imported into the United States. Third, they could be forfeited pursuant to 19 USC 1595a(C)(1)(a) because there was probable cause to believe that they were imported in violation of the federal smuggling law or the National Stolen Property Act. Fourth, the paintings could be forfeited because there was “probable cause to believe that they were brought to the United States contrary to law, the possessors of the Defendant Paintings [were] aware that they were stolen and are attempting to offer the Defendant Paintings for sale . . . .”

The government won its case by default after the paintings’ possessors failed to contest the forfeiture complaint. The court granted judgment on August 3, 2011.

"Those paintings are two magnificent and very important pieces of art," said Bogdan Zdrojewski, minister of culture and national heritage of Poland. "If you think about all the Falat paintings, these two are definitely the most interesting and most valuable ones," the minister was quoted as saying in a September 22, 2011 ICE press release.

But at least one of the paintings is not one that the Nazis looted, according to assertions made in a July 1, 2011 letter and attachments sent to the federal court by the possessor of “Off to the Hunt.” She wrote that “a technical analysis of my painting put[s] into severe doubt that my painting and [the Polish government’s] lost painting were one and the same.” She objected to the “far-from-thorough ICE investigation and . . . U.S. Civil laws designed to trap criminals and not good-faith possessors of disputed objects . . .” She also wrote of her inability to enlist her insurer or an affordable attorney to help defend the court action.

In letters addressed to NY Senator Charles Schumer dated June 23 and Secretary of State Hillary Clinton dated June 27 (both contained in the public court file) the possessor made a variety of statements, including the following:

• she was the daughter of a Holocaust survivor,

• she inherited “Off to the Hunt” from her father who bought it in Paris before transporting it to the USA in 1948,

• the “lost painting and mine are two originals by the same painter,” and

• it was improper for the government to imply that she and/or her father may have been “bad faith” possessors of the work.

HSI Executive Associate Director James Dinkins, meanwhile, said in a September 2011 press statement that his agency was “deeply gratified to be able to return these cherished paintings that were taken from the people of Poland so long ago.”

Photo courtesy of ICE.

Contact: http://www.culturalheritagelawyer.com/.

If You Want Your Art Back, Be Mindful of the Statute of Limitations

The First Circuit Court of Appeals decided the case of Museum of Fine Arts, Boston v. Seger-Thomschitz on October 14, 2010. Claudia Seger-Thomschitz, the heir of art collector Oskar Reichel, contacted the Museum of Fine Arts to reclaim Two Nudes by Oskar Kokoschka. Seger-Thomschitz argued that the painting left the hands Reichel because of Nazi coercion.

The Museum of Fine Arts spent 18 months researching the issue and concluded that Reichel sold the painting voluntarily. The Boston Globe published criticisms of this view in a May 2008 article. Nevertheless, the MFA sought an order from federal district court declaring that the museum legitimately owned the painting. The lower court ruled that the MFA rightfully owned the painting, and the court of appeals has now affirmed this decision.

The basis of the court of appeal's opinion is threefold. First, the district court's grant of a favorable judgment for the museum was proper on statute of limitations grounds because Seger-Thomschitz did not make a demand on the MFA within the three years statute of limitations under Massachusetts law. Second, the appeals court rejected Seger-Thomschitz's weak claim that the statute of limitations should bend in the wake of the non-profit section of the federal Internal Revenue Code [501(c)(3)]. Third, the court rejected her argument that the Massachusetts statute of limitations conflicted with America's foreign policy as expressed through the Holocaust Victims Redress Act of 1998, the Washington Conference Principles on Nazi-Confiscated Art, the Vilnius Forum Declaration, and the Terezín Declaration on Holocaust Era Assets and Related Issues. These proclamations are aspirational and not law, the court essentially declared.

The message in this case is clear: Where a party believes that art is improperly in the hands of another, the claimant must be conscious of the statute of limitations clock and perform the necessary due diligence to start a cause of action.

Two Nudes can be seen at http://www.mfa.org/collections/search_art.asp?recview=true&id=34173&coll_keywords=&coll_accession=&coll_name=two+nudes&coll_artist=Kokoschka&coll_place=&coll_medium=&coll_culture=&coll_classification=&coll_credit=&coll_provenance=&coll_location=&coll_has_images=&coll_on_view=&coll_sort=2&coll_sort_order=0&coll_view=0&coll_package=0&coll_start=1

"Holocaust Historians Blast MFA Stance in Legal Dispute," The Boston Globe, May 28, 2008 at http://www.boston.com/ae/theater_arts/articles/2008/05/28/holocaust_historians_blast_mfa_stance_in_legal_dispute/

Statute of Limitatons to Recover Stolen Culture Lengthened in California

Governor Arnold Schwarzenegger signed into law California Assembly Bill 2765. This law allows an owner of a stolen or fraudulently taken cultural object to file a lawsuit to recover the piece within six years of finding the object. This new law is significant for three reasons.

First, it doubles the time an aggrieved party can recover an object of "historical, interpretive,scientific, cultural, or artistic significance" that has been stolen or taken by fraud or duress

Second, the law enacts the "actual discovery" rule. That means that the six year clock only starts to run once the original owner actually discovers the wherabouts of the cultural object.

Third, the law is retrospective. The legislature specifically stated that the law "shall apply to all pending and future actions commenced on or before December 31, 2017, including any actions dismissed based on the expiration of statutes of limitation in effect prior to the date of enactment of this statute if the judgment in that action is not yet final or if the time for filing an appeal from a decision on that action has not
expired, provided that the action concerns a work of fine art that was taken within 100 years prior to the date of enactment of this statute." There is no doubt then that the new law may impact Marei Von Saher's effort to move forward on her claim to recover Lucas Cranach the Elder's diptych "Adam and Eve" from the Norton Simon Museum, originally looted by the Nazis.

Read the law at http://leginfo.ca.gov/pub/09-10/bill/asm/ab_2751-2800/ab_2765_bill_20100930_chaptered.html