Restitutiecommissie = - Recommendation RC 1.108

Recommendation RC 1.108=20

Date	:	31 January 2011
Case number	:	RC 1.108
		Recommendation regarding:
		Mathiason

__________________________________= _________________________________________________________________________= ________________

In a letter dated 27 January 2009, the Minister for Education, = Culture and=20 Science (hereafter referred to as =91the Minister') requested the = Restitutions=20 Committee to issue a recommendation regarding the decision concerning = the=20 application by M.H.-M. of N.Y.C. (hereafter referred to: as =91the = applicant')=20 dated 1 December 2008 for the restitution of the painting Landscape = with=20 classical temple by the artist Hubert Robert. This work is part of = the=20 Netherlands Art Property Collection (NK collection) and is = administered by=20 the Dutch government under inventory number NK 1432. It is = currently on=20 loan to the Dutch Embassy in Budapest, Hungary.

The procedure

Following the request for advice, the Committee conducted a = fact-finding=20 investigation, the results of which were recorded in a draft = investigatory=20 report dated 4 October 2010. The draft investigatory report was sent to = the=20 applicant, together with a request for additional information on the = applicant's=20 family and legal inheritance relationship to K. Mathiason and his = brother H.=20 Mathiason and his (ex) wife L. Dobrin. The applicant responded in = writing to=20 this request. The draft report was also sent to the State Secretary for=20 Education, Culture and Science (hereafter referred to as: =91State=20 Secretary')¹ with a request for additional facts, after which = the=20 State Secretary informed the Committee that she had no additional facts = to bring=20 to the Committee's attention. The Committee adopted the = investigatory report on 31 January 2011, and refers to this report for = the facts=20 of the case.
The applicant was represented in this procedure by I. = Gielen,=20 lawyer in Berlin, Germany.
The current NK 1432 is also part of an = application=20 for restitution in the Rosenbaum case (RC 1.82). Based on its = investigation=20 in the Mathiason and Rosenbaum cases, the Committee concludes that, = after the=20 war, the current NK 1432 was most probably inadvertently linked to the = Rosenbaum=20 art dealership. The Committee refers to its investigatory report on = Mathiason=20 (RC 1.108) and the partial recommendation on Rosenbaum dated 31 = January=20 2011 (RC 1.82-A).

Considerations

The applicant is M.H.-M. of N.Y.C. The applicant states that she = is=20 entitled to the inheritance of her uncle Karl Mathiason (1899-1944), a = Jewish=20 businessman who lived in Germany in the 1930s. He is said to have lost = possession of the currently claimed painting Landscape with = classical=20 temple by the artist Hubert Robert (NK 1432) as a result of = confiscation=20 by the occupying authorities in the Netherlands during the Second = World War.=20 The applicant is the only child of the couple Lilly Dobrin and Hermann = Mathiason (later: Matson), who was Karl Mathiason's brother. The = couple=20 divorced in 1944.
The applicant declares that she is the only = person=20 entitled to the estate of her parents, Hermann Mathiason and Lilly = Dobrin, and=20 that of her uncle, Karl Mathiason. By way of proof, she sent the = Committee=20 copies of four legal inheritance documents.
The data relating to the provenance of the current NK 1432 before = and=20 during the war is as follows. On 6/7 March 1928, the current NK 1432 = was=20 offered for sale by the Rudolph Lepke auction house in Berlin. It has = not been=20 ascertained where and in whose possession the current NK 1432 was in = the=20 period from the auction until around 1943. The Committee has found = indications=20 that, in 1943, the current NK 1432 was in storage in the air-raid = shelter of=20 the Kr=F6ller-M=FCller Museum, among other places, from where it was = transported=20 to Germany by the Dienststelle M=FChlmann of The Hague, a German = organisation=20 that purchased works of art for the Nazi regime. The sources show = that, on 14=20 February 1945, E.Plietzsch of the Dienststelle M=FChlmann collected = the painting=20 =91HUBERT ROBERT. / "Italiaans landschap". / Olieverf, doek, afm. = 150 x 100=20 cm.' [HUBERT ROBERT./ =91Italian representation' / Oil, canvas, = dim. 150 x=20 100 cm'] from the said air-raid shelter, after which this painting, = which was=20 probably the current NK 1432, was sent to the Reichsbank in = W=FCrzburg, Germany,=20 around 15 February 1945. The current NK1432 was found there after the = war and=20 subsequently returned to the Netherlands.
According to the applicant, the currently claimed painting was = owned by=20 Karl Mathiason when war broke out. The applicant assumes that the = current NK=20 1432 was the same object as the painting said to be in her family's=20 possession.
The following can be gathered from the applicant's explanation and = the=20 other investigation data. In 1939, Karl Mathiason fled to the United = States=20 because of the anti-Jewish measures taken by the Nazi regime. His = brother=20 Hermann Mathiason and his wife Lilly Dobrin followed him in 1941, = because it=20 took longer for them to obtain their visas. In the meantime, their = respective=20 relocation properties had been exported from Germany with the = intention of=20 having them shipped via the Netherlands to their final destination. In = a=20 post-war notarial declaration, Dobrin stated that she and her husband = had=20 decided =91unser Umzugsgut zusammen mit dem Umzugsgut des Herrn = Karl=20 Mathiason zur Absendung zu bringen, da wir befurchteten, dass es in = Berlin von=20 den Hitlerbehoerden beschlagnahmt wuerde' [to dispatch our = relocation=20 property together with the relocation property of MrKarl Mathiason, as = we=20 feared that it would be seized by the Hitler administration in=20 Berlin].
Both Karl Mathiason's and the Mathiason-Dobrins' relocation = property were=20 then supposedly shipped under Karl Mathiason's name from Germany to = the=20 Netherlands, from where the Holland Amerika Lijn (HAL) would transport = them to=20 the United States. Karl Mathiason's household effects were probably = actually=20 sent on to their final destination, because Dobrin declared after the = war that=20 they had reached New York. According to Dobrin in her post-war = statement, her=20 and her husband's property was kept in storage at the HAL under Karl=20 Mathiason's name, because they wanted to wait and see which country = would=20 grant them their visas first, England or the United States.
Around 1941, this relocation property stored at the HAL was = confiscated by=20 the occupying forces as Jewish property. It can be inferred from = sources that=20 the German clearing house for stolen works of art Sammelverwaltung = feindlicher Hausger=E4te (SFH) sold goods from this relocation = property in=20 1942 and/or 1943. Although the confiscated property was addressed to=20 =91Herrn K. Mathiasson, 790 Riverside Drive, Apt. 8 N, New York, = USA'=20 [Mr K. Mathiasson, 790 Riverside Drive, Apt. 8 N, New York, USA], = Dobrin's=20 statements as referred to in considerations 4-5 indicate that it = possibly also=20 contained property of the Mathiason-Dobrin couple.
It is not known whether the confiscated painting belonged to Karl=20 Mathiason or the Mathiason-Dobrins. When registering the confiscated=20 relocation property, the German occupying forces probably took the = fact that=20 it was addressed to Karl Mathiason as their starting point. An SFH = list dated=20 17 September 1942 and entitled =91SAMMELVERWALTUNG FEINDLICHER = HAUSGERAETE /=20 DOSSIER 391 / EIGENTUEMER: K. MATHIASSON' [Sammelverwaltung=20 feindlicher Hausger=E4te / dossier 391 / owner: K. Mathiasson] = (hereafter=20 referred to as =91SFH list') refers to =91aus einem feindlichen = Inventar=20 aussortierter Kunstgegenstaende'[artworks taken from an enemy = inventory],=20 including the object =916117 1 Gemaelde, H. Robert, "Italienische=20 Darstellung" f. 450.-' [6117 1 painting, H. Robert, =91Italian=20 Representation' NLG 450']. The files from de Abteilung Feindverm=F6gen = from 1942=20 and 1944 seem to indicate that the SFH sold the painting in question = to the=20 Dienststelle M=FChlmann in October/November 1942. In a letter dated 30 = November=20 1942, the Dienststelle M=FChlmann informed another German body that it = had=20 purchased the painting =91Italienische Darstellung' by H. = Robert.=20
It cannot be conclusively determined from the documentation = consulted that=20 the painting referred to, =91Italienische Darstellung' by H. = Robert,=20 corresponds with the current NK1432. =91Italianate' depictions are = common in the=20 oeuvre of artist H. Robert, and the applicant has been unable to = provide a=20 photograph of the painting or any other information that would = facilitate=20 identification.
An indication that it definitely is the same work = of art=20 is the fact that the Dienststelle M=FChlmann is mentioned as = provenance in=20 sources on both the current NK 1432 and the =91K.Mathiasson' = painting.=20 This is clear from the combined investigatory information under = considerations=20 2 and 7: it is a known fact that the Dienststelle M=FChlmann bought = the painting=20 =91Italienische Darstellung' by H. Robert in 1942, = while it is=20 also known that a painting by H. Robert that can be assumed = to be the=20 current NK 1432 was collected by the Dienststelle M=FChlmann from = storage in the=20 Rijksmuseum Kr=F6ller-M=FCller in 1945.
Furthermore, while the Committee has found several declarations in = post-war internal declaration forms of the Netherlands Art Property = Foundation=20 (SNK) that (could) relate to Italianate depictions by the artist H. = Robert,=20 the form on the current NK 1432 is the only one to mention = Dienststelle=20 M=FChlmann as one of the provenance names. This is a further = indication that the=20 painting that the SFH in 1942 considered to be property of=20 =91K.Mathiasson' and that was sold to the Dienststelle = M=FChlmann is=20 indeed the current NK1432.
Taking all information on the = identification=20 into account, the Committee deems it highly probable that the current = NK 1432=20 corresponds with the painting by the artist H. Robert that was = confiscated in=20 the Netherlands around 1941.
Based on the regulations on private art property, restitution is = possible=20 if the original owner of the claimed object lost possession = involuntarily as a=20 result of circumstances directly related to the Nazi regime. According = to the=20 Ekkart Committee's eighth recommendation of 2001, the title to art = objects has=20 to be proved with a high degree of probability, and there can be no=20 indications to the contrary.
Regarding the ownership rights, the Committee considers that the=20 investigation did not conclusively ascertain whether the confiscated = painting=20 was owned by Karl Mathiason or Hermann Mathiason and his wife. The SFH = list=20 gives =91K. Mathiasson' as the owner and the Committee = assumes that=20 this was because the confiscated goods had been addressed to him. = However,=20 after the war Dobrin declared (as referred to in consideration 5) that = the=20 confiscated property contained effects that belonged to her and her = husband=20 and that Karl Mathiason had already received his property. In her = explanation,=20 the applicant assumes that the claimed work of art was owned by Karl=20 Mathiason. At first glance, this assumption does not tally with = Dobrin's=20 statements. It is also worth noting that the inventory list of her and = her=20 husband's relocation property compiled by Dobrin in the war and = ratified=20 before a civil-law notary after the war apparently did not mention the = painting claimed by the applicant. The descriptions used on the = inventory list=20 can, however, no longer be verified, and Dobrin later stated that her = list=20 possibly did not include all effects.
Given this state of affairs, the Committee deems it highly = probable that=20 at the time of loss of possession the current NK 1432 was owned by = Karl=20 Mathiason or Hermann Mathiason and Lilly Dobrin. In this case, no = further=20 decision is required, as it was ascertained in consideration 1 that = the=20 applicant is the sole heir to the estate of her parents Hermann = Mathiason and=20 Lilly Dobrin, as well as that of her uncle, Karl Mathiason. The = Committee=20 believes the finding that ownership rested with Karl Mathiason or = Hermann=20 Mathiason and Lilly Dobrin to be sufficient to issue a positive = recommendation=20 on the application for restitution of the current NK 1432.
As to the nature of the loss of possession, the Committee = considers that=20 this was a case of confiscation by order of the occupying forces = around 1941=20 and, therefore, involuntary loss of possession due to circumstances = directly=20 related to the Nazi regime.
In 1964, the Wiedergutmachungskammer (Chamber of = Reparation) of=20 the Landgericht Berlin (District Court) granted the Mathiason = family=20 damages for the confiscated relocation property. The Committee is of = the=20 opinion that these damages do not stand in the way of the applicant's=20 admissibility in the claim to the work of art from the Dutch national=20 collection, as it did not involve a waiver of rights and the State of = the=20 Netherlands was not a party to it.
The Committee thus deems all grounds for restitution to have been = met.=20
Regarding a possible payment obligation in the event of = restitution, the=20 Committee considers that the payment of damages referred to in 14 is a = matter=20 between the Mathiason heirs and the German state. In this context, the = Committee is of the opinion that restitution of NK 1432 without = repayment does=20 not constitute unjust enrichment.

Conclusion

The Restitutions Committee advises the State Secretary for Education, = Culture=20 and Science to return the painting Landscape with classical = temple by=20 the artist H. Robert (NK 1432) to applicant M.H.-M. in her capacity as = sole heir=20 to the estate of her parents Hermann Mathiason and Lilly Dobrin as well = as that=20 of her uncle Karl Mathiason.

Adopted at the meeting of 31 January = 2011 by=20 W.J.M. Davids (chairman), J.Th.M. Bank, P.J.N. van Os, D.H.M. = Peeperkorn, E.J.=20 van Straaten, H.M. Verrijn Stuart, I.C. van der Vlies (vice-chairman) = and signed=20 by the chair and the secretary.

(W.J.M. Davids,=20 chairman) &nbs= p; = ; =20 (E. = Campfens,=20 secretary)

¹ Since the autumn of 2010, the State Secretary is the = designated=20 member of the government for restitution claims.
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