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Anmerkung zur Empfehlung der Beratenden Kommission im Fall „Behrens ./. Düsseldorf“* - A Comment on the Recommendation of the German Advisory Commission in the case of Behrens/Dusseldorf

1970
1945
Zeitschrift für offene Vermögensfragen 29 July 2015
By Henning Kahmann and Varda Naumann

Abstract:

On February 3, 2015, the Advisory Commission on the Return of Cultural Property Seized as a Result of Nazi Persecution, especially Jewish Property, (the Limbach Commission), advised against the restitution of Adolph von Menzel’s painting ‘Pariser Wochentag’ to the heirs of George Eduard Behrens by the City of Düsseldorf.

The recommendation gives cause for concern as it assumes incorrect facts to the detriment of the heirs of Nazi victims. Contrary to the Commission’s conclusion, George Behrens was persecuted by the Nazis in July 1935 and did not have non-discriminatory access to justice.

However, the decision acquires significance beyond the individual case, because the Commission deviates from the Washington Conference Principles as formulated in the Joint Declaration of 1999 and the Handbook of 2001 in the 2007 version. The recommendation falls short of post-war practice on restitution claims, although the Handbook suggests following this practice. In particular, the Commission deviates from the period of collective persecution determined in Art. 1 of the Restitution Decree (Rückerstattungs-anordnung - REAO) and fails to apply the presumption in favour of the persecuted pursuant to
Art. 3 REAO. In doing so, the Commission – itself a product of Clause 11 of the Washington Conference Principles – tightens the criteria applied to restitution proceedings in comparison to the political guidelines of the federal, state and local authorities, without any mandate for doing so. While the Commission has already deviated from post-war practice in the past, this has happened, in accordance with Clause 4 of the Washington Conference Principles, in favour of the persecuted when there was uncertainty as to the actual course of events.  

The Joint Declaration, implemented in the Handbook, is not legally binding. However, federal, state and local authorities have committed themselves to a policy of respecting these criteria. As a result, the City of Düsseldorf is bound by this policy, and not by the Commission’s recommendation. For this reason, the City of Düsseldorf remains politically obliged to restore the painting or grant just compensation.

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