Technical defenses fuel a toxic legal climate that denies justice for claimants
by Marc Masurovsky
The words themselves are shocking. Speaking as a non-lawyer, technical defenses—statute of limitations and “laches”—constitute the bane of any claimant seeking to recover works or objects of art from a private or public collection especially in the United States. In Europe, the most reviled defense, aside from the two aforementioned, is the so-called “good faith” argument, which is nearly impossible to defeat and override in those countries that apply civil law, as opposed to common law.
“Laches” are invoked to question whether a claimant has made diligent, sustained efforts on a regular basis to locate his/her lost property. The interpretation of what constitutes diligence, sustained efforts can be highly subjective.
In the case of the Ciric/Elkan family in Paris, the claimants stumbled—literally—on their lost property—priceless 18th century French furniture—as they visited a Paris museum, the Carnavalet, and discovered—to their dismay—their property on display on the upper floor of the museum housed in Le Marais. One family member remembered sitting on one item while the other recalled sleeping on the other. To this day, they have been unable to recover their family’s furniture. Their struggle is about the enter its second decade.
Another family saw their family’s Degas pastel of a landscape reproduced in a catalogue. That event confirmed the existence of their family’s property. Still another claimant happened to run into a couple while vacationing in the Berkshire Mountains who informed her that they had bought a painting by Henri Matisse and donated it to a museum in Seattle, Washington. It goes to show that sometimes the strangest coincidences can trigger a restitution procedure.
Still, postwar governments have not made things easy for surviving victims of Nazi racial and political persecution as well as for their heirs. No special laws were introduced and voted on in national legislatures across Europe and the United States to enable these victims of persecution and plunder to benefit from special measures that could ease the burden that they have to carry in order to “make their case” before judges, lawyers and government officials. Twice victims. We are now in 2015 and the following actions need to be taken ad minima in order for justice to mean what it is supposed to mean:
1/ Eliminating statutes of limitations as legal hurdles to claimants’ attempts to seek restitution of their looted property.
2/ Eliminating laches and other technical defenses that end up “blaming the victim” for a perceived lack of interest in their lost property.
3/ Establishing national mechanisms with which claimants can file a restitution claim on a “fast-track”, a process that should be aided by governments, and have their claim heard on the merits without fear of dismissal for “technical reasons.”
4/ Passing laws that make it illegal for cultural institutions that obtain lavish subsidies from their governments to own or display looted cultural property
5/ Creating national and supranational entities which coordinate and finance provenance research to assist claimants and institutions alike in collecting the needed information on their missing objects and their postwar fate. One proposal favored by some in Europe is to establish a non-governmental entity at the European level responsible for overseeing, funding, and coordinating research efforts on claims under consideration.
