Friday, July 02, 2010
Art Litigation: Stolen Art and Austria's "Jewish Exception" To the 1955 Austrian State Treaty
Rudolph Leopold's death on the eve of a criminal trial in the U.S. should have brought Austria to its senses. Instead, yesterday it installed Leopold's family members as part of a continuing charade to conceal Austria's ownership of stolen Jewish property in the Leopold Museum. More on Rudolph Leopold here.
Dead City III was stolen from Fritz Grunbaum, a Jewish cabaret performer murdered in Dachau in 1941. In violation of Art. 26 of the Austrian State Treaty of 1955, Austria has thus far failed to return the work, although Dr. Christoph Bazil, the head of an Austrian Commission that was founded because of the Dead City III scandal keeps promising me that he is investigating the matter.
This so-called "Commission for Provenance Research" recently came to NY, program here and claimed that they were reviewing every single item in Austrian museums. Apparently they have not reached "S" for Schiele in the alphabet, something that might safely occur in the next century.
This is of course a preposterous sham.
Claudia Schmied, takes the opinion (that he has refused to put in writing) that Art 26 of the Austrian State Treaty does not require Austria to return property stolen from Jews. But it is written in English and is quite clear and unconditional, so there is no reason that the Austrian police should not simply enter the Leopold Museum and secure and restitute the property. In the United States we have police and prosecutors to handle stolen property. The situation is shocking to me because in Austria it appears that police and prosecutors refuse to act when property has been stolen from Jews, and this "Jewish exception" is nowhere in writing.
In contravention of Art 26 of the Austrian State Treaty, Austria has permitted its civil remedies for Jews to recover property to lapse. Additionally, Austria failed to restore property as required by the Austrian State Treaty, instead dragging its feet for 45 years.
I have included below the text of the Austrian State Treaty, you can easily see for yourself that Austria is in gross violation for failing to return the stolen artworks at the Leopold, the Albertina, and in private collections throughout Austria.
The Austrian State Treaty of 1955 was a contract between the English, the Russians, the French and the US, on the one hand, and Austria on the other. Nowhere in our jurisprudence can one find support for Dr. Bazil's "oral" interpretation of this Treaty, and Dr. Bazil's failure to cite any Austrian jurisprudence in support of his view casts doubts on his assertions.
The Austrian State Treaty of 1955 is the equivalent of the U.S. Constitution. What is the remedy for a breach? Should we re-occupy Austria?
Emphasis below is mine.
PROPERTY, RIGHTS AND INTERESTS OF MINORITY GROUPS
1. In so far as such action has not already been taken, Austria undertakes that, in all cases where property, legal rights or interests in Austria have since13th March, 1938, been subject of forced transfer or measures of sequestration, confiscation or control on account of the racial origin or religion of the owner, the said property shall be returned and the said legal rights and interests shall be restored together with their accessories. Where return or restoration is impossible, compensation shall be granted for losses incurred by reason of such measures to the same extent as is, or may be, given to Austrian nationals generally in respect of war damage.
2. Austria agrees to take under its control all property, legal rights and interests in Austria of persons, organizations or communities which, individually or as members of groups, were the object of racial, religious or other Nazi measures of persecution where, in the case of persons, such property, rights and interests remain heirless or unclaimed for six months after the coming into force of the present Treaty, or where in the case of organizations and communities such organizations or communities have ceased to exist. Austria shall transfer such property, rights and interests to appropriate agencies or organizations to be designated by the Four Heads of Mission in Vienna by agreement with the Austrian Government to be used for the relief and rehabilitation of victims of persecution by the Axis Powers, it being understood that these provisions do not require Austria to make payments in foreign exchange or other transfers to foreign countries which would constitute a burden on the Austrian economy. Such transfer shall be effected within eighteen months from the coming into force of the present Treaty and shall include property, rights and interests re quired to be restored under paragraph 1 of this Article.
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Labels: antisemitism, art litigation, austrian restitution, austrian state treaty, dead city, fritz grunbaum, holocaust denial, leopold museum, nazi art looting, rudolph leopold
Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.