London's National Gallery currently features an unreturned Nazi-looted painting from Austria in its show "Facing the Modern: The Portrait in Vienna 1900." Gustav Klimt's beautiful, unfinished portrait of Amalie Zuckerkandl, herself a Nazi victim, was owned by Zuckerkandl's friend the Jewish sugar baron Ferdinand Bloch-Bauer. In March 1938, Bloch-Bauer was forced to flee Austria, and survived the war in Zurich. He died in November 1945. As he explained in his 1942 will, his "entire property in Vienna (had been) confiscated and sold off." His heirs never found or recovered the portrait of Amalie.
The painting had hung in Bloch-Bauer's bedroom since at least 1932, and was still in his home more than nine months after he had fled. It is listed first in an inventory created in January 1939 by the Nazi authorities tasked with distributing his artworks and selling off his estate to pay off a discriminatory tax judgment that had been imposed. The lawyer in the action, Erich Führer, a high-ranking SS officer, had initially been hired by Bloch-Bauer to protect his property, but in the end became its liquidator. Führer even kept 12 paintings, including a Klimt, for himself. A 1943 report by the Central Monument Agency confirmed that "the Bloch-Bauer collection was completely liquidated by the Finance Office." Führer was captured after the war and sentenced to hard labor.
The evidence to support the denial was nonexistent. In fact, the denial itself was premised on the novel theory that Bloch-Bauer's heirs should be required to demonstrate exactly what happened to the painting after he fled the Nazi advance. The matter was complicated by the fact that Amalie Zuckerkandl's family claimed the painting should be returned to them. According to the testimony of the Austrian historian Ruth Pleyer, Zuckerkandl's daughter Hermine, at the age of 97, told Pleyer that she thought Bloch-Bauer had arranged for the painting to be given to her family. [PDF: Protokoll, p. 15] (Hermine failed to confirm this when Gerbert Frodl, director of the Austrian Gallery, and I each spoke to her.) Hermine had survived the war by hiding in Bavaria and could not possibly have had any first-hand knowledge anyway. In fact, in one private family letter of the time, she had complained of Ferdinand's "unheard-of behavior" in cutting off assistance to her mother, assuming incorrectly that he was living a life of wealth in exile (a common misimpression created by Nazi propaganda).
All the parties to the arbitration — Bloch-Bauer's and Zuckerkandl's heirs, as well as the Austrian government — conceded that they did not know exactly what had happened to the painting or how it had left Bloch-Bauer's estate. This should have been the end of the matter. Under Austria's long-standing laws governing restitution, the victim is never required to demonstrate anything more than that the property had once been owned and was lost. But the panel changed the law. It said Austria's 1998 art-restitution law applied only when it was absolutely proved that the artwork had been expropriated, rather than transferred in some other manner.
Ignoring the mountain of circumstantial evidence (i.e., Bloch-Bauer was in Zurich, the painting was in Vienna and his entire estate was liquidated), the panel instead leaped to the conclusion that there was no confiscation, but rather that "at the instigation of Ferdinand Bloch-Bauer, the painting was voluntarily given over to Hermine Müller-Hofmann without compensation." [PDF: Decision, p. 12-13] Again, there was no evidence to support this conclusion, nor apparently was any thought given to explaining how exactly this could have been accomplished once Bloch-Bauer's estate was ordered liquidated. Bloch-Bauer himself had written to the artist Oskar Kokoschka in 1941: "In Vienna and Bohemia they have taken everything away from me. Not even a souvenir has been left to me! Maybe I will get the two Klimt portraits of my poor wife and my portrait (by Kokoschka). I should find that out this week. Otherwise I am totally impoverished." As a work by an artist deemed "degenerate" by the Nazis, the Kokoschka portrait was in fact delivered to Bloch-Bauer. However, as we know, the two portraits of Adele were traded and sold by Führer to the Austrian Gallery. If Bloch-Bauer could not rescue even the portraits of his own wife, what would make anyone think he could voluntarily make a gift of a painting to Hermine Müller-Hofmann? As Hans Dolinar, a law professor at the University of Linz, concluded, "The naive evaluation of the evidence by the arbitration panel is completely absurd."
At the arbitration, which I conducted on behalf of Bloch-Bauer's niece Maria Altmann, I was not even concerned with the crazy theory, propounded by the Müller-Hofmann family, that Bloch-Bauer had somehow arranged a gift to them from his exile. Why not? Because such a gift could have been undertaken only as a result of Nazi persecution. As Georg Graf, a law professor at the University of Salzburg, confirmed in his harshly critical review of the panel’s decision, Austrian restitution law has always been interpreted to mandate the return of gifts made by victims who were forced to flee.
But the panel refused to apply this law or any of the ordinary rules that had been developed in the postwar period regarding restitution of property. It said that the 1998 art-restitution law did not incorporate those older laws, and that they therefore no longer applied. On appeal, we argued, as did legal author Nikolaus Pitkowitz, that the panel's decision violated Austrian public policy. The best the court could say in upholding the decision was that the panel's interpretation of the law was "not unthinkable." [PDF: Appeal, p. 39.] The Austrian Supreme Court affirmed, arguing that it was possible the Austrian parliament intended to reverse 50 years of restitution laws when it formulated the 1998 law. It found that such a construction did not violate Austrian public policy.
The great irony of these decisions is that shortly thereafter, the Austrian art-restitution advisory board, which had forced the arbitration by refusing to return the portrait of Amalie, clarified its position on the 1998 law and suddenly decided it should return artworks that would be considered returnable under the old restitution laws. Had it followed this rule with the Amalie portrait, it would also have been returned.
So the portrait of Amalie is a Nazi-looted painting, wrongly withheld by the arbitration panel. Under Austrian law as it is currently being interpreted, the painting would be returned to Ferdinand Bloch-Bauer's heirs. The minister of culture and the art-restitution advisory board must simply reconsider the case. Before the National Gallery returns the painting to the Austrian Gallery in Vienna, perhaps it should request a new determination by the Austrian art-restitution advisory board, paving the way for this misappropriated painting to be finally returned to its rightful owners.
Editor's note: All documents relating to the Amalie Zuckerkandl painting can be found at http://www.bslaw.com/altmann/Zuckerkandl/.
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