Introduction
The field of Art Restitution generally concerns itself with artworks that were confiscated or seized from, forcibly sold by, or otherwise lost by the artworks’ previous owners. Generally, these owners had been subject to persecution or considerable duress.
Given the various categories of potential Art Restitution claims, there appears to have been an array of (sometimes inconsistent) court decisions and differing opinions on how claims should be treated. This series of brief articles seeks to provide a non-exhaustive overview of categories of claims that have been considered.
Bolshevik-looted art
By Bolshevik-looted art, we mean artworks that were stolen, seized, looted or otherwise misappropriated by the Bolshevik regime during or in aftermath of the Bolshevik revolution in 1917. The Bolsheviks urgently needed funds and they seized objects of value from churches, museums and eventually, private individuals’ collections which they sold to generate cash. By way of illustration, the Bolsheviks are reported to have sold the imperial family’s crowns, tiaras, necklaces and Fabergé eggs, the Hermitage museum’s Old Masters and the contents of whole palaces to the international art market during the 1920s and 1930s to raise foreign currency.
The seizures were legitimised by means of decrees issued by the Bolsheviks, nationalising private property. One particularly noteworthy example is a decree issued in December 1918 and related specifically to the art collections of the Morozovs and the Ostroukhovs families, well-known art collectors. As is clear from this example, these confiscations were often targeted specifically.
What do the precedents say?
Interestingly, heirs of victims of the Bolsheviks who have brought claims relating to Bolshevik looted art have had limited success thus far in the courts. Two widely publicised examples are those relating to the private collections of Ivan Morozov and Sergei Shchukin, two of the world’s most important collections of modern French paintings. These collections are of particular interest not just because of their significant value in monetary terms but also because of the quality of the artworks in question. Sergei Shchukin’s collection is reported to have had a market value of $3 billion and included Picassos, Matisses, Gauguins, Derains, Monets, as well as works by Cezanne, Degas, Marquet and van Gogh. Similarly, Ivan Morozov had amassed a collection of more than 130 paintings by some of the same artists and of a similar quality.
In 2012, Pierre Konowaloff, the great grandson and heir of Ivan Morozov, brought a claim against the Metropolitan Museum of Art in New York after it refused to return a painting known as “Portrait of Madame Cézanne” by Cézanne that had formed part of the collection confiscated from Ivan Morozov by the Bolsheviks in 1918. As mentioned above, Morozov’s collection had been specifically targeted by the Bolsheviks for confiscation and the decree had been passed in December 1918 allowing members of the Bolshevik secret police to occupy Morozov’s home and seize his art collection and other valuables. According to Konowaloff, the Bolsheviks initially turned Morozov’s house into a state museum that housed the entire art collection but later illegally sold the work in May 1933 and subsequently the painting was bequeathed to the Metropolitan Museum of Art. The Museum argued that the act of state doctrine barred Konowaloff’s claim because the court could not inquire into the validity of the public acts of a foreign sovereign committed within its own territory. The District Court agreed with the museum’s position noting that the Bolshevik regime took the painting pursuant to a 1918 Soviet nationalization decree and emphasised that that courts in the Second Circuit have consistently held such Soviet decrees to be official acts that must be accepted as valid under the act of state doctrine. The Second Circuit affirmed the dismissal of the claim and as a result Konowaloff’s claim was dismissed.
Another example involving Pierre Konowaloff concerns Yale University, which brought a claim against Konowaloff to confirm its title to the painting “The Night Café” by Van Gogh after he had contacted the university to assert his ownership of it. Invoking the act of state doctrine, the Federal District Court of Connecticut ruled that Yale University was the legitimate owner of the Van Gogh painting and awarded summary judgment to Yale, arguing that whatever the lawlessness of Soviet declarations of the abolition of private property, the harm suffered by Konowaloff’s predecessor was unquestionably the result of an official Soviet act against a Soviet citizen.
In the case of the Shchukin family, a similar conclusion has been reached. In 1993, Irina Shchukina, the daughter of Sergei Ivanovich Shchukin, brought a claim in France against the Centre National d’Art et de Culture Georges Pompidou (and others) in respect of various Shchukin paintings which were confiscated by the Bolshevik regime from her father’s collection and which were on loan to the Pompidou museum from the Hermitage and the Pushkin museums for a Matisse exhibition. She argued that the Bolshevik’s nationalisation of the paintings constituted theft. However, the French court disagreed, and confirmed the validity of the sovereign immunity of the Russian Federation so her claim was dismissed.
Shchukina died in 1994 but since her death, her son, Delocque-Fourcaud, has continued to bring claims in the family’s name. In 2000, he asked a Roman court to order the seizure of “The Dance” by Matisse, which was featured in the exhibition 100 Masterpieces from the Hermitage at the Quirinale Palace. Delocque-Fourcaud made the seizure request just before the end of the exhibition and therefore although a judgment was scheduled for July 2000, the court never provided its decision on the basis that all the paintings from the exhibition had already left Italy, the Hermitage having arranged their return to Russia at the end of the exhibition. In 2003, Delocque-Fourcaud demanded a share of the revenues from an exhibition taking place in the Los Angeles County Museum of Art, which was hosting a travelling show of works from the Pushkin Museum. Again, his claim was dismissed by the U.S. district court.
What can claimants do?
A claimant considering making a claim should start by gathering as much information as possible about the work or works of art in question. This applies generally to all looted art cases but has proved to be particularly challenging for some Bolshevik looted art cases where evidence of ownership has been inadequate or misleading. According to past claimants, the Bolsheviks were known for destroying evidence of title and provenance to the works which they seized and sold abroad and, on occasion, they are alleged to have used new maker marks to falsify ownership.
Much will also depend on whether the location of the work is known. If the location is not known, then claimant heirs might register their interest to the works on the Art Loss Register or similar registers. If the location is known, an approach should be made to the possessor directly without delay.
What are the chances of making a successful claim?
On the face of it, claimants considering making Bolshevik-looted art claims will find it difficult to succeed in the courts. Of particular importance in these cases is the act of state doctrine and the decrees that were issued by the Bolsheviks nationalising private property. When dealing with Bolshevik cases, the courts in various jurisdictions appear to have consistently refused to inquire into the validity of the public acts of a foreign sovereign committed within its own territory and therefore claims, such as the ones made by Konowaloff and the Shchukin family, have been unsuccessful.
Whilst the circumstances are different, the death of Fidel Castro may well unleash a new wave of claims arising from the appropriation of artworks from Cuban families by the Castro regime. It will be interesting to see how courts around the world deal with such claims, and if dispossessed Cuban families are more successful than the heirs of victims of the Bolsheviks.
A note on Soviet Trophy Art
Bolshevik looted art should not be confused with Soviet trophy art. When we refer to Soviet trophy art, we mean the artworks and other valuables that were displaced as trophies of war by the Soviet Union towards the end of the Second World War. As the Red Army liberated much of Eastern and Central Europe from the German Wehrmacht, it seized and/or looted a great number of artworks and other valuable objects which were considered by the Soviet leadership to be a form of compensation for the damage and extensive loss of life inflicted by the Nazis on the Soviet Union. These seizures were, in the most part, carried out by a special Soviet division that became known as the “Trophy Brigade”. Reports suggest that between 1945 and 1949 the Red Army seized more than two and a half million works of art, 12 million books and countless invaluable archives.
A great deal of controversy surrounds Soviet looted art and there has been extensive debate between Germany and Russia regarding whether or not the works taken should be returned to the country in which they were located before the war. This controversy continues to the present day and has, at times, caused considerable political strain between the two countries. At the heart of the debate is the fact that the works of art have been kept from the public, remaining in storage vaults of museums such as the Pushkin Museum of Fine Arts in Moscow and the Hermitage in St Petersburg. Only recently have art historians been able to get a better idea about which works still exist and which were destroyed during the war.
In 1958, some progress appeared to be made when the Soviet Union returned one and a half million works of art to East Germany after the enactment of the Hague Convention for the Protection of Cultural Property. From around 1990, Germany and Russia also indicated they were willing to cooperate with each other and their museums collaborated in order to try to locate, identify, restore and exhibit the looted works. Exhibitions such as Archaeology of War: The Return from Oblivion at the State Pushkin Museum of Fine Arts and Hidden Treasures Revealed at the Hermitage displayed these works, which in many cases, had never been exhibited before because they came from private collections. However, these efforts were frustrated when a few years later in 1998, Russia passed the Federal Law on Cultural Valuables Displaced to the USSR as a Result of the Second World War and Located on the Territory of the Russian Federation. Since then, many works have remained hidden and the Russian Government has generally adopted the view that these works are legitimate spoils of war and are Russian property. They have therefore taken the position that they are entitled to keep the looted works of art and avoid restitution.
By Rose Guest and Till Vere-Hodge
Published 7 December 2016