Burden Of Proof

The paintings under dispute were clearly worth in the tens of millions of euros, so you would expect the atmosphere to be a little tense. Collector Leopold can produce bills of sale for all of them; but that’s not the point. And Salzburg law professor Georg Graf was more than happy to expound his legal opinion on the eight paintings owned or held by the Leopold Museum Foundation, that could possibly be stolen Jewish art.

While the chairwoman smoked cigarettes on the podium, cameramen from the major Austrian TV stations were sweeping the room, gathering evidence of attendees falling asleep or possibly watching one another’s hair grow. The attempt to bring in an Eastern European correspondent to bring more fire to the press conference, resulted in the near-demolition of the entrance door.

"It’s about justice, not about revenge or money," said Dr. Ariel Muzikant, president of the Israelite Cultural Organization of Vienna. "Our aim is to take on the historical responsibility of achieving justice for people mistreated in 1948." Still, financial as well as cultural restitution was clearly part of what this is about. That was the year the post war decisions were handed down on some of the highest profile claims. And those decisions had seemed like a mockery, that sticks in the craw of the owner’s heirs 60 years later.

Today, Austria’s moral obligation is well established on the ministerial level, even if not always for the best reasons. "It’s of importance for Austria’s image abroad, that people in our country – but also those who visit it – have the certainty that the paintings they look at in our museums have a clear history and belong to their rightful owners," said culture minister Claudia Schmied.

But the problems of restitution of art can be complicated. Even though a law committed to finding the rightful owners of aryanized art was passed in Austria in 1995, and another in 1998 started the process of investigating museums and collections, several sales and donations in the last half-century make it hard to find the rightful owner.

According to Muzikant, only some 8% to 14% of art stolen by the Third Reich has been restored to its rightful owners; so far as most of the paintings are still privately held, which makes them also very hard to keep track of.

"It’s not that easy in general, as the historic circumstances of the case are not always clear," said art collector Leopold, from whom the Republic of Austria purchased the Leopold Foundation collection, in an interview with Die Presse in late March.

Therefore, the focus is on the restitution of paintings currently exhibited or held by museums. The Leopold Foundation has been a particular target, as their collection contains at least eleven problematic paintings in their provenience database, according to Graf, commissioned by the Israelite Cultural Association of Vienna to present a legal opinion, among them art by Egon Schiele, Albin Egger-Lienz, and Anton Romako.

But for technical reasons, the Foundation does not fall under the Austrian art restitution law of 1998, which only applies to state-owned museums, even though it was bought by the Republic of Austria with the help of funds from the Austrian National Bank, and continues to be financed by it. This year, the private foundation will receive subsidies of  €3.7 million from the government, which also provides the exhibition space and appoints half the members of the executive committee.

Thus no action can be taken until it is resolved whether the Leopold Foundation comes under the law, and also whether those eleven –and possibly more— paintings can be considered Nazi-looted art, thus illegally acquired by Rudolf Leopold.

The debate started with the Green Party calling for the restitution of 14 Albin Egger-Lienz paintings of the current exhibition in the Leopold Museum, which culture spokesman Wolfgang Zinggl called "probably the biggest exhibition of Nazi looted art in Austria for many years." As an attempt at damage control, a commission, with the Chief Justice of the Constitutional Court Clemens Jabloner as chairman, has been established to make emend to the art restitution law of 1998, and clarify the reproaches hailing down on the Leopold Stiftung.

But Zinggl’s remarks have made Rudolf Leopold furious. "I trust Clemens Jabloner, who is a man of honor, unlike Wolgang Zinggl," he fumed to Die Presse in last March.

The Green Party’s provocations have stirred memories of the controversial restitution last year of five Schiele paintings, including the Goldene Adele, to Maria Altmann. This would never have happened if  "I had become director of the Belvedere as (former Vice Chancellor) Busek had suggested," Leopold claimed in the same interview.

Culture Minister Schmied remains committed to finding a solution.

"I want to reach clarification in relation to the Leopold Stiftung, and work out a solution," Schmied said in a press release following the commissions report.

The restitution commission concluded that the 1998 law should be extended to include all movable objects, not just works of art. The intention of the law was that it apply to all assets of the state, not only museums and collections actually owned by the Republic. The time frame should be extended to begin in 1933 rather than 1938, through 1945. Lastly, restitution should be dealt with according to Austrian inheritance law rather than international private property law, which, in general, involves a time-consuming process.

If the Leopold Museum were state-owned, several paintings would be subject to restitution, Graf concluded.

All the cases are different:

Schiele’s Wally, owned by Lea Bondi-Jarray of the famous Würthle Gallery in Vienna. In 1938, she had to sell the gallery and collection to art dealer Friedrich Welz of Salzburg. After the war, the painting was erroneously returned  to the son of Heinrich Rieger. In 1950, the Austrian gallery Belvedere purchased the painting, and in 1953, Leopold, after Bondi’s requests for help in getting back her belongings, acquired it through a trade. After an exhibition at the New York Museum of Modern Art in 1997/98, Wally was confiscated, and the legal battle, which continues to cost about €500.000 per year is still ongoing, a tab that is picked up annually by the Republic of Austria. According to Graf, Bondi’s heirs are the legal owners of the painting.

Albin Egger Lienz’s Die Bergmäher was owned by architect Oskar Neumann, who possessed a large collection of art. In October 1938, he transferred all his belongings to his non-Jewish wife Therese. But an application to leave the country for Paris meant that Neumann’s art collection had to be registered, and Therese had to hand it all over. On the one hand, this was, a legal transaction, and as such still valid after the war. But as the victim of political persecution, Therese also had a right to restitution.

Leopold purchased the painting from the Viennese gallery Schebesta in 1970. Graf concluded that Leopold acquired property in a legally derivative transaction, and thus would also have to be returned if the law applied to the Leopold Foundation.

Egon Schiele’s Selbstbildnis mit roten Haaren und gestreiften Ärmelschonern, was among the possessions of merchant Karl Mayländer, who had neither a wife nor children. On Oct. 10, 1941 he and his sister Ottilie were deported to Lodz and killed. Mayländer’s art collection was confiscated by the Gestapo in 1943. Leopold bought the paintings from Etelka Hofman, alleged to be his partner. However, no independent proof exists of their relationship, leaving it difficult to establish either way.

At the behest of the Israelite Cultural Organization, Salzburg constitutional lawyer Walter Berka reviewed the possibilities for amending the law, and concluded that some options exist.  Zinggl and the Green Party remain committed to pressing for change.

But beyond the legal battle, the deeper debate is about historical responsibility and acquisition in good faith.

"We would expect a man with an historical consciousness," – referring to Leopold –

"who has lived through the Nazi regime, to be informed about why and from whom art was confiscated in 1938/39," Zinggl insisted. Leopold himself is still convinced that he’s not to blame, because he bought most of his art from dealers or at auctions.

"I have purchased more than 5500 works of art in my life as a collector," he said, "always in good faith and conscience."