A Polish man arrested in February after being accused of trying to sell in Moscow a painting looted by the German army from the National Museum of Poznan during World War II will not be extradited to Poland. The U.S. District Court in New York (Rakoff, J.) concluded that Alexander Khochinsky did not acquire “Girl with Dove” by Antoine Pesne—stolen by the German army—with the knowledge that it was stolen property, and thus, could not be extradited. While there could be a second attempt to extradite him for his conduct after he learned the Polish government considered the painting to be stolen (when he had proposed to exchange it for restitution for his mother’s home), it seems unlikely. The whereabouts of the painting are unknown.

The case began when the U.S. government filed a Complaint against Khochinsky on February 25, 2015, which alleged:

KHOCHINSKY is charged with purchasing or helping to sell or accepting or helping to conceal a thing that has been gained through a prohibited act, in violation of Article 291, Paragraph 1 and Article 294, Paragraphs 1 and 2 of the Criminal Code of the Republic of Poland, and in connection with Article 11, Paragraph 2 of the Criminal Code of the Republic of Poland. Put another way, Khochinsky was accused of violating Polish law by attempting to fence “Girl with Dove” in Russia despite allegedly knowing that it had been stolen.

Prior to Khochinsky’s alleged possession, the painting’s provenance is complicated, but the looting part at least did not seem in dispute. Again from the Complaint:

“Girl with a Dove” is catalogued in the Book of Acquisitions of the Greater Poland Museum in Poznan under inventory number 60/1931 and number 233 of the Kaiser Friedrich-Museum Poznan. “Girl with a Dove” was taken by the German Third Reich in 1943 and found by the Russian Army in 1945, whereupon it was removed to a repository of the former Union of Soviet Socialist Republics (U.S.S.R.). “Girl with a Dove” was registered on sheet number 5983 of the database of cultural items lost in World War II by the Polish Ministry of Culture and National Heritage and placed in the Interpol list of Stolen Works of Art, reference number 2010/50630-1.1.

Khochinsky supposedly began seeking in 2010 to sell it, including an offer to Poland itself via the Polish embassy in Moscow. Khochinsky testified that he approached the Polish government out of a desire for consideration for his own restitution request, namely, the land owned by his mother, a Polish Jew who had been forced to flee the country during the war. That land is now occupied by a Roman Catholic church, he testified. In other words, his proposal was to swap the painting for value of the land.

The Polish government’s reaction was immediately negative, and its treatment of the case was suspicious from the start. In response to requests concerning its provenance, Khochinsky stated that he had inherited it from his father in 1991, who had told him that the Soviet army had found it in a house occupied by German soldiers (resolving, at least in his mind, the question of ownership thereafter given the German army’s conduct).

Poland first applied for Russian assistance, but a Moscow court rejected the request to search Khochinsky’s apartment. Thereafter, a Polish judge issued a warrant for Khochinsky’s arrest on suspicion of having knowingly acquired stolen property. The diplomatic process then swung into gear. The Polish embassy to the United States submitted on July 1, 2013 Diplomatic Note No. 35-15-2013, formally requesting the extradition of Khochinsky. This request was made pursuant to the Extradition Treaty between the United States of America and the Republic of Poland. The treaty was signed by President Clinton on July 10, 1996, though not ratified by the Senate for more than a year. That treaty provides that the United States agrees to provide legal representation to Poland in U.S. courts for extradition requests(as would the Polish government over U.S. requests for extradition for someone in Poland). Offenses are deemed extraditable depending on their severity, typically measured through the length of punishment (i.e., imprisonment of more than a year).

Khochinsky moved to dismiss the Complaint, and the U.S. District Court held an evidentiary hearing on June 17, 2015. The court was particularly taken with the fact that notwithstanding the painting’s listing with Interpol as stolen, it was “openly exhibited” in Khochinsky’s Moscow gallery. Khochinsky claimed that he was unaware that the Polish government sought the return of the painting until this 2010 sequence. Other family members testified concerning the painting’s presence in their Leningrad apartment more than thirty years ago.

To approve extradition, the judge must determine “whether a valid treaty exists; whether the crime charged is covered by the relevant treaty; and whether the evidence marshaled in support of the complaint for extradition is sufficient under the applicable standard of proof.” This is not a reassessment of the foreign proceeding, but essentially a confirmation of whether there was probably cause for it. The court noted that on the specific offense charged, “the Polish charge against Khochinsky appears to be limited to the acquisition of ‘Girl with Dove’ before May 18, 2010,” as confirmed by a clarification request from the U.S. government later. That is, even if Khochinsky had done something after May 18, 2010 to evidence knowledge that the painting was stolen, due process would not allow his extradition for that.

The court found that the evidence was dramatically in Khochinsky’s favor on that point. Summing up the evidence, the court concluded, “This behavior is inconsistent with someone who knows his property is sought by a foreign sovereign.”

This does not necessarily end the request, though given how long the recent attempt took it may be awhile before we hear anything else. As noted above, the court was very clear that it would not consider Khochinsky’s post-May 2010 conduct as a basis for extradition because of the specifics of the Polish warrant concerning acquisition. If a new warrant or indictment issued from Poland more specifically on his later conduct, the government could conceivably try again (but also perhaps have to contend with double jeopardy arguments).