Today we are featuring a guest blog post by Dr Linda Roland Danil
The recent case (10 July 2017) of Cassirer v Thyssen-Bornemisza Collection Foundation concerned a painting, Camille Pissarro’s Rue Saint-Honoré, Apres-Midi, Effet de Pluie (1897), that was forcibly taken from the plaintiffs’ great-grandmother by an art dealer who had been appointed by the Nazi government to conduct an appraisal.
Following an appeal, the United States Court of Appeals for the Ninth Circuit panel reversed a Los Angeles district court’s grant of summary judgment, on remand, in favour of Thyssen-Bornemisza Collection Foundation, the defendant in the action.
The case is fascinating for a number of reasons, not least of which because this was the first time a circuit court applied the six-year statute of limitations from the Holocaust Expropriation Recovery (HEAR) Act (2016).
In particular, the HEAR Act, amongst other things,
‘[…] allows civil claims or causes of action for the recovery of artwork or certain other property lost between January 1, 1933, and December 31, 1945, because of Nazi persecution to be commenced within six years after the claimant’s actual discovery of: (1) the identity and location of the artwork or other property, and (2) a possessory interest in the artwork or property.’
Further, ‘Such statutory limitation period of six years after actual discovery pre-empts any other statutes of limitation or defences relating to the passage of time.’ (As per Sec. 5) The HEAR Act established a uniform federal statute of limitations for all claims, which pre-empts statutes of limitation that vary by state, with most only lasting only three or four years. In the case of Cassirer, The Ninth Circuit held that the HEAR Act provided the relevant statute of limitations, and further, that the claims by the Cassirer’s were ‘[…] timely because they were filed within six years of the date of the plaintiff’s actual discovery of the artwork’s location.’ (p. 3 of the judgment)
The HEAR Act expires on 1 January 2027. The Act raises some interesting questions beyond the criticisms that have been raised in relation to the ambiguities inherent in the Act itself, for example by Frankel and Sharoni. Not least of these is the possibility that in New York, the Act could undermine the ‘demand and refusal’ rule. Under this rule, the clock begins to run when a person makes a demand for return of the property to the current possessor, and that demand is refused. The limitation period here is three years. It would therefore be possible that under the HEAR Act, fewer claims in New York would be considered timely, given that the Act provides for pre-emption over ‘any other statutes for limitation or defences relating to the passage of time.’ This would be in contradiction to the purpose of the Act, which is to extend statutes of limitations.
To continue the Act, amongst other things, raises broader questions for this author in relation to restitution itself, not just in the present time but in the future as well. For example, Klaus Albrecht Schröder, the director of Vienna’s Albertina Museum, argued that there should be a cut-off point for claims on art in public collections. As he put it:
‘If we don’t set a time limit of around 100 years after the end of the Second World War, then we should ask ourselves why claims regarding crimes committed during the First World War should not still be valid; why we don’t argue any more about the consequences of the 1870-1871 Franco-Prussian war?’¹
It is difficult, however, for the author to sympathize with Schröder’s point of view. In fact, what Schröder’s argument highlights is that more serious study and research needs to be devoted to the issue of restitution not just in relation to Nazi-expropriated art from Jewish communities – but also in relation to those dispossessed in other contexts, such as for example, the Roma Holocaust or Armenian genocide victims, amongst many others.² Here, there are no easy answers – but it is certainly the case that it is an issue that cannot be shied away from simply due its complexity.