In a disheartening setback for a Chicago-area man who has claimed a multimillion-dollar art collection looted by the Nazis, the Czech government has declared the most valuable of the paintings "national treasures," thereby blocking their return.
The move by the Czech Culture Ministry reflects the erratic record of the government when dealing with restitution claims from Holocaust survivors and their heirs. Though the Czech Republic has passed liberal laws guaranteeing the return of looted works "free of charge," it has invoked a variety of arcane legal codes to prevent the most valuable works from leaving the country.
"With one hand, the Czech government gives these works out, and with the other hand, they take them back, making special deals behind closed doors," said Michaela Hajkova, curator of the Jewish Museum in Prague.
The Jewish Museum has possession of the collection of Emil Freund, a great-great-uncle of Gerald McDonald of west suburban Lyons.
McDonald learned late last year that he was related to Freund and that the Jewish Museum wanted to return Freund's collection to a rightful heir through Czech restitution laws.
Then, last month, the Czech Culture Ministry designated 14 of 30 paintings in the Freund collection national treasures, including the most prized items, Paul Signac's "Riverboat on the Seine" and Andre Derain's "Head of a Young Woman." The Signac alone is valued at more than $1 million, according to art experts.
McDonald feels angry and betrayed.
"Sometimes I feel like just going over there and saying: `Give me that art. It belonged to my great-great-uncle. He was killed by the Nazis. His art does not belong to you,'" McDonald said.
Once the Czechs designate a work a national treasure, it cannot receive an export license. Without the license, the artwork cannot leave the country and be offered for sale on the international market.
The Czech Republic has not been the only European country to block restitution mandated by its own laws. Austria, Hungary, Poland and other nations similarly have held on to Nazi loot.
Officials of the Czech Republic acknowledge that restitution laws often do not return collections to the heirs, but they said their policies reflect national priorities. Pavel Jirasek, director of the Department of Movable Cultural Heritage, Museums and Galleries of the Czech Republic, said the laws on cultural treasures do not conflict with "the sense of restitution."
"I don't think this contradicts the restitution laws, because it's normal in European law; European countries have special laws that protect the national monuments," he said.
In Germany, a new law went into effect in January creating a 30-year statute of limitations on stolen-property cases, which may wipe out an entire class of Holocaust-era claims. Because the law is too new to have been tested in court, Holocaust survivors do not yet know how it will affect their interests.
Like restitution laws, so-called cultural patrimony laws are a relatively recent trend in Europe, dating back about 50 years.
They became popular when buyers in wealthy nations such as the United States--and, later, Japan--began purchasing masterpieces from the economically ravaged nations of post-World War II Europe. Countries such as England, France and Austria responded by passing laws restricting the movement of the increasingly valuable works of art. This included not only works that reflected the nation's culture but also foreign paintings and sculptures that had nothing to do with national identity.
Law versus law
Since the advent of Holocaust restitution laws in the 1990s, some European countries have used these cultural patrimony laws, as well as other statutes, to prevent looted Holocaust-era art from leaving the country.
"Very few of the restitution schemes work the way the countries claim they do," said Steve Thomas, an art-law expert at the Irell & Manella law firm in Los Angeles. "One set of laws will give you the painting, and another set of laws will keep you from getting it. The two sets of laws are not tied but they can be manipulated."
The contest between Holocaust heirs and Czech authorities is gathering intensity. Politicians in Prague are debating in the Czech press whether to reinstate the Benes Decrees, which after WWII voided property transfers or seizures that had taken place under duress during the Nazi occupation. In 1948, the communists who had taken power overruled those decrees.
As they now stand, the cultural patrimony laws in the Czech Republic leave the Holocaust survivor or heir with only two options: Sell the work to a state-owned Czech museum or find the rare Czech citizen with sufficient funds to acquire it. In both cases, the prices offered typically amount to a fraction of the work's value on the international market, experts say, because of the Czech Republic's weak economy and because Czech museums face few competing bids for the looted art.
Art declared state property
The bargain sale is what happened to Jiri Waldes, whose father, a noted Czech Jewish industrialist, had amassed one of the country's largest and most important collections of art, sculpture and rare books.
In 1938, when the Nazis invaded, Jindrich Waldes arranged for his family to escape, while he stayed behind. The following year, he was arrested by the Gestapo, which seized all his property. He was sent to the Buchenwald concentration camp, where he died.
The communist government that took over Czechoslovakia in 1948 subsequently declared Waldes' holdings property of the state.
But after the Velvet Revolution of 1989 and the drafting of restitution laws, Jiri Waldes believed that he could retrieve his father's collection--or at least obtain its monetary value.
In 1992, Waldes hired lawyers, art dealers and other consultants in the Czech Republic to help him get the family property back. To generate goodwill, he donated to the National Gallery 22 paintings, sculptures and drawings, including several by the country's most famous painter, Frantisek Kupka.
A Czech court awarded Waldes, 84, of Somers, N.Y., restitution of scores of paintings, including 15 works by Kupka. But the Czech Culture Ministry later ruled that the restituted works were national treasures that could not to be moved or sold out of the country.
"You don't get a fraction of the value that you would get on the international market, because the Czech Republic is such a poor country," Waldes said. "What are you going to get in a little country where there are about six millionaires?"
But Waldes' battles with the Czech Republic have not ended. After years of research, his representatives recently identified 600 more works in the National Gallery that had belonged to his father, and the Czech Culture Ministry again has begun to consider whether to deem these pieces national treasures.
To Czech government officials, Waldes was treated fairly.
"The Waldes paintings simply were sold back to the National Gallery after the restitution procedure," said Jirasek, the cultural heritage director.
Several other European countries have found ways of honoring the spirit and letter of the restitution laws, despite existing cultural patrimony laws.
For instance, Austria in 1998 passed a law, the Return of Works of Art from Austrian Federal Museums and Collections, which states "the provisions of the law regulating the protection of monuments ... do not apply to the transfer of ownership and the export of objects" being returned.
Britain's cultural patrimony laws, meanwhile, have been viewed as a model of fairness: In the case of a national cultural treasure, Britain temporarily withholds an export license to give British museums and individuals an opportunity to bid on the works at or above international market price. If no offers are forthcoming, the export license must be granted.
Earlier this year, France rewrote its cultural patrimony laws, stipulating that in the case of an artwork that is a national treasure, an independent valuation will be made--at international market value. If no French bid matches or exceeds the valuation, the export license must be granted.
The Czech Republic offers no such relief. Nor is the Czech Republic the only nation retaining looted art in the face of its own restitution laws.
Germany's new 30-year statute of limitations on property claims has caused anguish among Holocaust-victim advocacy groups, including the New York-based Commission for Art Recovery, which had urged the parliament not to pass it.
In trying to reassure survivors and their heirs, German Justice Minister Herta Daubler-Gmelin wrote to the commission that the country remains committed to returning stolen art and that the new law "in no way changes this pledge ... in particular as far as stolen art is concerned."
Yet the law remains on the books, and no one knows its effect.
Entering the labyrinth
In some instances, Holocaust survivors and victims' heirs have attempted to find relief in the Czech courts, to little avail.
Susan Benda, whose family lost its home and its contents when the Nazis illegally sold it, produced a variety of paperwork to stake her claim to the property. But she was told by the Czech Finance Ministry that she would not be given restitution unless she could provide documentation showing that her relatives had filed a claim immediately after World War II and that the claim had been denied by a court. While the Czech restitution laws require no such documentation, the Finance Ministry felt empowered to establish its own requirements.
Unable to produce the documentation, Benda, who lives in Washington, filed a lawsuit in Prague. She received a favorable judgment, but the Czech government immediately appealed the case.
Only after a politically connected intermediary in Washington contacted a deputy prime minister in the Czech Republic to plead Benda's case did the government order its lawyers to drop the appeal.
In October 2000, Benda received a sum "representing less than 10 percent of the property's current value," she wrote in the Prague Post. It took five years to get that much.
In another case, Michal Klepetar, a Czech national, has spent nine years fighting in the Czech courts for 43 paintings in the National Gallery. The works, which spanned the 15th through the 19th Centuries, belonged to his great-uncle, Richard Popper.
Last year, the National Gallery wrote to Klepetar that it would oppose his case because "there is no legal reason to accommodate your request; if you are exercising your claim as Mr. Popper's great-nephew then I have to state that you do not qualify as a rightful claimant." Some Czech restitution laws stipulate that only a direct descendant, such as a son or grandson, can make a claim.
The direct lineage was broken because Popper's wife and daughter were killed in the Holocaust.
"It's like living in a story out of Kafka," says Klepetar, invoking the Prague cultural giant whose novels famously portrayed people caught in bureaucratic and legal nightmares.
American claimants may find new hope in a case unfolding in the United States, where 85-year-old Maria Altmann, heir to the estate of an Austrian sugar magnate, has sued the Austrian government for six paintings by Gustav Klimt that are valued at $150 million. The paintings were stolen by the Nazis in 1939 and ended up in the state-owned Austrian Gallery in Vienna.
In a potentially groundbreaking legal move, Altmann's lawyer filed suit in U.S. federal court in Los Angeles, arguing that the case could proceed in the U.S. because the Austrian Gallery conducts business in the United States and because the property was stolen in violation of international law. U.S. District Judge Florence-Marie Cooper agreed.
The Austrian government has appealed this ruling to the 9th Circuit Court of Appeals, which heard arguments earlier this month.
This is believed to be the first time that a U.S. court has asserted jurisdiction over a foreign country in a Holocaust restitution case.
Found, then lost
In seeking Freund's heirs, the Jewish Museum in Prague turned to the Art Loss Register in New York, which then contacted the Tribune about the search. Through document research and other reporting, the Tribune identified McDonald as Freund's great-great-nephew, and he then contacted the Jewish Museum in Prague.
Seven weeks later, on Jan. 21, 2002, museum officials received a letter from the Czech Culture Ministry. It stated that the ministry was considering declaring the most valuable of Freund's works national treasures and that the museum must protect the works from "misappropriation."
The letter added that the Culture Ministry was acting because "this was a matter of pivotal works of the collections of the National Gallery in Prague, which because of their significance were a permanent part of standing exhibits."
The Jewish Museum replied that none of the works, save one, was "a permanent part of the standing exhibits" at the National Gallery. The museum also argued that the objects were so poorly neglected by the National Gallery over 50-plus years that many had been damaged.
"We consider it necessary to express our disagreement with the majority of simply ad hoc declarations of art objects as cultural relics when they might be granted to potential heirs," Jewish Museum director Leo Pavlat wrote to the Czech Culture Ministry.
Added Jewish Museum curator Hajkova, in her own letter of protest: "As is of course evident, the law concerning export of cultural relics and its practical application in specific cases can elegantly evade the reach of the law of restitution."
Nevertheless, the Czech Culture Ministry recently ruled against the Jewish Museum, citing the "high quality" of the works involved.
McDonald, who contracted hepatitis C while serving in the U.S. Navy in Vietnam and is currently awaiting a liver transplant, has neither the financial nor physical wherewithal to take on the Czech government. But he now is being joined in his pursuit by two additional Freund heirs who stepped forward after reading a Tribune article about McDonald.
The daughters of a deceased McDonald cousin, sisters Raeganne Eastman of New York and Kimberly Violino of Florida, have been consulting restitution experts to determine the family's options.
"I understand why some of the pieces may be appropriate to keep in the Czech Republic," said Eastman.
"But I don't see why some of the other works belong there."
Tribune art critic Alan Artner contributed to this report.Copyright © 2015, CT Now