[MSN] Ernst Ludwig Kirchner's "Berlin Street Scene" will be auctioned off tomorrow at Christie's in New York. Critics argue about whether the heirs of the former Jewish owner really did have a claim to the painting.

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2006-11-07
Raiders of the lost art
Ernst Ludwig Kirchner's "Berlin Street Scene" will be auctioned off tomorrow
at Christie's in New York. Critics argue about whether the heirs of the
former Jewish owner really did have a claim to the painting. By Brigitte
Werneburg

The debate about "Berlin Street Scene," the 1913 painting by Ernst Ludwig
Kirchner, will not come to an end with its sale on auction at Christie's in
New York (pdf file with info). Because then everyone will want to know who
was prepared to take possession, at any price, of this masterwork of German
Expressionism, a work that hung unobtrusively from 1980 to July 30 2006 in
Berlin's Brücke Museum. Perhaps one day we will recall the debate, if
"Berlin Street Scene" is put up for sale again. The market in 2006 is hotter
and more speculative than ever. Recently at Sotheby's, just as today at
Christie's, quite a few paintings have been put on the auction block only a
few years after they last changed hands: the expectation being that they
will double in value. For a Cezanne that cost 12 million British pounds in
2000 at Christie's, Sotheby's now hopes to fetch from 28 to 35 million
dollars. A Modigliani that brought in 5 million dollars in 1997 at
Christie's now is expected to draw up to 18 million.

About ten percent of the highlighted artworks in Christie's autumn sale are
pieces that were returned to the heirs of collectors who were persecuted
during the Nazi period: A Vuillard interior, a Picasso still life, four
paintings by Gustav Klimt whose estimated value totals 100 million dollars -
and now Kirchner's "Berlin Street Scene." Christie's hints of great interest
from Russia. A price tag of 30 million dollars does not seem impossible. The
previous record price for an auction of German Expressionists was achieved
last February in London, with 7.2 million euros for Kirchner's "Portrait of
a Woman in a White Dress" of 1908.

Kirchner's "Berlin Street Scene" was an important attraction at the small
Brücke Museum in Berlin. Lutz von Pufendorf, head of the Society for the
Promotion of the Brücke Museum, wants to initiate a criminal procedure
against Berlin Senator for Cultural Affairs Thomas Flierl and his Secretary
of State, Barbara Kissler. Von Pufendorf accuses them of having returned the
painting to Anita Halpin, granddaughter of collector Hans Hess, without any
legal - or even moral - justification. The Senator for Cultural Affairs
therefore misappropriated the rightful property of the state.

The case has prompted renewed discussion in Germany about Nazi crimes. Not
all claims by heirs to masterpieces owned by victims of the Nazis hold
water. What is indisputable is that Thekla Hess, widow of the Leipzig shoe
manufacturer and art collector Hans Hess, sold the painting in 1936 for
3,000 reichsmarks to Carl Hagemann, the I.G. Farben board member and
collector, an opponent of the Nazis. But what is not clear is whether this
sale was a result of Nazi persecution of Hess, who was Jewish. Anita Halpin
asserts a circumstantial, "indirect force," and the Senator for Cultural
Affairs invokes an affidavit of 1958, in which the widow Thekla Hess speaks
of the forced sale of paintings from her husband's collection.

But Lutz von Pufendorf relies on the verdict of experts. After Carl
Hagemann's death in 1940, Hagemann's family gave the painting as a private
gift to the director of the Städel Museum in Frankfurt. His widows in turn
sold it to the Brücke Museum in 1980 for 1.8 million marks. Uwe Fleckner,
who heads the Art History Institute at the University of Hamburg and the
research centre on "Degenerate Art" at the Free University of Berlin, and
Wolfgang Henze of the Ernst-Ludwig-Kirchner Archive in Bern, Switzerland,
both conclude that Thekla Hess already had sold the Kirchner painting of her
own accord for economic reasons, and for a price appropriate to the times,
and that she had full access to the proceeds of the sale afterwards. Thus
the Brücke Museum's ownership of the masterpiece would have been completely
legal. Evidence for this is in a letter from Kirchner from February 1937, in
which he seems pleased that Hagemann has purchased "the street scene." In
addition there is a letter of March 1937, in which the collector Arnold
Bodczies similarly congratulates Hagemann on his purchase, while opining,
"The price is clearly very high." There is no receipt for the sale.

It is this missing receipt with which Thomas Flierl and his state secretary
justify their decision for a straightforward restitution. They refer to the
Washington Declaration of December 3, 1998, including the "general
principles applicable to artworks confiscated by the Nazis," and to a
so-called assistance in 2001 from the federal, state and local governments.
True, the Washington Declaration clearly states in its very first sentence
that there is no formal legal justification for return of works, but
recognizes a morally justified interest to recover wrongfully lost property,
including art collections, for heirs of those persecuted under the Nazi
dictatorship.

Since the heirs are usually most concerned about financial restitution,
while museums are most concerned about the artwork, the declaration calls
for a "fair and just settlement." The German "assistance" thus establishes
high hurdles to the advantage of the heirs. The loss of property is also
deemed to be a result of persecution if the deprivation was only indirectly
a result of the Nazi dictatorship, even if the sale took place from abroad.
A loss is to be seen as non-political, and solely economical, in cases where
an appropriate price was paid and if it can be verified that the transaction
would have taken place even had there been no Nazi dictatorship. In
particular, the last receipt is obviously hard to produce, which is why
German museums on principle have a particularly difficult position in
restitution negotiations.

With good will on both sides, there was nothing to block a fair settlement
in keeping with the Washington Declaration. The recent abundance of
spectacular restitutions which resurfaced on the art market within days,
namely on the lists of international art auction houses, certainly feeds
doubts about this good will. Increasingly, the supposed settlement promotes
the legitimate interests of the international art market in works of unique
quality, works that promise high profits. So it's not necessarily immoral to
ask, in the case of "Berlin Street Scene," whether the Senate exercised
sufficient care and caution in the negotiations. There was no apparent good
will to retain an important work of art for the public. Rather, the moral
value of an unopposed restitution seems to have been more important to the
Senator for Cultural Affairs.

Thus the uncomfortable point arises: there were more than enough
opportunities to demonstrate moral rectitude in questions of art. But the
period of National Socialism and its ripple effects today remain an
altogether repressed area of social conscience in Berlin, beyond the reach
of political sensibilities. Under the administration of Gerhard Schröder,
Cultural Secretary Christina Weiss suggested that the contemporary art
collection of an heir of a Nazi war criminal such as Flick could "heal the
wounds inflicted during the Nazi period." And recently, curators of the
much-publicized exhibit "Berlin - Tokyo" considered it superfluous to
document the years from 1933 to 1945 with artworks from that period.
Instead, the exhibit included paintings from 1945 by persecuted artists.

It could be that such repressions of memory reflect the city
administration's need for a particularly clean slate. The tight-lipped,
guilty consciences of leftists like Flierl and Kissler make it clear why
they did not bring the two-year-long restitution negotiations to the public.
Even supporters of the Brücke Museum first learned though the press that a
chief work in the collection probably was lost forever. It apparently seemed
unnecessary to Thomas Flierl and Barbara Kissler to seek the advice of
external experts. Wolfgang Henze of the Kirchner Archive in Bern was never
approached. It was Christie's Auction House that contacted him on July 24
2006 with questions about the Hess collection.

The explanation for this sudden curiosity clearly lies in Berlin. Flierl and
Kissler had passed along a paper by Andreas Hüneke, art historian in Potsdam
and associate at the research centre on "Degenerate Art" at the FU Berlin,
to the lawyers for the heirs. The paper, which now is freely accessible at
www.artnet.de, summarizes Hüneke's research on the Hess collection. The
author also had made his findings available to museums in Erfurt, Duisburg
and Essen, institutions likewise affected by Anita Halpin's restitution
claims. He now complains that the attorneys have earned "their money with my
work, freely available to the public": At the end of July, working at the
behest of Anita Halpin, the lawyers demanded the return of a painting by
August Macke from the Art Museum of Aargau, Switzerland. But the museum saw
neither legal nor moral justification for restitution, and reported the case
to the Swiss Federal Office for Culture, which since 1999 has had a
department dealing with stolen artwork.

Germany's moral responsibility vis-à-vis the heirs of people who were
persecuted under the Nazis is clearly a serious matter. In fact, the
Washington Declaration is linked to reparations for forced labourers, a
reminder that the subsequent costs of the Nazi period have hardly been
resolved. A long overdue remembrance, that finally gave some concrete
recognition to survivors themselves. But in the case of heirs, the situation
is far more complex. Here, art dealers and law offices – who assist in
setting the restitution process in motion – usually profit more than heirs.
Because after the deduction of the commission and auction costs, there is
often less left over for the heirs than what the museums had offered them.
Why do the latter not take advantage of this situation? Why don't they come
to the market first with these artworks that are likely to be caught up in
restitution claims, and offer their assistance?

For this purpose, politics must take over and put together a budget, as it
did in the case of forced labour restitution. But politics prefers to play
dead, and in cases where museums aren't successful, they lose their
artworks. Political players consider it perfectly OK to dump precious
manuscripts in return for an out of court settlement. So why should they be
annoyed if "Berlin Street Scene" is swallowed up by a Putin-friendly
oligarch?

* 

The article originally appeared in German in Die Tageszeitung on November 6,
2006.

Brigitte Werneburg is cultural editor at Die Tageszeitung.