Burris & Schoenberg, LLP

http://www.zwire.com/site/news.cfm?newsid=11101889&BRD=2318&PAG=461&dept_id=484045&rfi=6

Thursday 3.11.2004

A Market For Injustice

By Susan Pagani 03/11/2004

Altmann v. the Republic of Austria

In 1907, Ferdinand Bloch-Bauer, prominent Jewish Viennese businessman and avid art collector, commissioned Gustav Klimt to paint several portraits of his wife, Adele.

"My aunt had what they called in the '20s a salon. She entertained a lot of the famous people in art and music: Richard Strauss and Gustav Mahler. Klimt would have been there," says Maria Altmann, Ferdinand's niece.

Bloch-Bauer bought two of the portraits, as well as four of Klimt's landscapes.

Adele died in 1925. In her will, she requested that her husband leave the paintings to the Austrian National Gallery in Vienna after his death.

"I was 9 when she died, but I lived with those paintings. They were hanging in her room," says Altmann. "My uncle made a kind of memorial: always a vase of fresh flowers, and the portraits and landscapes."

In 1938, the Nazis annexed Austria, and Altmann and her husband fled, eventually landing in the United States. Her uncle went to Switzerland. His entire estate in Vienna was confiscated, including his art.

This was not unusual: Between 1933 and 1945, Germans systematically stole and looted an estimated 600,000 art pieces, including paintings, sculpture, objects d'art, and tapestry, from private collections and museums across Europe. From 1945 to 1949, the Allies tried to return as much of the art as they could. But with so much stolen and changing hands, and so many of the original owners murdered by the Germans, many objects could not be identified. Ultimately, these were returned to their country of origin. An estimated 10,000 to 100,000 works are still missing.

Ferdinand died in 1945, leaving his estate to Altmann and her two siblings. But after the war, the Austrian Gallery refused to return the three Klimts, claiming they had been donated by Adele in 1925. In the end, Altmann's lawyer was coerced into "donating" the rest of the Klimts and several other art pieces in order to secure the exportation of a small portion of Ferdinand's collection.

It was not until 1998 that a journalist, Hubertus Czernin, discovered proof that the Bloch-Bauer Klimts had been transferred to the museum in 1941, with a letter from the the Nazi lawyer who liquidated Ferdinand's estate signed "Heil Hitler." A year later Czernin was able to forward the letter, with a copy of Adele's will, to Altmann and her lawyer, E. Randol Schoenberg.

Schoenberg concluded that Adele's request was not legally binding. Still, the Austrian government determined that while part of Ferdinand's collection could be returned, the Klimts could not.

A stunning Peruvian polychrome altarpiece attributed to Bernardo Bitti and Pedro de Vargas disappeared from a village church near Lake Titicaca. It later surfaced in the hands of a Santa Fe gallery owner who allegedly offered it for sale for $600,000.
Altmann then tried to take the case to the Austrian courts, but found that the courts there, as in much of Europe, levy fees according to the value of the item under dispute. Today, the Klimts are valued at $150 million. "They wanted $2 million up front. I just don't have it, but even if I did it would be the last thing I owned - I couldn't sacrifice that for an outcome I didn't know," Altmann says.

What the Supreme Court must now decide is whether or not the U.S. has jurisdiction even to hear the case.

Schoenberg says it does, based on an exception in the Foreign Sovereign Immunities Act (1976) stating that because the Austrian Gallery owns the Klimts, and the gallery conducts related commercial activity in the U.S., it can be sued. Two lower federal courts have upheld that opinion.

Austria's lawyer argues that "a 1976 law cannot be applied retroactively to actions taken in 1938 at the latest. Austria believes, as a matter of settled American law, it doesn't belong in American courts."

If the Supreme Court rules in favor of jurisdiction, Altmann will finally get her day in court. The case will go back to the 9th Circuit Court of Appeals, where the judge will have to determine who owns the paintings.

"A request is never an obligation. My aunt's will was made in 1923," says Altmann. "If she knew how her family would be treated, that her friends would be killed and some of them commit suicide in despair, she never would have requested for the National Gallery to have it."

If the courts do rule in Altmann's favor, one wonders how they will get the paintings out of Austria. Most likely they will not: "It would be a money judgment for the value of the paintings. Any commercial property of Austria in the U.S. that's not diplomatically protected could be seized. But, in reality, it would never go there," says Michael Bazyler, a professor of law at Whittier Law School and the author of Holocaust Justice, the Battle for Restitution in America's Courts. "It's likely the state department or her congressman would come in as an interlocutor and say, 'OK guys, how can we get this resolved?'"

How Will It End?

It's too early to guess the outcome of either of these situations. Colonel Bogdanos predicts it will take years to recover the Baghdad Museum's missing artifacts, and he worries that over the course of time interest will wane.

Altmann's legal battle is now almost seven years in the fighting, and she is nearly 88. "If we lose, the case won't go away," says Schoenberg. "The paintings are too famous and the facts too egregious. People are still talking about the Elgin Marbles and it's been 200 years - and it did not involve theft. This will be the same if it's not properly resolved."

Not unlike the looting of the Baghdad Museum, the loss of Ferdinand Bloch-Bauer's artworks may seem minor compared to the other crimes of war, but it is one of the few wrongs that can be corrected.

"I don't talk about the paintings," says Altmann. What it means to me is that the Austrians finally know it doesn't belong to them, and that they have to sit down with me and find a solution. The point is that finally, one sees justice." ï