1. Introduction
One of the Roman poets – Ovid – said that ‘ars est celare artem’, which means that it is (true) art to conceal art.Footnote 1 Unfortunately, the aforementioned ‘art’ was ‘re-possessed’ by the Germans during the Second World War. They were responsible for looting thousands of private and public pieces of artwork in Europe.Footnote 2 This practice was enacted in the 1930s when the anti-Jewish policy began.Footnote 3 It resulted in purchasing (for a negative price) or – more often – seizing Jewish property on a broad scale.Footnote 4 The Guelph treasure (Welfenschatz) is one of the most significant examples of this practice.Footnote 5 It is an unprecedented collection of medieval reliquaries (from the eleventh to fifteenth centuries) that is named after the house of Guelph.Footnote 6 In 1929, a consortium of three Jewish art dealers purchased the reliquaries. Six years later, the same dealers were compelled to sell the entire collection to the Prussian State. The sales contract provided that the Prussian State paid only 35 per cent of the value of the artwork.Footnote 7 This was as a result (and consequence) of the intensified persecution of the Jews at that time.
In subsequent years this policy was gradually extended. As a consequence it involved other representatives of national minorities, especially between 1939 and 1945.Footnote 8 Poland was one of the main victims of the Nazi regime.Footnote 9 During the Second World War, it lost approximately 500,000 movable monuments – in some cases irretrievably.Footnote 10 Nevertheless, it is hard to establish the precise amount of concealed art because the Germans destroyed almost all of the Polish archives and documents.Footnote 11 The German occupier seized the vast majority of movable monuments.Footnote 12 Many of them were hidden in special repositories (bergungsorte) situated inter alia in Pomerania and Silesia.Footnote 13 The Germans created almost 80 repositories for looted art within those areas.Footnote 14 They hoped that after the Second World War, they would have one of the biggest collections of international art in the world.Footnote 15 But the war ended in 1945 and they lost, which resulted in the creation of the new layout of power in Europe. The primary decisions in this matter were taken at the Potsdam Conference, held on 17 July–2 August 1945 in Potsdam.Footnote 16 Winston Churchill, Joseph Stalin, and Harry S. Truman reached an agreement whereby the Regained Territories (the former German territories including Silesia, Pomerania along the Free City of Danzig (Gdańsk), and part of East Prussia) should be a part of Poland.Footnote 17 Consequently, post-German property was abandoned within Poland’s borders. The property consisted of movable monuments with a complicated – i.e., non-regulated – legal status. For instance, among these objects were private and public cultural properties belonging to Germans, private and public cultural properties from the Free City of Danzig (Gdańsk), private and public cultural properties looted by the Germans between 1939 and 1945 (abandoned by them or hidden in the repositories), and private and public cultural properties belonging to Poles and other minority groups.Footnote 18
After 1945, one of the priorities of the Polish Government was to liquidate the implications of the armed conflict, i.e., to legalize the international situation of post-German property. Another priority was the restitution of art concealed by the Germans.Footnote 19 Thus, it is legitimate to paraphrase the cited Latin sentence and state that ‘it is (true) art to find concealed art’. As history has shown, this ‘art’ could not have been ‘managed’ by many people.Footnote 20 Post-German movable monuments were found inter alia on the Regained Territories – where they were secured. Among them was the famous Berliner art collection (the so-called ‘Berlinka’).Footnote 21
There is a dispute in doctrine whether Poland was entitled to secure and seize these movable monuments. One of the arguments against this practice was the fact that Poland did not have any authority over the Regained Territories – as stated by German lawyers.Footnote 22 There was an opinion that the Regained Territories were acquired by the Polish State as a result of the so-called ‘administrative cession’. It means that Germany, as a cedant, delegated authority over these lands to only occupy the Regained Territories.Footnote 23
In the first years after the Second World War, post-German cultural properties were lootedFootnote 24 without the state’s control.Footnote 25 For instance, in 1946, a German priest commissioned a painter to make a copy of the painting ‘Madonna under the Fir Tree’ by Lucas Cranach the Elder from the cathedral in Wrocław. The original painting was taken to Germany and sold there in the late 1960s.Footnote 26 Later on, the Red ArmyFootnote 27 seized and then transferred many monuments from the Regained Territories directly to the USSR (inter alia to Moscow, Saint Petersburg). Since 1945, they have continued to exhibit these artworks.Footnote 28 The question arises, whether this practice was consistent with the provisions of public international law.
Since 2 August 1945, when the Potsdam Agreement entered into force, Poland has been the only sovereign of the Regained Territories. These lands were not a part of the Soviet zone of occupation in Germany. Therefore, no country except Poland had a right to transfer any artwork from this territory. However, it did occur. It poses a key question about the legal status of the cultural property mentioned. The ultimate solution to a problem could put an end to repeated misunderstandings.
One of the main purposes of this article is to answer the question, whether Poland had a right to regulate the legal status of movable monuments left by Germany on the Regained Territories. Furthermore, this article responds to the question, whether Polish practice of securing and seizing post-German cultural property complied with the provisions of public international law. In turn, the question arises, whether Poland had the indivisible right to restitution of the monuments. The article sums up the long-time practice on the basis of legislation, jurisprudence, and international practice regarding this problem.
2. The Potsdam Agreement as a legal basis for securing and expropriating post-German cultural property from the Regained Territories
The Potsdam Agreement was not the first agreement in history concerning the regulation of the legal status of cultural properties after a world war. The Versailles Treaty, signed in Versailles on 28 June 1919, takes precedent.Footnote 29 It established a new layout of power in Europe. Article 256 of the Treaty provided that:
[p]owers to which German territory is ceded shall acquire all property and possessions situated therein belonging to the German Empire or to the German States, and the value of such acquisitions shall be fixed by the Reparation Commission, and paid by the State acquiring the territory to the Reparation Commission for the credit of the German Government on account of the sums due for reparation.
The Versailles Treaty defined the ‘property of the German Empire’ as ‘the property and possessions of the German Empire and States shall be deemed to include all the property of the Crown, the Empire or the States, and the private property of the former German Emperor and other Royal personages’. Under this Treaty, Poland was entitled to acquire all property (including movable monuments) and possessions situated on German territory and belonging to the German Empire, but under certain conditions. When it comes to the value of such acquisitions – it shall be fixed by the Reparation Commission and paid by the state acquiring the territory to the Reparation Commission for the credit of the German government on account of the sums due for reparation. Thus, the acquisition was not unpaid, because the clause provided that the cessionary must pay reparations fixed by the Reparation Commission. This was a conditio sine qua non to these acquisitions.
It is worth noting that the situation of post-German property, situated on the Regained Territories after the Second World War, was very similar. Nonetheless, the provisions of the Potsdam Agreement were different to the Versailles Treaty. Chapter VIII BFootnote 30 of the Potsdam Agreement provided that:
[t]he three Heads of Government agree that, pending the final determination of Poland’s western frontier, the former German territories cast of a line running from the Baltic Sea immediately west of Swinamunde, and thence along the Oder River to the confluence of the western Neisse River and along the Western Neisse to the Czechoslovak frontier, including that portion of East Prussia not placed under the administration of the Union of Soviet Socialist Republics [USSR] in accordance with the understanding reached at this conference and including the area of the former free city of Danzig, shall be under the administration of the Polish state and for such purposes should not be considered as part of the Soviet zone of occupation in Germany.
The preliminary decisions regarding the problem of the Regained Territories were taken at the Yalta Conference, held in Yalta on 4–11 February 1945.Footnote 31 This means that the provisions of the Potsdam Agreement fulfil and extend arrangements taken in Yalta. Then, the representatives of the United Kingdom, the USSR, and the United States of America claimed that:
[t]he eastern frontier of Poland should follow the Curzon Line with digressions from it in some regions of five to eight kilometres in favour of Poland … Poland must receive substantial accessions in territory in the north and west … The new Polish Provisional Government of National Unity should be sought in due course of the extent of these accessions and that the final delimitation of the western frontier of Poland should thereafter await the peace conference.Footnote 32
In comparison to the Versailles Treaty, the Potsdam Agreement did not stipulate any clause regarding the payment of reparations. Thus, the acquisition of the territory and post-German property (including cultural property) was unpaid and had an initial character without any financial burdens.Footnote 33 This means that Poland has been recognized as the first possessor of such movable monuments. In addition to this, the acquisition of post-German property shall not be included in the sum of Polish reparations. Chapter III of the Potsdam Agreement does not provide any provisions or clauses in this matter. It only stipulates that ‘the U.S.S.R. undertakes to settle the reparation claims of Poland from its own share of reparations’. Currently, it is impossible to estimate the value of monuments secured and taken over by Poland. There were no records in this case, and no one estimated the value of these artworks. This means that the value, or rather the lack of the value of these cultural properties, must not be included in war reparations.
There was a dispute in doctrine, whether Poland was a sovereign ruler of the Regained Territories. Poland was not a part of the Potsdam Agreement (Poland did not sign it).Footnote 34 Nonetheless, the Potsdam Agreement is a great example of pactum in favorem tertii, which means that the third party is the intended beneficiary of the arrangement with all consequences of it.Footnote 35 The formula provided in the Potsdam Agreement, ‘shall be under the administration of the Polish State’ has also been questioned by Germany.Footnote 36 This should be identified as a mere right to be a legal subject of this administration,Footnote 37 because the Regained Territories were not a part of the Soviet zone of occupation in Germany, whereas Germany was under the control of the Allied Control Council for Germany. This means that they were Polish lands, under Poland’s administration. The fact that, since 1945, the new delineated western borders of Poland have not changed, only further proves this point. Less than three months after the Crimean conference, on 8 May 1945, the unconditional surrender of Germany took place.Footnote 38 Thus, as Kokot points out, the complete collapse of German statehood occurred.Footnote 39 Then, on 5 June 1945, the declaration on the defeat of Germany and assumption of supreme power over Germany by the governments of the four powers (the Berlin declaration) was signed.Footnote 40 On the basis of this declaration, Germany was divided into four occupation zones: British, American, Soviet, and French. Furthermore, Prussia was liquidated based on the Act of Allied Control Council for Germany No. 46, which entered into force on 7 March 1947.Footnote 41
As of the end of the Second World War, Poland and Germany have signed more than one agreement regarding the regulation of the Polish-German border.Footnote 42 Article 2 of the treaty concerning the confirmation of the Poland-Federal Republic of Germany (RFG) border of 14 November 1990 provides that ‘the frontier … is inviolable now and in future and mutually pledge to respect unconditionally their sovereignty and territorial integrity’. The aforementioned treaty reaffirms the provisions of the previous agreements regarding this problem.Footnote 43
Furthermore, the treaty concerning Good Neighbourship and Friendly Co-operation between Poland and RFG of 17 June 1991Footnote 44 regulates the legal status of Polish and German movable monuments within new borders. Article 28 paragraph 3 of this treaty stipulates that ‘the Contracting Parties shall endeavour in the same spirit [of understanding and reconciliation] to settle problems relating to cultural property and archive materials, beginning with single cases’. Consequently, Germany confirms that Poland should receive restitution of the cultural properties from the Regained Territories, situated currently in Germany.Footnote 45 It stems from the fact that the legal status of the Polish-German border and property situated on the Regained Territories was confirmed by the previous agreements.
The current shape of the Polish borders was also confirmed by Russia under the treaty concerning Friendly and Good Neighbourship Co-operation between Poland and Russia dated 22 May 1992.Footnote 46 Further, Poland signed indemnity treaties whereby Poland’s borders were at last verified by 13 countries.Footnote 47 In general, from September 1945 until now,Footnote 48 Poland has signed 3,902 bilateral agreements and 1,020 multilateral agreements.Footnote 49
The foregoing means that Poland was considered as the only sovereign ruler of the Regained Territories. As a consequence, Poland was entitled to regulate the legal status of post-German properties, including movable monuments, situated in these territories. From the legal and economic point of view, it is impossible to imagine that the Polish legislator would not regulate the legal situation of this property located within the newly-delineated borders. Otherwise, we would have had a situation where inter alia Polish museums would have exhibited monuments with an unidentified legal status. In light of the national legal order, this situation would be inadmissible. Thus, the aforementioned steps aimed at regulating the legal status of post-German property primarily had a sequential character.
If we assume that Poland was not entitled to regulate the legal status of post-German movable monuments, the provisions of the IV Hague Convention respecting the Laws and Customs of War on Land and its Annex, Regulations concerning the Laws and Customs of War on Land,Footnote 50 would apply. Article 56 of the Annex to the IV Hague Convention provides that:
[t]he property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden and should be made the subject of legal proceedings.Footnote 51
Said Article should apply only to the occupier.Footnote 52 Therefore, the provisions of the IV Hague Convention and its Annex do not concern Poland, because it did not occupy the Regained Territories.Footnote 53 As stated, after 1945, the Soviet Army seized and then transferred many monuments from the Regained Territories, directly to Moscow. The USSR behaved as an occupier of these lands. Similarly to the Germans, the Soviets breached the provisions of the Potsdam Agreement and the IV Hague Convention. Further, the USSR flouted the provisions of the Agreement on Polish-Soviet state border between Poland and the USSR of 16 August 1945Footnote 54 which provided that ‘the government of the U.S.S.R. relinquishes any claims to German property and other assets to Poland … including the part of Germany which was ceded to Poland’.Footnote 55
The Regained Territories ‘were formally placed under Polish control only under the provisions of the Potsdam Agreement of 2nd August 1945’.Footnote 56 From this date onwards, those territories shall be considered de jure as a part of Poland.Footnote 57 Among the artworks transported by the Red Army to the USSR were monuments from Gdańsk (including the famous triptych ‘The Last Judgment’ painted by Hans Memling) and the numismatics collection from Malbork.Footnote 58 Many of them have been retained by Russia since 1945. This practice would be partially legal, however, under certain conditions – as W. Kowalski stipulates – to secure post-German heritage.Footnote 59 Although the Second World War ended in 1945, there was still a threat that the majority of post-German cultural property could be devastated, destroyed, or even looted.Footnote 60 Thus, even in 1945, Poland took steps to secure this property.Footnote 61 Nonetheless, there could be no doubt that if the threat of destruction or looting of the monuments was implemented, post-German cultural property should have been returned to Poland. The provisions of the Polish-Russian Agreement on Co-operation in The Field of Culture, Science, and Education, dated 25 August 1993Footnote 62 emphatically reaffirms this point. Article 11 of this agreement states that:
the State-Parties shall cooperate in order to … return cultural properties situated on their territory related to the historical and cultural heritage of the peoples of the other Party, including the artistic, library and archival collections that have been lost, unlawfully exported, or otherwise illegally entered on their territory.
It is important to point out here that the provisions of the Russian Federal Law on cultural valuables displaced to the USSR as a result of the Second World War and located on the territory of the Russian Federation of 15 April 1998Footnote 63 do not apply to Poland. Article 6 of this law provides that:
all displaced cultural valuables imported to the U.S.S.R in realization of its right to compensatory restitution and located on the territory of the Russian Federation, with the exception of those specified in Articles 7 and 8 of the present Federal Law, are the property of the Russian Federation and are federally owned.
Under this Law, Poland is not recognised as a former enemy state, such as Germany, and states allied with it during the Second World War – Bulgaria, Hungary, Italy, Romania and Finland – whose cultural property were imported to the U.S.S.R in realization of its right to compensatory restitution and federally owned. Poland still has an indivisible right to cultural properties looted from the Regained Territories.Footnote 64
Consequently, there is no doubt that Germany and the Soviet Union flouted the provisions of international law. This, in turn, stems also from the fact that Article 47 of the Annex to the IV Hague Convention provides that pillage is formally forbidden.Footnote 65 The question arises, whether this means that at the end of the war there was a possibility of evacuating collections (that belonged to German institutions from the Regained Territories) abroad. There was no possibility of doing this, but it did occur.Footnote 66 For instance, in January 1945, Germany decided to evacuate a collection of rare books owned by Der Naturforschenden Gesellschaft in Danzig (Gdańsk), which they stored for ‘safety’ at the Technische Universität Danzig. The 500 cases of books from the former library from Gdańsk were later loaded onto a vessel and successfully transported to Kiel.Footnote 67 This practice was illegal in light of Article 56 of the Annex to the IV Hague Convention. As M. Kuhnke and W. Kowalski state, ‘that is so because the institutions were closely connected with the area of their activity, had collected local monuments and did not have successors in Germany’.Footnote 68 This statement has been repeatedly reaffirmed by the Polish Supreme Court.Footnote 69
What is crucial, after the Second World War, the Polish authorities established new public institutions (including museums), which were not the legal successors of the former German public institutions.Footnote 70 In 1945, with the end of the Second World War and as a result of the Potsdam Conference, German museums lost their legal capacity. Nevertheless, the newly-established Polish museums on the Regained Territories conduct broadly similar activities to them. They took over former German collections of art, just as the Malbork Castle Museum did.Footnote 71 It means that Polish authorities acquired the Regained Territories with post-German property as a result of the cession of territory.Footnote 72 Nevertheless, Polish authorities created a new post-war legal system when carrying out the function of the mere sovereign ruler within newly-delineated borders.Footnote 73
3. Poland as a beneficiary of the Big Three’s agreement. The national legal order on regulating the problem of the legal status of post-German cultural property
As of the end of the war, Poland has intensively continued to take steps to regulate the legal status of the Regained Territories, and the property that had been left on these lands. From 6 May 1945 to the end of 1946, Poland enacted a series of laws regarding this problem. The legal status of Pomerania, Silesia, Gdańsk, and part of East Prussia was regulated by the Decree of 13 November 1945 on Administration of the Regained Territories.Footnote 74 This act established the Ministry of Regained Territories – an institution responsible for administrating post-German property.Footnote 75 The Regained Territories were finally integrated with the rest of the state administration based on the Law of 11 January 1949 regarding the integration of the administration of the Regained Territories within the general state administration.Footnote 76
When it comes to the legal situation of post-German property, it was effected, inter alia, on the basis of the law of 6 May 1945 concerning abandoned and derelict property,Footnote 77 the decree of 28 November 1945 on the seizure of certain land estates for the purposes of agricultural reform and agricultural activity,Footnote 78 the law of 3 January 1946 on the seizure of core sectors of the national economy by the state,Footnote 79 the decree of 8 March 1946 on abandoned or post-German property,Footnote 80 and the decree of 7 April 1948 on the expropriation of properties seized for the purposes of public utility during the war of 1939–1945.Footnote 81
Nevertheless, two main laws regulated the status of movable monuments of the Regained Territories: The law of 6 May 1945 regarding abandoned and derelict property (1945 Act) was the result of a consensus reached in the Yalta Conference. It distinguished two types of property – derelict and abandoned. It defined derelict property as any movable and immovable property which had been owned or possessed by the German State, and on the date of the 1945 Act coming into force, had not yet been taken over by the Polish authorities, as well as the property of German citizens or persons who had defected.Footnote 82 The derelict property was placed under state administration (under the decree of 13 November 1945). As a consequence, this could not be repossessed by the original owners, nor by their heirs. In turn, the property confiscated by the former occupation authorities was considered to be abandoned property.Footnote 83 In comparison to derelict property, the owners or their descendants could repossess it. Thus, the property of Jews could also be repossessed based on this act. Under Article 34 of the 1945 Act, the State Treasury, relative municipality, or institutions under Article 13, acquired the title of ownership of the derelict property within five years, which commenced from the end of the calendar year in which the war ended. It is worth noting that the 1945 Act did not define ‘cultural property’.Footnote 84 Notwithstanding, the definition of derelict property was wide-ranging and included any type of movable monuments.Footnote 85
The acquisition of such properties has never happened, because the 1945 Act was replaced by the decree of 8 March 1946 concerning abandoned or post-German property (the 1946 Decree). This was the fundamental act that regulated the legal status of post-German property on the Regained Territories.Footnote 86 Similarly to the 1945 Act, it did not define ‘cultural property’.Footnote 87 Moreover, it categorized two types of property: abandoned and post-German. Article 1 of the 1946 Decree provided that ‘any property (movable or immovable) of persons who in connection with the war that began on 1st September 1939 lost and did not subsequently recover possession of it shall be considered abandoned property within the meaning of this Decree’. In turn, Article 2 paragraph 1 of this decree defined post-German property as any property belonging to (i) the German Reich and the former Free City of Danzig, (ii) to citizens of the German Reich and the former Free City of Danzig, (iii) to German and Danzig legal persons, except public-law legal persons, (iv) to companies controlled by German or Danzig citizens or by the German or Danzig administration, or to (v) persons who have defected. They were taken over by the State Treasury on 19 April 1946.Footnote 88 There were some exceptions to this general rule: The property of Polish private owners, owners persecuted by the Germans (including the Jews), or property of public-law legal persons, were not taken over by the Polish State Treasury. This kind of property was considered as being abandoned. The Polish State recognized the fact that the property looted by the Germans during 1939–1945 should be repossessed. As a consequence, the owners (or their heirs) could apply for restoration of the title of ownership. According to Article 15 paragraph 2 of the 1946 Decree, the deadline for making such applications was 31 December 1948. If they did not exercise their right, the state would acquire ownership of such property by prescription within five years (as regards movables), commencing ‘at the end of the calendar year in which the war ended’.Footnote 89
In comparison to these provisions, the owners or heirs of post-German properties could not repossess them. The scope of expropriation of post-German monuments was fully comprehensive. The 1946 Decree provided a coherent and exhaustive list of property taken over by the State Treasury. The European Court of Human Rights (ECtHR) stated in the Preussische Treuhand GMBH & CO. KG. A.A. v. Poland that ‘post-German property, including cultural property, was to be taken by the State and neither compensation nor restoration procedures applied’.Footnote 90 It stems from the meaning of the provisions of the Potsdam Agreement. As a result of the aforementioned agreement, the 1946 Decree did not provide a clause on paying reparations. Thereby, the Decree of 1946 was a fulfilment of consensus reached in Potsdam on 2 August 1945. According to Article 2 of this Decree, the acquisition of post-German property has an initial and unpaid character.Footnote 91 What is more, the German Federal Constitutional Court (Bundesverfassungsgericht) stated that Polish laws regarding expropriation of post-German cultural property were consistent with international law.Footnote 92
It should be noted that, if the decision on expropriating post-German property was not consistent with the provisions of national law, the owners or their heirs should have a right to claim restitution for each property in the course of judicial or administrative proceedings.Footnote 93
The foregoing means that the laws enacted by the Polish legislator commencing in 1945 and continuing until the end of 1946, did not breach international law. Poland was entitled to regulate the legal status of post-German cultural property under the Potsdam Agreement.Footnote 94 The provisions of the cited international agreements and judicature prove this thesis.
4. International recognition of the legal status of post-German cultural property in light of judicature. The practice of governments, auction houses, private owners, and international organizations
During the first years after the Second World War, Poland received restitution from the USSR of thousands of pieces of artwork, seized by the Red Army. Among these were ‘426 paintings, 200 books, 2955 prints, 11354 old coins, 300 objects of sacred art from Gdańsk and Greater Poland [region]’.Footnote 95 A few years later, in 1956, the USSR returned further cultural objects,Footnote 96 led by ‘The Last Judgment’ painted by Hans Memling, from the Staadtmuseum in Danzig (Gdańsk) collection.Footnote 97 In 2003, Russia launched its website for displaced cultural treasures (lostart.ru).Footnote 98 Then, the Polish authorities identified a few pieces of artwork, stolen from the Regained Territories, including the painting ‘Madonna with Child’ from the Głogów collegiate, painted by Lucas Cranach the Younger.Footnote 99 Poland submitted restitution claims to its eastern neighbour. Interestingly, it resulted in the removal of the aforementioned artwork from the database by Russia.Footnote 100 To this day, Poland has not received restitution for those cultural objects.
Germany has also returned post-German cultural properties transferred from the Regained Territories. It was in 2010, that the Prussian Trust (Preussische Treuhand) returned four paintings from the seventeenth to nineteenth centuries, to Poland, which had belonged to the Staadtmuseum in Danzig (Gdańsk).Footnote 101 Before this, in 2009, Germany returned a collection of archaeological artefacts to the National Museum in Szczecin.Footnote 102 Sequentially, five years later, the painting ‘Via Cassia near Rome’Footnote 103 painted by Oswald Achenbach, was discovered at the auction house in Cologne. It was a part of a pre-war collection of the Schlesisches Museum der bildenden Künste in Wrocław. It was stolen from Silesia between 1939 and 1945. Thanks to the efforts of the Polish Ministry of Culture and National Heritage, it was returned to the National Museum in Wrocław on 7 August 2014.Footnote 104 This means that inter alia Russia and Germany confirm that Poland does have a right to these cultural properties.
Post-German movable monuments can be recovered from the countries to which they have been transported, donated, or ‘purchased’ at some time. A great example here is the case of bas-reliefs from the altar in Wkryujście – ‘Carrying the Cross’ and ‘Crucifixtion’ from the Pommersches Landesmuseum Stettin (Szczecin).Footnote 105 They were found in the Museum of Foreign Art in Riga. Following negotiations with Latvia, Poland received restitution of the reliefs in 2006.Footnote 106
There are well-known cases where the private possessors of post-German cultural properties have returned them to Poland. One of them is the ‘Portrait of Philip I, Duke of Pomerania’ painted by Lucas Cranach the Younger, looted from the Pommersches Landesmuseum Stettin (Szczecin).Footnote 107 For almost 40 years, after the Second World War, no one had any idea where the mentioned artwork was. It was recovered in 1999, when it was exhibited in one of the auction houses in Switzerland, by the private possessor. The Office of the Government Plenipotentiary for Polish Cultural Heritage Abroad in co-operation with the National Museum in Szczecin sent documentation concerning the painting to Switzerland and negotiated with the possessor.Footnote 108 Consequently, the National Museum in Szczecin received the painting in restitution, where it has been exhibited since 1999.Footnote 109
Since 1945, Poland has published catalogues of looted art in both paper and electronic form. The database of wartime losses provided by the Ministry of Culture and National Heritage of the Republic of Poland (the MCNH database) consists of more than 63,000 cultural objects, but only 10 per cent of them (approximately) are documented with photographs.Footnote 110 The database mentioned includes cultural properties looted from the Regained Territories. Moreover, Polish museums publish their catalogues on looted art, as a result of their activity. The National Museum in Wrocław, the National Museum in Gdańsk and the Malbork Castle Museum lead in this field.Footnote 111 It constitutes a thesis that Poland has made comprehensive efforts to regulate the legal status of movable monuments from the Regained Territories.
There are also international databases on wartime losses. One of them is the Lost Art Database.Footnote 112 It contains data on cultural objects, which as result of consequences of the Second World War, were removed or relocated, or even seized from their owners, notably from the Jews. One of the pieces of artwork, registered in this database, is the painting ‘Portrait of Don Juan d’Austria’ painted by Alonso Coello Sánchez.Footnote 113 It was owned by the Schlesisches Museum der bildenen Künste in Wrocław. The database indicates that the robbery of the painting took place within the new Polish borders – in Wrocław.Footnote 114 The same painting is also registered in the MCNH database.Footnote 115
The problem of post-German cultural properties has been the subject of national and international judicature. In Preussische Treuhand GMBH & CO. KG. A.A. v. Poland, the ECtHR confirmed that ‘there can be no doubt that the former German territories on which the individual applicants had their property were lawfully entrusted to the Polish State under the provisions of the Potsdam Agreement’.Footnote 116 Further, it stated that ‘the Polish-German borders as referred to in that Agreement were confirmed by a sequence of bilateral treaties concluded between Poland and two former German States, and, finally, between Poland and the reunified Federal Republic of Germany’.Footnote 117
In Heuer v. Poland, the ECtHR stipulated that the expropriation of post-German property:
was effected pursuant to the provisions of the March 1946 Decree, whereby all German property situated on the former German territories east of the Oder-Neisse line, which were included in the territory of Poland following the Yalta Conference and the undertakings under the Potsdam Agreement.Footnote 118
In turn, the Civil Court in Stockholm in German Order of Saint John v. Poland stated that Poland, as a result of nationalization, was entitled to sell cultural objects found on the Regained Territories abroad.Footnote 119 Therefore, Poland had owned them legally.
The International Criminal Police Organization (INTERPOL), which maintains the international database of stolen works of art, reaffirms that post-German property looted from the Regained Territories belongs to Poland. One of the database records concerns the painting ‘Double portrait of Martin Luther and Philip Melanchthon’ by Lucas Cranach the Younger.Footnote 120 The same painting is also registered in the MCNH database of wartime losses.Footnote 121 Before 1945, the double portrait was exhibited at the Schlesisches Museum der bildenen Künste in Wrocław. In anticipation of war, pillage, and maybe even the plundering of valuable artwork, it was deposited, as were many other pieces of artwork, in one of the repositories situated in Silesia. During the Second World War it was stolen and transferred abroad. The INTERPOL database confirms that the robbery of the painting took place within the Regained Territories – as a part of Poland.
In 2015, the Italian law enforcement agency under the authority of the Minister of Economy and Finance (Guardia di Finanza) helped with the restitution of one of the paintings stolen from the Regained Territories. Until 1945, the painting ‘Calm Sea Landscape’ by Pieter Mulier was a part of a collection in the Schlesisches Museum der bildenen Künste in Wrocław. In 1942, predicting war, the Germans transferred the painting to Kamieniec Ząbkowicki (Silesia). After 1945 it was not heard of again until 2015, when it was offered up for auction in Milan. The Polish Ministry of Foreign Affairs applied for a suspension of the auction on the basis of documentation proving that the painting was registered in the MCNH database of wartime losses.Footnote 122 Later, the Guardia di Finanza took the artwork into custody and Poland received restitution of it in July 2015.Footnote 123
In light of the above observations, the jurisprudence and international practice of the recognition of the legal status of post-German cultural property is unambiguous. The property belongs to Poland, and Poland is the country that should receive restitution. Since 1945, many of these pieces of artwork have been returned to Poland, but there are still far too many in private and public possession abroad. Poland has an undivided right, under the basic provisions of international law,Footnote 124 to suspend an auction where such cultural property is exhibited.
5. Conclusion
In 2018, Poland and Germany celebrated a century of Polish-German relations following Poland’s independence in 1918. This was a special year for both countries. It opens up many opportunities where we can review, where problems can be resolved, and common causes, which have not been raised since 1918 or later, can be tackled. Undoubtedly, one of these is the problem of the legal status of post-German cultural properties within Poland’s borders. This is important, not only in light of national legal order but also in public international law. It is also crucial in terms of the policy of other countries, where cultural properties from Regained Territories could be exhibited. Thus, it has an international character. The ultimate solution to a problem could put an end to repeated misunderstandings. As a consequence, it would allow the restitution of post-German cultural properties transferred abroad from the Regained Territories, back to Poland.
It seems that the complicated, post-war situation of post-German cultural property could be resolved simply. Since 2 August 1945, when the Potsdam Agreement entered into force, Poland has been the only sovereign of the Regained Territories. What is important, these lands were not a part of the Soviet zone of occupation in Germany. Thus, inter alia, the Red Army had no right to transfer any artwork from these lands. The behaviour of the Red Army should be recognized as illegal. Furthermore, at the end of the war, there was no possibility to evacuate German public collections of art. This practice was not consistent with Article 56 of the Annex to the IV Hague Convention. As a result, Poland should receive restitution of these movable monuments.
The Potsdam Agreement stipulated that three Heads of Government agreed that the Regained Territories shall be a part of Poland along with post-German property situated on them. This property also included post-German cultural properties – movable and immovable monuments. In particular, Chapter VIII B of the Potsdam Agreement provided that Silesia, Pomerania, along with the Free City of Danzig (Gdańsk), and part of East Prussia should be recognized as the ‘the former German territories’. Further, the Potsdam Agreement did not categorize post-German cultural property held within the newly-delineated borders of Poland. It means, that the agreement did not refer to the specific place of their location and to the period from which they are to be located there.Footnote 125 Hence, these movable cultural properties were taken over by the Polish State under the provisions of the 1946 Decree. In comparison to the provisions of the Versailles Treaty, the Potsdam Agreement did not provide any clause concerning the payment of reparations as a consequence of expropriation. Thus, the acquisition of post-German cultural property was unpaid and had an initial character.Footnote 126 This thesis is supported by the ECtHR, which stated that the Potsdam Agreement was a ‘basis for Poland within the borders, as fixed by that Agreement’.Footnote 127
Under several laws enacted in 1945 and 1946, Poland secured, and then took over, property left by Germany on the Regained Territories. The scope of expropriation was fully comprehensive. The 1946 Decree provided a coherent and exhaustive list of property taken over by the State Treasury. As a general rule, all of the mentioned property was taken over, except for property owned by Poles and Jews lost as a consequence of the war and the Holocaust.Footnote 128 In this case, the owners or their descendants may apply for and obtain its restoration – as abandoned property. Timing was the decisive prerequisite: The deadline for making such applications was 31 December 1948. If they did not exercise their right within this time, the state would acquire ownership of such property by prescription within five years.Footnote 129 Thus, the situation of Jews or their heirs did not differ from the legal situation of other persons entitled to make such application.Footnote 130 What is important, is that the ECtHR stated that states are free to ‘determine the scope of property restitution or rehabilitation laws’, and hence, they are also free to ‘choose the conditions under which they agree to restore property rights of former owners’.Footnote 131
Nonetheless, we must be conscious that current private and public possessors of post-German cultural properties could acquire them, but under certain conditions. In this case, the decisive prerequisites are: ‘the validity of the legal act; the delivery and acquisition of possession of an object; and the existence of good will on the part of the purchaser’.Footnote 132 Acquisition in good faith is possible if those prerequisites are fulfilled cumulatively. The purchasers must demonstrate due diligence in their activity. Checking provenience of such artwork is one of the manifestations of this. As K. Zeidler aptly states, the ICOM Code of Ethics for Museums provides that museums are obliged to check the provenience of each artwork.Footnote 133 The same should apply to private possessors of post-German cultural properties. In each court case, the court will examine this prerequisite. In addition to this, the provisions on acquisition in good faith of each domestic legal order should apply.Footnote 134
As stated, many countries, headed by Germany and Russia, have reaffirmed the international legal status of post-German property through the process of restitution of these pieces of artwork. Nevertheless, not all cultural objects have been returned to Poland. Even 75 years after the end of the war, this problem is still unresolved. It stems from the fact that not all museums have set projects on provenance research. It could, thus, pave the way for further restitution. A great example of such a case is the restitution of eighteenth century furniture to WilanówFootnote 135 which was made possible through a research project of the Staatlichen Kunstsamnlungen Dresden – entitled ‘Daphne’. Moreover, it is noteworthy that Polish museums set research projects, funded by the Minister of Culture and National Heritage. The Malbork Castle Museum is one of the beneficiaries of the programme ‘Research on the Polish Looted Art 2018’.Footnote 136 The main purpose of this programme is to register artwork looted from each museum during the Second World War.Footnote 137 It could help to recreate the pre-war register of collections of art – and, consequently, to return them to Poland.Footnote 138
To sum up, there is no doubt that Poland has a right to post-German property within the post-war borders. One of the greatest Greek poets – Pindar – said that ‘dulce bellum inexpertis’, which means ‘war is sweet to those who have never experienced it’. Poland has experienced war repeatedly and, as a consequence of it, lost thousands of private and public pieces of artwork. The Potsdam Agreement established a new layout of power and assigned ‘new borders of cultural heritage’ in Europe. Let’s hope that the international community will recognize this voice as being important and will respect Polish demands on the restitution of post-German cultural properties.
