40 No. 69 JUSTICE Confiscation The confiscation of goods or property without compensation; as a rule, by state organs (cf. the term “Nazi-looted art” above). Cultural assets confiscated due to Nazi persecution The term “persecution-related withdrawal” is not part of the international regulations. In Germany, it is applied in the “Declaration of the Federal Government, the Länder and the National Associations of Local Authorities of 1999 to find and return cultural assets withdrawn due to Nazi persecution, in particular from Jewish ownership (joint declaration)” and the “German Handout.”10 The Glossary omits terms from the Terezin Declaration like “forced sale” or “sale under duress”11 which have an explicit connection to earlier legal wordings and definitions. It also omits the “presumptions”12 and regulations pertaining to the “shift in the burden of proof.”13 It was important to the signatory parties in Washington to clarify these backgrounds, terms and principles as well as the extent of the transactions. Without the presumption provisions relating to the persecution of entire groups of people, many claims would not be assertable, in either the post-war era or today, particularly because certain acts are barely provable. However, in the eyes of a civil law expert, the term “confiscated” cannot be applied to a sale between private parties. The same must also apply for the reversal of the burden of proof because of the presumption provision. This “other” approach has a long tradition in Switzerland. It was the Allies who forced Switzerland in 1945 and 1946 to pass two resolutions in the Bundesrat (Federal Council) that suspended the principle of good faith in civil law until at least December 31, 1947. However, the only works of art covered by this suspension were those that had been directly confiscated or expropriated by German authorities or by occupying institutions. Of the hundreds, if not thousands, of artworks that were circulating on the Swiss market at that time, only 70 were returned to their original owners due to a decision by the so-called “Raubgutkammer” (Chamber for Looted Art). While the claimants did not have to compensate the alleged purchasers when the artwork was returned, the purchasers who returned the art were entitled to compensation from the dealers. At the same time, the purchasers of the works were often able to buy them back again and in doing so exploited the current financial situation of the owners as well as the crumbling art market. In addition, the Swiss courts confirmed during legal proceedings that the legal presumption of “good faith” was difficult to disprove and that collectors like Bührle were not experts but at best only “educated laymen” who could not be subjected to any high standards of care. It is no wonder that, almost without exception, all claims for return in Switzerland have failed right up to this day. Court Assumptions of Equal Bargaining Power can Frustrate Claimant Success As part of the work carried out by the “Independent Expert Commission Switzerland Second World War” (UEK) that was established in Switzerland in 1996, two historians introduced the term “escape art/escape assets.” These terms do not appear in any previous law, declaration, or regulation, and they only describe a group of persecutionrelated losses of assets with certain common features from a historical perspective. Here, the perspective of the persecuted person is ignored, as this concept assumes that the persecution had come to an end in the directly occupied territories and therefore the coercion to sell had also come to an end. This point of view also ignores the continuing precarious life situations that were caused by the persecution, as well as the threat to life or physical 10. https://www.bak.admin.ch/dam/bak/de/dokumente/ raubkunst/merkblatt_hinweis/glossar-ns-raubkunst-neude-fr.pdf.download.pdf/Glossar_NS_Raubkunst_03.22. pdf 11. “Recognizing that art and cultural property of victims of the Holocaust (Shoah) and other victims of Nazi persecution was confiscated, sequestered and spoliated, by the Nazis, the Fascists and their collaborators through various means including theft, coercion and confiscation, and on grounds of relinquishment as well as forced sales and sales under duress, during the Holocaust era between 1933-45 and as an immediate consequence.” See https://2009-2017.state. gov/p/eur/rls/or/126162.htm 12. U.S. Department of State, “2009 Terezin Declaration on Holocaust Era Assets and Related Issues” (2009), available at https://www.state.gov/prague-holocaust-era-assetsconference-terezin-declaration/ 13. See also Principle 4, “Washington Conference Principles on Nazi-Confiscated Art” (1998), available at https://www. state.gov/washington-conference-principles-on-naziconfiscated-art
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