An Interview with E. Randol Schoenberg

The Art of painting, Johannes Vermeer
The Art of Painting
Johannes Vermeer
c. 1662 - 1668
Oil on canvas, 120 X 100 cm.
Kunsthistorisches Museum, Vienna

E. Randol Schoenberg is the Los Angeles lawyer who represents Helga Conrad, the step-daughter of Jaromir Czernin, in the ongoing dispute for the ownership of Johannes Vermeer's Art of Painting now housed in the Kunsthistorisches Museum, Vienna. The following interview intends to bring forward detailed information and legal evaluations regarding the dispute so that the reader might acquire a more informed opinion regarding such an important and complicated case which has, unfortunately, largely unfolded out of the public view.

Mr. Schoenberg kindly provided a link (Burris, Schoenberg & Walden, LLP archival material regarding the Art of Painting legal dispute) where the reader can access the archival sources regarding the case. The material includes the Legal Analysis of the Vermeer Die Malkunst Under the Kunstrückgabe G of 1998 Submitted by E. Randol Schoenberg, Esq. On behalf of Helga Conrad Step - daughter of Jaromir Czernin-Morzin March 14, 2011, the Austrian recommendation presented by the Commission for Provenance Research and a vast variety of legal statements concerning the Czernin family and the family of Alix (Czernin's second wife) as well as that of Gertrude Czernin-Morzin, the mother of Helga Conrad. The single documents are listed according to the respective year (from 1926 to 2009).

Mr. Schoenberg has specialized in cases involving looted art and the recovery of property stolen by the Nazi authorities during the Holocaust and has litigated the prominent Republic of Austria v. Altmann case where Mr. Schoenberg won the return of six Klimt paintings to his client valued at over $325 million. In 2007, Mr. Schoenberg received the California Lawyer Attorney of the Year award for outstanding achievement in the field of litigation.

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March 20, 2011

ESSENTIAL VERMEER : Can you briefly describe the background of the dispute between Austria and the Jaromir Czern regarding the ownership of Vermeer’s "Art of Painting"?

RANDOL SCHOENBERG: Austria came into possession of the Vermeer by nationalizing the painting at the end of World War II. It currently hangs in Vienna’s famed Kunsthistorisches Museum. Hitler had obtained it in 1940 and planned to have it as the centerpiece of his museum in his hometown of Linz, Austria. The museum was never built.

Prior to World War II, the Vermeer was owned for many years by the aristocratic Czernin family. Count Jaromir Czernin-Morzin inherited the painting. He considered selling it. The American industrialist Andrew Mellon offered to pay $1 million, which would have made it the most expensive painting in the world. But the Austrian authorities wouldn’t allow the painting to leave the country, and so Czernin held onto it.

When Hitler marched into Austria in March 1938, Czernin was put in a difficult position. His new wife, Alix-May, was the granddaughter of a famous Jewish banker named Oppenheim. As a result, she and her former husband, Roland Faber-Castell, had been subjected to vicious anti-Semitic attacks in the popular Nazi tabloid, Der Stürmer. Czernin’s sister was also married to Hitler’s chief opponent in Austria, former chancellor Kurt Schuschnigg, who was kept imprisoned from 1938-1945. Czernin had to be careful not to run afoul of the new Nazi bosses.

In 1939, a cigarette manufacturer from Hamburg, Philipp Reemtsma, who was also a close friend of Reichsmarschall Hermann Göring, offered to purchase the Vermeer for RM 1.8 million (about $720,000). Although Göring gave his support to the deal, Austrian officials managed to block it by begging Hitler to intervene. Hitler’s secretary sent a telegram declaring that the painting could not be moved without Hitler’s approval.

Jaromir’s wife was still suffering anti-Semitic attacks. In February 1940, the Gestapo (Nazi secret police) intervened in her child custody dispute with her former husband, stating that she was unfit to be a mother. Later that year, she was officially declared "Jewish and an enemy of the State" and her passport was ordered to be taken away.

Hitler had his heart set on obtaining the Vermeer. In September, he set his henchmen in motion. Hitler’s private secretary, Martin Bormann, asked around if any outstanding taxes could be used to take the painting away. Hans Posse, Hitler’s special envoy in charge of obtaining artworks for the planned museum in Linz, was dispatched to Czernin’s home to negotiate the purchase of the painting at Hitler’s price. Posse told Czernin he might as well sell, because Hitler would get the painting "one way or another." Hitler set the price at RM 1.65 million, or about $660,000 and Czernin had no choice but to agree.

Even after selling the painting to Hitler, Czernin and his wife did not escape persecution. Alix-May was driven from their home in Bohemia in 1942 and Czernin was forced out a year later. In 1944, Czernin was arrested by the Gestapo. He was held in prison and forced to do manual labor, but was never charged with any crime.

After the war, Czernin sought to recover his painting. But the Austrians, having nationalized the painting, balked at returning it. They claimed that Czernin and his wife could not have been persecuted because Alix-May had only been one quarter Jewish. The restitution tribunal determined that Czernin had "freely chosen" to sell to Hitler. Czernin’s appeals fell on deaf ears, and, betrayed by his own country, he died a broken man.

from:  http://www.laopus.com/2011/03/will-austria-part-with-hitlers-vermeer_16.html

In Austria, how are the questions of disputed ownership of works of art looted during WWII  currently addressed?

In 1998 Austria passed a law allowing the government to return artworks in federal collections under certain circumstances.  An advisory committee was appointed to recommend which paintings to return.  Unfortunately, the advisory committee established rules that do not permit claimants to be involved in the process.  The decision-making is done in secret, based on provenance reports generated by the federal monument agency, and internal recommendations prepared by lawyers working for the culture ministry.  Quite often in tough cases, this process leads to big mistakes, as was the case in the Bloch-Bauer Klimt case.  I know of several other cases where obvious mistakes have been made, but it is very difficult to get the Austrian government to address these errors.

In your opinion why had the former appeals of Jaromir Czernin been rejected by the Austrian art restitution tribunal of looted  art works?

In every case (1949, 1955, 1960 and 2011), the tribunals refused to apply the correct legal standard, which would have favored restitution, because they would not find that Czernin had been married to someone who had been subject to political persecution.

How did you receive the legal representation of Helga Conrad’s (step-daughter of Jaromir Czernin)  interest concerning Vermeer’s painting?

Jaromir Czernin's step-daughter contacted me several years ago and we have been working together since that time to collect all the relevant documents from various archival sources.

Will you please describe the grounds for which you believe Vermeer’s "Art of Painting" should be returned to Ms Conrad and how they differ from those of the former appeals?

We have this time presented evidence further supporting the claim that Alix-May Czernin had been subject to systematic anti-Semitic attacks and persecution from 1933 through the sale of the painting in 1940. In previous cases, the 1933 attack on Alix-May in Der Stürmer had not been presented, nor was there the evidence that her prior husband, Roland Faber-Castell had been the subject of political persecution as a result of his marriage to Alix-May. This new evidence, unfortunately completely ignored by the advisory committee, further supported the claim that Alix-May was subject to persecution and that therefore, as required under Austrian law, her husband should also be presumed to have been under pressure at the time of the sale to Hitler.

You have to understand the purpose of the old restitution laws. Very early on in the war, the allies determined and warned Germany that transactions with persecuted individuals would have to be reversed. When the war was over, the allies made Germany and Austria enact laws that were designed to effectuate a return of property. These laws greatly favored the claimants and placed the burden of proof on the purchasers. If a claimant was a member of a persecuted class, return of the property was almost automatic. The only defense was if the purchaser could show that the transaction would have happened in the same manner even if the Nazis had not taken over. The restitution courts devised rules to accomplish the purposes of these laws. So, for example, the spouse of a persecuted individual was also deemed to be persecuted and could take advantage of the presumptions and shift in burden of proof. A Jewish or half-Jewish person was automatically deemed to be a member of the persecuted class.

The issue in this case is that Alix-May Czernin was only one-quarter Jewish, due to her grandfather the Jewish banker Oppenheim from Köln. Therefore she was not deemed to be automatically a member of a persecuted class (and her husband therefore also not). But even without the automatic presumption, it is clear from the evidence that Alix-May actually did face tremendous persecution. For example, she was herself personally attacked in the anti-Semitic Nazi periodical Der Stürmer in 1933 ("The matron of the house in Stein has a Jew for a mother. Jewish blood can never be concealed. It finds somewhere its expression: "Her blood is closer to the Jews."). Her prior husband, Faber-Castell, was removed from his own business because of his wife's Jewish background, and a post-war court found in 1946 that he had been politically persecuted because of his relationship to Alix-May. At one point in the 1930s, their home was graffittied with "Die Oppenheim, Das Judenschwein, Muss raus aus Stein" (Oppenheim, the Jewish pig, Must leave the town of Stein") In 1940, the Gestapo intervened in Alix-May's custody battle with Faber-Castell and said that because of her Jewish background, she was "politically unacceptable". This resulted in her loss of custody of her children. Finally, in September 1940, just weeks before her new husband Jaromir Czernin-Morzin agreed to sell his painting to Hitler (for 65% the price that he wanted before the Nazis took over), Alix-May was declared by the Gestapo and the Racial-political Office to be "Jewish and an enemy of the state" and her passport was ordered to be taken away.

Unfortunately, the Austrian tribunals have been deaf to this evidence and you again won't find most of it in the recent opinion by the advisory committee. They concluded, incoherently and without any explanation or citation of support: "Alix-Czernin was indeed was indeed subject to anti-Semitic hostilities by the Nazis, but not political persecution." What more evidence of political persecution does someone need?

On March 18, 2011, the Austrian restitution tribunals rejected your appeal. Can you please describe the panel’s motives and why you believe they are incorrect?

I can only speculate on the motives of the members of the advisory board.  Unfortunately, there is very little understanding in Austria of the old restitution laws, nor is there any constituency that is sympathetic to the specific problems that aristocrats married to converted Jews faced under the Nazis.  We have had a very hard time getting people to even look at the evidence.  The Jewish community does not want to get involved, as this does not involve a typical Jewish victim.  The socialists are generally anti-aristocrat, and don't like the idea of taking artwork out of public museums to give to aristocratic families.  The conservatives and right wing are anti-restitution, anti-Jewish or anti-aristocrat, or some combination of the three.  Most aristocrats don't have any Jewish connection and so aren't supportive of families like Czernin.  There is really no one in Austria who is willing to sympathize with someone like Jaromir Czernin.  That seems to be the main problem.

How did MS Conrad react to this latest pronouncement by the tribunal?

She was of course very disappointed, but this has been a 65 year battle for restitution and she is determined to fight on.

In your opinion, do there exist any extra-legal motivations for which the tribunal rejected MS Conrad’s claim and maintains that the painting should remain in Austria?

Frankly, the people making these decisions are anti-restitution to begin with.  They spend their intellectual energy dreaming up excuses for not returning artworks, rather than trying to read the evidence or understand the old restitution laws.  This may sound overly harsh, but unfortunately it is true.  And I decided long ago that when dealing with Nazis or their present-day defenders, politeness is really not appropriate.

What is your next step?  And what are your chances of success?

We wil continue to search for more evidence, and I am confident we will find more.  This is too important a case for it to be just pushed under the rug based on the decision of low-level bureaucrats who obvious have little or no understanding of the restitution laws or the complicated facts of this case.

Are you aware of what Ms Conrad intentions might be in the case the "Art of Painting" is returned to her?

That would be premature to discuss at this point.

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