19.03.

2015

Heritage Lost & Found: Legal Framework and Practice Behind

Restitution of Works of Art Looted From Poland during WWII

Adam Strobeyko

1. Introduction

During the Second World War in Poland, personal property was notoriously disregarded,
destroyed or taken away. Cultural property was especially endangered. Its artistic value
was assessed based on its adherence to the strict political ideals of the Third Reich - art
was to serve a purpose. The Generalplan Ost envisaged eradicating the Slavic cultures
and replacing them with the Nazi German ideology.1 Whole genres were classified as
'degenerate' and authors foreign to the 'Germanic' culture were seen as dangerous
obstacles to the Nazi policies, which advocated for the transformation of Slavs into a
slave race under German hegemony. The works of art of old masters were to be
transported to the Führermuseum in Linz. The ‘Slavic’ works of art, the transmitters of
national culture, were destroyed or looted in a frightening quest: to tear the peoples apart
from their identity. The high culture was especially targeted as, under the Nazi racial
policy, the intelligentsia and its products were the only capable transmitters of national
consciousness, with average people focused on their daily lives. Thus, the works of art
were either seen as valuable enough to be looted or dangerous enough to be destroyed.
However, as the war progressed, Nazi officials and individual soldiers alike exploited the
monetary value of art by indiscriminate looting for personal benefit.

The situation was indeed worsened by the subsequent invasion of Poland by the USSR.2
The direct annexation of parts of the pre-war Polish territories into the Reich and the
establishment of the puppet General Government on the rest of the Nazi-occupied
territories helped to enforce the mechanism of coercion. The systematic looting on the
German side was pre-planned and conducted on the basis of Polish academic publications,

1
Katja Lubina; 'Contested Cultural Property: The Return of Nazi Spoliated Art and Human Remains from
Public Collections'. Maastricht University, Maastricht, 2009, p. 70.
2
George Ginsburgs; 'A Case Study in the Soviet Use of International Law: Eastern Poland in 1939'. The
American Journal of International Law 52, No. 1, 1958, p. 69-84

1
exchanges and delegations to the museums during the times of peace.3 The Soviet looting
was more anarchic and spontaneous. The war between Nazi Germany and the USSR
brought further destruction to the national heritage. Once again in its history, Poland
became a battleground for the foreign powers. The Soviet counter-attack did not
discriminate in looting and destruction and employed the so-called trophy brigades
(трофейные отряды), the groups of soldiers specifically ordered to loot the valuable
goods located in German territories, parts of the latter to be ceded to Poland after the war.
Where the West had its Monuments Man trained to recover and give back art looted by
the Nazis, the USSR had divisions responsible for looting art themselves.4 Finally, the
USSR has never given back the territories it occupied as part of the Ribbentrop-Molotov
Pact. Therefore, Poland was dismembered from its national heritage located in what used
to be its pre-war eastern territories, including important cultural centres such as Vilnius
and Lviv and it was given largely looted German lands in return.5

With the Jewish culture virtually annihilated, foreign masterpieces taken away and Slavic
culture deemed subhuman, not a single work of art was safe from destruction or looting.
The results are terrifying: the number of monuments and works of art lost during the war
was estimated to be around 517,000 in the wartime records.6 It remains difficult to draft
precise estimates of quantity or value of what has been lost because of lack of proper
documentation from the period.7 For example, around 50,000,000 volumes were lost from
domestic libraries, forming 70-75% of pre-war collections.8 Currently, the online database
established by the Ministry of Culture and National heritage still hosts 63,000 described
objects of unresolved fate, including around 13,000 paintings, 9,000 drawings and 3,500

3
Włodzimierz Kalicki & Monika Kuhnke; Sztuka zagrabiona: Uprowadzenie Madonny. (Agora SA,
Warsaw, 2014), p. 7-12.
4
Maria Wardzyńska; 'Był rok 1939. Operacja niemieckiej policji bezpieczeństwa w Polsce.
Intelligenzaktion.' (The Institute of National Remembrance, Warsaw, 2009).
5
Even the soon-to-be Polish communist leader, Władysław Gomułka, opposed Soviet authorities on this
point, clashing with Marshal Rokossovsky. See: George Blazynski; Flashpoint: Poland. (Pergamon Policy
Studies, New York, 1979), p. 14.
6
Interview with Elżbieta Rogowska, p. 9
7
Wojciech Kowalski; 'Restytucja dóbr kultury utraconych przez Polskę w okresie II wojny światowej jako
element polskiej polityki zagranicznej realizowanej przez Ministerstwo Spraw Zagranicznych RP w latach
1999-2009'. Valuable, Priceless, Lost 4/69, 2011, p. 9-10.
Originally published in: Looted and Recovered. Restitution by the Ministry of Foreign Affairs of Poland's
Cultural Property Lost During World War II. (Ministry of Foreign Affairs, Warsaw, 2011).
8
Ministry of Culture and National Heritage; 'Objects lost as a result of war':. Retrieved via:
http://www.mkidn.gov.pl/pages/strona-glowna/kultura-i-dziedzictwo/ochrona-dziedzictwa-
kulturowego/obiekty-utracone-w-wyniku-wojny.php

2
sculptures.9 The process of restitution of the works of art was rendered more complex by
the political situation after the war. The initially successful co-operation with the western
Allies was cut shortly after the end of the war, as it did not fit in the political frame of the
bloodthirsty imperialist enemy. In the meanwhile, the 'brotherly' USSR transferred parts
of Polish patrimony back in single gestures of 'friendship' but was reluctant to engage in
the full-scale restitution, especially in case of works of art looted from the previously
German territories which were regarded as trophies taken in reparation for the damages
suffered by the USSR throughout the war.10 The full-scale process of restitution was only
launched in the nineties, after the fall of communism in Poland. Now, the Polish Ministry
of Culture and National Heritage and Ministry of Foreign Affairs co-operate to ensure
efficient recovery of wartime loses. Private individuals and public institutions help them
in pursuing their mission. The Lost Museum (Muzeum Utracone) is especially worth
mentioning, as it is fully dedicated to bringing back the lost art to public consciousness.
The National Institute of Museology and Collection Protection issues a quarterly
magazine 'Valuable, Priceless, Lost' which describes the histories of lost pieces of art and,
by doing so, involves its audience in the process of their recovery. 11 The recent big
publication co-authored by Monika Kuhnke of the Ministry of Foreign Affairs,
Uprowadzenie Madonny, describes the most important cases of disappearance, restitution
and protection of art and will serve as a source of facts for the purpose of this work.

The purpose of this paper is to answer the question: what is the international legal
framework applicable to the works of art that were stolen from Poland as a result of the
Second World War and how did the process of restitution look like in selected cases? In
doing so, we firstly consider the relevant provisions of international public law in form of
the applicable treaties, we then move to describe the history and practice of restitution
behind three cases of successful restitution in the recent years: The Jewess with Oranges;
Madonna under the Fir Tree and Apollo with Two Muses. In our research, we have visited
museums in Warsaw and Wroclaw and had a privilege of conducting an interview with
Elżbieta Rogowska, the Head of the War Loses Division of the Ministry of Culture and
National Heritage. Besides the academic purpose, we hope to advertise the enormous
9
Ministry of Culture and National Heritage: the Division for Looted Art; 'Catalogue of wartime loses'. To
be found at: http://lootedart.gov.pl/en/product-war-losses. Numerical divisions of the catalogue into
different subcategories taken from: Kowalski, 2011.
10
Interview with Elżbieta Rogowska, p. 2-3
11
The National Instititue of Museology and Collection Protection; Valuable, Priceless Lost. Available
online at: http://nimoz.pl/pl/wydawnictwa/cenne-bezcenne-utracone/cenne-bezcenne-utracone-
archiwum/cbu.

3
progress in the field of restitution that was made possible by joint efforts of public
institutions and private individuals in recent years and inform readers of possibilities for
their contribution. That is why we mention the most important cases in the field that have
not yet been resolved and move to conclusions. As the opening section of the Lost
Museum states: "The prevalence of the image of the lost work of art is the first step to its
recovery."12

2. Applicable law

2.1. Institutional Structure:

The Ministry of Culture and National Heritages cooperates with the Ministry of Foreign
Affairs in an effort to ensure successful restitution of lost works of art and they both have
subdivisions designed for that purpose. The domestic law does not provide for a clear
division of competences between the two.13 The Statute of the Ministry of Culture and
National Heritage provides for the responsibility of its bodies in protecting the national
heritage. What distinguishes it from the Ministry of Foreign Affairs is its online database
registering the lost works of art.14 It is connected to the international Art Loss Register.15
Registering the object as a war lose is of crucial importance to the process. 16 The database
established by the Polish Ministry of Culture and National Heritage helps to determine the
provenience of the work of art by providing descriptions of the lost pieces. It allows the
restitution claims to be drafted faster and therefore helps to assure a timely response when
one is needed (e.g. when a decision to stop an auction must be taken). The Ministry is also
involved in publishing works aimed at expanding knowledge about the subject of lost art.
Besides the previously-described Lost Museum and the National Institute of Museology
and Collection Protection, the Ministry cooperates with domestic museums and supervises
cultural institutions such as the Adam Mickiewicz Institute, whose objective is to promote
general knowledge about Polish culture.17 The Ministry of Foreign Affairs, Polish

12
The Museum Lost. See: http://muzeumutracone.pl/en/o-muzeum/.
13
Interview with Elżbieta Rogowska, p. 3.
14
Ibid, p. 2
15
The Art Loss Register. See: http://www.artloss.com.
16
Elżbieta Rogowska; 'Rights and Diplomacy in Search of Effective Ways of Restituting Cultural Property'.
Valuable, Priceless, Lost 1/70 , 2012, p. 8-10.
17
See: www.culture.pl, the institute's website which hosted a series of articles on restitution of Polish works
of art.

4
embassies and institutes allow for a platform for efficient intergovernmental
communication which is indispensable in the process of restitution.18

Besides the actions aimed at raising awareness, the recent years saw an increase in use of
the diplomatic channel in restitution efforts and cooperation with institutions not
necessarily seen as associated in the process in the eyes of the public opinion.19 The latter
include the public prosecutor's offices and the Polish National Police hosting an office
dedicated to fighting crimes against national heritage.20 These cooperate actively with
foreign custom offices and Interpol, which has its own database of stolen works of art.21

2.2. International Legal Framework:

The legal framework for the protection of cultural property existing during the war and
the subsequent agreements must be discussed. Already in 1815, after the end of disastrous
Napoleonic wars which saw lootings of art on an unprecedented scale, three principles of
restitution were formed: it concerns identified objects, it is not restricted by the passage of
time, the object must be returned to the place from which they were unlawfully taken.22
The Hague Conventions of 1899 and 1907 were complementing each other in regulating
the course of armed conflict. They were in force during the times of the war, with Poland,
Germany and Russia being parties to them.23 The USSR recognized the ratification of the
conventions made by Imperial Russia. Due to the similarity of their structure and scope,
two conventions can be discussed together.24 Section II describing the proper conduct of
hostilities and Section III on military authority over hostile territory will be of relevance
to the purpose of this paper.

Art. 23 of Section II generally prohibits destruction and seizure of property unless it could
be justified by military necessity. Thus, the scope of the article also indirectly covers

18
Interview with Elżbieta Rogowska, p. 3.
19
Monika Kuhnke; 'Polscy dyplomaci i polskie zabytki'. Valuable, Priceless, Lost 4/69, 2011.
20
Elżbieta Rogowska; 'Rights and Diplomacy in Search of Effective Ways of Restituting Cultural Property'.
p. 10-11.
21
Polish National Police at: http://www.policja.pl/pol/english-version/4889,Polish-National-Police.html
&Interpol's database at: http://www.interpol.int/notice/search/woa.
22
Wojciech Kowalski; 'Restytucja dóbr kultury utraconych przez Polskę w okresie II wojny światowej jako
element polskiej polityki zagranicznej realizowanej przez Ministerstwo Spraw Zagranicznych RP w latach
1999-2009', p. 10
23
See: https://verdragenbank.overheid.nl/en/Verdrag/Details/002338 &
https://verdragenbank.overheid.nl/en/Verdrag/Details/003319.
24
Katja Lubina, p. 57-58

5
instances of looting or seizure of cultural property. Art. 27 of Hague Convention 1899
specifically provides for protection of and buildings dedicated to religion and art,
provided they are not being used for military purposes. The Hague Convention of 1907
extends its application to the historic monuments. The scope of the protection
encompasses the collections and movable cultural heritage found inside the buildings and,
by doing so, prohibits their destruction and looting. Art. 28 with its prohibition of
pillaging towns or places, even upon assault, must also be taken into consideration, for the
prohibition includes looting cultural property found in these places.

Moving to Section III, Art. 46 provides an obligation to respect private property and
prohibits its confiscation. Art. 47 stipulates the general rule of prohibition of pillage. This
provision is subject to Art. 53, enumerating possible instances of confiscating public
property that may be used for military operations. However, cultural property is not even
listed as a possible object of confiscation and, by its nature, is of limited military value.
Moreover, Art. 56(1) extends the scope of protection applicable to private institutions to
public institutions of religious, charitable, artistic or scientific character. Art. 56(2)
declares their seizure and destruction to be forbidden and provides for legal proceedings
upon its violation. As long as the Hague Conventions are applicable, the difference
between pre-planned lootings and spontaneous acts of individuals are minimal in view of
their legality.25

The Hague Convention of 1907 additionally contains a provision on state liability. Art. 3
stipulates that a belligerent party which acts in violation of the convention must pay
compensation. Chorzów Factory Case reinforced this obligation by confirming that a
breach of the treaty provision results in an obligation to pay compensation under
international law.26 It also confirmed restitution to be the preferred form of
compensation. Therefore, an obligation to make reparations, preferably by restitution,
exists both independently, as a result of violation of any treaty provision and by stemming
directly from Art. 3 of the Hague Convention of 1907. The restitution to the state that
would have existed if not for the act in violation of the provision should take place. If that
proves impossible, suitable compensation should be paid.

25
Interview with Elżbieta Rogowska, p. 1
26
Chorzów Factory Case (Germany v. Poland) PCIJ, Series A, No. 17, 1928, p. 29.

6
Furthermore, both Germany and Russia participated in WW I which saw destruction and
looting of cultural property. The peace treaties ending the war directly addressed the
problem of restitution.27 Especially Art. 238 & Arts. 245-247 of the Versailles Treaty are
said to have created a precedent for the post-war restitution of the cultural property at the
end. They were used as a model for drafting relevant provisions in the peace treaty
between the Entente Austria-Hungary.28 The Treaty of Riga ending the war between
newly established states of Poland and Soviet Russia followed this direction.29 Among
other obligations, it stipulated that the Soviets should give back the cultural property
taken away from Poland during the years of its partition. However, this objective was
realized in a minimal scope and on the basis of reciprocity only by the Soviet authorities.
Both WWI peace treaties and the Treaty of Riga envisaged a recourse to replacement of
destroyed objects.

In light of the failure of the international community to further develop the existing
system of treaties the interwar period, the Hague Conventions and surrounding
precedents provided for the applicable international legal framework for protection of
cultural property during WW II. Seeing that the legal obligations did not discourage Nazi
Germany from the looting of an unprecedented scale in history, the Allies made known
that they are not willing to tolerate its conduct by issuing the 1943 London Declaration in
which they reserved their right to declare the transactions invalid. 30 Its spirit was
confirmed by the Final Act of the Bretton Woods Conference.31 Law No. 52 which
entered into force upon the beginning of the military occupation of Germany stressed this
position and addressed both the lootings and goods confiscated under Nazi legislation.32
The 'Resolution on the Subject of Restitution' adopted as a part of the Paris Conference
after the war made all property loss subject to scrutiny under the London Declaration.33
The resolution, together with the 'Declaration on the Definition of the Term "Restitution"'

27
Katja Lubina, p. 61-68.
28
Wojciech Kowalski; 'Restytucja dóbr kultury utraconych przez Polskę w okresie II wojny światowej jako
element polskiej polityki zagranicznej realizowanej przez Ministerstwo Spraw Zagranicznych RP w latach
1999-2009', p. 11.
29
Treaty of Peace between Poland, Russia, and Ukraine signed at Riga, 18 March 1921.
30
Inter-Allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy
Occupation or Control, 8 Dep't St. Bull. 21 (1943).
31
United Nations Monetary and Financial Conference, Bretton Woods, New Hampshire, 1 July to 22 July
1944. ‘Final Act and related documents. VI: Enemy assets and looted property’1946, p. 4.
32
Law No. 52 as amended 3 April 1945 & Katja Lubina, p. 73.
33
Final Act and Annex of the Paris Conference on Reparations, 14 January 1946, Annex: Resolution on the
Subject of Restitution, p. 131, sub a)-d).

7
called for restitution of identifiable objects.34 The documented loss of objects that were
not identifiable was to be compensated and unique objects beyond possibility of
restitution were to be replaced by their equivalents. The efforts to coordinate the actions
of the Allied Forces were rendered obsolete with the beginning of the Cold War, which
resulted in employment of separate regimes regarding restitution in different occupation
zones.35

The establishment of the Federal Republic of Germany saw enactment of the Bonn Treaty
which aimed at liquidating the effects of the war and gave direction for the future. Inter
alia, it provided for the explicit legal basis for restitution and unified the principles
governing the process under Section V of the treaty. It ordered restitution of cultural
property obtained by duress, theft requisition or other forceful dispossession.36 Art. 1(2) in
conjunction with Art. 5(1) of the treaty extended the duty of restitution to property gifted
under pressure and transactions made during the occupation. Art. 4(1) states that the
person entitled to restitution should be paid compensation if the restitution is not possible.
Seeing that passage of years did not bring full restitution, the Washington Conference
Principles on Nazi-Confiscated Art of 1998 recognized the diversity of legal systems and
created a set of principles governing the area.37 It called for identification of art
confiscated by the Nazis which was not properly restituted. In doing so, states should
provide free access to relevant records, archives, resources and personnel. Efforts should
be made to enhance identification efforts and encourage original owners to claim their
rights. The Vilnius Declaration reinforced this trend in relation to Holocaust victims and
their heirs.38 As we can see, the Soviet Union, as the winning side of the conflict, was not
addressed directly by the post-war legal instruments. However, it was still bound by the
above-described principles of the Hague Conventions of 1899 and 1907 during WWII.

The described framework concerns 'classical' restitution; that is, restitution of objects that
were illegally taken away from the territories that formed part of Poland before WWII and
continued to do so after the war.39 Another type of situation arises in case of Poland after

34
Katja Lubina, p. 73- 75
35
Interview with Elżbieta Rogowska, p. 2-3 & Katja Lubina, p. 75-77.
36
Art. 1(1) & Art. 3(1) of Section V of the Treaty of Bonn.
37
Lyndel V. Prott (ed.) et al.; Witnesses to History: A Compedium of Documents and Writings on the Return
of Cultural Objects.(UNESCO Publishing, Paris, 2009), p. 152-157.
38
Available online at: http://www.lootedart.com/MFV7EE39608.
39
Wojciech Kowalski; 'Restytucja dóbr kultury utraconych przez Polskę w okresie II wojny światowej jako
element polskiej polityki zagranicznej realizowanej przez Ministerstwo Spraw Zagranicznych RP w latach
1999-2009', p. 10.

8
the war: that of works of art that should be found on the territories ceded from Germany.
In this case, the rules on restitution encompass property of public institutions located in
these territories. They do not include property of private owners that was taken away upon
their relocation to Germany. Moreover, it must be mentioned that the protection of
cultural objects in times of peace was not regulated by any applicable treaty during the
time of WWII and therefore could only be invoked under domestic law.40 Finally,
restitution of objects belonging to the Catholic Church may be ruled by the provisions on
ownership prescribed by canon law.

3. Practice

Restitution of works of art started on a high note with quick recovery of objects gathered
in Central Collecting Points and Depots scattered across post-war Germany.41 It ended as
fast as it begun with the onset of the Cold War. For years, restitution of works of art was
only possible via individual acts of benevolence by the western Allies or USSR.42 With
few exceptions, restitution of the works of art looted by the Soviets was considered a
taboo subject.43 Full-scale restitution has only begun with the transformation from
communism which took place in the late eighties and nineties. New treaties on friendship
and co-operation, which included declarations on the will to restitute lost objects were
signed with German and Russian governments. With the inception of independent
democratic institutions, the ministries were vested with clear objectives concerning the
restitution of works of art. International legal framework, however insufficient, clearly
prohibited stealing of works of art from Poland during WWII. The difficulty arises with
enforcing the rules and the result is that legal provisions often exist in the shadow of the
political reality. Hence, the use of diplomatic channels is of crucial importance to the
restitution practice.44 Both the Ministry of Culture and National Heritage and the Ministry
of Foreign Affairs engage in talks with their equivalents in other countries and their

40
Katja Lubina, p. 99-100.
41
Wojciech Kowalski; 'Restytucja dóbr kultury utraconych przez Polskę w okresie II wojny światowej jako
element polskiej polityki zagranicznej realizowanej przez Ministerstwo Spraw Zagranicznych RP w latach
1999-2009', p. 12
42
Interview with Elżbieta Rogowska, p. 2-3.
43
Wojciech Kowalski; 'Restytucja dóbr kultury utraconych przez Polskę w okresie II wojny światowej jako
element polskiej polityki zagranicznej realizowanej przez Ministerstwo Spraw Zagranicznych RP w latach
1999-2009', p. 12-13.
44
Monika Kuhnke; 'Polscy dyplomaci i polskie zabytki'. p. 15-16.

9
names carry authority when dealing with individuals. They operate in diverse settings and
negotiate with private individuals, big auction houses and public institutions alike.

After the war, according to international law, Poland demanded restitutio in integrum or
replacement of lost works of arts by their equivalents in value.45 One of the early
breakthroughs that exemplifies this was the restitution of Washerwoman by Gabriel Metsu
which belonged to the collection of the last king of Poland.46 The painting appeared on
Sotheby's auction in New York in 1993. The auction was stopped, only to give way to
extensive negotiations between the Polish consul general in New York, the Sotheby's
auction house and a private owner of the painting located in Monte Carlo.47 They were
helped by employing a private detective. The process made it clear that the owner is not
going to give up on the painting and demanded adequate price. The Polish authorities, in
line with the principle that they should not pay for the looted objects with taxpayers'
money, found a private sponsor willing to pay for the painting. This principle also results
in a diplomatic attitude of Polish authorities, where they try to avoid expensive trials.
Only by these means could the Washerwoman find its way back to Poland.

In this section, we present three recent breakthroughs in restitution. As we will see, the
legal dimension of the problem often remains implied and the process is usually resolved
by negotiations between the parties. The works of arts are often identified by individuals
who, acting independently of public institutions, spot the lost masterpieces on auctions or
in foreign collections.48 The issue of their restitution may be rendered more complex by
overlapping jurisdiction and the time that elapsed ever since a work of art was lost. The
possessors may try invoking domestic provisions on good faith or acquisition of
ownership after a certain period of time. These may not be sufficient to stop the object
from restitution, but may slow down the process and create a demand for compensation.49
Restitution is also subject to political pressures: German government makes it dependent
on the results of the Polish-German talks about the liquidation of effects of WWII led by
Ministries of Foreign Affairs.50 After the fall of communism in Poland, talks with Russian

45
Wojciech Kowalski; 'Restytucja dóbr kultury utraconych przez Polskę w okresie II wojny światowej jako
element polskiej polityki zagranicznej realizowanej przez Ministerstwo Spraw Zagranicznych RP w latach
1999-2009', p. 10
46
Ibid, p. 16.
47
Włodzimierz Kalicki & Monika Kuhnke; Sztuka zagrabiona: Uprowadzenie Madonny., p. 64-80.
48
Interview with Elżbieta Rogowka, p. 2.
49
Ibid, p.1.
50
Ibid., p. 2.

10
authorities as been disappointingly unproductive and resulted in restitution of one painting
(Apollo with Two Muses) described below.

3.1. The Jewess with Oranges

The painting, one of the best works of Aleksander

Gierymski, was located in the National Museum in
Warsaw before the war started and remained there
until 1944.51 After the fall of the Warsaw Uprising,
it disappeared from the local collection. The
painting had figured in the registries of lost art ever
since, but nothing was known about its fate or
location. This changed in 2010, when the painting
appeared on an auction at Kunst & Auktinshaus Eva
Aldag in Buxtehude, Germany. The starting price of
€4400 was laughable in light of the estimated value of 1.5-2 million zlotys. The painting,
bearing marks of unskilled renovation and modifications, was recognized to be original by
Polish visitors who acted independently and did not disclose the real purpose of their
mission.52 The person who put in on auction is said to have inherited it from her
grandmother who in married an industrialist and an art collector from Dusseldorf who
possessed the piece. A Polish investigative journalist who saw the painting immediately
published an article on its discovery in Gazeta Wyborcza, one of the leading Polish
newspapers. The same day that the article was published, Polish Ministry of Culture and
National Heritage intervened in an effort to stop the auction and escape the possibility of
losing the masterpiece to a closed private collection. The originality of the painting was
confirmed by the experts at the National Museum in Warsaw.53 The German court
immediately ordered the auction to be stopped and the painting to be handed to its
disposition. The German police arrested the painting at the auction house. Bernd
Neumann, the German Minister of Culture promised Polish authorities to help them with
the restitution of the Jewess with Oranges. However, the German law made it virtually

51
Włodzimierz Kalicki & Monika Kuhnke; Sztuka zagrabiona: Uprowadzenie Madonny, p. 13.
52
Ibid, p. 14-16.
53
Ministry of Culture & National Heritage; 'Informacja dotycząca dzieł sztuki odzyskanych w ostatnich
latach'. Retrieved via: http://www.mkidn.gov.pl/media/docs/2013/20130516_odzyskane2.pdf

11
impossible to restitute property upon thirty years of continuous possession.54 Therefore,
the parties, represented by their lawyers, agreed on the amicable settlement after months
of negotiations.55 PZU SA, the main Polish insurance group agreed to cover the costs of
transactions. Despite the fact that the owner significantly lowered her financial
expectations, the agreement was criticized because of the fact that the Polish government
had 45% of shares in the insurance company at the time of transaction and paying for
looted property was compared to ransom.56 The painting needed to undergo renovation
works, which discovered several attempts to change its appearance and hide its true
identity.

3.2. Madonna under the Fir Tree

The painting of Lucas Cranach the Elder had been

stored in Wrocław Cathedral's treasure as its most
57
valuable exhibit before the Second World War. In
1943, it was evacuated outside of Wrocław. When
Soviet soldiers entered the place where it was stored,
one of them took the painting off the wall and broke it
in half. The painting returned to Wrocław and the local
priest, Father Zimmer, was commissioned to renovate
the painting. When doing so, he created a copy of the
Madonna. In 1947, Zimmer replaced the original
painting with a copy and smuggled the original to the Russian occupation zone in
Germany to "protect it from communists". In fact, Madonna under the Fir Tree was
hanging in his apartments, first in East, then in West Germany, only to be sold by him.
The painting was object to many transactions and eventually ended up in the hands of a
Swiss property dealer. Its fate was only questioned in 1961, when the theft and
replacement by a copy was discovered. However, when a Swiss expert informed the

54
Włodzimierz Kalicki & Monika Kuhnke; Sztuka zagrabiona: Uprowadzenie Madonny, p. 31-33.
55
Ministry of Culture & National Heritage; 'Informacja dotycząca dzieł sztuki odzyskanych w ostatnich
latach'. & Interview with Elżbieta Rogowska, p. 2
56
Włodzimierz Kalicki & Monika Kuhnke; Sztuka zagrabiona: Uprowadzenie Madonny, p. 33
57
Monika Kuhnke; 'The Recovered Masterpiece'. Valuable, Priceless, Lost 4/73, 2012, p. 4 & Wrocław
Archdiocesan Museum.

12
Polish embassy in Switzerland, the communist authorities did not take any action. 58 In
1981 the painting was offered by a Germany art gallery representing its Swiss client to the
German Bishops' Conference for astounding 15 million German marks. However, the
expertise conducted on behalf of the conference showed that, contrary to its claims, the
gallery does not have ownership rights over the painting. A claim was filed on an
initiative of the Archbishop of Wrocław, but the court in Munich did not find enough
evidence. The painting disappeared again, only to be found in 2012 when a Swiss attorney
contacted Józef Pater, the director of the Archdiocesan Museum in Wrocław to ask for
documentation regarding the painting. The museum's authorities then informed Wojciech
Kowalski, who works in the team responsible for restitution of Polish works of art at the
Ministry of Foreign Affairs. The ministry took over the case and, thanks to its elaborate
documentation and negotiations, was able to bring back the painting to its original owner
in Wrocław after 65 years. Madonna under the Fir Tree is now displayed in the Wrocław
Archdiocesan Museum. We have visited the museum, which has a special room dedicated
to the painting and its dramatic history.

3.3. Apollo with Two Muses

The painting of Pompeo Batoni had been in Wilanow

Palace, as part of a private collection before WWII
erupted. In 1939, Hans Frank, the Governor-General
of occupied Poland, issued a law ordering works of art
to be confiscated in order to "secure" them, therefore
providing a series of lootings with a pretence of
legality.59 Kajetan "Kai" Mühlmann and Peter Paulsen,
Nazi art historians, played a crucial role in enforcing
this objective. The former ordered a group of SS soldiers to loot the most valuable
property enlisted as belonging to the Wilanow Palace. The Personification of Three Arts,
the pendant to the painting of Apollo, was taken away in one of extensive rounds. As the
lootings progressed and the entirety of Wilanow Palace was risking confiscation, its
owner, Beata Maria z Potockich Branicka, decided that the only way to preserve it was to

58
Kuhnke; 'The Recovered Masterpiece'. Valuable, Priceless, Lost 4/73, 2012, p. 5.
59
Włodzimierz Kalicki & Monika Kuhnke; Sztuka zagrabiona: Uprowadzenie Madonny, p. 109-123.

13
transform it into a museum recognized by the occupant's authorities. The latter took up the
idea and opened a Nur für Deutsche institution on an anniversary of the Battle of
Grunwald. In view of the incoming Soviet invasion, the collection, including Apollo with
Two Muses was moved deeper into the territory of the falling Third Reich. It was
intercepted by the trophy brigades in Silesia and sent to Leningrad as part of a German
collection.

Apollo with Two Muses was one of the most valuable pieces of art that were looted from
Poland. Its pendant, The Personification of Three Arts, was also taken away. In 1957,
during the times of communism in Poland, three historians of art and custodians at Polish
museums were given an opportunity to visit Russian collections.60 While doing so, they
had a secret motive in mind: to search for the works of art stolen from Poland during the
war.61 The Pavlovsk Palace was one of their destinations. The palace, itself undergoing
heavy renovation efforts after the war, hosted two paintings of Batoni that were
recognized by dr. Fijałkowski. In 1952, the Russian embassy in Poland invited the
director of the National Museum in Warsaw, Prof. Lorentz, for a talk. The ambassador
asked him about inventory numbers corresponding to these used at Wilanow Palace,
forming part of the National Museum.62 It remains unknown whether the communist
government of Poland demanded restitution of the paintings. Only in 1992 were the talks
about lost works of art reopened and in 1995 an official delegation was sent to the
Pavlovsk Palace, finding Apollo with Two Muses in its collections.63 Polish experts
confirmed between themselves that the painting's inventory number corresponds to that
recorded in Wilanow Palace, but did not disclose their discovery to the director of the
palace. Unconscious of their true intentions, the Russian authorities invited Polish experts
to conduct further studies on the painting. They discovered the property marks of
Wilanow Palace and a suitable report was drafted by the Polish consul. Months after the
official claim was made, the Russian authorities decided to give back Apollo with Two
Muses only in exchange for another painting. It is the only painting that has been given
back by the Russian Federation. The Personification of Three Arts has been never seen
again after the visit to the Pavlovsk Palace of 1957.

60
Włodzimierz Kalicki & Monika Kuhnke; Sztuka zagrabiona: Uprowadzenie Madonny, p. 83.
61
Discussion with dr. Wojciech Fijałkowski & Prof. Marek Kwiatkowski in October 2006.
62
Robert Jarocki; Rozmowy z Lorentzem, Warszawa 1981, p. 396-397.
63
Włodzimierz Kalicki & Monika Kuhnke; Sztuka zagrabiona: Uprowadzenie Madonny, p. 124-128.

14
4. Further Remarks

These are obviously not the only examples of successful restitution and they were chosen
for the mixture of their perceived importance, complexity of the process of retrieving
them and proximity in time of their restitution. It is difficult to quantify the entirety of
restituted objects, as these include both individual works of art and collections of e.g.
hundreds of coins.64 Single events of recovering a work of art gather considerable public
applause. Ministry of Foreign Affairs enlists them on their webpage.65 However, as stated
by Elżbieta Rogowska in our interview, the proportion of restitution cannot be compared
to the scale of losses incurred by Poland as a result of the Second World War.66

At least 63,000 objects remain to be restituted or forever lost. Now, with the proper
institutional structure finally in place and a systematic gathering of documentation, the
road has been paved to guide lost art back home. The most valuable masterpieces include,
inter alia, the Portrait of a Young Man by Rafael Santi, the sculpture of Beautiful
Madonna of Toruń (referred to in the title of the book Madonna Uprowadzona), the
drawings of Albrecht Dürer and a spearhead with runic inscriptions of Kovel. The
Ministry of Foreign Affairs provides a list of some foreign and Polish paintings that are
object of their search in English.67 As stated before, the most extensive database is to be
found in form of the online catalogue of war loses established by the Ministry of Culture
and National Heritage.

The Polish authorities also hope for a mass-restitution of works of art from the Russian
Federation.68 This may prove to be difficult to achieve in the near future, having in mind
the relations between the two countries resulting from the Ukrainian conflict. With the
passage of years, the documents describing the objects of lootings, stored in the Russian
archives should be made public. This should be a further help in transforming de jure
state into reality.

64
Monika Kuhnke; 'Polscy dyplomaci i polskie zabytki'. Valuable, Priceless, Lost 4/69, 2011, p. 15.
65
Ministry of Foreign Affairs: 'Retrieved Works of Art' at:
http://www.msz.gov.pl/pl/polityka_zagraniczna/rewindykacja_dobr_kultury/odzyskane_dziela_sztuki/.
66
Interview with Elżbieta Rogowska, p. 4-5.
67
See: Ministry of Foreign Affairs; 'Foreign painting: oil paintings, watercolours, pastels lost between 1939-
1945 within post-1945 borders of Poland excluding the Western and Northern territories' at:
http://www.msz.gov.pl/resource/7aafa6f2-69ed-47b6-ba53-1e440ec5596a:JCR & 'Polish painting: oil
paintings, watercolours, pastels lost between 1939-1945 within post-1945 borders of Poland' at:
http://www.msz.gov.pl/resource/d24d5335-0aac-4813-a2b5-ce3c0a83f82a:JCR.
68
Discussion with the the representatives of the Ministry of Foreign Affairs (Wojciech Kowalski & Monika
Kuhnke) in March 2013.

15
5. Conclusion

May the 8th (May the 9th in Russia), 2015 will mark the 70th anniversary of the end of the
Second World War. The news of that event have never fully resounded in the Polish
collections of art. Years of foreign occupation have rendered them incomplete and
lacking. Only recently did the restitution once again become an element of Polish foreign
policy. The progress that has been achieved in last 25 years is considerable, but large-
scale restitution remains a distant objective, if not impossible to reach.

The practice of restitution remains complex and exists almost independently of legal
provisions. The latter provide for general rules and normative prescriptions which are
implied throughout the process, but do not regulate how achieving this status should look
like and lack real coercive power. As we can see, civil participation in searching for the
pieces is of utmost importance, as it allows to identify the works of art and make the case
public. Proper documentation is crucial to the process, especially in light of many layers
of legal problems that have gathered over the status of ownership over the years. The
described cases exemplify successful stories of works of art returning home. Even these
are surrounded by controversies. Restitution remains subject to political influences.
Stabilization of relations between Germany and Poland saw a liberalizing trend in the
field of restitution. The contrary can be said about the relationship with the Russian
Federation. This requires us to see restitution as a continuous process: another 70 years
may well pass until we can witness restitution of Polish works of art from the depths of
Russian warehouses.

The successful examples of restitution cannot be compared to the overall scale of loses.
However, recent effort undertaken by Polish authorities and civil society highlight a
positive trend in the process. Most importantly, there exists a hunger for knowledge,
demonstrated by the success of afore-mentioned publications on the subject-matter, a first
step to identification and documentation of wartime losses. A terrible war fought for
survival may have ended - the war for cultural heritage is not yet over.

16