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11.11.2008 Letter

RE : PROPOSAL FOR A BILL ON DUE DILIGENCE OBLIGATIONS OF MUSEUMS

By Régine Elkan

Régine Elkan
31 Impasse des Coquelicots
13750 Plan d'Orgon
(04) 90-73-25-13

Plan d'Orgon, October 25, 2008

Jean-Luc Warsmann
Chairman, Judiciary Committee
French National Assembly
126 rue de l'Université
75355 Paris 07 SP
By E-Mail : [email protected], [email protected]

Jean-Jacques Hyest
Chairman, Judiciary and Constitutional Committee
French Senate
15, rue de Vaugirard
75291 PARIS Cedex 06
By E-Mail: [email protected]

RE : PROPOSAL FOR A BILL ON DUE DILIGENCE OBLIGATIONS OF MUSEUMS

Sirs,

I am the daughter of Rosalie Elkan (born April 04, 1909, deceased January 01, 1998) and Robert Elkan (born November 1902, deceased March 20, 1968). My parents, along with other family members were victims of significant economic and financial spoliations during the Vichy Regime.

In May 2002, I initiated a restitution action with the « Commission d'Indemnisation des Victimes de Spoliations » (« CIVS »). Specifically, this action involved the so-called « Bouvier » collection, which was bequeathed to the Carnavalet Museum in Paris, France in 1965-1968. The executor in charge of this bequest was Jean Bourdel, a former President of the Paris Chamber of « Notaires ».

Following the restitution action with the CIVS, I initiated a suit with the Paris Administrative Court against the Office of the French Prime Minister on February 10, 2006, since the CIVS reports into the Office of the French Prime Minister.

My claim with the CIVS, along with my complaint with the Paris Administrative Tribunal, covers the Fraenkel estate, which was aryanized during the Vichy Regime. This estate included substantial financial assets, and most notably a very significant collection of XVIIIth Century French Fine Furniture (more than 200 artworks). This collection is now being held by the City of Paris and is one of the largest collections of the Carnavalet Museum.

As of today, these procedures have unearthed the following facts:

- The heirs of Adolphe Fraenkel were not aware of the existence or extent of the Fraenkel estate or of its looting until 1993 ; since 1993, the heirs of Adolphe Fraenkel have been diligent in preserving their rights by performing research of the artworks, by attempting to resolve the dispute directly with the Carnavalet Museum and the City of Paris, and by following the procedures established by the CIVS ;
- Certain documents from the city of Paris establish that the Carnavalet Museum violated the statutes in effect in 1965 during the bequest procedure of the Bouvier collection ;
- The executor of the Bouvier bequest, Jean Bourdel, who managed the bequest legal process in favor of the Carnavalet Museum in 1965, and who also was the Notaire who had control of the Fraenkel estate, was the President of the Paris Chamber of « Notaires » from 1943 to 1944. As such, Jean Bourdel played a central role in the aryanisation and looting of real estate assets held by Jewish families in Paris during this period. On this point, the National Archives (AJ38 archives of the Commissariat for Jewish Matters of the Vichy Regime) irrefutably support this fact, which contradicts the assessment of the Matteoli Commission Report issued in 1999.

When the CIVS was founded by then Prime Minister Lionel Jospin on September 10, 1999, I wanted to follow the « rules of the game » which the French Government had announced, by submitting my claims to a so-called independent arbitral process managed by a quasi-governmental commission, rather than resolving my claims with either French or foreign courts.

Following a six year process with CIVS, my experience has been extremely disappointing. As my suit against the French Prime Minister points out, the claims procedures and associated proceedings were marred by significant arbitrary abuses and the complete absence of due process:

- The CIVS consistently refused to proceed with appropriate and necessary research and investigation with the Bourdel Notarial Office, whereas this Office has all the appropriate records and information necessary to properly assess the Fraenkel estate. As a matter of fact, a simple investigation with the Bourdel Notarial office would have allowed the CIVS to avoid issuing absurd and contradictory interpretations of the outcome of the Fraenkel estate in its June 25, 2004 opinion. These erroneous conclusions were literally made up with the Government representative to the CIVS, who never verified his assertions with the Bourdel Notarial Office or never provided and evidence or foundations to support them. The Government representative orally presented these conclusions without a written transcript during a CIVS hearing, while I was never allowed to challenge these assertions either orally or in writing throughout the proceedings.
- The CIVS proceedings were marred by significant due process abuses when it investigated and reviewed the claims : most notably, the CIVS refused to admit a legal certificate of attestation, which established that I was a beneficiary of the Fraenkel collection. Most notably, the CIVS pressured Government officials in attempting to fraudulently create a new attestation contradicting the document I presented to the Commission.
- The CIVS refused to investigate or perform any provenance research with either the city of Paris or with the Genealogy Research firm Coutot-Roehig regarding the bequest of the Bouvier collection to the City of Paris. Following a request by me to the CADA (“Commission d'Accès aux Documents Administratifs”), I obtained on my own from the city of Paris certain limited records which showed the bequest of the Bouvier collection to the City of Paris violated the statutes involving bequest to public institutions in effect at the time.
- Following repeated requests, the CIVS refused to perform any provenance research or to provide me with any of the files containing the authentication of expert opinion regarding all artworks including the Bouvier collection, most specifically the authentication performed by Etienne Ader in 1965. During a hearing on June 25, 2004, the Carnavalet Museum Director, Jean-Marc Léri, conceded that he was intimately familiar with the details of both the Bouvier collection AND the Fraenkel collection. This statement, which was not recorded in any transcript by the CIVS, is a vivid confirmation that the City of Paris has in its possession of all of the records necessary for an appropriate provenance research and which it did not communicate. The Carnavalet Museum Director also conceded that these records did lead to an identification of a Fraenkel provenance for the Bouvier collection. This admission shows that the City of Paris and the Carnavalet Museum have in their possession all of the appropriate information to perform a complete and appropriate provenance research in order to trace back the Fraenkel collection. However, the Carnavalet Museum and the CIVS, which had the statutory obligation to perform the necessary research with the City of Paris, have both violated the ICOM (“International Council of Museums”) Code of Ethics, the UNIDROIT Convention and the Washington Principles (December 03, 1998), which require a Museum to investigate and perform a “due diligence” research regarding the provenance of an artwork.

Therefore, I have concluded that the CIVS process is a failure, since the CIVS does not apply the investigation rules which are imposed by statute, it does not respect the principle of confrontation of evidence by both parties, and it attempts to manufacture false evidence.

To remedy this unacceptable situation, and following the publication on October 18 by the Telegraph of an article titled “National galleries to hand back Nazi art”, which indicates that the British Parliament is considering a bill which would require all British state museums to unconditionally return to claimants or their heirs all artworks which were looted during World War II, I am submitting the following request to you:

I am requesting that the Judiciary Committees of the French Assembly and of the French Senate submit a bill amending the law covering the “MUSÉES DE FRANCE” (LAW n° 2002-5 du 4 janvier 2002) and the “DÉCRET DU 17 DÉCEMBRE 1928 RELATIF AU REGIME DES MUSEES DEPARTEMENTAUX ET MUNICIPAUX”.

The bill will incorporate and make mandatory certain language from the ICOM Code of Ethics. The proposed language would mandate (See Exhibit 1):

- That state and municipal museums must adopt and publish a collections policy addressing the acquisition of artworks;
- That state and municipal museums must perform a full title search prior to the acquisition through a systematic provenance research, while forbidding the completion of the acquisition unless the museum is fully confident that this research clears proper title; this certification should not be outsourced to a “Notaire” under the pretext of a search for potential heirs, since only museum professionals will be qualified to perform such a provenance research according to the appropriate ethical and regulatory standards. If anything, the case of the Carnavalet Museum demonstrates that State and Municipal museums cannot afford to rely on « Notaires », since this case shows that they no longer have credibility in this area;
- That state and municipal museums must perform a full provenance research to determine the effective ownership title on existing collections, and make the results of the provenance research public.

In my February 10 2006 complaint filed with the Administrative Tribunal against the French Government regarding the recommendations of the CIVS, I did not ask the court for the return of the Bouvier collection, but rather, I was limiting my complaint to requiring the French Government and the CIVS to comply with existing statutes and to provide me with the provenance information regarding the Bouvier collection and all information and records held by the Government or by CIVS regarding all the assets held by my family which were looted during the Vichy Regime.

In addition, you will notice that, unlike the approach being discussed in Great-Britain, I am not proposing a blanket mandate for museums to return the artworks to claimants. The reasons are as follows:

- French museums may be negatively affected by a blanket mandate to return looted artworks, while the critical issue in Nazi-looted art claims usually is the disclosure of the provenance, which is why I limit my request to the requirement of provenance research and disclosure;
- It is important to preserve flexibility, in order to either find solutions involving loans, financial compensations, shared title, or other formulas, which fit each situation.

In addition, you will notice that I am not proposing that State or municipal museums automatically waive the statute of limitations defense, which was the rationale behind a bill submitted in the French parliament in 2000 (bill number 2282), since this proposal assumed that the waiver would be valid for a period of 5 years, after which any claim would be foreclosed.

Therefore, I believe my proposal, which represents a very narrow change to existing laws:

- Will enable increased transparency regarding the national patrimony maintained by state and municipal museums;
- Will mandate the provenance research obligation, which ICOM members have already accepted to comply with by applying to and becoming member of ICOM, such as the Carnavalet Museum did;
- Does not represent an undue constraint or a significant costs on museum operating budgets, since the museum community has already signaled to the public and to the government their willingness to submit themselves to the systematic practice of provenance research;
- Will ensure that disastrous and unacceptable situations, such as the one the Carnavalet Museum is now facing, will not occur again.

If you have any question, please do not hesitate to contact me at the address above or by email at [email protected] I thank you in advance for your help.

Sincerely yours,


__________________________________
Régine ELKAN

cc: Bertrand Delanoë, Maire de Paris
Mairie de Paris
Place de l'Hôtel de Ville
75004 PARIS

Anna B. Rubin, Director
Holocaust Claims Processing Office
New York State Banking Department
One State Street
New York, NY 10004-1417 U.S.A.

UNESCO
Director-General Koïchiro Matsuura
c/o Spokeswoman
Mireille Jardin
Par E-Mail: [email protected]
By Fax: (01) 45 68 55 66
UNESCO
Mme Françoise Rivière
Sous-Directrice générale pour la culture
7, place de Fontenoy
75352 PARIS 07 SP
By Fax: (01) 45-67-16-90
By E-Mail : [email protected]

Ori Soltes
Chairman
Center for Holocaust Art Research
1785 Massachussets Avenue NW, Suite 100
Washington, DC 20036, U.S.A.

Ady Steg
Président, Alliance Israélite Universelle
45 rue La Bruyère
75428 Paris Cedex 09
By Fax : (33) 01 48 74 51 33
By E-Mail : [email protected]

David Kessler
France Culture
116 avenue du Président Kennedy 75016 PARIS
By email : [email protected]

Jean-Pierre Bady, conseiller-maître honoraire à la Cour des comptes,
c/o Ministère de la Culture
Comité d'histoire du ministère de la culture et des institutions culturelles
3, place de Valois - 75001 Paris
By Fax : 01 40 15 79 52
By email : [email protected]

Marie-Christine Labourdette
Direction des Musées de France
6, rue des Pyramides
75041 Paris Cedex 01
By Fax: (33) 1 40 15 34 10
By e-mail: [email protected]

Théo Klein
Président du Musée d'Art et d'Histoire du Judaïsme
Hôtel de Saint-Aignan
71, rue du Temple
75003 Paris
By Fax: (33) 1 42 72 97 47
By e-mail: [email protected]

Maxime Gremetz
Député
Assemblée nationale
126 rue de l'Université
75355 Paris 07 SP
By E-Mail : [email protected], [email protected]

Noël Mamère
Député
Assemblée nationale
126 rue de l'Université
75355 Paris 07 SP
By E-Mail : [email protected]

Pierre Méhaignerie
Député
Président de la commission des affaires culturelles, familiales et sociales
Assemblée nationale
126 rue de l'Université
75355 Paris 07 SP
By E-Mail : [email protected], [email protected]

Jacques Legendre
Sénateur
Président de la commission des affaires culturelles du Sénat
Casier de la poste
15, rue de Vaugirard
75291 - Paris Cedex 06
By E-Mail : [email protected]

Office of Andrew Dismore, MP
79 the Burroughs
London
NW4 4AX
By E-Mail: "DISMORE, Andrew" [email protected]

Sandro Bondi
Italian Ministry for Cultural Heritage and Activities
Ministero per i Beni e le Attività Culturali
Via del Collegio Romano, 27
00186 Roma
By Email: [email protected], [email protected]

Michael Liapis
Greek Ministry of Culture, Directorate of Letters
1 Rethymnou & Herakleiou Str.
10682 Athens
By Fax: (+30) 10 8201 702
By E-Mail : [email protected]

Ertuğrul Günay
Minister of Culture and Tourism
By Fax: (+90.312) 312 43 59
Atatürk Bulvarı No:29
06050 Opera
Ankara - Turkey
By E-Mail : [email protected]

ICOM Ethics Committee
c/o Maison de l'Unesco 1, rue Miollis
75732 Paris cedex 15
By Fax : +33 (0) 1 43 06 78 62
By E-Mail: [email protected],
Cc : "Margarida Ascenso", [email protected]

Giuseppe Gargani
Member of the European Parliament
Chairman, Legal Affairs Committee, European Parliament
Correspondence with Citizens, GOL03A012
L-2929 LUXEMBOURG
By Fax: (352) 43 00 27 072
By E-Mail: [email protected], [email protected]

Katerina Batzeli
Member of the European Parliament
Chairwoman, Committee on Culture and Education, European Parliament
Correspondence with Citizens, GOL03A012
L-2929 LUXEMBOURG
By Fax: (352) 43 00 27 072
By E-Mail : [email protected]

EXHIBIT 1 : PROPOSED LANGUAGE AMENDING LAW RELATIVE AUX “MUSEES DE FRANCE” (LAW n° 2002-5 du 4 janvier 2002) AND THE DECRET DU 17 DECEMBRE 1928 RELATIF AU REGIME DES MUSEES DEPARTEMENTAUX ET MUNICIPAUX.

Collections Policy
The governing body for each museum should adopt and publish a written collections policy that addresses the acquisition, care and use of collections. The policy should clarify the position of any material that will not be catalogued, conserved, or exhibited.

Valid Title
No object or specimen should be acquired by purchase, gift, loan, bequest, or exchange unless the acquiring museum is satisfied that a valid title is held. Evidence of lawful ownership in a country is not necessarily valid title.

Provenance and Due Diligence
Every effort must be made before acquisition to ensure that any object or specimen offered for purchase, gift, loan, bequest, or exchange has not been illegally obtained in or exported from, its country of origin or any intermediate country in which it might have been owned legally (including the museum's own country). Due diligence in this regard should establish the full history of the item from discovery or production.

Any object or specimen may only be transferred to the Museum when the Museum has proper assurances that the object or specimen:
- Was not stolen, not lost against the will of the owner, and not illegally excavated;
- Was not illicitly imported.

Objects and Specimens from Unauthorized or Unscientific Fieldwork
Museums should not acquire objects where there is reasonable cause to believe their recovery involved the unauthorized, unscientific, or intentional destruction or damage of monuments, archaeological or geological sites, or species and natural habitats. In the same way, acquisition should not occur if there has been a failure to disclose the finds to the owner or occupier of the land, or to the proper legal or governmental authorities.

Documentation of Collections
Museum collections should be documented according to accepted professional standards. Such documentation should include a full identification and description of each item, its associations, provenance, condition, treatment and present location. Such data should be kept in a secure environment and be supported by retrieval systems providing access to the information by the museum personnel and other legitimate users.

Provenance Research for Existing Collections
Museums must conduct provenance research on covered objects in their collections whose provenance is incomplete or uncertain.
a) Museums must identify covered objects in their collections and make public currently available object and provenance information.
b) Museums must review the covered objects in their collections to identify those whose characteristics or provenance suggest that research be conducted to determine whether they may have been unlawfully appropriated and without subsequent restitution.
c) In undertaking provenance research, museums must search their own records thoroughly and, when necessary, contact established archives, databases, art dealers, auction houses, donors, scholars, and researchers who may be able to provide provenance information.
d) Museums must incorporate provenance research into their standard research on collections.
e) When seeking funds for applicable exhibition or public programs research, museums must incorporate provenance research into their proposals.
f) Museums should document their provenance research for objects in their collections.

Discovery of Evidence of Unlawfully Appropriated Objects
g) If credible evidence of unlawful appropriation without subsequent restitution is discovered through research, the museum must resolve the status of the object, by making such information public and, if possible, notifying potential claimants.

Display of Unprovenanced Material
Museums should avoid displaying or otherwise using material of questionable origin or lacking provenance. They should be aware that such displays or usage can be seen to condone and contribute to the illicit trade in cultural property.

Disclaimer: "The views/contents expressed in this article are the sole responsibility of the author(s) and do not neccessarily reflect those of Modern Ghana. Modern Ghana will not be responsible or liable for any inaccurate or incorrect statements contained in this article."

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