THE HEAR ACT: AN UNDERUTILISED TOOL FOR RECOVERING HOLOCAUST-LOOTED ART IS SCHEDULED SOON PARTIALLY TO EXPIRE.
| Author | Bienstock, Martin |
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INTRODUCTION
On 16 December 2016, President Barack Obama signed into law the Holocaust Expropriated Art Recovery Act of 2016 (the 'HEAR Act'). (1) The HEAR Act extended the statute of limitations for legal actions in the United States seeking the return of art lost to its owners as a result of Nazi persecution.
As the six-year anniversary of the HEAR Act approaches, surprisingly few reported lawsuits have arisen under its provisions. (2) Of course, many looted art claims are resolved consensually, and reported cases can serve only as a loose proxy for disputed looted art claims. Some cases also may be in incipient stages, and not yet have generated reported decisions; the 'Birds' Head Haggadah' case, described below, in which this author serves as counsel, is an example of one such case. (3) Nevertheless the dearth of case law suggests that the HEAR Act has been an underused tool in the restitution of Holocaust looted art.
The six-year anniversary of the HEAR Act's passage reflects an important milestone. The HEAR Act extends certain statutes of limitation by only six years. On the six-year anniversary of passage, many claims that would have benefited from its provisions will again be time barred.
At this critical juncture, this article will examine how courts to-date have addressed the HEAR Act and interpreted its provisions. It begins with a description of the Act itself, and then discusses the issues that have arisen before the courts and how they have been resolved. It is hoped that heirs and others with the types of meritorious claims that the HEAR Act was intended to protect will recognise the approaching deadline and take necessary steps to preserve their rights.
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THE US CONGRESS PASSED THE HEAR ACT WITH HIGH HOPES
The HEAR ACT was approved by both houses of the US Congress without a single dissenting vote, (4) and praise for the bill came from both sides of the American partisan divide.
Senator Ted Cruz, a conservative Republican Senator, for example, issued a passionate statement in support of the bill. He said:
Today, we delivered a long-overdue victory for the families of Holocaust victims. This bipartisan legislation rights a terrible injustice and sends a clear signal that America will continue to root out every noxious vestige of the Nazi regime. I'm proud to have worked closely with my colleagues on both sides of the aisle to empower the victims of the horrific atrocities that took place over 70 years ago and will continue to fight to bring peace and justice to these families. (5) Jerome Nadler, a left-leaning Democrat from New York, was equally supportive if more subdued:
The passage of today's bill is a promise to the victims of the Holocaust that the United States is committed to creating a fair judicial process for the return of property that was wrongfully stolen during the Holocaust. (6) III. PROVISIONS OF THE HEAR ACT
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Findings of the Act
The HEAR Act contains a relatively lengthy series of findings that describes the backdrop against which it was enacted. The Act first found that, based on estimates, the Nazis had confiscated or otherwise misappropriated hundreds of thousands of works of art and other property as part of their genocidal campaign against Jews and others, activities described as the "greatest displacement of art in human history". It observed that, despite the efforts by the United States and its Allies to return the stolen artworks to their countries of origin, many works of art were never reunited with their owners. (7) Some of the art has since been discovered in the United States.
The Act then recounts the history of US efforts connected to Holocaust Art Restitution. It describes the Washington Conference, and its Principles on Nazi-Confiscated Art, including that "steps should be taken expeditiously to achieve a just and fair solution" to claims involving such art that has not been restituted if the owners or their heirs can be identified. It describes the Holocaust Victims Redress Act, which expressed the sense of Congress that:
all governments should undertake good faith efforts to facilitate the return of private and public property, such as works of art, to the rightful owners in cases where assets were confiscated from the claimant during the period of Nazi rule and there is reasonable proof that the claimant is the rightful owner. (8) It also describes the Terezin Declaration issued at the 2009 Holocaust Era Assets Conference in Prague, which reaffirmed the 1998 Washington Conference Principles and urged all participants:
to ensure that their legal systems or alternative processes, while taking into account the different legal traditions, facilitate just and fair solutions with regard to Nazi-confiscated and looted art, and to make certain that claims to recover such art are resolved expeditiously and based on the facts and merits of the claims and all the relevant documents submitted by all parties. The Act observed that victims of Nazi persecution and their heirs had taken legal action in the United States to recover Nazi-confiscated art. These lawsuits faced significant procedural obstacles, however, partly due to state statutes of limitations, which typically bar claims within some limited number of years from either the date of the loss or the date that the claim should have been discovered. In some cases, this means that the claims expired before World War II even ended.
The Findings section further observed that the unique and horrific circumstances of World War II and the Holocaust had made statutes of limitations especially burdensome to the victims and their heirs. Those seeking recovery of Nazi-confiscated art must painstakingly piece together their cases from a fragmentary historical record ravaged by persecution, war and genocide. This costly process often cannot be done within the time constraints imposed by existing law.
The Findings concluded that Federal legislation was needed because a federal court had held that the Constitution prohibits US States from making exceptions to their statutes of limitations to accommodate claims involving the recovery of Nazi-confiscated art. In light of this precedent, the enactment of a Federal law was deemed necessary to ensure that claims to Nazi-confiscated art are adjudicated in accordance with United States policy as expressed in the Washington Conference Principles on Nazi-Confiscated Art, the Holocaust Victims Redress Act and the Terezin Declaration.
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Purposes
In addition to the section Findings, the HEAR Act also contains a 'purposes' section, which identifies two goals. The goals are essentially consistent with the Findings: (1) To ensure that laws governing claims to Nazi-confiscated art and other property further United States policy as set forth in the Washington Conference Principles on Nazi Confiscated Art, the Holocaust Victims Redress Act and the Terezin Declaration; and (2) to ensure that claims to artwork and other property stolen or misappropriated by the Nazis are not unfairly barred by statutes of limitations but are resolved in a just and fair manner.
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Extension of Statute of Limitations
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Types of Expropriations to Which the HEAR Act Applies
The HEAR Act extends the statute of limitations for filing suit to recover "any artwork or other property" that was "lost" "during the covered period" "because of Nazi persecution." Most of these terms are defined broadly by the Act.
The HEAR Act defines "artwork or other property" broadly to include, among other things, pictures, paintings and drawings...
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