Recht/Spotlights

by Andreas Cwitkovits and Mickela Moore

­­­­­­­­­­­­­­­­­­­­­­­The drawings of Albrecht Dürer, the Renaissance genius, coveted and taken as war bounty by Napoleon, ended up in the possession of the Lubomirski family in Poland, via Vienna, in the early 19^th Century. Poland, the coveted jewel of Czarist Russia, Habsburg Austria, and Prussia in the 18^th and 19^th centuries, sought to counter the effects of being a political pawn by creating a cultural repository, the Ossolinski National Institute (the “Ossolineum”), which was founded in 1816 in the city of Lviv (Lwόw)(1) by Count Józef Ossolinski. The Ossolineum was both library and museum, thanks to the contributions of its founders and contributors, who believed that the cultural treasures housed in the Ossolineum should serve the common good and uplift the Polish spirit. 

The Charter establishing the Lubomirski Museum within the Ossolineum in 1823 transferred title to the Ossolineum of the Lubomirski family’s priceless collection of paintings, miniatures, sculpture, arms and armor, plus drawings by the Old Masters, Dürer and Rembrandt. To ensure that the collection stayed intact, Prince Henryk Lubomirski entailed the family’s estate and established a foundation specifying the terms under which the Ossolineum was to retain the collection. The art collection would only revert back to the Lubomirski heirs in the event of: (i) the dissolution of the Ossolinski National Institute; (ii) the dedication of the assets of the Institute to goals other than those ordained by Ossolinski; and, (iii) the limitation or abolition of rights granted by Ossolinski to the Literary Curator(2). Importantly, Article XI of the founding document foresaw possible political instability and further provided that:

However, should the reason for the termination of the relationship with the Ossolinski Institute be reversed and the original state be totally restored, then the terminated relation of the Fideicommissum estate and the Lubomirski Museum with the Ossolinski [I]nstitute shall be reinstituted. However, such relationship may be reinstituted only within the 50 years from the termination and before the expiry of the families appointed in Article VI.”(3)

In the 20^th Century, history again would intervene in the fate of 24 of the Dürer drawings – resulting in an outcome that would appear to contravene the intention of Prince Henryk Lubomirski.  During World War II, the collections of the Ossolineum did not escape the attentions of either of Soviet or German occupying forces, and both nationalized and redistributed parts of the Ossolineum collections to museums and other institutions within either Soviet and German territory, respectively. In particular, Reichsmarschal Göring specifically ordered the confiscation of the Dürer drawings, which were found in an Austrian salt mine in Alt Aussee after the War.

After Lwόw became part of the Soviet Union under the terms of the 1945 Yalta Conference, the Soviets nationalized all institutions under its rule, and dissolved the Ossolineum, which was then reinstituted in Wroclaw, Poland (formerly Breslau). In contravention of the terms of a bilateral agreement, the Soviets returned to the Ossolineum in Wroclaw only a small percentage of the collection that was located in Lwόw, then Lviv.

During the Potsdam Conference of the same year, the Allies agreed that looted works of art would be returned to the country of their origin and not to individuals, consistent with the terms of the January 5, 1943, Inter-Allied Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation or Control (“1943 Inter-Allied Declaration”). The American authorities unilaterally modified this rule to exempt countries of the Soviet Bloc when there was a counterclaim from either a political or religious refugee.(4) This was to become an important fact in the Ossolineum’s restitution claims to museums that now hold Dürer drawings that were part of this collection.

In October 1946, Polish law abolished entailed familial estates – the legal construct that protected the integrity of the Lubomirski family’s donation to the Lubomirski Museum. The last heir of the estate and Lubomirski Curator of the Lubomirski Museum, Andrzej Lubomirski, was by this time very ill, but still concerned about the Museum and the status of the art collection. It is unclear as to whether Andrzej Lubomirski actually instructed one of his children, George Lubomirski, to send a request to the American authorities (State Department) requesting possession of the Dürer drawings. However, the end result is that after some negotiating, and in spite of some doubts by the American authorities on issues of title, as well as, the opposition of the remaining siblings as to the standing of their brother to negotiate, the drawings were returned in May 1950 to George Lubomirski. The State Department, which justified its decision by focusing on the Lubomirski’s legal rights and on the U.S. Government’s unilateral modification of the terms of the 1943 Inter-Allied Declaration, returned the looted art work to George Lubomirski, and not to Poland. Interestingly, it is claimed that George Lubomirski promised the American authorities that the drawings would be loaned to the National Gallery in Washington. In any case, this appears to be the only instance in which U.S. authorities returned looted art to a private claimant, in spite of the terms of international agreements to the contrary. These drawings were then sold by George Lubomirski in auctions to museums and private individuals to the horror of the rest of the Lubomirski family.

By 1952, the Ossolineum had been brought under the auspices of the Polish Academy of Sciences after abolition of foundations by the Polish Government. With the decline of communism in Poland, the Ossolinski National Institute became a public foundation in 1991, propitiously incorporating the same goals and objectives laid out by the original founder and fulfilling the intent of Jozef Maksymilian Ossolinski, and Prince Henryk Lubomirski. The Ossolinski National Institute requested that the drawings be returned to the Institute.

In 2001, the Association of Art Museum Directors convened to discuss the fate of the 24 drawings and opined that the State Department’s decision to transfer the paintings back to the Lubomirski heir, rather than to the Soviet occupied Poland was correct. It is important to note that the museums are not bound by this finding and can act independently. A book published by the Polish Government in 2004 refutes the legality of the State Department decision, arguing that the restitution of the Ossolineum within 50 years of its dissolution has fulfilled the terms of the founding charter, and that the Lubomirski family was obligated to return the Dürers to the Ossolineum – a view shared by the grandchildren of the last curator of the Lubomirski Museum, Andrzej Lubomirski.

At the time of this article, no museum has returned any of the drawings or offered to negotiate any shared used of the Dürer drawings. One can argue that the return of the drawings is not only about the Ossolineum’s legal right, but, also, a moral imperative to restore the drawings to their rightful owner, the Polish people, as the founders intended.

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(1) Lviv was at that time part of what is now known as Austria, then the Republic of Poland from 1918-1945, and is now part of the Ukraine after the Soviet annexation in 1945 in accordance with the terms of the Yalta Conference.

(2) The Fate of the Lubomirski Dürers, Ossolinski, Society of the Friends of the Ossolineum, Wroclaw, Poland (2004), p. 15.

(3) Ibid.

(4) The Fate of the Lubomirski Dürers, Ossolinski, Society of the Friends of the Ossolineum, Wroclaw, Poland  (2004), p. 19.