Restitution of cultural property lost during World War II by both Poland and private individuals has become extremely media-savvy in recent years. There are increasingly frequent reports of the recovery of paintings or sculptures by famous artists, which are usually returned to museum holdings in the light of reporters’ flashes. Obviously, the owners, who have owned works of art for generations, do not have documents confirming their ownership rights, which can pose a serious problem when these items are disclosed in the register of lost property.
Cases of registration in the lost property database of items in the actual possession of private individuals who have no reason to doubt their right of ownership are becoming not isolated. In order to systematize, it should be pointed out that there are three registers for works of art. The first is a catalog published on the website dzielautracone.gov.pl, which has the character of an informal database. The second is the Catalogue of monuments stolen or illegally exported abroad, maintained by the National Institute of Museology and Collections Protection, which is used to register monuments and works of art stolen after the war. It is used primarily by the Police, Border Guard and other law enforcement agencies. In contrast, the third registry is the National Register of Lost Cultural Property, provided for by the provisions of the Law on the Protection and Care of Monuments. In fact, the latter is not yet operational, and to date contains no entry. However, it will be of great importance, as far-reaching legal consequences are associated with making an entry in it, such as the inability to make an entry, to acquire ownership rights in good faith from an unauthorized person, or even the deprivation of the ability to claim an item.
Since the database published by the Ministry of Culture and National Heritage on the website dzielautracone.gov.pl is unofficial, the decision to include a particular work of art on this list is to some extent arbitrary. Sometimes entries are made on the basis of post-war ministerial inventories, to which it is difficult to ascribe the attribute of credibility. Consequently, this means that current owners have to prove their rights, often in court proceedings.
When the Ministry becomes aware of the current owner of a cultural asset, it usually requests the production of documents proving ownership, as well as the opportunity to make an inspection. It should be stressed that considerable restraint in responding to the authority’s expectations is advisable. This is because, as a rule, the Ministry is not eager to disclose the grounds on the basis of which it is challenging the existing legal status. Consequently, it is first necessary to ascertain the detailed provenance of the work as quickly as possible, so as to determine which threads of its fate may account for the authority’s actions. Only then should the Ministry’s claims be addressed, which does not preclude parallel legal action.
If the owner acquired the object in question through inheritance from his ancestors and thus cannot produce a document confirming the acquisition of ownership of that particular object, you should consider applying to the court for the seizure of movable property. Unlike real estate, it is possible to inherit a work of art after the expiration of three years of its possession, with the requirement of good faith possession throughout this period, i.e. in the justified belief that one is the owner of the thing. Importantly, it is important to emphasize that in certain cases the case for the acquisition of possession can take place only with the participation of the applicant himself. This is the case if it is not possible to identify other participants. Then the burden of determining the persons interested in the case rests with the court, which makes an appropriate announcement for this purpose. In this regard, a problem is created for the security of the applicant, since this announcement must include: the exact identification of the thing, the name of the holder of the thing and his place of residence. Consequently, a notice is published in the national press indicating the address where the object in question is located, along with the name of the holder. In the event that the Ministry raises the claim that the ownership of the thing was vested in another person, the lack of knowledge of the heirs of this person does not preclude the prosecution of a case of inheritance. It is necessary in such a case to first appoint a guardian of the estate. If there are other participants in the case, the placement of a notice by the court is not mandatory.
An alternative solution is a case for determining the ownership of a work of art. However, it is only possible if the Ministry explicitly disputes the ownership.
When choosing a legal route, the issues of court fees and taxes are not insignificant. It should be borne in mind that in the case of acquisition of ownership of movable property through inheritance, a tax of 7% of the value of the work will be due. On the other hand, in the case of a case to establish ownership, the court fee on a lawsuit is 5% of the value of the thing. In terms of the fee, a much more favorable case is the case of seizure, where a fixed fee of PLN 100 applies.
Another fairly common allegation against owners is the claim that they own works of art that belonged to citizens of the Third Reich or people of German descent. According to post-war regulations, these items passed to the State Treasury, unless their ownership was disposed of by the aforementioned persons before the regulations came into force. Since this case is less common, most often in order to defend one’s rights it is necessary to demonstrate by what rightful act ownership was acquired and to use the legal institution of acquisition from an unauthorized person, provided that the acquisition was made in good faith.
Observation of the art market indicates that the owners of cultural property do not pay adequate attention to the possibility of proving their right of ownership by documents. In a way, this is due to auction houses, which, as a rule, do not require proof of provenance, and consider the owner’s statement in this regard sufficient. Meanwhile, auctions are closely monitored by the Ministry, and attempts to sell goods whose provenance, in the opinion of the authorities, is questionable, are immediately stopped. Defending one’s rights only at this stage of the case is more difficult than prior confirmation of one’s ownership.
