In some cases, it is equally important not only to establish ownership, but also to take measures preventing the object from being removed, sold or transferred to another person before the proceedings have been concluded.
Restitution Is Not a Single Type of Proceeding
The restitution of cultural property may involve a variety of legal and practical measures. Depending on the object’s history, these may include:
- conducting archival and museum research;
- determining the object’s current location;
- reconstructing its provenance;
- establishing legal succession to the former owner;
- negotiating with a museum, public institution or private possessor;
- conducting administrative, judicial or enforcement proceedings;
- and, in some cases, pursuing parallel action in several countries.
In civil cases, a claim for the return of an object may be based on the owner’s right to demand its surrender under Article 222 § 1 of the Polish Civil Code. For such a claim to succeed, however, it is necessary to demonstrate that the claimant continues to hold title to the object and that the person in possession has no right, enforceable against the owner, to retain it.
Merely referring to the work’s family provenance is not sufficient. The specific object must be linked as precisely as possible to the former collection. Relevant evidence may include pre-war inventories, photographs of interiors, exhibition catalogues, deposit agreements, correspondence, conservation records, ownership marks, labels and stamps placed on the reverse of a painting.
Why Is Interim Relief Necessary?
Proceedings concerning the ownership of works of art may continue for several years. If, during that period, the object is sold, transferred to another possessor or removed abroad, even a favourable judgment may prove difficult to enforce.
The Polish Code of Civil Procedure allows an application for interim relief to be filed both before the commencement of the principal proceedings and while they are pending. The applicant must substantiate the claim and demonstrate a legal interest in obtaining protection, in particular by showing that the absence of interim relief would prevent or seriously impede the enforcement of a future judgment or the achievement of the purpose of the proceedings.
In a case concerning the surrender of a work of art, interim relief may include prohibiting the current possessor from:
- relinquishing possession of the object;
- delivering it to a third party;
- selling it or otherwise disposing of it;
- removing it from the territory of Poland.
The list of available forms of interim relief for non-monetary claims is open-ended. The court may adopt a measure appropriate to the circumstances of the particular case, including regulating the parties’ rights and obligations for the duration of the proceedings or prohibiting the disposal of the objects in dispute.
Interim relief does not determine who owns the work. Nor should it result in the premature satisfaction of the claim. Its purpose is to preserve the existing situation until the evidence has been examined and a judgment has been issued.
In Such Cases, Every Day Matters
An application for interim relief should be examined without delay, as a rule no later than within one week of its receipt by the court. In cases involving objects displayed as part of temporary exhibitions, the speed of the court’s decision is particularly important. Once the exhibition has ended, the work may leave Poland within a short period, and any further action may require proceedings to be initiated before the authorities of another country.
An example is the case, reported by Rzeczpospolita, concerning paintings from the former Lubomirski family collection. The Law Firm applied for interim relief in respect of two works displayed at the Museum of Central Pomerania in Słupsk, seeking an order requiring the museum to retain possession of them until the claim for their surrender had been resolved.
These measures form part of the Law Firm’s legal representation of the heirs of Andrzej Lubomirski, the last entailer of Przeworsk, which has continued for more than ten years and includes investigating the fate of his collection and pursuing restitution measures.
Legal Protection of Foreign Loans
Before filing an application, it is necessary to verify whether a work brought to Poland from abroad has been granted the special protection provided for under the Act on Museums, commonly referred to as museum immunity.
An object covered by such protection is exempt, among other things, from seizure for the purposes of interim relief in civil proceedings and from enforcement measures. The organiser of the exhibition must apply for protection, and the procedure requires prior disclosure of information concerning the object’s provenance, ownership and lawful importation.
The mere fact that a work has been lent by a foreign museum does not automatically mean that such protection has been granted.
The absence of such protection does not, of course, determine whether the heirs’ claims are well founded. It does, however, mean that the availability of interim relief must be assessed under the general provisions of civil procedure.
Long-Term Work on a Single Collection
Restitution cases are rarely limited to a single claim. Other objects that once formed part of the same collection may emerge in different museums, archives, auction houses and private collections, often many years apart.
For this reason, continuity of cooperation with the heirs and the systematic collection of documentation are particularly important. Materials discovered in connection with one case may, several years later, make it possible to identify another object or provide a missing link in its history.
Effective restitution requires a combination of expertise in property law, succession law, civil procedure and private international law, together with thorough historical research. Where a work appears temporarily in Poland, readiness to act quickly is equally essential. In some cases, interim relief is what ultimately determines whether a future judgment will have any practical effect.
