Katie and Steve talk to Spanish art lawyer and scholar, Patricia Fernández, about the history of thousands of artwork seizures during the Spanish Civil War and the Spanish government’s actions with respect to these artworks since then through today.
Steve Schindler: Hi, I’m Steve Schindler.
Katie Wilson-Milne: I’m Katie Wilson-Milne.
Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The Art Law Podcast is sponsored by the Law Firm of Schindler Cohen and Hochman LLP, a premier litigation and art law boutique in New York City. Hi, Steve.
Steve Schindler: Hi, Katie. How are you?
Katie Wilson-Milne: I’m well. Hope you had a good Thanksgiving.
Steve Schindler: I did. How about yourself?
Katie Wilson-Milne: I did. I made several Black Friday purchases, probably too many.
Steve Schindler: You did?
Katie Wilson-Milne: Yes, just to get into the holiday season.
Steve Schindler: Well, good. So, today, we get to talk about restitution of art taken during the Spanish Civil War. And we have as a guest today a lawyer and scholar from Madrid, Patricia Fernández, from the firm of Ramón y Cajal. And I’m sure we’re going to mispronounce things today—
Katie Wilson-Milne: Yes, forgive us.
Steve Schindler: —And Patricia will help us with it. But there’s a little bit of a backstory to this, which is that, as you know, at the end of September I was in Madrid giving a talk about Nazi-looted art.
Katie Wilson-Milne: Right.
Steve Schindler: And particularly efforts in the United States from the 1990s on to recover that art. And Patricia and one of her colleagues was in the audience, and we talked a little bit afterwards. And it happened that just about a week before that talk, newspaper articles had started to come out about works in the collection of Spain’s Prado Museum that were being examined for the possibility that they were taken during the Spanish Civil War.
And they were making efforts to do some research and started to publish lists of works that were taken. And I spoke to Patricia about that, and she said, oh, as a matter of fact, our firm has been involved in a couple of these cases. And so it seemed like a great idea to have her on the podcast.
Katie Wilson-Milne: When you say taken you mean presumably taken from private collections by the Span—or claiming to be the Spanish government.
Steve Schindler: Right. And that’s what we’re going to talk to Patricia about today. So before we start, I just want to do a brief introduction. Patricia is, as I said, a lawyer and a scholar.
She’s Of Counsel at the firm of Ramon y Cajal and practices in their art and cultural property department, which has a broad-based art law practice. She has a lot of degrees, and I’m not going to go through all of them, but she has a PhD in history, a diploma of Advanced Studies and Contemporary History, a degree in law, a couple of others.
She’s a legal writer in art law and cultural heritage, an academic researcher, and she’s been a guest lecturer at a variety of universities in Spain, England, and the United States. I’m sure I’ve left a couple out, but you can see her complete CV in the notes to the podcast. And it’s our pleasure to welcome Patricia to the podcast today. Welcome.
Patricia Fernández: Good afternoon. Well, thank you very much for the introduction.
Steve Schindler: So I think if we could start, Patricia, with a little bit of background for our listeners who may not be steeped in the outlines of the Spanish Civil War until late 1930s and who was involved. And then we’ll go from there and talk a little bit about how artworks got taken during that period of time.
Katie Wilson-Milne: Yeah.
Patricia Fernández: The Spanish Civil War began in 1936, and it was the Franco military regime, which began a war against the Republican Spain. The Republican party had gained the elections in 1931 and so there was really a huge conflict in the Spanish society between the Republican and the Royalists. So finally this conflict finished in the Spanish Civil War, which took from 1936 until 1939.
Katie Wilson-Milne: Remind us, how did Franco rise to power?
Patricia Fernández: He rose to power in 1939 when he finally was able to dominate all of Spain with the support from Germany and in some cases, from Italy. So just before the Second World War.
Katie Wilson-Milne: Okay. And he was in the military. That was his background?
Patricia Fernández: Yes. He was in the military and well, he was able to have the support of a huge part of the Spanish military forces.
Steve Schindler: And he remained in power until he died in 1975.
Katie Wilson-Milne: A shockingly long time.
Steve Schindler: Which is a long time.
Katie Wilson-Milne: Yeah.
Patricia Fernández: So, well, during the Civil War and the early years of the Franco dictatorship, Spain recorded the largest diaspora of works of art in its history, which has been called in popular terms the “Spanish Art Plundering.”
During these years when the war broke out, the government of the Republic, through the Board of Seizures and Protection of the Cultural Heritage proceeded to collect and store thousands of works of art that were taken from private houses, museums, and churches for fear that they would be damaged by bombing or destroyed by the military men themselves.
So the management had some irregularities as always, but some of these works of art went to Geneva and Paris and other remained in warehouses in Catalonia near the border. But numerous works of art were left in warehouses located in different Spanish cities occupied during the advance of the war by the Francoist forces.
In April, 1938, the Francos regime created a service which was in charge of managing the contingent of paintings and artistic objects stored by the Republican board after its dissolution, and to which were added some seizures from political responsibilities under the Francoist regime. And these seizures were done against the so-called enemies of the Nation of Spain.
Steve Schindler: And I had read somewhere that an investigation had recorded roughly 16,000 works that were collected at the time. Was there a sense that this was an acceptance, I guess, if you will, by the people who owned the works, that this was, this was a good thing, that it was really to preserve the works and to keep them safe?
Katie Wilson-Milne: Right. You could say they collected them, or they seized them by force.
Steve Schindler: Yeah. That’s what I want to make sure we’re clear about. In the first instance, when the works were being collected, was that something that the owners of the works generally accepted or not?
Patricia Fernández: I must say that in general when this seizure began it was considered something good for most of the people, because it was a measure in order to protect the cultural heritage.
Perhaps to understand the climate in which this measures were implemented, it is important to bear in mind the consideration that art was given in Spain in the years immediately prior to the outbreak of the Civil War, when it was subject to the plunder of foreign collectors and the opportunism of art dealers and also was left to the ignorance of those Spaniards who sold objects from Spanish historical heritage at bargained prices.
So the second republic from 1931 brought about a legal change in this respect by a legislative protection aimed at the conservation and protection of historical artistic heritage, especially the Law of 1933 of the Artistic Treasury, was the name of this law.
And this did not prevent art and historical heritage from being exploited in a way that associated the type of art with a type of political ideas. But both sides established policies for their protections, some of which were not free of propaganda basis, of course. In that terms, decisions from the Board of the Republican government were considered mainly a good option in order to be protected, yeah.
Katie Wilson-Milne: And the idea, I guess, was that as soon as the war was over and it was safe these objects would be returned to their private owners.
Patricia Fernández: Yes. It was of course the idea and the project, because each of these seizures were done creating very detailed inventories—
Katie Wilson-Milne: Right.
Patricia Fernández: —where the works of art were explained, were introduced, and were described, and also the owner of each of these works of art. So it was considered that the restitution will be made just at the end of the Spanish War.
Katie Wilson-Milne: Yeah. It’s interesting. Well, we’ll circle back to that but that kind of precise record keeping, obviously now, is so valuable and, you know, is different than just the plunder of war where there’s often not records or it takes so much research to find them. I’m curious, Patricia, too, like what kind of works did the Republican government seize for protection? It wasn’t any artwork. What were they interested in or what did they value?
Patricia Fernández: Well, they took mainly all the works of art from the Prado Museum or from the other Spanish museums, mainly the works of art from the church, because really the cultural heritage in the Spanish church is very, very important. Very religious, historical heritage. And also from the aristocratic homes, but as well from businessmen, of people who had huge collections of art. It was the case, for example, of Ramon de la Sota in Bilba.
Katie Wilson-Milne: Right.
Patricia Fernández: He was one collector.
Katie Wilson-Milne: Was it modernist work, was it surrealist work? I mean, what types of paintings? Because they weren’t—clearly the government wasn’t taking every object that could be called an artwork. They were interested in what they deemed to have high value, cultural value.
Patricia Fernández: Well, I feel there was not such a great difference. And as those in charge of the seizures were expert, but as well not so expert on the art history, they tried to seize all type of objects that they consider could have some value. So sometimes the objects they seizes were of course the Velazquez, Murillo, Goya, the most important works of art. All of them were packaged and seized. But at the same time there were types of objects like decorative arts, for example, chairs and good tables, so really the amount of objects were huge.
Steve Schindler: Right.
Patricia Fernández: Not always of the same value. Yeah.
Steve Schindler: That’s interesting. So it sounds though like they were targeting a certain level of collector, right? They must have had some list or sense of where they could go. Obviously there’s the Prado, there’s the church, those are the very big ones, and then a couple of very wealthy individuals. But it sounds like they were targeting particular owners of art as opposed to a genre or a type of art. Does that seem right?
Patricia Fernández: Yes. In fact, in 1933 they began to create in Spain—the Republic government had began to create an inventory of the most important works of art in Spain. So at this moment they had really a lot of information, which has been recorded during three years.
Katie Wilson-Milne: Interesting. And so what happens to this, this sort of collection of works taken for protection during the war by the Republican government, when as we know, the Republican government loses or starts to lose?
Patricia Fernández: Well, most of the works of art just before the end of the war was sent to Geneva in order to be protected under the UNESCO. So when the war finished, the Francoist regime took back all of these works of art in Spain.
Steve Schindler: That just sounds like an amazing undertaking, because we’re talking about—
Katie Wilson-Milne: Yeah. In the middle of war.
Steve Schindler: —over 10,000 works potentially being shipped off from Spain to Geneva. That’s a lot of works of art
Patricia Fernández: Yeah. It was really. At this moment the cultural heritage was in the center of the national spirit, I must say, in Spain. So the protection towards the cultural heritage was even bigger at this moment that the protection of other type of goods. It was like a symbol for the national character, not only for the national Spain of Franco, but at the same time for the national Spain of the Republic.
Katie Wilson-Milne: A lot of works went to Geneva, but am I right that some went to Paris and some stayed in storage in Spain as well?
Patricia Fernández: Yeah. The less valuable were stored in Spain. The most valuable went directly to Geneva.
Katie Wilson-Milne: So Franco comes to power and he takes all these works back to Spain.
Patricia Fernández: Yeah. It’s the ambassador of Franco who went to Geneva in order to take all these works of art back. So it was also a good image for the Francoist regime.
Katie Wilson-Milne: I remember you said there was also works that came into the control of the Spanish government from Franco seizing them. So that seems like maybe it was a little bit of a different situation from the Republican seizures.
Patricia Fernández: Yeah. Among the Francoist confiscation on the collections of Republican reprisals and exiles, some politicians such as Pedro Rico who was the Republican mayor of Madrid in 1931, and for example, the collector Carlos Walter Hayes, who owned an important collection of Iberian ceramics, or for example, the Republican military chief, Jose Cicardo, who owned an art collection of more than 100 works of art. So it was a different type of confiscation works of art in order to respond for the political responsibilities before the Francoist forces.
Katie Wilson-Milne: Or as a punishment, it sounds like.
Patricia Fernández: Yes. It was plunder really, of these works of art in order to pay for this political responsibilities. Yeah.
Steve Schindler: And so were these two sources of art that were put aside, if you will, were they combined together? Did there end up being just one kind of group of art that had been taken one way or the other, either by the Republicans for protection or Franco for revenge?
Katie Wilson-Milne: And also did—I mean, Franco, Steve said, stays in power till the 70s. Does he keep plundering or looting personal property, or is this just something that happens in the Civil War period and then it just sits, it stops?
Patricia Fernández: It happened really just during the Spanish Civil War, not later. And I would say that all of these works of art were put together but were not different warehouses for one type and the others. So when the war finished the Francoist regime, the Ministry of Education organized some kind of open warehouse where people could go to bring back or to take back their own works of art. At this moment the problem was that most of the Republicans didn’t want to go there to ask for their works of art which had been seized. So most of the people who were to take the works of art were people who had no problems they weren’t Republicans, how could I say?
Steve Schindler: I see. So presumably then, did the church get most of their works of art back at the time? And I assume that Prado also got its works back and then probably, you know, people who were aligned with—
Patricia Fernández: With Franco.
Steve Schindler: —Franco got their works back. Then what was left remained seized were the works principally of people associated with the Republicans at the time. Is that about right?
Patricia Fernández: That’s exactly the case. Yes.
Steve Schindler: Okay. Interesting.
Katie Wilson-Milne: And that’s because, not because legally they couldn’t go get their work back because I guess the law would’ve let them, but that they were afraid of exposing themselves to the fascist regime in some way that they would be unsafe or, you know, their property would be unsafe. Is that correct?
Patricia Fernández: Yes. In fact, most of them were in exile. For example, the family of Ramon de la Sota, they were in France at this moment.
Katie Wilson-Milne: Right. That makes total sense. Yeah.
Patricia Fernández: So they just couldn’t.
Katie Wilson-Milne: So none of them were there to take—
Katie Wilson-Milne: They weren’t there, yeah.
Patricia Fernández: —their properties. So sometimes these properties, these works of art were also given to the churches or to the Museum de Prado as there were a lot of them with no owners.
Steve Schindler: Yes.
Patricia Fernández: They were distributed between the other ministries or other museums in Spain.
Steve Schindler: And do you know whether any of them were sold to third parties? Obviously that happened in the case of the Nazis where works were sold outside of Germany that were taken by the Nazis and then sold to other people, and that’s how works got distributed around the world. Was this just a situation where Franco took some of the Republican seized works and say gave them to the church or the Prado, or do you know whether there were sales made to individuals?
Katie Wilson-Milne: To raise money, yeah, for the Spanish State?
Patricia Fernández: No. No, we haven’t discovered any type of sales just to recover money. Not these kind of public sales. Perhaps one claimant could take a work of art and then sell to a third party, but it was not the case of the government.
Katie Wilson-Milne: It’s kind of an amazing—I think many listeners, and for us, the Nazi-looting story is the comparison here and sort of what we’re thinking about in the background. And it really is—the nature of the initial seizures by the Republicans is a totally different motivation. And even Franco’s behavior is quite different, right? It’s not this sort of profiteering that we see with the Nazis, you know, Spanish states takes them and they just sit there. It doesn’t benefit them really I guess other than this idea of protecting and promoting the cultural heritage of Spain.
Patricia Fernández: Yes. I could say even that when the Law of Political Responsibilities was published in 1931, it declared the political responsibility of natural and legal persons who from 1934 and before the 1936, even so retroactively, had to post the national movement. In 1945, the jurisdiction for political responsibilities was abolished and complaints were no longer proceeding.
In fact, 15 years later in 1966, and in a more relaxed political and social climate, a decree granted a total pardon for the sanctions for political responsibilities. So this pardon mechanism recognized in some judicial orders the state’s obligation to return to their legitimate owners assets irregularly deposited in the state administration. But the problem was that these assets really they declared that they didn’t know where they were, even though they were in the public administration. So finally those recognitions turn into that later. That’s precisely what happens also—that happened to Ramon de la Sota, in the case of Ramon de la Sota. That’s exactly his case.
Katie Wilson-Milne: And that’s the case you worked on, which we’ll talk about. I think just to summarize that point, which is really interesting, which is that during the Franco regime it sounds like the government decided a) not to pursue political opponents the way they had during the Civil War.
And they granted amnesty in 1966, which would’ve included returning the personal property to political enemies that the state had seized, which is kind of amazing and interesting that Franco would do that, given his nature and the authoritarian nature of his regime.
But you’re saying, Patricia, that it just practically didn’t matter, that even though these laws were put in place and there were no more political seizures and there was amnesty and theoretically everything would’ve been returned, the state made no efforts to locate these works. So they actually practically could not return stuff. Is that right?
Patricia Fernández: Yeah. Yeah, in the case of political responsibilities and these kind of families, only a family who had the money and the time to sue the government at this moment could have this restitution and it was not the general case, the general framework. Most of the people continued to leave on exile or were exiles, so they never asked for these works of art.
Katie Wilson-Milne: What’s interesting, you said too that the governments had kept really detailed inventory records of all the works they seized. So why wasn’t that sort of the tool to give everything back?
Patricia Fernández: We have two type of inventories in the public archives nowadays. The inventory which was made by the Republican civil servants were really very detailed because it was supposed they were going to give them back. In the case of the Francoist civil servants at this moment, and mainly during the war, the inventories were not so precise and so detailed. So there was just a number of works of art, for example, 25 works of art, 30 chairs, 40 sculptures. So they were not so detailed. So in that case you need to prove which type of works of art you have before the seizure.
Steve Schindler: Right. And presumably since you had that open warehouse sort of situation that happened, you know, when Franco was offering to give back the works that were seized for protection, that a lot of the works that go along with the detailed inventory that you’ve described were already returned. And so maybe what was left at that time were the Franco-seized works, which it sounds like there was not any kind of detailed inventory.
Patricia Fernández: Well, there was also a lot of people who died.
Katie Wilson-Milne: Or who were in exile. Yeah.
Steve Schindler: Right.
Patricia Fernández: And who were in exile. So not always just those—
Steve Schindler: I see.
Patricia Fernández: —seized by Franco, but also some of the works of art seized before, yeah.
Steve Schindler: Can I ask you a question about that? It occurred to me as you were talking when the sort of warehouses were open for people to come and reclaim their works, were there any instances of people coming and taking works that didn’t belong to them? Is that something that’s known? It sounds like, oh, you could just come and tell someone who is working there which ones are yours and then take them home.
Katie Wilson-Milne: Or you could be an ally of the fascist state and bribe someone, right? It does seem like there’d be opportunities for that kind of graft.
Steve Schindler: Do we know whether that happened?
Patricia Fernández: Yes, it happened. We have recordings of these type of people, and even with the names and the identification of people who said that they were the owners of this work of art or of this other work of art but the inventories demonstrate that the origin of these goods were from different owners. So yes, there was also some frauds at this moment, of course. And most of these people we know perhaps sold the works of art, so we have lost the tracking of the works of art, some of them. Yeah.
Steve Schindler: Right. So it’s possible though, I mean, given that set of circumstances that there could be owners out there, or heirs of owners that are potentially entitled to works of art that are no longer with the government. I mean, I know we’ve been talking about the cases of works of art that are still with some branch for the Spanish government, the Prado, for example, but it sounds like that there could be works of art not yet discovered that are potentially in private hands at this moment.
Patricia Fernández: Yes, that’s the case. That’s for sure. Yeah.
Katie Wilson-Milne: Yeah. And then that’s a very different kind of lawsuit when you’re suing maybe an innocent purchaser who bought it from a gallery that got it from someone who fraudulently reclaimed it from the Spanish state. And that’s more what we see with the Nazi cases now, because they really come up in litigation through these private family collections. What we see in the Nazi context is that countries in the 50s and 60s put in place these administrative proceedings by which owners can come forward and claim property that was seized by the Third Reich. They’re a varying success. Obviously we still have a lot of litigation that shows that many people didn’t get works back through those proceedings. They either weren’t able to claim them, because they’re traumatized by the war, they live in another country, that’s just not top of mind, they’re not aware of the proceedings, or they try through the proceedings and fail. There’s lots of different scenarios. But it sounds like with Spain nothing really happened.
There wasn’t that process in the mid-century of reclamation. There was a law that was passed. It had very little effect, because the records were bad, and is it only now that the Spanish state is looking more seriously at returning these works and I guess putting more resources into it? What has changed in those 90 years or 80 years?
Patricia Fernández: I could say that first of all it was academic research which has showed—was able to show that really there was a huge amount of works of art not only deposited in the Spanish institutions, but as well perhaps in third parties. So first of all, the academic research has been very important, because some books have been published during the last eight, 10 years or so. So these publications indicated the photographs, the titles of works of art, which disappear during the Spanish Civil War. And some families had begun to study which kind of works of art they had at home. So, for example, families which had important art collections began to ask themselves perhaps one of the works of art could be there in one church, in a public museum. Perhaps we have to analyze what has been happening around this subject. And really, I think also the Nazi-looted art movement and all of the restitution cases that have been published had helped to make this happen in Spain. Because really during years and years, during decades there had been no movement at all.
But I could say that from more or less 15 years ago, the Spanish government began to give back some properties to political parties, then some documents to particulars who had lost some of these documentation, or even to the government of Catalonia to give them back the documentation that was seized during the Spanish Civil War. But there was not a movement to give back the works of art. So it is something that has began to happen just right now with the new law.
Katie Wilson-Milne: Is part of it too, Patricia, I mean, we see this in the Nazi case as well, is that before the internet and museums publicizing exhibition catalogs and to some extent now their entire portion of their collections online, there would be no real way, right, for someone who doesn’t go to the museum physically, and then you would only see what’s on display, you wouldn’t see what was in storage, there’d be no way to know what was in a museum or in a church, right? I mean, let’s just think of the pre-internet age. Like how would you be able to locate a work? And I assume that’s had some effect.
Patricia Fernández: Without any doubt. In that case, the first case in the last decade it was due to this digitalization of the Spanish collections, it was the way to find out where the work of art of these family were.
Steve Schindler: So maybe we should talk about how it came to be that after decades of silence and nothing really happening we have the case that you were involved in involving Ramon de la Soto and this general movement that we see, particularly in the Prado to inventory and try to return works of art. Where did it start?
Patricia Fernández: Yes. I could give some information, precedence of this family. Ramon de la Sota was a wealthy businessman and a politician of the Basque Nationalist Party in the Basque country in Bilbao. In the 90s he founded the shipbuilding company, a very important ship building company and insurance company. And really they set a very important group of industrial—industrial group.
Steve Schindler: That was at the end of the 19th century, right?
Patricia Fernández: Yes, 1800s at the beginning of the 20th century. Yeah. So really when the Civil War began, two days before he died. So he had died before the beginning of the Civil War. It is surprising. He was married and he had 11 children, and they were a very wealthy family. He had a lot of connections with painters such as Ignacio Zuloaga, because he was very interested in the art.
So in order to create it collections he managed a lot of relationships with different artists in Spain. But he also, as he traveled a lot, he bought art in London, in France. So also he acquired, bought a lot of works of art from the—he had El Grecos, he had Goyas, he had two Murillos, Morales, so really good works of art in his collection. So as I was saying, he died just before the beginning of the Spanish Civil War. When the Francoist forces enter in Bilbao, he was accused post-mortem for his adherence to nationalism. And by a decree in 1938, the Captain General resolved a political case of political responsibility for his relationship with the Nationalist Party. He was processed by the National Court of Political Responsibility setting the amount of a fine at 100 million peseta, which is really a huge amount of money at this moment. The fine was not paid, because all his family was in France of course. They went into exile. And the decision led to a general order of the seizure of his assets.
Katie Wilson-Milne: So the family left their assets in Spain when they fled?
Patricia Fernández: Yes, because perhaps they thought that they were going to come back very quickly to Bilbao. So they went to Biarritz where they had a house, but they never imagined that all their goods were going to be seized. So that’s really what the family today they say, we never imagined that this was to happen. So they left all the works of art, they left the houses completely full of their goods. But what happened afterwards was completely different. So the Francoist regime and the forces in the 1938 took possession of all of the works of art as well as all the goods, palaces, houses, everything was taken.
Steve Schindler: And so the case that you brought for the family of de Soto, that involved just a subset of everything that was taken, right? I understand it was a few paintings, or was it more than that?
Katie Wilson-Milne: And how did it come about, I mean, after all these decades?
Steve Schindler: Yeah.
Patricia Fernández: Yes. Well, they have a collection of 160 works of art but during jurors they asked for the restitution of those that they were able to identify in different ministries. And it must be said that some ministries of the Francoist regime give them back directly. They say, okay, this Goya is yours, I will give you back. Or, okay, this Morales—once they began to claim for them, some of them were given back, but many others, no. And at this time the answer of the public administration and some ministries, they say, we don’t know what you are speaking about, or we don’t have to give it back to you. And while the works of art moved from one ministry to another, so they disappear.
And when they began to send letters to different ministries in order to identify the place where these works of art could be mainly the most important ones, the claims were rejected or simply said we have no idea of the place where these works of art could be. So more than 120 works of art disappeared and were never recovered.
Steve Schindler: Wow. That seems incredible to me that I can understand what—if they say essentially, “we don’t have to give them back and go away” that would be one response, but to say that they don’t know where they are?
Katie Wilson-Milne: Yeah. It’s more like, of course we have to give them back but we can’t, because we don’t know where they are.
Steve Schindler: I mean, how many places could there be for, you know, over a hundred or so works of important art? At this moment is it still the case that there are lots of works of art for this particular collector’s family that are still missing or has that situation changed?
Patricia Fernández: No. There is a lot of works of art disappeared. So now we’re trying to find out where there could be ones that we have these digitalized inventories of all the public collections. We are trying to find out if the list of the works of art could be placed in other Spanish museums or other public places.
Steve Schindler: I see.
Katie Wilson-Milne: So what happened recently? So they try over the decades to get works back, they get a few, but not a lot, and I guess recently they received two more works back. But it sounds from our previous conversations, Patricia, that the Spanish government wasn’t entirely cooperative about this. So what is the process now if you identify a work or you think you know where it is? I mean, what did you do for this family and is that emblematic of how you have to go about this process?
Patricia Fernández: Well really, a claim for the restitution of work so far requires attention to a number of issues that needs to be overcome. First, it’s necessary to verify the identity between the works of art claimed and the works of art owned by the current processor. So we have to demonstrate that the pieces are exactly the same.
Katie Wilson-Milne: You have to prove ownership of those works being claimed, which might be difficult.
Patricia Fernández: Yes. The proof of ownership, yes, and the identification of the images. So for example, in the case of Ramon de la Sota we were able to identify some works of art, which had been published in 1919 in some publications of Basque collections in the Basque country or things like that.
So we were able to find out the images of some of the works of art which were in the inventories. So in that case it was easier, because you don’t have just a title, but you have the image you have to find out. In other cases we don’t have all the images. So for example, you have a portrait of a woman, so a portrait of a woman, or even though we could have the time of the production or the author, it’s not so easy to identify which portrait of a woman could be.
Katie Wilson-Milne: Right.
Patricia Fernández: So in those spaces we have another option, which is to find out, you know, in the back of the pictures once they were seized, does it happen in the Nazi-looted art? Some of the pictures in the back they have a stamp which explains it was seized by the board, the Republican, or it was saved by the Francoist organization for the seizure of works of art.
Steve Schindler: They had different stamps so you could tell?
Katie Wilson-Milne: This is so organized in a way, although I know it’s not organized, because they don’t know where things are.
Steve Schindler: Yeah.
Patricia Fernández: Yeah.
Steve Schindler: But that would take a tremendous effort, obviously, to take the frames off and look at the back of every work.
Patricia Fernández: It is important a recent legislation which has been passed in Spain in October, just in October, 2022, which is the Law on Democratic Memory, because this new law states that the state administration will promote the necessary initiatives for the investigation of the seizures and particularly will carry out an audit of the property plundered during the period, an audit of the public collections. So of course it will help once a museum or a public institution audit its own properties. Today properties it will help to find out which works of art could be part of the seizure.
Katie Wilson-Milne: Will they publish the results of those audits so that families can see?
Patricia Fernández: We hope so. Well, what the new legislation stated in article 31 that this audit will be carried out within one year from the entry into force of the law, which is really—
Katie Wilson-Milne: Ambitious.
Patricia Fernández: Yes. It’s very ambitious. We feel that this inventory will include most, we hope most of these assets which were seized. So it could help to, what it said, a new instrument to begin.
Steve Schindler: Right. And so if you are say an heir to a collector and you see some of these lists and you determine that one of your family’s works is on the list, then is there a process that is evolving that will allow you to claim that work, or do you have to go to court and file a legal proceeding or can you just go to—
Katie Wilson-Milne: The Prado and say—
Steve Schindler: —the Prado and say, here I am, this is my work, and show your proof?
Patricia Fernández: Regarding the new legislation there will be a legal procedure, but for the moment the regulation has not been published, so we don’t know exactly which will be this procedure. On the other hand, we had been working for this previous case for the Ramon de la Sota case without this procedure.
And also it’s possible if you are able to have all the documentation you need to prove the ownership, to prove that it was seized, to prove the identity of the work of art. But as well you have to prove that the limitation period of extinctive restriction has not passed.
Steve Schindler: Well, let’s talk about that please.
Katie Wilson-Milne: Yeah. And really the Spanish government is—I’m just curious about if the government and its entities are taking the position that even if you can prove this was seized from your family the Law of Prescription will still prevent us from giving it back. Is that the policy of the Spanish government? And also please explain what the Law of Prescription is. You can back up, but that’s surprising to me.
Patricia Fernández: Well, we have two type of prescriptions in the Spanish legislation as it were. On one hand, we have the Institute of Extinctive Prescription, which is a limitation on the late use of rights, in the interest of certainty. So it is based on the idea of sanctioning, contact of abandonment, or indifference in the exercise of one’s rights. What is important is that in the Spanish legislation you have distinctive prescription of six years.
So the determination of the—which is at the moment of the beginning of the initial term of this extinctive prescription period, is established in the Spanish code and indicates that the time for the prescription of all kinds of action when there is no special provision that determines otherwise, will be counted from the day on which they could be exercised. So in the case of, for example, Ramon de la Sota, as they discover where the two works of art were placed in 2018, we had six year to ask for this restitution.
Katie Wilson-Milne: Okay. So it’s not prescription in the sense that, which we know in civil law is possession can usurp basically theft from a rightful owner, right? So even if you didn’t own it properly, if it’s in your possession for a certain number of years the law will deem you own it and the rightful owner that something was stolen from can’t claim it anymore. I mean, that’s what we think of. But here you’re talking about something different. It’s not about possession, it’s about when the rightful owner discovers where the works are. Is that right?
Patricia Fernández: Yes. This is one type of prescription, but also we do have of course the other prescription, the prescription usucapione or usucapio, which is a prescription by the possession by a third party. Yeah.
Steve Schindler: And is the Spanish government or the Prado or whoever has the works, are they claiming that type of prescription as well or are they forgiving that, or no?
Patricia Fernández: No, I would say, for example, my experience in the case Ramon de la Sota is that they’re not forgiving that.
Steve Schindler: I see.
Patricia Fernández: So you have to show. You have to legally demonstrate that the usucapion that this prescription acquisition by the position has not been exercised. We have in Spain two kind of prescription by accusation. So we have the ordinary usucapion. We call that usucapion. I don’t know if that’s okay.
Steve Schindler: Sure. Yeah, yeah.
Patricia Fernández: Yeah, okay. We have the ordinary usucapion and the extraordinary usucapion in the Spanish legislation. So the ordinary usucapion requires good faith on the part of the possessor and fair title. In our case, for example, as we have had in the Roman de la Sota case, we had had this order of the judge for the return of deposits due to political responsibilities. In 1969 we have had a recognition of the right of the owners to have the works of art back. The public administration nowadays, they couldn’t say that they have had the position in good faith, because really there was a previous order. But we could have also the extraordinary usucapion at this moment.
For the ordinary usucapion you have to possess the works of art during three years in good faith. And with for title for the extraordinary usucapion you don’t need good faith and if you are the processor you must have the position during six years. So really if you are processing the work of art as an owner publicly, peacefully, and in an uninterrupted way, so during a long period.
Katie Wilson-Milne: How is that not dispositive? I mean, that would apply to every seizure, right? The government takes them in the 30s and they keep them. How is there any legal argument that that doesn’t apply? I mean, I’m sure you made one, but it seems dispositive.
Patricia Fernández: Yes. In our case, for example, because it was not publicly possessed.
Steve Schindler: Right. That’s what I was wondering.
Patricia Fernández: Because the family had been asking for decades and they have said we don’t know where the works of art are. And for example, they were hanging in a state owned touristic hotel, which is this Paradores, which we call Paradores de Turismo, the Paradores de Almagro, they are really very, very nice Paradores.
Steve Schindler: I’ve stayed in Paradors. They’re beautiful.
Patricia Fernández: Oh, yeah. It’s really a nice place. And as the works of art were hanging there they were not really publicly exposed in a museum or somewhere where the family living in Bilbao could really see the works of art. So in that case it was only the condition of publicity, which was not filled.
Steve Schindler: Okay. Right. So that seems like a pretty key distinction.
Katie Wilson-Milne: That’s helpful. Yeah.
Steve Schindler: And it also, from the articles I’ve read about the Prado and the work that they’re doing, most of the works that they’re discovering that were seized have not been on public display. That obviously would enhance the right of the owner to come forward and claim them without having to worry about the prescription that you described.
Katie Wilson-Milne: Yeah. Should we rewind and talk a little bit more about the de la Sota case? We kind of stopped where the heirs identified these paintings in an online inventory that the museum or the state had published, and then what happened? Because it wasn’t as simple as they just call up and say, okay, I see it, give it back, right?
Patricia Fernández: No.
Katie Wilson-Milne: So tell us about—
Steve Schindler: That’s where they head to hire your firm.
Patricia Fernández: Yes. We had a meeting with one of the heirs who told us we have found two works of art in the website of Paradores de Turismo, and we know that these two works of art were part of our family art collection. So what can we do now? Do you consider we have any possibilities to claim for them?
And we say, okay, it won’t be easy, but we will try. And at this moment, first of all we call directly Paradores de Turismo, which is an state owned company which depends on the Ministry of Industry in Spain. So we call them, we had the first conversations, they consider that we have no opportunities at all.
And then we contact the president of the Paradores de Turismo trying through letters and sending all the information regarding the identification of the works of art and the ownership, because we have titles of all of them. And well they say, “we see no possibility. This is a part of the public cultural heritage and it is part of the public patrimony.” So you have to demonstrate why you are going to—you can claim for these works of art. So finally, we contact the Secretary of the State of Tourism, and we prepare a very important file on the subject, a report stating with different documentation or the proofs regarding the seizure, the identification.
We analyzed all the public archives in order to demonstrate that these works of art were included in the inventory at the moment of the seizure in 1937. And also we were able to demonstrate that they were brought from Bilbao to Burgos, from Burgos to Madrid. That in Madrid the track disappeared. We didn’t know where they were.
And that during years and years the family sent photographies of this works of art to different ministries in order to find out if they had possession of them. Then we had to give our legal interpretation of why the usucapion could not be applied on this case. And also that the prescription of the action of six years also could not be applied.
Finally, we have to have the consensus of all the members of the family because it’s a huge family of the heirs of Ramon de la Sota, which is not so easy, but just one of the members was able put all of the family jointly to support this claim. And we recommended the family not to go directly to the court but trying to find a way to have a direct conversation with the public administration, because really we thought that we have possibilities, we have full of proofs to demonstrate that.
I must say also at this moment there was a climate, because the Law of Democratic Memory has not been approved, but there were conversations around this subject so it was to show that really our case was parallel to a movement, a political movement. Also if you want to really recognize the victims of the Francoist regime of the Spanish Civil War, this is also an opportunity, because we have all the legal framework to show that it can be done. Finally, it was not the court but the state lawyers who wrote and they stated that they consider that the works of art should be given back to the family and they recommend—
Katie Wilson-Milne: That’s our Department of Justice or something. Yeah.
Patricia Fernández: Yeah, yeah. It was not easy. We took almost two years negotiating.
Steve Schindler: That’s, I say, a very short time for us.
Katie Wilson-Milne: Yes.
Steve Schindler: That’s pretty amazing.
Patricia Fernández: Yes. But also for us, if we go to the court, perhaps we’ll take 10 years. So due to that, we proposed to the family we could have time. First of all we’ll try this via, and then if we have no options we’ll go to the courts, but we will take much more time. Yeah.
Katie Wilson-Milne: Do you think that with this new legislation and the work that these institutions are going to do to inventory their art that there’ll be less reliance on prescription as an excuse to keep the work? I mean, they may be legally entitled to keep it, because of prescription. Like the museum has had it on display for over six years and anyone could see it and it’s online, but it still may be against the policy of the government to keep work that was stolen, even if the law permits title to pass after a certain amount of time.
I mean, that’s something that comes up in the Nazi cases that we’ve just—the governments and even litigants have somewhat moved on from, not always, but somewhat moved on from the technicality of statute of limitations arguments, let’s say, and are more focused on whether you really owned it or not, or whether you were really under duress or whether there was really a theft. So it seems a little antiquated to me that Spain would have a policy of return but still rely on prescription.
Patricia Fernández: I think it is too soon to say yes or not, because really in that case we have had to demonstrate legally each of the question. There was no possibility of saying, okay, in that terms we will—but I hope that this new law will open some new bias, for example, this regulation that must be published in order to establish a procedure. Perhaps in the procedure the government will define it, which is the type of documentation that you have to give, to show in order to have the title, not to demonstrate your title. But at this moment we don’t know exactly which could be this procedure. So I feel it. What I’d say it’s too soon to say if they are going to be a bit more open minded regarding these kind of legal questions.
Katie Wilson-Milne: Yeah. Well, thank you so much. This is a topic we have not covered on the podcast. I don’t think our listeners know much about it, and it seems like it’s going to be an ongoing area of development and interest.
Steve Schindler: Yes. Thank you, Patricia. And hopefully as things progress you’ll come back and tell us about it. And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts and send us feedback at firstname.lastname@example.org. And if you like what you hear, give us a five star rating. We are also featuring the original music of Chris Thompson. And finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good.
Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne.
Steve Schindler: And I’m Steve Schindler, bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.