Two decades of legal war over the property of ‘Rue Saint Honoré, après midi. Effet de pluie’, an urban landscape by Camille Pissaro of a Paris varnished by rain, have not even managed to clarify the most essential: what legislation must be applied to decide the belonging of the painting? The Thyssen-Bornemisza National Museum and the heirs of Lilly Cassirer, the daughter of a Jewish collector who was taken by the Nazis. This week the faces were seen, through their lawyers, before the final judicial arbiter in the US, where Cassirer’s heir who initiated the claim resided: the Supreme Court.
a simple and cumbersome question at the same time: should the case be dealt with from the federal jurisdiction – that is, from the US national jurisdiction – or from the state of California, where he retired Claude Cassirer and filed your claim?
The matter is of decisive importance: it could define whether the legislation used to determine the substance of the matter – who is the legitimate owner of the painting – is Spanish or Californian.
Spanish law contemplates the usucapion figure, which grants ownership for the public and peaceful possession of movable property after six years. In California, stolen property cannot be lawfully transferred under any circumstances, even when purchased in good faith by the buyer.
Those are the circumstances of the transmission of the painting, for which we must go back to the end of the 19th century. Pissarro painted his delightful rainy afternoon in 1897, which was acquired by the Jewish collector Paul Cassirer in 1900. His daughter Lilly inherited the painting in 1926. With the arrival of the Nazis in Paris, the painting was his safe conduct to escape: the Nazis forced him to sell it for $360 at the time – money he never had access to. to be able to leave. She survived the Holocaust and, with other relatives, ended up in the US The painting was never heard of again. It was believed lost or destroyed during the war. Lilly claimed compensation for this before the American justice, which considered her the owner of the work, and received a $13,000 compensation in 1958 by the German Government.
That seemed like the end of the Cassirer family’s relationship with the Pissarro. But Lilly’s grandson, Claude, located it at the Thyssen during a visit in 1999. It had not been lost or destroyed. It had been hanging around American galleries since the 1950s, until Baron Han Heinrich von Thyssen-Bornemisza he bought it in 1976. In 1993, the painting entered the collection that the museum and the Spanish government bought from the German industrialist. Claude, who remembered seeing him in Paris when he was a child, sued him through the courts.
The plaintiff passed away a few years ago, but his heirs have gone ahead with the claim. They have on their side David Boies, a New York ‘super-lawyer’, with extensive experience in litigation before the Supreme Court – for example, he defended candidate Al Gore in the legal battle with George Bush for the result of the 2000 presidential elections– and with a long history in famous trials (right now, he represents Virginia Giuffre, the woman who has put Prince Andrew against the wall with accusations of sexual abuse).
Before the magistrates, Boies focused his claim on the clause 1606 of the Foreign Sovereign Immunities Act (FSIA, in its acronym in English), which establishes that states are not immune in case of “violation of an international law” in the acquisition of property, that in those cases the states are treated before justice “the same as the private individuals” and that the case law establishes that, in these circumstances, the matter must be dealt with by the legislation of the state from which it is claimed, that is, California. asked by the judge Samuel Alito if the consideration of clause 1606 should not be taken after deciding which jurisdiction applies, Boies responded that this “would not allow confronting the state in the same way and with the same repercussions” as if it were an individual, as the law seeks .
On behalf of Thyssen argued the lawyer Thaddeus Stauber. He defended that the FSIA does not establish that it is the state jurisdiction that applies in these cases and that the spirit of the law was “to ensure fair and uniform treatment regardless of where the claim is in the US”, so it should be used the federal jurisdiction (which, in its interest, would determine that the substance of the matter is decided by Spanish legislation). Otherwise, he explained, the results could be different for cases coming from Ohio, New York or Michigan. “Welcome to America!” replied the chief justice, John Roberts, in reference to the constitutional configuration of the country. It was one of the whiplashes that the Thyssen defense took. “I do not understand how the sovereign state has the same treatment as a private individual if the principle of choice of law is applied differently,” the judge replied. Clarence Thomas. “This seems to treat the foreign state in a way opposite to what clause 1606 imposes,” his partner deepened. Elena Kagan versus Stauber’s positions. “His vision seems more complicated. At least his opponent’s is simple,” he criticized Stephen Breyer.
Those interventions and the greater friendliness of the magistrates with Boies’ positions could be an indication of where the court’s decision will go. But nothing is said until the Supreme issues its sentence, something that will take months to occur.