Frankfurt/Main Administrative Court
Reference number:
Announced on:
June 2, 2010
L. S. Williams
Clerk of the court
Verdict
In the name of the people
In the proceedings under administrative law
instigated by art dealer
Plaintiff
Authorized proxy: Rechtsanwälte Menzendorff & Collegen
Hanauer Landstrasse 145, 60314 Frankfurt/Main
No. 96/10M11lgD9/23689
against
The State of Hesse
Represented by the Hessian Ministry for Science and Art
Rheinstrasse 23-25, 65185 Wiesbaden
-IV 5.1 – 790/31.000-0005-
Defendant
In a matter of
regulatory law
the 5th Chamber of the Frankfurt/Main Administrative Court represented by the judge at the
Administrative Court Mr. Liebetanz, as sole judge, has adjudged on the basis of the verbal
proceedings on June 2, 2010 as follows:
The defendant is sentenced to surrender the three pre-Christian antique bowls and the two little
Byzantine censers to the plaintiff.
The costs of the proceedings shall be borne by the defendant.
Given that the costs have still to be determined, the sentence is provisionally
enforceable. The defendant may avert enforcement by the provision of securities to
the same value as the costs to be determined, provided that the plaintiff has not
provided securities to the same value.
Facts of the Case
In an injunction dated December 16, 2009 the Hessian Ministry for Science and Art took custody
of the objects mentioned in the tenor, primarily using the argument that their owner, who had still
to be established, should no longer be denied possession of the objects; after all, there was a
suspicion that the goods in question had been stolen. Litigation proceedings instigated against
this injunction at the adjudicating court -- 5 K 4154/09F (1) -- ended, at the court's suggestion,
with the authorities agreeing to cancel the above injunction of December 16, 2009, and to return
the confiscated items to the plaintiff.
The Hessian Ministry for Science and Art issued official notification on April 19, 2010, that it was
complying with this, and cancelled the original safekeeping order dated December 16, 2009. In
the same post, Römisch-Germanisches Museum (RGZM) in Mainz, where the State of Hesse
had stored the objects in question, was instructed to surrender the objects that had been
confiscated to the plaintiff.
The surrender of the objects to the plaintiff eventually fell through because despite repeated
requests, an employee at Römisch-Germanisches Museum ultimately refused to surrender the
items to the plaintiff. Neither letters from the plaintiff's lawyer and official proxy, nor a personal
visit from a representative of the plaintiff achieved any success. As the representative of the
Ministry for Science stated in the verbal proceedings, its endeavors to date to persuade RGZM
to surrender the items to the plaintiff have also been unsuccessful. One example in this context
that may be referred to is a letter to the plaintiff from Dr. Michael Müller-Karpe dated May 10,
2010. In this letter unreasonable counterclaims are made in this matter and ultimately the
surrender is refused.
On April 30, 2010 the plaintiff instigated legal proceedings demanding the surrender of the items
and a temporary order from the adjudicating court in order to ensure that the defendant agree to
surrender the antiquities in question. In justification, the plaintiff described in detail how all
attempts to date to retrieve the items from the Hessian Ministry for Science and Art or from
RGZM had been unsuccessful.
The plaintiff petitions
that the defendant be sentenced to surrender to the former the three pre-Christian
antique bowls and the two little Byzantine censers confiscated on the basis of official
notification dated December 16, 2009.
The defendant petitions
that the plaintiff's petition be rejected.
In justification, the latter states that when something that has been confiscated is subsequently
surrendered after its safekeeping order has been cancelled, it is the plaintiff's responsibility to
collect the item in question, and not the defendant's responsibility to deliver it, in other words, the
plaintiff would have to pick up the antiquities from RGZM himself. Furthermore, the State of
Hesse has stated that it does not see any way of exerting pressure on the custodian, RGZM.
For further details of the status of the proceedings reference is made to the contents of the court
records. The records of the expedited proceedings -- 5 L 1081/10.F (1) -- and the records of the
completed initial court proceedings 5 K 4154/09.F (1) were at hand and were the subject of the
verbal proceedings.
In the verbal proceedings the Deputy Director of RGZM, Prof. Egg, was heard with regard to the
question of what stood in the way of surrendering the antiquities to the plaintiff. For details,
please consult the minutes of the verbal proceedings.
REASONS FOR THE DECISION
The legal action, which takes the form of a performance action, and whose objective is the
surrender of the antiquities, is permissible and justified in this case.
In accordance with article 43, para. 1 of the Hessian Law on Public Safety and Order, (HSOG),
any confiscated items should be surrendered to the person from whom they were confiscated
once the prerequisites for their confiscation no longer apply. With its decree dated April 19,
2010, the defendant repealed the confiscation decree dated December 16, 2009. This very fact
means that the defendant is obliged, without any doubt, to surrender the antiquities to the
plaintiff, from whom at the time said items were confiscated.
Independent of this, the plaintiff alone is clearly the lawful owner of the antiquities indicated in
the tenor. In the proceedings 5 K 4154/09.F (1) the court had the opportunity to conclusively
clarify the question of ownership, referencing the pertinent official records. According to these,
the plaintiff lawfully acquired the antiquities from the witnesses Mr. and Mrs. Ther in the context
of an antiques fair. The Frankfurt/Main Regional Court correctly assumed this in its decision
dated December 04, 2009 and therefore repealed the confiscation of these items in the wake of
a suspicion that the goods in question had been stolen (pages 54, 55 dossier 5 K 4154/09.F (1).
As long ago as 1980 an Armenian carpet dealer sent the antiquities with a shipment of carpets
to the witnesses Mr. and Mrs. Ther after their return from Turkey, and they subsequently sold
them to the plaintiff in 2007. Accordingly, the witnesses Mr. and Mrs. Ther definitely acquired
these antiquities by adverse possession in accordance with article 937 of the German Civil Code
(BGB), since they had been in their proprietary possession for much longer than ten years and,
moreover, it is completely out of the question for the witnesses not to have been acting in good
faith at the time purchased them, or at a later date. Not only does the adjudicating court believe
the witnesses Mr. and Mrs. Ther, the Frankfurt/Main Regional Court also believed them. The
officer who offered administrative assistance to the Hessian police by interviewing the witnesses
in Munich, explained in credible detail why the statements made by the witnesses Mr. and Mrs.
Ther were believable and understandable. The defendant State has never said anything to
(credibly) counter this. With the best will in the world, it is impossible to understand why the
witnesses Mr. and Mrs. Ther, a couple, both teachers, could have made a false statement to the
police, particularly in view of the low value of the antiquities, which they sold to the plaintiff for €
200. This being the case, the plaintiff did acquire this possession from its lawful owners, the
witnesses Mr. and Mrs. Ther. The former is therefore himself the lawful owner of these objects.
Nothing else it is to be deduced from the proceedings initiated in accordance with the law
governing the return of cultural assets. The authorities themselves brought to an end these
proceedings and a court order issued at the time to stop them. Moreover, the necessary
prerequisites for a return of the goods in accordance with this law have obviously not been
fulfilled. Finally, despite the particular length of the proceedings at the time, Turkey did not
consider itself in a position to reasonably justify an application to this effect. In the proceedings
at the time, despite repeated requests by the Federal Ministry of Foreign Affairs, Turkey did not
even consider itself in a position to accurately describe the controversial antiquities under
consideration in accordance with the situation. The letter from Turkey produced at the verbal
proceedings is a simple request without any legal substantiation, and cannot be held up as
evidence against the plaintiff's possession of the antiquities. In the final analysis, the expert
opinion presented by the Office of Criminal Investigation of the State of Brandenburg did not
come up with anything legally relevant. The expert opinion cannot call into question the lawful
acquisition from the witnesses Mr. and Mrs. Ther.
Accordingly, the defendant State is obliged to hand over the antiquities to the plaintiff because
the confiscation order was repealed and the plaintiff is the lawful owner of these items. The
defendant State is also obliged to deliver the antiquities to the plaintiff and to surrender them to
him and cannot expect the plaintiff to collect the items from a third party, RGZM. The question as
to whether, once a confiscation order has been repealed, the confiscated items should be
collected or delivered is neither here nor there. This is because;- as evidenced by the minutes of
the initial verbal proceedings 5 K 4154/09.F (1) dated April 19, 2010, the defendant State has, by
means of the corresponding assurances, undertaken to surrender the items in question to the
plaintiff. In the verbal proceedings, the representative of the authorities expressly stated that the
official notification objected to would be repealed; the confiscated items would be surrendered to
the plaintiff. This formulation makes it clear that the plaintiff cannot be expected to collect the
items in question from the Ministry or from a third party. Moreover, and independent of this, to
date the plaintiff has made considerable and strenuous efforts to get hold of the antiquities from
RGZM. These efforts range from numerous written submissions from lawyers setting deadlines
to personal appearances and even legal action at Mainz Local Court. Since all these efforts have
been unsuccessful ,there is no longer any point in telling the plaintiff to go and collect the items
himself. In the final analysis, the confiscation order of December 16, 2009 was grossly and
obviously unlawful. The justification of the order is way off the mark. From the outset the ruling
of the Frankfurt/ Main Regional Court on December 04, 2009 ruled out any remote suggestion of
the goods being stolen property. With the best will in the world, the court cannot understand why
after the ruling by another regional court the Ministry for Science and Art once again went back
to the argument that the goods in question could be stolen property. The other element justifying
the order, depriving the owner to date of his property, was equally incomprehensible, the reason
being that the plaintiff is the sole owner. Once the authorities had repealed this blatantly unlawful
confiscation order at the suggestion of the adjudicating court in proceedings 5 K 4154/09.F (1)
they are definitely obliged, as much as anything else in order to rectify the results, to hand over
the confiscated items to the plaintiff.
Ultimately, the defendant himself does not deny his obligation to surrender the items. Indeed,
back in his letter dated April 19, 2010 (p. 20 general file) he instructed RGZM to hand over the
antiquities to the plaintiff. Nor is it impossible for the defendant to surrender the items, if
necessary, he must retrieve them from RGZM. It is unacceptable, and indeed verges on a
scandal, if the State of Hesse gets its authorities to seize items and then arbitrarily passes these
on to some third party or other without putting in place sufficient arrangements and safeguards
for these items to be handed back once the confiscation order had been repealed. In this case, it
is also true that even the confiscation order was clearly unlawful, and that the plaintiff must
gradually be coming to the conclusion, to a certain extent, justifiably so, that his possessions and
his claim for return of said items is being thwarted by the authorities. Even before being seized
on this occasion, the antiquities had repeatedly been confiscated. Directly after the verdict under
consideration was announced, a representative of the police headquarters in Mainz rang up the
adjudicating court and informed them that after the items in question have been handed back by
RGZM, a safeguarding option was under consideration.
In any case the State of Hesse must make use of any opportunity to return the property to the
plaintiff, its lawful owner. The State of Hesse acted unlawfully by confiscating the items and
handing them on to a third party, which was not entitled to them. The State is therefore obliged
by law to procure the items again. If necessary, the State of Hesse will have to initiate legal
proceedings against RGZM, a foundation under public law or, on a higher political level, put
pressure on the State of Rhineland-Palatinate and persuade the Ministry for Science there to
exert its supervisory function over RGZM and induce the latter to surrender the items to the
plaintiff or at least to the Hessian Ministry of Science and Art. In the case of the Hessian
authorities the question arises as to the responsibility under civil servant and disciplinary law of
officials who simply pass on to third parties items that have been taken into custody and are in
their safekeeping. Moreover , the question of official liability also comes into play when the State
of Hesse finds itself unable to return to the plaintiff property that it confiscated unlawfully and
equally unlawfully passed on to a third party.
RGZM itself is obliged to surrender the items in question to the State of Hesse or to the plaintiff,
since it was only given custody of them in order to safeguard them. Since the State of Hesse has
now ended this custodianship and has instructed RGZM to return the items, RGZM has
absolutely no lawful reason to keep the items. Moreover, surrendering the items to the plaintiff is
returning them to the only person entitled to possess them. The letter from Turkey addressed to
RGZM has no validity in law. In as far as Dr Michael Müller-Karpe, an employee of RGZM has,
to date, refused to surrender the items, the question arises as to this employee's liability under
civil servant or employment law. The letter from this employee dated May 10, 2010 (pp. 26-28 5
L 1081/10.F (1)) is so incomprehensible that the suitability of this employee for his position is
called into question. With the best will in the world the court cannot understand how an
employee can compose this kind of letter on official RGZM stationery. The question now arises
as to why the museum management and, if applicable, the responsible Rhineland-Palatinate
Ministry does not intervene. In the above-mentioned letter Dr Michael Müller-Karpe says that the
antiquities can only be surrendered to the plaintiff upon payment of more than €17 million. The
content of this letter is approaching mental imbalance. In the letter it also states, for example,
that the judges at the Frankfurt/Main Regional court and at the Administrative Court would also
issue an invoice for a "carte blanche" made out in the name of the plaintiff. In other words the
Frankfurt/Main Regional Court and the Administration Court are being accused of bribery and
the perversion of justice in this matter. Once again, it is incomprehensible that this kind of letter
can leave RGZM on the official stationery of this serious institution. As the management of
RGZM is clearly not capable of properly supervising this employees, the Rhineland-Palatinate
Ministry for Science, as the supervisory body for this museum, should intervene. RGZM must
surrender these items to the plaintiff or to the State of Hesse, there is no legal justification of any
kind for keeping them. In this case, should these items be passed on to third parties the
questions of official liability and legal, disciplinary consequences under employment law will
come into play.
Since it has lost the case the costs of these proceedings shall be borne by the defendant State
(article 154 para. 1 Administrative Courts Procedures Code, VwGO)).
The provisional enforceability of the costs verdict is derived from article 167 para. 2 of VwGO in
combination with article 708 no. 11 and article 711 of the German Code of Civil Procedure
(ZPO).