August 16, 2024
By Marie-Sophie de Clippele
Who owns the famous antique Statue of Victorious Youth on display in the Getty Museum (USA)? Does the Getty Trust have rightful ownership after nearly fifty years, or is it Italian public property, given Italy’s claim that it was discovered in its waters? The ECtHR carefully avoids a straight answer to the long-contested ownership. The Court recognizes a proprietary interest of the Getty despite negligent acquisition, but it also considers the Italian confiscation order not a violation of property rights. Despite complex facts, it is a landmark case for historical restitution claims. The Court recognizes an international and European consensus on the protection and restitution of cultural heritage to its country of origin, while also carving a breach in the inter-temporality of the law.
In 1964, fishermen discovered an ancient statue in the Adriatic Sea. The statue was found covered with clay in their fishing nets. It is believed to have sunk with an ancient Roman ship returning from a looting expedition in Greece. Experts attributed the statue to the Greek sculptor Lysippos, a renowned artist of the 4th Century BC. However, the exact location of the discovery remains unclear: was it in the Italian Adriatic Sea, international waters, or Yugoslavian waters as the fishermen claim? Despite this uncertainty, the fishermen brought the statue back to the Italian port of Fano and sold it to three individuals for a low price. These buyers then resold it to an unknown buyer but were sued for theft by the Italian criminal courts. Due to a lack of evidence regarding the exact location of the statue’s discovery, which would determine the application of the laws they were charged under (stealing property of the Italian State if found in Italian territorial waters), they were eventually acquitted.
A few years later, in 1973, the statue reappeared in Germany, where an art dealer tried to broker a deal between the new vendor—a Liechtenstein company—and an interested buyer, Mr. Paul Getty Sr. Mr. Getty sought to ensure the provenance was legitimate but only consulted the legal representatives of the vendor. Unsurprisingly, these lawyers reassured Mr. Getty about the provenance, citing the acquittal of the original buyers and the failed attempts of the Italian public prosecutor to enforce judicial cooperation in Germany for the illegal export of the statue from Italy. A few years later, the Getty Trust acquired the statue for $3,950,000, and it became one of the highlights of its collection.
The Italian authorities began recovery efforts immediately after the statue arrived on U.S. soil in 1977 on criminal grounds of illegal export, without success. The second recovery attempt occurred only intermittently between 1978 and 2006, which the European judge recognized as negligent on the Italian part. The problem for the Italian authorities was identifying who committed the crime of illegally exporting the statue from Italy to Germany. Italy also made diplomatic attempts for recovery with the USA, to no avail.
In 2006, the Italian authorities changed their strategy and issued a confiscation order, initially on the grounds of illicit export. This order was quashed due to a lack of a public hearing for the Getty Trust. Subsequently, Italy argued the statue was state property. The Italian prosecutor’s argument, upheld by the Court of Cassation in 2019, stated that the statue is extra commercium (outside commercial trade) state property, making it inalienable and imprescriptible. Thus, the Getty Trust could not obtain ownership rights, and the Italian authorities were simply reclaiming what has always been theirs. This measure was considered administrative law (public domain, dominio pubblico) rather than punitive. Were this not recognized, the Italian authorities requested confiscation on the grounds of illegal export of a piece of Italian heritage, asserting the Getty Trust was involved in the crime of illegal export due to a lack of vigilance when purchasing the statue. Following the Court of Cassation’s 2019 decision, the Italian authorities issued an enforcement request for their confiscation order to U.S. authorities, which is still pending. Anticipating trouble, the Getty Trust preemptively filed an application before the European Court of Human Rights before the confiscation could be enforced.
After determining that only the Getty Trust, not the Trustees, had standing and confirming the Trust’s status as a victim directly affected by the confiscation order, the Court recognized the Getty Trust’s proprietary interest in the statue. According to the Court, though not unanimously, “the applicant had a proprietary interest in the peaceful enjoyment of the Statue that was sufficiently established and weighty to amount to a ‘possession’ within the meaning of the rule expressed in the first sentence of Article 1 of Protocol No.1.” The key factor for the Court was the passage of time, noting that the statue had been at the Getty Museum for over forty uninterrupted years. The Court stated that “the length of time that passed had in any event the effect of conferring on the applicant a proprietary interest in the peaceful enjoyment of the Statue” (§ 265). In this part of the assessment, time clearly played in favor of the holder. However, when assessing the interference caused by the confiscation order on the property interest of the Getty Museum, the Court was less lenient.
Following its well-established case law on the violation of property rights, the Court first examined the lawfulness of the confiscation order. It considered the order, based on Decree no. 42/2004 (which reproduced the confiscation rule of Law no. 1089/1939), to be “sufficiently clear, foreseeable, and compatible with the rule of law” (§ 325), despite the absence of a time limit for actions to recover stolen or unlawfully exported cultural objects.
Second, the Court held that the confiscation order was adopted in the public interest to protect cultural heritage. It went into considerable lenghts to analyze whether the statue could be considered state property or at least Italian heritage. Respecting the wide margin of appreciation of the Member State, it held that “the domestic authorities reasonably showed that the Statue formed part of Italy’s cultural heritage” and that the allegations of illicit export were reasonably argued, “irrespective of whether it was owned by the State.” (§ 359)
Third, the Court found the confiscation order proportionate, given the lack of due diligence, if not bad faith, of the Getty Trust, which did not carry out a “careful and objective assessment of the Statue’s provenance” (§ 388). The Court therefore interestingly took into account “the strong consensus in international and European law regarding the need to protect cultural objects from unlawful exportation and to return them to their country of origin” (§ 400). Finally, the Court considered the continuous efforts of the Italian authorities to retrieve the Statue despite the “very exceptional legal vacuum” they faced in securing full cooperation from foreign domestic authorities (§ 400) and the fact that the Getty Trust implicitly accepted the risk that the Statue might be confiscated without compensation.
In his dissenting opinion, Judge Wojtyczek however believes the Court should have been more clear cut and should have outright refused to apply article 1PI. According to him, the Trust merely holds an assertion to property rights, i.e. a procedural protection granted to a possessor to claim to be the owner of an object and not a substantive protection against the claims of the actual owner. By recognising a proprietary interest to the Trust but at the same time noting the lack of due diligence when acquiring the statue, the Court seemingly contradicts itself. For judge Wojtyczek, the decision is problematic as it “leads to strong protection for possessors without recognized legal title, against owners who are trying to recover their goods”, and therefore “considerably weakens the protection of cultural heritage” (§ 6).
The Court attempts a fragile balancing of interests of both parties. On the one hand, it recognizes the Trust as a victim holding a proprietary interest on the statue and thereby favors physical possession over time. The Court also withholds to settle the Italian ownership claim, keeping its subsidiary role by considering the domestic authorities – as validated in the domestic proceedings – reasonably demonstrated it was Italian property, or at least Italian heritage. Yet the ownership matter, and therefore the exact place of discovery, is at the core of the entire case. On the other hand, the Strasbourg Court recognizes an international consensus on cultural restitutions and appreciates historical acquisition in light of today’s standards of due diligence, carving a breach in the inter-temporality of law.
Two aspects of the case deserve closer attention: the lack of clarity on the ownership rules – which the Court does not settle but it does refer to all the applicable international and national legal rules, leaving the decision to the domestic courts and their margin of appreciation but recognising it as part of Italian heritage – and the stance on restitutions, especially for historical claims.
If the statue was found in Italian waters, it would be considered Italian State property according to domestic legislation, the so-called “vesting laws” which are considered valid by the Strasbourg Court. Subsequent sales and exports would violate this public property regime, granting Italy a public law claim to confiscate and retrieve its own good (an administrative, not punitive measure). This argument is commonly used to recover stolen or illegally exported public cultural goods, as seen in Belgium with the restitution of Iranian artefacts. However, the enforcement of foreign public law remains contentious despite existing national case law.
If the statue was found in international waters, its ownership is less clear. According to the international maritime laws of salvage and of finds, at least those at the time of discovery, items found on the seabed can be claimed by the original owner, even centuries later, or, in the absence of the owner, by the finder. The finder has a duty to report the finding to the coastal State, but this is distinct from the ownership question. While vessels from a certain State fall under its national territory, this does not mean that a statue found on the seabed by the vessel, and not in the vessel, is owned by that State. Claiming that a vessel falls under national sovereignty does not imply that artifacts, such as the statue in question, lying on the seabed in international waters fall under the jurisdiction of the vessel. Some claim the statue was in an ancient Roman ship that sank. Would that be enough to claim that Italy, as the successor State of Ancient Rome, is the original owner of the shipwreck and its artifacts? This slim argument is not made by the Italian authorities. Interestingly, current international underwater heritage law, such as the Convention on the Protection of the Underwater Cultural Heritage (2001), which Italy ratified in 2010 but not the USA, focuses on shared responsibility to protect heritage rather than on ownership, but it nonetheless excludes the law of finds for underwater cultural heritage (Article 4).
If not owned by Italy, can it be considered Italian heritage? If it was not found in national territory, the criteria should be that it is either made by an Italian artist or made in Italy, according to Article 4 of the UNESCO 1970 Convention. The Greek sculptor Lysippos allegedly resided in southern Italy at the time (Government claim §100), but did he sculpt the statue there? Regardless, the Italian Government follows the Court of Cassation’s argument on the “continuum between Greek civilization, which had expanded onto Italian territory, and the subsequent Roman cultural experience” (§100) to demonstrate its belonging to Italian heritage. This historical argument remains tenuous but sufficient to reasonably link the Greek statue to Italian heritage according to the European Court, referring to the wide margin of appreciation of domestic courts. It may be interesting to note that the Court similarly recognised the Van Gogh painting in the famous Beyeler case as being Italian heritage or, in fact, universal heritage and therefore legitimately protected by Italian laws (§ 113).
The Court for the first time considers an international and European consensus on restitutions of illegally exported cultural goods. In a previous case concerning the right to cultural heritage, it limited the consensus “as it currently stands [in 2019]” to Europe and to “the cultural rights of national minorities and the right of indigenous peoples to conserve, control and protect their cultural heritage” (§ 24). Even though this time the Court’s argument is focused on the return to the country of origin with no mention of a community of origin, the evolution is significant. It may pave the way to a more general customary restitution rule, thereby also applicable to non-signatory States of international treaties and European rules on the return of illegally exported cultural goods. Future cases may tell whether this acknowledgement will be the game-changer I believe it might be.
And in that respect, the most striking feature in that part of the judgment concerns the seemingly ignorance of the principle of inter-temporality of the law. Famously recalled in the Island of Palmas case, inter-temporality would mean that the Trust could not be reproached for its lack of diligence and refusal of restitution given that no international instrument required the Trust to do so at the time of acquisition. But the Court decides otherwise: it is the Italian Government who should not fall victim to a lack of legal instruments (“a legal vacuum” in the Court’s words) some fifty years ago and suffer the loss of its heritage. Especially in light of the fact that, had the acquisition happened today, Italy would have significantly more legal grounds to claim it back . The Court here makes a dent for historical restitution claims that might prove interesting in other contexts, such as objects taken in the colonial context, often time-barred. Cultural rights could also have been mentioned to justify taking into consideration today consensus for an old purchase. Indeed, the right to cultural heritage has gained acknowledgment from bodies like the Inter-American Court of Human Rights and the European Court of Human Rights as previously mentioned, and to some extent, the International Court of Justice. Nevertheless, as Alex Herman noted, the Court “strayed into ethical territory” when demanding a modern due diligence approach for a decades old acquisition: even if it seems the right thing to do, is it therefore legally mandatory?
The judgment is a blow for the Getty Museum but it does not resolve the issue definitively. First, the Getty may decide to refer the case to the Grand Chamber, as it recently stated it might appeal. Second, it is still up to the US authorities to enforce the order, and it could be refused even if the mutual assistance treaty and the ECtHR decision would make a rejection more difficult.
In the meantime, the Court, albeit prudently, sends a strong message in favor of restitution of cultural objects, even taken away a long time ago. It also takes a stance for due diligence requirements, but does not (yet) reverse the burden of proof as a proprietary interest was recognized to the Getty Trust. The physical possession of the statue over a long period of time is sufficient to establish a proprietary interest without requiring the Getty to provide proof of legal acquisition. This point is specifically criticized in the dissenting opinion, although the Court does not address it from the standpoint of the burden of proof and instead limits its appreciation by referring to the domestic margin of appreciation.
So, is it to say that art belongs to its original owner, even after a long time? Maybe, or at least if the owner is a State with strong appropriation laws for found cultural heritage.
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