June 29, 2018

Seizure: An Etruscan Hare Aryballos circa 580-560 B.C.E.


At the request of the Manhattan district attorney's office, the Hon. Ellen N. Biben, Administrative Judge of New York County Supreme Court, issued a seizure warrant for an ancient Etruscan terracotta vessel, in the shape of a reclined rabbit.  Listed as a Hare Aryballos, circa 580-560 B.C.E., the unguentarium was seized by New York authorities at Fortuna Fine Arts Ltd., a firm which specializes in antiquities and numismatics, located at 3 East 69th Street in New York City. 

Earlier, on 30 June 2018, this same aryballos sold for £950 in London via Rome-based Bertolami Fine Arts through ACR Auctions, an online auction firm used by the Italian auction house. 

PROVENANCE: From an European private collection.

The New York gallery where the seizure warrant was executed is managed by Selim Dere, Founder and Erdal Dere (son of Aysel Dere and Selim Dere), President of Fortuna Fine Arts.   There is no information available at this time as to whether or not Mr. Dere had valid import and export documentation. 

Prior to moving to New York, Selim Dere was reportedly arrested by Turkish police, along with cousin Aziz Dere and art dealer Faraç Üzülmez for their roles in the smuggling a marble sarcophagus depicting the twelve labours of Heracles from Perge, Turkey.  Purportedly sliced into pieces for transport, part of this sarcophogus was repatriated by the John Paul Getty Museum to Turkey in 1983 while others were located in Kessel, West Germany.

This fragment of sarcophagus was smuggled abroad after illicit
excavations in Perge and given back by Paul Getty Museum of USA in 1983.
Perge, 2nd Cent. AD
Inv. 1.11.81 - 1.3.99 - 2.3.99
Antalya Archaeological Museum
Image Credit:
https://www.flickr.com/photos/130870_040871/16937604198/in/photostream/
Later, in 1993, acting on an international letters rogatory from the Turkish Government, FBI agents from the New York field office went to the Fortuna Fine Arts gallery, then located on Madison Avenue, and seized a marble statue of a young man and fragment of garland taken from Aphrodisias, an ancient Greek Hellenistic city in the historic Caria cultural region of western Anatolia, Turkey. 


Later, in June 2009, the owner of Fortuna Fine Arts was stopped upon arrival at John F Kennedy International Airport following a flight originating in Munich, Germany where he had stated on his entry documentation that he had nothing to declare. Despite that affirmation, a physical examination of his person and luggage uncovered three artifacts: a red intaglio stone, a Byzantine gold pendant, and a terracotta pottery fragment. All three objects were seized by U.S. Customs and Border Protection on the basis of 18 U.S.C. § 545 (1982) and19 U.S.C. § 149 (authorizing penalties for failure to declare articles upon entry into the United States) and authorizing Customs agents to search and seize property imported contrary to U.S. laws).

In March 2013, the intaglio and pottery fragment were examined by the Archaeological Director of the Special Superintendent, MiBACT in Rome, Italy, who determined that both objects were of Italian origin and had likely been illegally looted from an archaeological site somewhere in Italy.

**NOTE:  This article was updated 01 July 2018 to reflect repatriation details of partial sarcophagus to Turkey in 1983. 

By:  Lynda Albertson

Italy Returns Trafficked Artifacts to the Archaeological Departments of the Ministry of Antiquities of the Republic of Egypt


In a ceremony held in Rome on June 27, 2018 at the headquarters of the Carabinieri Command for the Protection of Cultural Heritage, the Public Prosecutor at the Court of Salerno, Dr. Corrado Lembo and the Commander of the Carabinieri for the Protection of Cultural Heritage, Brigadier General Fabrizio Parrulli, returned 23,000 ancient bronze and silver coins and 195 archaeological finds, including funerary masks decorated in gold, a sarcophagus, a "Boat of the Dead" with 40 oarsmen, amphorae, pectoral paintings, wooden sculptures, bronzes, and oshabti statuettes, to the Ministry of Antiquities for the Republic of Egypt.  The objects, dating from the Predynastic to the Ptolemaic period, were believed to have been excavated during clandestine excavations in the south of Egypt.

On hand for the ceremony were Egyptian Ambassador, HE Hesham Badr, Professor Mohamed Ezzat, Senior Coordinator at the International Cooperation Administration of the General Prosecutor's Office, and Professor Moustafa Waziry, Secretary General of the Supreme Council of Antiquities in Egypt. 

The pieces were discovered during a seizure which took place in May 2017, at the customs area of ​​the port of Salerno, by the Carabinieri of the Cultural Heritage Protection Center of Naples, in collaboration with the officials of the Customs Agency and the local Superintendency.  The stop, was part of a customs inspection of a container which was marked as being for the transport of only household goods.









June 12, 2018

The J. Paul Getty Museum has issued a statement regarding the judicial ruling on the Statue of a Victorious Youth AKA the Getty Bronze (In English and Italian)

Backdated to June 08, 2018, Ron Hartwig, the spokesperson for the J. Paul Getty Trust, has issued a public statement (in English) regarding the ruling of the Italian court magistrate on over the museum's rights to retain l’Atleta di Fano.

That statement can be found/downloaded on the museum's website here and here. 

For our English and Italian readers, we have reposted their statement and translated it into Italian for this blog's readers.

FOR IMMEDIATE RELEASE
JUNE 08, 2018

STATEMENT FROM RON HARTWIG, SPOKESPERSON FOR THE J. PAUL GETTY TRUST, REGARDING THE RULING IN PESARO ON THE VICTORIOUS YOUTH

Press Release

MEDIA CONTACT(S):

Julie Jaskol
jjaskol@getty.edu
(310) 440-7607
Getty Communications

Statement from Ron Hartwig, spokesperson for the J. Paul Getty Trust,
regarding the ruling in Pesaro on the Victorious Youth


We have just received the judge’s decision and are reviewing it. We are disappointed in the ruling, but we will continue to defend our legal right to the statue. The facts in this case do not warrant restitution of the object to Italy. The statue was found in international waters in 1964, and was purchased by the Getty Museum in 1977, years after Italian courts concluded there was no evidence that the statue belonged to Italy.

Moreover, the statue is not part of Italy’s extraordinary cultural heritage. Accidental discovery by Italian citizens does not make the statue an Italian object. Found outside the territory of any modern state, and immersed in the sea for two millennia, the Bronze has only a fleeting and incidental connection with Italy.

We very much value our strong and fruitful relationship with the Italian Ministry of Culture and our museum colleagues in Italy. Resolution of this matter must rest on the facts and applicable law, under which we expect our ownership of the Victorious Youth to be upheld.

For more details on Italy's recent court decision on this case please see our earlier blog post here.

༺═──────────────═༻


PER IL RILASCIO IMMEDIATO
8 GIUGNO 2018

DICHIARAZIONE DI RON HARTWIG, PORTAVOCE DEL J. PAUL GETTY TRUST, IN MERITO SENTENZA A PESARO SULLA GIOVENTÙ VITTORIOSA

Comunicato stampa

CONTATTO / I PER I MEDIA:

Julie Jaskol 
jjaskol@getty.edu 
(310) 440-7607 
Getty Communications 
Dichiarazione di Ron Hartwig, portavoce del J. Paul Getty Trust, 
riguardo alla sentenza a Pesaro sulla Gioventù vittoriosa

Abbiamo appena ricevuto la decisione del giudice e la stiamo esaminando. Siamo delusi dalla sentenza, ma continueremo a difendere il nostro diritto legale alla statua. I fatti in questo caso non garantiscono la restituzione dell'oggetto in Italia. La statua fu trovata in acque internazionali nel 1964 e fu acquistata dal Getty Museum nel 1977, anni dopo che le tribunali italiani conclusero che non esisteva alcuna prova che la statua appartenesse all'Italia. 

Inoltre, la statua non fa parte dello straordinario patrimonio culturale italiano. La scoperta casuale da parte di cittadini non rende la statua un oggetto italiano. Trovata al di fuori del territorio di qualsiasi stato moderno, e immersa nel mare per due millenni, il Bronzo ha solo una fugace e fortuita connessione con l'Italia. 

Apprezziamo molto il nostro rapporto forte e proficuo con il Ministero della Cultura italiano e con i nostri colleghi museali in Italia. La risoluzione di questo problema deve basarsi sui fatti e sulla giurisprudenza applicabile, in base alla quale ci aspettiamo che la nostra proprietà del Giovane vittorioso venga mantenuta. 

Per piu dettagli sulla la decisione del giudice del tribunale italiana per favore consultare il nostro precedente post sul blog qui.

June 10, 2018

Syria has ratified the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.

The smashed face of a statue found on the floor of the Palmyra museum in the Syrian city of Tadmur, Homs Governate,  March 31, 2016. Image Credit - Joseph Eid
To address the ongoing issue of illicit trafficking of Syrian cultural property, the country has now ratified the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.   Adopted on 24 June 1995, representatives of over seventy states met in Rome with an ambitious goal aimed at harmonizing the rules of private law of various states parties affecting the restitution and return of cultural objects between states party to the Convention to their country of origin. 

The aim of UNIDROIT (is clearly stated in Paragraph 4 of its preamble.  That that is: to contribute effectively to the fight against the illicit trade in cultural objects by establishing common, minimal legal rules for the restitution and return of cultural objects between contracting states with the objective of improving the preservation and protection of cultural heritage.  

At present, including Syria, there are now forty-three states party signatories to the Convention. 

With Syria's deposit of the instrument of accession to the UNIDROIT Convention of 1995 at the Italian Ministero degli Affari Esteri e della Cooperazione Internazionale (Ministry of Foreign Affairs and International Cooperation) on 27 April 2018, the UNIDROIT Convention will enter into force for the Syrian Arab Republic on 1 October 2018.

The full text of the Convention is available here.

Extracted from the UNIDROIT website:


For years, many middle eastern countries failed to consider ratification of UNIDROIT working under the false assumption that the initiative for the Convention on the protection of cultural property was a manoeuvre by “art importing” countries to weaken the UNESCO Convention. Others (wrongly) misinterpreted the nature of the agreement as an extension of the UNESCO Convention at the behest of the “exporting” States.   The reality is quite different as Marina Schneider, Senior Legal Officer and Treaty Depositary explains.  In trainings conducted throughout the globe, Ms. Schneider explains that it was at UNESCO’s request that UNIDROIT (International Institute for the Unification of Private Law) took up the matter of illicit traffic in cultural movables given the enormous complexity of legislation as it relates to the phenomenon of illicit trafficking. 

For a “live” status map of the Signatory and State parties to the UNIDROIT Convention please see the UNIDROIT website here: https://www.unidroit.org/status-cp?id=1769
The ratification of the UNIDROIT convention will allow Syria to fight more effectively, together with other signatory States, against theft, import, export and illegal transfer of ownership of its cultural patrimony.   Let's hope Iraq will sign on next. 

June 9, 2018

The Statue of a Victorious Country: Judge issues a long awaited ordinance on the fate of the "Getty" Bronze

The Getty Villa.
Image Credit: ARCA 2018
For the third time, and after years and years of battles, which started in the courtrooms of Pesaro before passing slowly through Italy’s Corte Suprema di Cassazione (Supreme Court of Cassation), only to be sent back down to the lower courts again, we finally have a verdict over the rights to l’Atleta di Fano.

Commonly known as the Statue of a Victorious Youth or colloquially as the Getty Bronze, to the Italians this stoic bronze statue is known as il Lisippo or l'Atleta di Fano.  Yet, despite Italy's long-held claim for its return, the bronze has long held pride of place at the Getty Villa, the Los Angeles museum at the easterly end of the Malibu bluffs in the Pacific Palisades neighborhood.  There, in one of America's most prestigious museums, the athletic youth stands with all of his weight on his right leg, crowning himself with an olive wreath, as his gaze looks out over some of the museum's most impressive Hellenistic artworks in the California villa's newly renovated Gallery 111.

But that may change very soon. 


Judge Gasparini listens to Getty
council’s final argument in open court
Pesaro court house, 05 Feb 2018
Image Credit: ARCA
On June 08, 2018, in a long-awaited judicial decision, the Italian Tribunale di Pesaro issued a 50-page ordinance, written and signed by Magistrate Giacomo Gasparini who firmly rejected the Getty museum's opposition to Italy's order of confiscation.

Throughout the case, the J. Paul Getty Museum has stood by its original claim, that its purchase of the statue in 1977, for $3.95 million, was legitimate.  The museum's legal team and its current director Timothy Potts have stoically maintained that there was no evidence that the statue belongs in any way to Italy, discounting the country's claim that the object was exported out of Italy in contravention of existing Italian law.  This despite the fact that the bronze had been fished from the sea by Italian fishermen aboard the Ferruccio Ferri in 1964, who then brought the statue to the Italian city of Fano where they hid it from authorities, first, by burying it in a cabbage patch and later, by hiding it in a priest's bathtub rather than declare their cultural find as required to the Italian customs dogana.

Getty Museum attorney's listen to
their Italian council's final argument
in open court
Pesaro court house, 05 Feb 2018
Image Credit: ARCA
During those open court hearings which I attended in Pesaro, the Getty's attorney's maintained that John Paul Getty himself had originally walked away from the purchase of the statue, not for the reasons maintained by Italy's attorneys, but because at the time the object was originally proffered to him, Getty was more concerned about the fate and wellbeing of his grandson, 16-year-old John Paul Getty III, who had been kidnapped from Piazza Farnese in Rome on July 10, 1973.

Justice moves slowly and will the Athlete of Fano come home? 

For now, we do not know. 

To understand how this complicated case has moved through the Italian judicial system it is first necessary to understand a bit more about the country’s legal system.  It is the responsibility of the Corte Suprema di Cassazione to ensure the correct application of law in the inferior and appeal courts and to resolve disputes as to which lower court (penal, civil, administrative, military) has jurisdiction.  Additionally, the higher court is also entrusted with the charge of defining the jurisdiction i.e., of indicating, in case of controversy, the court, either ordinary or special, Italian or foreign, which has the power to rule on a case.

Unlike upper level courts in the United States or the United Kingdom, the Italian Supreme Court cannot refuse to review cases and defendants have unlimited appeal rights to the Supreme Court of Cassation.  This means that the Getty Museum could, if it chooses to do so, repeat its appeals process for a second time, all the way back up to the higher court extending their claim for additional years to come.

Given the backlog of criminal and civil cases pending and the lengthy process involved in delivering a ruling once an absolute decision has been handed down, cases like this one often linger in judicial limbo for many years.

Interior, Palazzo di Giustizia, Roma
To put things in perspective and to give readers an idea of how this complicates judicial resolutions, it's helpful to look at other countries for comparison.  The United Kingdom's Supreme Court hears approximately 75 cases per year while the United States Supreme Court generally rules on 100 to 120 case decisions annually.  In a country serving a local population that is one-fifth the size of the United States, the Italian Supreme Court of Cassation decides on close to 50,000 cases (both criminal and civil) annually.  The final administrative court, the Consiglio di Stato decides over 10,000 cases per year; while the Constitutional Court makes final decisions on around 400 cases per year.

Like other supreme courts around the world, the Court of Cassation is not tasked with re-examining the entire body of evidence in a given case.  Additionally it does not have to make rulings solely on cases that have passed through the Corte d'Assise d'Apello, Italy's Appellate Court. Cases which meet certain criteria can go directly from the tribunal level court system to the supreme court as the Court's role is specifically to rule on erores in iudicando and errores in procedendo (errors in procedure or application of the law). 

Some criminal cases reach Italy's Court of Cassation by first passing through the Corte d'Assise d'Apello, as was the case with the high profile murder case of Amanda Knox.  Both the defendant and the prosecution in that type of appeal case retain the right of appeal and both the Corte d'Assise d'Appello and the Supreme Court are required to publish written explanations of their rulings and decisions.

But these are the upper courts.

Before arriving at the Supreme Court or Appeal Court cases are heard by regional tribunals.  Tribunals consist of one single judge or a panel of three judges depending on the type of case being heard.  It is these tribunali which are the Italian court's first instance of general jurisdiction in both civil and criminal matters and it is at this level, in Pesaro, that this recent decision has been handed down. 

The Getty Villa, California
But getting back to the specifics of the case of the Getty Bronze that in some ways is as complex and hard to follow judicially as a tightly contested Wimbledon tennis match.

In 2007 the Italian Ministry of Cultural Heritage and the J. Paul Getty Trust agreed to set the question of the Victorius Youth aside pending the ongoing legal process before the Tribunal in Pesaro concerning the object's illegal exportation from Italy.  The accord of the parties on this point was crucial as earlier negotiations in 2006 had been contentious and unfruitful due to disagreements between Italy and the Getty over the statue's ownership status.

In 2007, in proceedings before the Tribunal of Pesaro, charges related to the illicit exportation of the Victorious Youth were dismissed upon the request of the public prosecutor on the grounds that the statute of limitations on prosecution had expired against all of the defendants in the case, leaving the Italian state with no one left to prosecute.  At the time of the requested dismissal, the prosecutor demanded the confiscation of the bronze given it had been exported out of Italy in contravention of existing Italian law.

The Athlete of Fano, depicted before restoration. 
Almost three years later, on the tenth of February 2010, Luisa Mussoni, the preliminary investigation judge at the Tribunal of Pesaro, ruled that the Victorious Youth had been exported illicitly.  As a result of this court decision, the tribunal issued an order for the statue's immediate seizure and restitution to Italy.  This court order followed an earlier and separate order June 12, 2009 ruling on the question of the jurisdiction.

As a result of these two decisions, the Getty Museum subsequently challenged the orders' validity before the Italian Court of Cassation on February 18, 2011. At that hearing the case was remanded back to the Tribunal of Pesaro for further examination of the merits of the case.

On May 3, 2012 Maurizio Di Palma, the pretrial judge at the Tribunal of Pesaro, once again upheld the earlier 2010 order of forfeiture and confirmed that the statue was illegally exported from Italy.  His ruling placed the case's resolution back with Italy's Supreme Court for what was supposed to be the case's final ruling.

But it wasn't.

Instead in February 2014 the Prima Sezione Penale della Cassazione (First Penal Section of the Supreme Court of Italy) elected to transfer the case to the Terzo Sezione Penale della Suprema Corte (Third Criminal Chamber of the Supreme Court) where a new hearing was scheduled to establish whether or not the order of confiscation issued by the Court of Pesaro on May 3, 2012 should have been affirmed.

In 2014 the Terzo sezione penale della Suprema Corte, based on the European convention on human rights, ruled that cases must be heard in open court and that in not providing for such, the Getty museum had been "deprived of its constitutional rights" to a public hearing.  In furtherance of this, and much to the frustration of those working towards the statue's repatriation, the Italian Court of Cassation remanded the supreme court case back to the lower court authorities in Le Marche in order to establish in open court where witnesses could be called, to determine whether or not the earlier order of confiscation issued by the Court of Pesaro on May 3, 2012 should be affirmed.

Yesterday, in his June 8, 2018 ordinance, Magistrate Giacomo Gasparini stated in clear terms that he agreed with the previous court decisions (Mussoni in 2010 and Di Palma in 2012) and wrote in favor of the object's seizure stating, "Confiscate il Lisippo, ovunque si trovi" (English: "Confiscate Il Lisippo from wherever it is").

Given this prestigious statue's pride of place at the Getty Villa, the J. Paul Getty Museum would lose its substantial investment and a critical and cherished piece in their collection should they abide by Magistrate Gasparini's seizure ruling and relinquish the statue to Italy as a result of this last affirmation. If they choose not to, they can again delay what now seems to be the inevitable, simply by tying the case up again, appealing Pesaro Magistrate Gasparini's ruling up through Italy's higher courts. 
Screenshot from RAI 1 Production
"Petrolio" aired 06 June 2018

But what is the point? 

The protracted legal challenge of this case have been so lengthy that it has been a career making case for three of Italy's cultural property attorneys: Public Prosecutor from the tribunal of Rome, Paolo Giorgio Ferri, Italian State Attorney Maurizio Fiorilli and most recently, the next generation of Italian state prosecutors, Lorenzo D'Ascia.  Given its tenacity to fight for its cultural patrimony, and the fact that Italy would be hearing any new appeal on its own legal turf, the Getty's legal fees might be better spent on new acquisitions and not on this long-contested object which has such a contentious background.

But having said that, the question remains as to if the director of the J. Paul Getty Museum, Timothy Potts, appointed in September 2012, will continue to fight Italy's seizure ruling, or will he be the first in the Getty's line of directors to acquiesce and accept defeat gracefully.

In a recent interview with Potts aired on Italy's RAI1 television program Petrolio on June 6, 2018, just two days before Gasparini's verdict was announced, Potts continued to grimly assert his museum's stance.  In that interview Potts forcefully stating that l’Atleta di Fano was found in international waters and staunchly negating that it formed a part of Italy’s cultural patrimony, given that it had passed through multiple countries and was not found in Italy.

It will be interesting to see if he changes his mind after reading Magistrate Garparini's 50 page decision. 


By Lynda Albertson, CEO, ARCA