July 24, 2018

Request for Return: A marble head of Alexander the Great as Helios, the Sun God

Image Credit: Safani Gallery TEFAF Maastricht advertisement

On Monday, 23 July 2018 Matthew Bogdanos, Senior Trial Counsel in the Office of New York County District through Attorney Cyrus R. Vance Jr., submitted an Application for Turnover in support of an order pursuant to N.Y. Penal Law §450.10 (Consol. 2017) and N.Y. Criminal Procedure Law §690.55 (Consol. 2017) authorising the transfer of a circa-1st-century CE marble head of Alexander the Great as Helios, the Sun God, seized pursuant to a previously executed search warrant, from the custody of the court, to the custody of Italy.

Under order of the Supreme Court of the State of New York, County of New York, the antiquity had been seized at Safani Gallery on February 22, 2018 and was taken into evidence as part of a state investigation seeking to demonstrate the crime of Criminal Possession of Stolen Property in the Second Degree.  This seizure was based on suspicions that the object had been stolen and at some point illegally exported from the country of origin in contravention of Italy’s cultural heritage law (No 364/1909).

Since February 22nd the object had been retained as evidence by the New York authorities pending confirmation of a formal request from Italy formally requesting intervention and while the legal case advanced through the New York legal system.

In terms of its history, court documents set out that the head was discovered during excavations of the Basilica Aemilia, located on the Via Sacra.  This is the ancient road between the Capitoline Hill and the Colosseum located within the Roman Forum in Rome. While little remains of the Basilica Aemilia today, it was considered by Rome historian Pliny the Elder to be one of the three most beautiful elements of the Roman Forum, this alongside the Forum of Augustus and the Temple of Peace. 

Looking across the remains of the Basilica Aemilia
towards the Severan Arch,
the Tabularium, and the Modern Senate House
Image Credit: B. Dolan
The head was discovered at some point during Italian research excavations carried out by Drs. Professors Giacomo Boni and later by Professor Alfonso Bartoli which were carried  out on the Palatine Hill between 1899 and 1939.  Documentation from the excavations suggest that the head belongs to one of the “Statues of Parthian Barbarians” which once adorned the Basilica.

After 20 BCE Roman art often portrayed the people of the Empire and during its restoration in 14 BCE, Augustus chose to line the Basilica with a series of Parthian figurines, perhaps in humiliation of Rome's ancient foreign enemy.  Representing individuals from the Parthian Empire (also known as the Arsacid Empire), these likenesses depicted the conquered Parthians as representatives of the Orbis Alter, subjects of Rome not considered to be part of the “civilised” world.  Stylistically, they differ from representations we have from the same period of people from the Orbis Romanus. 

According to court documents, the Italian Soprintendenza alle Antichit√† Palatino e Foro Romano began keeping archival photographic documentation of the objects discovered during the lengthy excavation starting in 1908.  Based on these records, the head of Alexander the Great, seized from the New York gallery, is believed to have been discovered during the second phase of excavations.  These began after 1909. This dating is derived as the Italian authorities have no written, descriptive entries or photographic archival documentation of any marble head finds from the Roman forum of the Barbarian statues prior to 1909.   It was also not until September 1909 that Dr. Professor Bartoli's team began their explorations in the zone of the Basilica Aemilia.  As a result of this and other evidence described in the Court's Application for Turnover it seems most likely that the marble head was likely found sometime around 1910.

Bear in mind 1909 is a critical date as it is this year that Italy's Code of the Cultural and Landscape Heritage (No 364/1909) was made into law.  According to this law, there is a presumption of the State's ownership for all archaeological objects discovered after 1909, unless the cultural Ministry acknowledges that the object does not have a cultural interest, something it would never do for objects located in the Roman Forum.

Italy's archival records from the Forum excavation document an image of the head of Alexander, taken after it was excavated, resting separately on a table at the Museo Forense cloister as well as other photos where the ovject is pictured with additional finds.  While the date of the actual theft of this head and another second missing object, which was also stolen, is undetermined the incident is believed to have occurred sometime before 1959.

What we can define with certainty, on the basis of the dating of the archival photograph, along with the excavation records of the start date of the Basilica site excavation, and documentation of the dates the Museo Forense cloister would have been available to be used as a evidentiary photographic venue, is that this object indisputably originated from Italy.  Predicated on the foregoing evidence, it can be proven that the marble head of Alexander was removed from Italian territory after the 1909 law was enacted.

It is on this basis that the object has been defined as stolen property by the State of New York, as its removal from the custody of the Italian authorities was in contravention of the 1909 Italian law.  Also, according to New York law, a thief can never acquire good title.  It should be noted that the removal of the head of Alexander from the Republic of Italy without an export license from the Italian governmental authorities authorising its removal from the territory is also a further violation of Italian law.

Interestingly though, like many stolen works of art illicitly obtained, antiquities remain fairly easy to launder, being sold over and over again through a lack of adequate due diligence in some of the finest, legitimate marketplaces and to and through some of the richest collectors in the world.  In this instance, the Alexander head has sold in the United States and in the United Kingdom on multiple occasions.

But where was the object bought and sold? 

While the documentation of this object's collection history is spartan, we know that on 22 November 1974 the head of Alexander sold for a mere $650, having been consigned by the Hagop Kevorkian fund to Sotheby Parke Bernet. Sotheby’s Auction House acquired Parke Bernet Galleries in 1964 and adopted the name Sotheby Parke Bernet throughout the 1970s.  Today, that auction house is known simply as Sotheby’s.  The buyer at the time was listed only as "Altertum Ltd."

Sometime after that date the object was then purportedly purchased by Professor Oikonomides who indicated to others that he purchased the object while vacationing in Cairo, Egypt sometime between 1984 and 1986.  The object was then bequeathed to Dr. Miller by Oikonomides when he passed away in 1988.

Sotheby's Website Screen Capture
taken 24 July 2018
On 08 December 2011 the object sold at Sotheby's for a second time during Sotheby’s Egyptian, Classical and Western Asiatic Antiquities sale .

At the time of this auction, the purported provenance for the object was listed as:

Hagop Kevorkian (1872-1962), New York, most likely acquired prior to World War II
The Hagop Kevorkian Fund (Sotheby Parke Bernet, New York, November 22nd, 1974, no. 317, illus.)
A.N. Oikonomides, Chicago

But with very little in the way of documentation to confirm this narrative.

The object ultimately sold to an unidentified buyer for $92,500 USD.

In May 2017, the head of Alexander surfaced across the Atlantic.  This time the ancient marble head went up for sale in the United Kingdom, having once been in the possession of former Qatari culture minister and cousin of the current ruler of the oil-rich Arab country, Sheikh Saud bin Mohammed Ali Al-Thani.  Before his death in 2014 Sheikh Saud Al-Thani was believed to have been the world's richest art collector.

Through Classical Galleries Limited, UK the Sheikh’s foundation sold the head of Alexander on to Alan Safani of Safani Gallery for $152,625 on June 20, 2017.

Object Identified

Safani Gallery Booth - TEFAF 2018
Image Credit: L. Albertson
By an amazing bit of serendipity, on 19 February 2018 Dr. Patrizia Fortini, Director and Coordinator of the Archaeological Site of the Roman Forum and Palatine Hill chanced upon an advertisement which featured a photo of the stolen head in a publication for the upcoming 2018 Fine Arts Expo known as TEFAF.  In the dealer's documentation, a photograph of the head had been included highlighting Safani Gallery's offerings for the upcoming Maastricht sale due to be held in the Netherlands, March 10-18, 2018.

The photo in the advertisement and the old archival documentation photo of the head in the Museo Forense’s cloister were one and the same object and as a result, Italy moved forward in requesting the object's seizure.

Statute of Limitations and Clear Title

Under New York law, barring the expiration of the statute of limitations or application of the laches doctrine, one cannot obtain title from a thief unless the present-day possessor's title can be traced to someone with whom the original owner voluntarily entrusted the art.  As clear title is not possible in the case of Italy's marble head of Alexander, it will be up to Safani and his counsel to see if they will base their case on the laches defense or voluntarily relinquish the object.  What is clear is that the plaintiff, in this case Italy, has not unreasonably delayed in initiating their action.

The purpose of the doctrine of laches is to safeguard the interests of good faith purchasers, in this case of lost/stolen art, by weighing in the balance of competing interest, the owner's diligence in pursuing their claim.   

While delay in pursuing a claim for the head could be considered in the context of laches under New York law given that the theft occurred at an unknown time so many years ago, it has long been the law of this state that a property owner, having discovered the location of its lost property, cannot unreasonably delay in making their demand upon the person in possession of that property.  As Italy acted quickly as soon as the ID was confirmed, this course of legal action doesn't seem to be a viable route for retaining the objet in question.

To view the New York Application for Turnover in its entirety, please see here.
To view the New York February 22, 2018 Seizure Order, please see here.

By:  Lynda Albertson

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