Showing posts with label Spain. Show all posts
Showing posts with label Spain. Show all posts

June 15, 2015

Pissaro's "Rue Saint-Honore in the Afternoon, Effect of Rain" and the laws applied to art restitution

by Judge Arthur Tompkins

In 1897 Camille Pissarro painted Rue Saint-Honore in the Afternoon, Effect of Rain.  Forty years later, in 1939, Lilly Cassirer Neubauer, a member of the prominent Jewish publishing family that had owned the painting since it was created, was faced with a stark choice: hand the painting over to a Nazi art dealer and be given, in return, an exit visa to leave Germany with her husband and young grandchild, or remain in Germany amid the swirling and deadly storm engulfing Germany’s Jews. 

She chose the former:  Lilly, her husband Otto, and grandson Claude fled Germany; the painting disappeared; and the ridiculously low sum that Lilly had been promised as the “price” of the painting was locked in an inaccessible German bank account.

After the war, Lilly sought and was granted partial financial compensation, but without foregoing her claim to the painting. In 1958 she was recognised as the rightful and legal owner of the painting.  But the Pissarro was lost.

Or so she thought. In fact, in 1951 it had been sold to a collector in Los Angeles, with the Frank Perls Gallery earning a commission on the sale.  Less than 12 months later, it was sold again, this time through the New York dealers M Knoedler & Co, to a St Louis, Missouri, collector.

Two decades later, in late 1976, the Baron Thyssen-Bornemisza, of Switzerland, purchased it through another New York dealer, Stephen Hahn. In 1998 the Baron lent his entire collection of over 700 paintings to Spain, who established a non-profit state-owned Foundation to own, house and display the collection, and redesigned and rebuilt the Villahermosa Palace in Madrid for the purpose.

Then in 1993 the Spanish Government purchased the Baron’s collection, for over $300 million. Apart from two short periods when it was on loan elsewhere, the Pissaro has been on public display at the Foundation’s museum, the Museo Thyssen-Bornemisza (http://www.museothyssen.org/en/thyssen/home), in Madrid ever since.

Lilly Cassirer died in 1962. Her heir, her grandson Claude, discovered that the painting was on display in Madrid in 2000. Since then he, and after his death in 2010 his heirs, have been trying to recover the painting, through an extended and complicated series of court cases in both Spain and California.

The most recent twist in this ongoing saga happened on 4 June 2015.  A California Court ruled (available at http://www.artlawreport.com/files/2015/06/Cassirer-District-Court-Summary-Judgment-June-4-2015.pdf) that Spanish law, and not Californian law, was the governing law of the merits of the dispute, and that under Spanish law the Foundation is the owner of the painting, despite the acknowledged theft from Lilly.

Many aspects of this case, and its still-distant final outcome, are noteworthy (some are discussed by Nic O’Donnell at http://www.artlawreport.com/2015/06/11/cassirer-and-the-state-of-restitution-takeaways-and-next-steps/), but two stand out. 

First, this result highlights the irreconcilable and unbridgeable gulf between, in very general terms, common law and civil law systems when it comes to dealing with the later ownership of property that has been stolen.  In very broad terms in common law countries (those who derive their legal systems from the English common law, including the USA, Canada, Australia, New Zealand and others), a thief can give no better title down the chain of ownership than the thief had. Which is none. So, if and when the original dispossessed owner or their heir, turns up and claims the property back, then that claim will prevail.

This principle can be traced back to the Byzantine Emperor Justinian’s mid-6th century Digest:

“"Nemo plus juris ad alium transferre potest quam ipse haberet."[1]

Which translates to: "No-one can transfer to another greater right than he himself has." The principle is known in the common law, from this rule, as the Nemo dat rule.

In stark contrast, in civil law countries, predominantly but not exclusively those who derive their legal systems from the 1804 Napoleonic Civil Code and in particular Article 2262 of the Code,[2] a bona fide purchaser (and in some cases, it turns out Spain is one, even the successor in possession of a purchaser who purchased knowing of the theft) can acquire good title to even originally stolen property, after the expiration of a specified period of time. 

The great English jurist Lord Denning put the conflict this way:

“In the development of our law, two principles have striven for mastery. The first is for the protection of property: no one can give a better title than he himself possesses. The second is for the protection of commercial transactions: the person who takes in good faith and for value without notice should get a good title.”[3]

In the ruling on the Pissarro, the judge explicitly recognised the competing policy decisions underlying the legislative choice between the two approaches:

“Generally, [the civil law approach] serves the important interests of certainty of title, protecting defendants from stale claims, and encouraging plaintiffs not to sleep on their rights. 
[The common law approach] recognizes the difficulties faced by owners in discovering the whereabouts of personal property even when held openly and notoriously, and serves to protect the interests of “the rightful owner” over subsequent possessors. It also serves to encourage subsequent purchasers to determine the true owner of property before purchasing that property.”[4]

An ultimately unsuccessful attempt was made by UNIDROIT in the 1960s through to 1989 to secure a convention which would have seen the adoption of a Uniform Law on the Acquisition in Good Faith of Corporeal Movables,[5] but the tension remains, at least in the international context, presently irreconcilable.

One attempt has been made to, as it were, agree to disagree on this fundamental issue, and to reach a pragmatic solution. That effort is encapsulated in The UNIDROIT Convention on Stolen or illegally Exported Cultural Objects 1995[6].  This was negotiated as a compatible and complementary agreement to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which deals primarily with cultural property stolen in peacetime.  

Article 3 of the UNIDROIT Convention states, simply:

“The possessor of a cultural item that has been stolen shall return it.”

That somewhat stark requirement is modified to an extent by the Convention’s provision to the effect that, if a State provides to this effect, compensation to the final owner can be paid if the final possessor has made appropriate enquiries. Article 4 of the Convention states:

“(1) The possessor of a stolen cultural object required to return it shall be entitled, at the time of its restitution, to payment of fair and reasonable compensation provided that the possessor neither knew nor ought reasonably to have known that the object was stolen and can prove that it exercised due diligence when acquiring the object.”

But note the immediately following clause:

“(2) Without prejudice to the right of the possessor to compensation referred to in the preceding paragraph, reasonable efforts shall be made to have the person who transferred the cultural object to the possessor, or any prior transferor, pay the compensation where to do so would be consistent with the law of the State in which the claim is brought.”

This is a clear attempted compromise between two conflicting stances, which were both apparent and conflicting during the 6 or so years of negotiations that lead up to the signing of the Convention in Rome in 1995.

So, if the Baron had chosen a common law country as the final resting place of his collection, the outcome would most likely have been quite different. But he did not.

The second aspect worthy of note in the Pissarro ruling is the Judge’s closing exhortation to the parties:

“Although the Foundation has not prevailed in this prolonged and bitterly contested litigation, the Court recommends that, before the next phase of litigation commences in the Ninth Circuit, the Foundation pause, reflect, and consider whether it would be appropriate to work towards a mutually-agreeable resolution of this action, in light of Span’s acceptance of the Washington principles and the Terezin Declaration, and, specifically, its commitment to achieve “just and fair solutions” for victims of Nazi persecution.”

The reference to the Washington Conference is a reference to The Washington Conference on Holocaust-Era Assets, hosted by the U.S.’s Department of State and the U.S. Holocaust Memorial Museum, held in over four days from 30 November to 3 December, 1998[7]. The Terezin Declaration came out of the European-Union sponsored Holocaust Era Assets Conference in Prague and Terezin, held on 26-30 June, 2009[8].

These are some of the Washington Principles[9]:

“In developing a consensus on non-binding principles to assist in resolving issues relating to Nazi-confiscated art, the Conference recognizes that among participating nations there are differing legal systems and that countries act within the context of their own laws.

1.   Art that had been confiscated by the Nazis and not subsequently restituted should be identified.
4. In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era.
5. Every effort should be made to publicize art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate its pre-War owners or their heirs.
8. If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case.
11. Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.”

The Terezin declaration[10] from 30 June 2009 is to like effect.  Both encourage the resolution of claims not on the basis of legal technicalities, but rather “on the facts and the merits”[11].

It seems clear from his closing remark that the Judge in the Pissarro case was frustrated by his inability to decide the aspect of the case by reference to “the facts and the merits”. 

In this respect, the hybrid jurisdiction granted by statute to the United Kingdom’s Spoliation Panel has much to recommend it.  

The Spoliation Advisory Panel was established in 2000 as a direct result of the Washington Conference in December 1998[12]. It is chaired by a senior UK Judge, a retired Lord Justice of Appeal.  The Panel is a group of expert advisers who can be asked to consider claims for the return of an object plundered or lost during “the Nazi era” – 1933 to 1945. Once it has heard a case, the Panel makes a recommendation to the Secretary of State, who (to date) has always followed the Panel’s recommendations as to how a “fair and just” solution might be achieved.

The governing instrument which directs the Panel’s function is its Constitution and Terms of Reference.  This permits the Panel to consider claims “from anyone (or from any one or more of their heirs) who lost possession of a cultural object during the Nazi era, where the object is now in the national collection or in a museum or institution established for the public benefit.”[13]  

Whilst the Panel can consider legal issues, it does not decide as to legal rights, including title. The Panel’s process is explicitly an alternative to litigation. It must give “due weight to the “moral strength of the claimant’s case”, and consider whether any moral obligation rests on the institution. It is required to seek a “fair and just solution”.

Thus, if the baron had chosen the United Kingdom as the final resting place for his collection, it seems likely that a claim to the Spoliation Panel would have resulted.  This would have seen the Panel encourage the parties to try to find a win-win solution themselves, or, failing that, could have (assuming that the collection had ended up, as it did in Spain, as part of the UK’s “national collection or in a museum or institution established for the public benefit,”) recommended the return of the painting, given the reasonably clear moral claim stemming from its original theft, in appalling circumstances, from Lilly Cassirer.

Such are the accidents of history.


[1] Justinian’s digest 50.17.54, cited in Benjamin’s Sale of Goods (7th Ed, 2006) Para7-001, note 1.
[2] French Civil Code, BOOK III. (Of The Different Modes Of Acquiring Property), TITLE XX: OF PRESCRIPTION.
Chapter V., Section II, Article 2262.
Decreed the 15th of March, 1804. Promulgated the 25th of the same month.
[3] Bishopsgate Motor Finance Corpn Ltd v Transport Brakes ltd [1949] 1 KB 322, 336-337
[4] At p.8 of the judgment.
[5] UNIDROIT 1989 - Study LXX - Doc. 9: “The International Protection of Cultural Property. UNIDROIT draft Convention providing a Uniform Law on the Acquisition in Good Faith of Corporeal Movables” (LUAB, 1974) – Rome, January 1989, available at http://www.unidroit.org/english/studies/study70/main.htm. For an overview of the unsuccessful attempt see J H Merryman, ‘The Good Faith Acquisition of Stolen Art’ , in J H Merryman (Ed.), Thinking about the Elgin Marbles (2nd Ed, Kluwer Law International; 2009) at page 525ff.
[6] An Overview of the UNIDROIT Convention, and links to the official and unofficial translations, are available at http://www.unidroit.org/english/conventions/1995culturalproperty/main.htm
[7] The Conference materials are archived at: http://www.state.gov/www/regions/eur/wash_conf_material.html
[8] Conference materials are available at http://www.holocausteraassets.eu/
[11] Terezin Declaration, para 3 under the heading ‘Nazi-Confiscated and Looted Art’.
[12] Holocaust (Return of Cultural Objects) Bill: Committee Stage Report, Research Paper 09/59, 23 June 2009, section 2.2, page 3. Available at www.parliament.uk/documents/commons/lib/research/rp2009/rp09-059.pdf
[13] Clause 3.

May 29, 2014

Marc Balcells on "The Case of the Muñoz Ramonet Legacy (Barcelona, Spain)" in his column "Not in the Headlines" in the Spring 2014 issue of ARCA's Journal of Art Crime

Spanish criminologist Marc Balcells holds degrees in Law, Criminology and Human Sciences, and masters both in Criminal Law, and the ARCA Postgraduate Certificate Program in Art Crime and Cultural Heritage Protection. A Fulbright scholar, he is currently completing his PhD in Criminal Justice at The Graduate Center, CUNY. His research revolves around criminological aspects of archaeological looting, though he has also written about other forms of art crime. He has taught both Criminal Law and Criminology courses as an associate at the Universitat Autònoma de Barcelona and the Universitat Oberta de Catalunya (Spain) and is a Graduate Teaching Fellow in the Political Science department at John Jay College. He is also a criminal defense attorney whose practice is located in Barcelona. Dr. Balcells' new column in The Journal of Art Crime will "delve deep in cases that might happen in less attention-prone countries when it concerns to cultural heritage crimes." Here's an introduction to his first subject, "The Case of the Muñoz Ramonet Legacy (Barcelona, Spain)”
Allow me to show some hometown pride and start with a case that has been quite notorious in Barcelona: the disappearance of part of the legacy of Julio Muñoz Ramonet, a deceased industrialist who amassed a vast, multi-million, impressive art collection. The story has some shady characters, never-ending legal battles, and the disappearance of the artworks, which has prompted recently more legal battles, still pending resolution. 
First of all, it is interesting to see not only how the collection was amassed, but also who was the person doing it. Julio Muñoz Ramonet was a self-made man: from his humble origins he was already planning the way of becoming rich. And that he did: the starting point was for Muñoz Ramonet and some of his closest family members to save in order to buy a tiny factory devoted to cotton threading. The Spanish Civil war (1936-1939) did much of the rest for the business to prosper. He acted as a spy for Franco’s regime when he joined the republican militia: eventually all the spying would pay off when the dictator won the war, which allowed him to climb the ranks of the francoist establishment. In times were absolutely everything had to be rationed, he had, thanks to the black market, enough material for his business to operate in a situation of monopoly. His vast patrimony allowed him to acquire emblematic buildings in the best avenues of the city, like the Casa Batlló (designed by Antoni Gaudí himself), the Palau Robert, or even the Ritz Hotel. His entrance to bourgeois stardom was his marriage to the Villalonga family, which erased totally his humble origin: with her they had four daughters who will be key players in the case.
You may finish reading this column in the Spring/Summer 2014 issue (#11) of The Journal of Art Crime edited by ARCA founder Noah Charney. The Journal of Art Crime may be accessed through subscription or in paperback from Amazon.com. The Table of Contents is listed on ARCA's website here. The Associate Editors are Marc Balcells (John Jay College of Law) and Christos Tsirogiannis (University of Cambridge). Design and layout (including the front cover illustration) are produced by Urška Charney. 

January 11, 2014

Saturday, January 11, 2014 - ,, No comments

José Manuel Lluent presenting second edition of "Looting and Fraud in Art" January 15 in Barcelona

Information provided by Oblyon

José Manuel Lluent will present the second edition of "Looting and Fraud in Art" at 7 p.m. on January 15 at Oblyon's headquarters in Barcelona. The event will be attended by Lluent, the author of the book; Marco Mercanti (Founder and CEO of Oblyon); Jesús Gálvez Pantoja (head of the investigation unit of the Civil Guard); Mariano Costoso (Regional Deputy of Cultural Heritage in Catalonia) and Joan Cifuentes Mesa (from the central theft unit and cultural heritage protection of the Mossos d’Esquadra, the Catalonian local police law enforcement body).
The event will take place at the Barcelona headquarters of Oblyon, an art advisory firm. Due to Mr. Mercanti’s professional background in law at Oblyon we specially care about the protection of our cultural heritage and believe all professionals working in the field of art should be aware of the existing problems and cooperate in the fight against art crimes. This is why we like to collaborate in the presentation of Lluent’s book, an important tool for information and diffusion of this topic.
Book review

The author analyses and thoroughly gives details on matters revolving around art fraud and looting, giving an overview on the legislation that applies to those issues in order to be able to fight the phenomenon in an easy and transparent way. Current laws to fight art crime are scattered amongst the different legal administrations, both local and national as well as the ones linking Spain to other international organizations with jurisdiction in this matter, thus the effort made by the author to methodologically put them all together in one book make it a reference work for all the professionals in this area.

Author

José Manuel Lluent was born in León, Spain in 1945. He studied at Escola de la Llotja in Barcelona (School of Art and Design) and at Groupe IESA in Paris (Superior Institute of Arts). After completing his studies he furthered his art expertise through the creation of ASART. One of the firms main specialization is the documentation and provenance of artworks.  Specializing in the fight against fraud and spoliation in art, Lluent has worked with the group Grupo de Delitos contra el Patrimonio Histórico and Interpol.

Lluent has also collaborated with Scotland Yard introducing the identification system SGS-INART, as well as with the Ministry of Culture in Spain and France and has cooperated in identification tasks of artworks from the Vatican collection.

DETAILS
Date: January 15th, 2014
Time: 19:00
Place: Oblyon Headquarters, Portaferrissa 7, Pral. 1, 080, Barcelona (Spain).
RSVP: info@oblyon.com

May 8, 2013

Shipwreck Exhibit to Open End of the Month in NYC

Odyssey Marine Exploration, Inc. (NasdaqCM: OMEX) will exhibit silver recovered from the submerged ruins of a World War II at the show "Shipwreck!" in New York City's Discovery Times Square beginning May 24.

The company's press release explains that this will be the first public showing of treasures found last year:

Silver recovered from the World War II-era SS Gairsoppa shipwreck, which lies approximately three miles deep, will be on display. This is the first public showing of some of the 1,218 silver bars (approximately 48 tons) of silver recovered to date from the Gairsoppa, which is the heaviest and deepest recovery of precious metal from a shipwreck in history. 
In addition to the Gairsoppa silver, Odyssey is expanding the SHIPWRECK! Treasure Room to include a large selection of never-before-displayed coins from both the SS Republic and the “Tortugas” shipwrecks.
OMEX reported in the fourth quarter ending December 31, 2012:
The majority of the silver recovered in 2012 from the SS Gairsoppa shipwreck was sold in the quarter with fourth quarter proceeds of $30.1 million to Odyssey ($17.8 million of this was credited in third quarter to expenses as recoupment of project costs).
A management comment notes that the company 'salvaged 48 tons of silver from a depth of more than 15,000 feet.'

In other findings, Odyssey Marine reportedly retrieved treasure from the sunken Spanish galleon Buen Jesus y Nuestra Senora del Rosario. In 2012, Odyssey Marine turned over treasure recovered from an 18th century Spanish shipwreck to Spain where it is now on display.

April 2, 2012

Spain reports recovery of two first-century Roman bronzes looted from archaeological site


The Roman bronzes recovered in Spain were about 5 feet tall.
(Photo via The Archaeology News Network)
Courtesy of Museum Security Network (MSN): An English-language news website in Spain, The Olive Pressreported that a pair of looted first century Roman bronze statues were 'rescued' in southern Spain before they could be illegally sold for half of their 6 million Euro value.

The bronze statues found in Jaen, a small town near Córdoba in Andalusia, reported The Olive Press "were taken from the ancient Roman site Sacilis Marcialis and are believed to form part of the Castor and Polix sculpture in Córdoba:
The statues, 1.50m and 1.30m in size, depict two naked males, with each piece weighing about 30 kilos and in a good state of conservation, although one has lost part of his chest and the other his genitals.
The Olive Press reports that according to the police commissionar Daniel Salgado, the figures were to be sold by two brothers at an finca (estate) in Pedro Abad in Cordoba "to an Italian buyer via an intermediary".  Interpol is now hunting for the buyer, according to the article.

One of the brothers has also been arrested and two other people charged with a crime against heritage and the attempted smuggling of historic property.  The statues will now be taken to the Cordoba Museum to be restored.

February 24, 2012

The Journal of Art Crime, Fall 2011: Leila Amineddoleh on "The Pillaging of the Abandoned Spanish Countryside"

The Fall 2011 issue of The Journal of Art Crime features an article by ARCA Alum (2010) Leila Amineddoleh on "The Pillaging of The Spanish Countryside", first presented at the International Crime Conference in Amelia last July.

Abstract: Spain is rich in art treasures: artwork ranging from religious works, modern paintings, ancient architecture, Roman ruins, and Visigoth remnants are densely scattered across Spain’s cities and countryside. Whereas some of the art is world-renowned and protected, much of the art is still hidden in churches and in depopulated towns and is left vulnerable to damage and theft. 
Spain’s cache of hidden works has great cultural value to the Spanish cultural identity; however, these works are often misappropriated because their existence is virtually unknown or unprotected. In light of the international upset over the theft of the Codex Calixtinus, this paper sets forth recommendations for Spain to follow to protect is patrimony, most importantly the necessity of creating an extensive catalogue, encompassing both State and Church property.
Leila Amineddoleh is an art law and intellectual property attorney in New York City. Upon graduation from law school, she worked as a litigator at Fitzpatrick Cella for three years. She then worked as a legal consultant, and recently joined Lysaght, Lysaght & Ertel. She is Of Counsel at the firm and the Chair of the Art Law Group. Recently she joined Fordham University School of Law where she teaches Art Law as an adjunct professor. Prior to the pursuit of her legal degree, Ms. Amineddoleh received her B.A. from NYU, and she completed ARCA’s Postgraduate Program in 2010.

You may subscribe to The Journal of Art Crime through the ARCA website here.

August 14, 2011

Codex Calixtinus is missing (English Translation)

Codex Calixtino
by Juan José Prieto Gutiérrez. Ph.D, Complutense University of Madrid.

[Translated from Spanish to English by Marc Balcells Magrans, ARCA Class 2011

The Codex Calixtinus, dating from the twelfth century, and considered a jewel of the Galician documentary and bibliographical heritage, disappeared mysteriously on the fifth of July from the Cathedral in Santiago de Compostela. This work, compiling the tradition of the peregrinations and the Jacobean route, was guarded in the Cathedral's archive.

The manuscript was part of a collection of sermons and liturgical texts, and served as a sort of guide for the worldwide famous Camino de Santiago, dating back to the middle ages.

The first inquiries point to the fact that there were no signs of any kind of violence (forced entry, maybe?), despite the Codex was located in a restricted, private area, with access limited both to the public and to researchers (only three persons had acces to the room where the manuscript custodiate: the dean, acting also as an archivist, and his two collaborators, each one working morning and afternoon shifts).

It is worth noting that the book was rarely exhibited. In fact, researchers work with a facsimile edition created years ago. The actual Codex could only be accessed under very punctual circumstances, and always in the presence of an archivist. The Codex had not been exhibited for 18 years.

Initially, one of the possible MO is related to vengeance, or the fact that the theft would reveal the lax security measures in archives and libraries in Spain.

A lack of security measures in Santiago

The first inquiries show big gaps in security: the key was on the lock of the door of the room where the codex was located; and CCTVs are only placed in the Cathedral's cloister, but not where the bibliographical treasures are located.

Facing these facts, the theory that this case should be treated as an insider theft is considered more strongly than others. At the moment, the cathedral has approximatedly a staff of seventy persons working there. The rule of thumb is that between sixty and seventy percent of disappearances of books in libraries and archives are caused by insiders or at least they may be involved.

The return of the stolen material was expected during the first week, all under secret of confession, if taken into account an anonymous phone call promising the devolution of the codex. However, this lead looses its credibility as days go by.

Social alarm usually lasts from ten to twenty days. In this period, security measures are revised, some insurances are bought or revised... After this period, everything goes back to normal, unluckily. Until the next disappearance.

Spanish legislation does not establish the particular security measures that should be in place in order to custody this line of cultural heritage. Taking into account that religious art is in high demand in the market, and that the bibliographical heritage is very easy to smuggle, international police cooperation is usually the preferred method.

Spain is one of the most victimized countries in the last years, when it refers to thefts from libraries. In 2007, the theft of more than 100 historical documents was discovered in the Library of the Foreign Affairs Ministry. One year later, César Gomez Rivero was arrested, as the author of the theft from the National Spanish Library. In summer 2009, Zslot Vamos is arrested, possessing 67 documents, while still 53 are missing.

Hence, and related to this sad incident, one must ask: When will security measures be taken seriously in spaces devoted to the custody of bibliographical and documentary heritage? When will librarians and archivists receive proper training? Will both national and international cooperation amongst different police forces bring any results?