Blog Subscription via Follow.it

Showing posts with label Switzerland. Show all posts
Showing posts with label Switzerland. Show all posts

February 8, 2024

Reclaimed Heritage: A Cambodian Buddha Goes Home

Seized by Swiss authorities in the Canton of Basel 10 years ago, this 18th or19th century (Khmer empire) Buddha, seated in vajraparyankasana, with the proper right hand touching the earth in bhumisparsha mudra, at the moment of his enlightenment, is finally on his way home.  

Originally Swiss experts believe the sculpture dated back to the pre-Angkor or early Angkor Periods and is was assumed to be over 1,000 years old. However, according to a first-step assessment by experts from the Ministry of Culture and Fine Arts (MCFA), based on form and style, the sculpture is believed to be of the later period. 

Representing Cambodia ata ceremony held on 6 February 2024, His Excellency Mr. H.E. Dara, Cambodia's Ambassador to Switzerland and Permanent Representative to the United Nations and International Organizations in Geneva received the enlightened Buddha in a handover between both countries coordinated by Fabienne Baraga, Head of the Specialist Department for International Cultural Heritage Transfer, at the Federal Office of Culture and Anna Mattei Russo, Head of Southeast Asia and Pacific Regional Coordinators of the Swiss Foreign Ministry. 

Ambassador In Dara expressed gratitude to the Swiss government and emphasised Cambodia's ongoing efforts to repatriate other significant cultural properties. He called upon museums, institutions, and curators holding Khmer antiquities to voluntarily return them to Cambodia, framing such actions as gestures of generosity and respect for cultural values.

Fabienne Baraga, Head of Specialist Division on International Cultural Property Transfer of the Federal Office of Culture of the Ministry of the Interior of Switzerland, also reiterated the commitment of the Swiss government to prevent illegal trade and trade of cultural assets and for the preservation of human cultural heritage told the individuals on hand that this return is not just the return of valuables to their birthplace, but also serve as a symbol of the spirit of unity and respect between the two states. 

As a source country, Cambodia's cultural heritage has suffered significant losses due to looting, particularlyas an outcome of periods of civil conflict, political instability, and poverty. The widespread looting of archaeological sites and temples, such as those at Angkor Wat, Preah Vihear, and Banteay Chhmar has resulted in the illicit trafficking of countless artefacts out of the country. 

These artifacts, ranging from ancient sculptures to intricate carvings, represent key aspects of Cambodia's history, religion, and artistic achievement. The illegal trade in Cambodia's cultural heritage not only deprives its people of its rightful treasures but also erases vital connections to its past for future generations. 

Efforts to combat looting and repatriate stolen artefacts from the country are ongoing, but the scale of the problem underscores the urgent need for international cooperation and collective action to safeguard Cambodia's cultural legacy.

February 10, 2023

A 2,500-year-old sculpture from the monumental ruins of Chavín de Huantar is returned to the Peruvian ambassador

The site of Chavín de Huantar

What we know about the monumental ruins of Chavín de Huantar, thousands of feet up in the Cordillera Blanca, the Andean highlands of Peru, is spartan.  Here, members of a pre-Inca culture, left us with what archaeologists believe to be a temple complex, consisting of a maze of ruined granite and sandstone structures – or step pyramids, cyclopean walls, and wonderful carved sculptures which date from around 1000 BCE. 

Already mentioned in the sixteenth-century chronicles of Pedro Cieza de León, the site of Chavín de Huantar, is located kilometers north of Lima.  It's unique architecture resulted in it being declared a World Cultural Heritage Site by the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1985.  

Distinct, not only for its massive flat-topped pyramid temple, but also for what archaeologists call its "cabezas clavas," more commonly called temple nail heads.  These front-facing, pumpkin sized heads, were architectural elements, and were usually carved from volcanic tuff and made to resemble zoomorphic faces.   Used as decoration, they were positioned horizontally and equidistant from each other along the temple walls. 

Usually, these nail heads, carved with open eyes, closed mouths, crushed noses, and contracted muscles. When found intact, they also have an elongated stone extension bracket on the back.  This wedge was used to insert the sculptural element, like a nail, into the structure's wall, hence the name they were given.  Many of the Chavín de Huantar nail heads were originally positioned along the south, east, and west façade of the Chavín temple, garnishing the building in a horizontal row and positioned evenly under the temple's carved stone cornices.   

Some 42 nail heads were originally recorded and identified between 1919 and 1941 by Julio C. Tello, America's first indigenous archaeologist.  Most of which were lost in the aftermath of a 1945 flood that covered the archaeological site.  Others have been lost to looters. 

Over time, as many as 100 complete or almost complete nail heads, discovered after 1950, have been found and preserved from the Chavín culture, with almost all of those accounted for coming from official excavations.  These, are now part of the permanent collection of the National Museum of Chavín.  Sadly, only a single original nail head remains in situ. 

Yesterday, in a ceremony conducted at the Swiss customs office, Basel/Weil am Rhein-Autobahn, the president of the Office fédéral de la culture (OFC), Carine Bachmann, returned a smuggled nail head to Peru's Ambassador HE Luis Alberto Castro Joo.  According to the OFC, this ancient architectural element, which weighs in at nearly 200 kilograms, was discovered by Swiss customs officials during a routine customs control check conducted in 2016 of a courier transporting the object from Germany into Switzerland.

Suspicious of the statements declared by the freight forwarder, who had tried to introduce the artefact into Switzerland as a "non-cultural good," and therefore not subject to specific heritage laws, employees of the Federal Office for Customs and Border Security - BAZG,  stopped the object's entry to examine it more closely.  Over time, and with the assistance of heritage experts, the Swiss authorities came to the conclusion that the artefact was, in fact, unregistered cultural property and moved for the artefact's seizure in accordance with the Cultural Property Transfer Act.

Shortly thereafter,  during a cantonal criminal proceeding, an order of confiscation was entered by the Basel public prosecutor in 2017.  This in turn allowed the artefact to be eventually restituted to the Government of Peru in the formal ceremony held yesterday.  

October 26, 2019

Conference Save the Date: Building a Responsible Art Market

Event:  Building a Responsible Art Market
Location: Geneva, Switzerland
Date: Saturday 30 January 2020


They will also cover national implementations of the 5th European Anti-Money Laundering Directive and announce other exciting projects for the RAM Initiative.

More information about the program will be available shortly. Enquiries can be sent to info[at]responsibleartmarket.org.

October 8, 2018

Conference: Third All Art and Cultural Heritage Law Conference on “National Treasures: Limits to Private Property and Cross-Border Movements”


The 3rd All Art and Cultural Heritage Law Conference on “National Treasures: Limits to Private Property and Cross-Border Movements” will be held at the University of Geneva on Saturday, November 10, 2018 and will look at the concept of “national treasures” and to critically explore its meaning and impact on the regulation of the cross-border trade in cultural objects. 

Participation is free but attendees are asked to register by 30 October 2018 at
art-droit@unige.ch

Details presented by the organizers are as follows: 

10:00 Registration
10:30 Welcome words 
Benedict Foëx, Dean of the Law Faculty, University of Geneva

Foreword / Introduction
Stephen Urice, Professor, School of Law, University of Miami
Marc-André Renold, Director of the Art-Law Centre, UNESCO Chair, University of Geneva

PANEL I – LEGAL PERSPECTIVE: RULES, NOTIONS AND INTERPRETATIONS 
Chair: Alessandro Chechi, University of Geneva

10:50 Gagliani Gabriele, Bocconi University 
Article XX(f) of the GATT 1994 and Rules on Treaty Interpretation: Defining ‘National Treasures’ in International Trade Law

11:10 Anna Frankiewicz-Boydynek and Piotor Stec, Opole University 
Defining ‘National Treasures’ under the EU Directive on Return of Cultural Goods. Is Sky Really the Limit?
 
Discussion and coffee break

11:50 Ferrazzi Sabrina, University of Verona 
EU National Treasures, Politics and the Role of the ECJ

12:10 Evelien Campfens, University of Leiden 
Whose Treasures? Limits to the Notion of ‘National Treasures’ and New Prospects

12:30 Edith Wagner, Max Planck Institute Luxembourg 
Regulation through Litigation. The Procedural Protection of National Treasures and the Potential of EU Civil Procedure to Regulate the Cross-Border Trade in Cultural Property
 
Discussion and lunch break

PANEL II – PRACTICAL PERSPECTIVE: CASES FROM EUROPE AND BEYOND 
Chair: Marc-André Renold, Director of the Art-Law Centre, 
University of Geneva

14:00 Gillman Derek, Drexel University 
The Old Summer Palace and the Making of National Treasures

14:20 Teodora Konach and Michaela Löff, University of Vienna 
How ‘National’ Are ‘National Treasures’? Comparative Analysis of Austrian, Czech and Polish Legislation

14:40 Arianna Visconti and Eliana Romanelli, Catholic University of Milan 
The Definition and Identification of Cultural Property under the Italian Code of Cultural Heritage in light of the Recent Reform on the Export of Cultural Goods: Closing the Gap with the EU Approach, or Cosmetics?
 
Discussion and coffee break

15:40 Charlotte Woodhead, University of Warwick 
Tarnished Treasures: Provenance and the UK’s Waverly Criteria

16:00 Musa Ramatu, University of Basel 
The Sapi-Portuguese Ivories as ‘National Treasures’ of the Republic of Sierra Leone: A Moral Case for Repatriation

16:20 Riccardo Vecellio Segate, Utrecht University 
Treasures and Heritage under the TFEU: The Case of Music Legacy

16:40 Marc-André Renold, Alessandro Chechi and Stephen Urice 
Conclusions

October 10, 2017

Conference - Radiocarbon dating and protection of cultural heritage - C14 Meeting

Organised by: ETH Zurich and University of Geneva, with a support of the Swiss National Science Foundation and the Swiss Commission for UNESCO, Bern 

Organizing committee:
Dr. Irka Hajdas, Prof. Hans Arno Synal, Laboratory of Ion Beam Physics ETHZ
Prof. Eric Huysecom and Dr. Anne Mayor Laboratory Archaeology and Population in Africa, University of Geneva,
Prof. Marc-André Renold Art-Law Centre, University of Geneva

Date:  16-17 November 2017

Location: ETH Zürich
Rämistrasse 101
8092 Zürich, Switzerland

Workshop Fees: CHF 50.00

Invited speakers (see preliminary program (PDF, 120 KB)) will introduce the problems around the antiquities and illicit art trade. Presentations will be made by representatives of AMS laboratories sharing their experiences and practice in dating antiquities.  Allied professionals will explore the market for conflict antiquities and fake conflict antiquities as well as scientific and criminological approaches to looking at ways to combat the illicit trade in antiquities. 

For further information the organizers can be contacted here.

March 24, 2017

Repatriation: Roman sarcophagus held at Swiss Freeport finally clears last hurdle for its return to Turkey

Image taken September 23, 2015
by the Office of the Attorney General of the Canton of Geneva - Image Credit: AFP
In December 2010, Swiss Federal Customs Administration authorities, acting under new customs legislation to combat trafficking in works of art, requested access to the inventory of Phoenix Ancient Art SA., a major supplier of museum-quality antiquities, which stores ancient works of art at the Ports Francs et Entrepôts de Genève, a freeport located in a sprawling grey industrial building on the corner of a busy junction in southwest Geneva. 

For more information about freeports as a tax free haven to store art, please see a few of ARCA's earlier blog posts here, here, and here

At the time of the audit, authorities inspected the holdings of both Phoenix Ancient Art and its warehouseman and freight forwarder, Inanna Art Services.  During this inspection, Swiss authorities discovered, but didn't physically seize, a 1-2 ton, 150-180 CE Roman sarcophagus which depicted the twelve labours of the ancient Greek war deity, Hercules. According to customs information on file for the antiquity, the sarcophagus was imported into Switzerland in the name of Phoenix Ancient Art, which often used Inanna Art Services to store its goods or to transport works of art to and from other countries. 

This extraordinary ancient funerary object, likely only one of four of this significant quality documented in the ancient art world, had little in the way of detailed provenance.  For a piece of its quality to have nothing tying it to a previously known ancient art collection; no notations of its discovery or find spot, and nothing notable in the way of published scholarly examination of its style and iconography, rang alarm bells in Switzerland. 

In a recent video, with Al Jazeera news, Ali Aboutaam claimed that the ancient funerary object had been purchased by his father and had been in their family for 25 years. While under their control, he indicated that the sarcophagus had always been stored at the Geneva freeport aside from when it was shipped to the UK for conservation treatment.   Ali Aboutam added that in 2010 the object was sold to the Gandur Foundation as a donation to the Musée d’Art ed d’Histoire in Geneva and according to Phoenix Ancient Art's attorney Bastien Geiger, Sleiman Aboutaam purchased the object in the early 90s.

Phoenix Ancient Art had proposed the sarcophagus to billionaire Swiss tycoon and commodities trader, Jean-Claude Gandur in the spring of 2010 for an estimated $1 - 4 million saying that the firm was acting on behalf of a third party whom they interestingly refused to disclose.  Gandur, who made a fortune during the 1990s buying oil concessions in Africa, has long been a powerful collector of ancient art, as well as a long term patron of the Musée d’Art et d’histoire in Geneva. 

In consideration of the donation, Marc-André Haldimann, head of the archaeology department of the Musée d’Art ed d’Histoire of Geneva and the director of the museum, Jean-Yves Marin, went to the freeport and inspected the sarcophagus to carry out an appraisal for consideration.  The pair however remained highly skeptical of the lack of established information on the ancient sarcophagus, which implied possible illicit origins.  

How could such a prestigious object emerge on the ancient art market having never been talked or written about previously?   

Wouldn't the archaeologist who discovered such a masterpiece have mentioned this spectacular find in his or her field notes?  

Wouldn't a scholar of some repute have compared it in an academic article with the other known artworks by the same signatory group of sculptures or other sarcophagi depicting Hercules?

The only documentation Phoenix Ancient Art produced which attested to the fundamental question of this exceptional object's past, were independently established statements attesting that the ancient work of art was part of the Aboutaam collection from 2002 onward and a certificate from Art Loss Register attesting the object had been checked against ALR's known stolen art database registry.  Ultimately the sale to the Gandur Foundation was cancelled, in no small part because of suspicions that the object had been smuggled out of its source country. 

In March 2011, the Specialized Body for the International Transfer of Cultural Property at the Swiss Federal Office of Culture (FOC) issued a statement that they believed the sarcophagus had originated from the general area of the famous marble quarries of Dokimion in Phrygia, the present day Antalya region of Turkey. The Dokimeian white marble sarcophagus was likely sculpted sometime during the the second century, when the area was under Roman rule. 

Based on the FOC's examination, Swiss authorities alerted their counterparts in Ankara, and Turkey in turn, issued a demand for the restitution of the rare antiquarian work by a letter rogatory of July 2011. Turkey also sent a request for mutual assistance to the Geneva court and an inquiry was formally opened in Switzerland to look into alleged violations of the Cultural Property Transfer Act (LTBC).  This act requires art market professionals keep a register for 30 years, in which the "origin of the cultural property" is to be documented. 

In order for the sarcophagus to have been in good standing in Switzerland under the LTBC, the dealers would be obliged to prove that the acquired object was in an old collection outside the source country prior to 2005 or to demonstrate that the object was not stolen or exported illicitly after 2005.

In October 2013, the case made its way through Swiss court. The Geneva Chief Public Prosecution Office and the Chief Public Prosecutor of Antalya conducted a comprehensive joint study with the Swiss magistrate in charge of the case traveling to Antalya, Turkey where Turkish Public Prosecutor Osman Şanal provided access to witnesses.   

Testimonies were heard from Professor Haluk Abbasoğlu and Professor İnci Deleman who conducted excavations in the region where the sarcophagus was illegally excavated.   The Swiss prosecutor also met with an unnamed imprisoned smuggler serving time on a separate smuggling charge in Elmalı prison.  This smuggler allegedly confirmed that the artifact had been looted and smuggled out of Turkey. 

Based on the evidence gathered, on September 21, 2015 Swiss authorities ordered the repatriation of the sarcophagus. But international legal proceedings move at a snail’s pace and the return of this one object, approved by the Geneva Court of Justice on May 2, 2016, was slowed again, due to a challenge by the Swiss Federal Court. 




More on the dealers involved in this repatriation case.

Phoenix Ancient Art operates a gallery in New York city as well as in Geneva Switzerland.  Founded by Sleiman Aboutaam in 1968, the firm was incorporated in 1995.  The second-generation family business is now managed by Sleiman's sons, Hicham Aboutaam and Ali Aboutaam, who took over the firm's operation after Sleiman’s death in 1998.  The firm has been embroiled in a significant number of antiquities-related controversies. 

A sampling (not a complete listing) of other instances of concern involving this firm include:

A third-century CE South Arabian alabaster stele the brothers attempted to sell in May 2002 via Sotheby’s auction house in New York for approximately $20,000 to $30,000 in which they listed the provenance for the piece as having belonged to a private English collection. Sotheby's researchers conducting due diligence before the auction found published photographs of the stele indicating that this tablet, carved in low relief, with an image of the fertility goddess Dat-Hamin, had been stolen in July 1994 from the Aden Museum in Yemen's port city during the country's previous war.  This object was forfeited to the U.S. government in December 2003 and eventually returned to Yemen.  

Hicham Aboutaam was arrested in 2003 for smuggling a looted ceremonial drinking vessel from Iran into the US, claiming that it had come from Syria.  Hicham pled guilty to the charges in 2004, paid a fine, and the vessel was returned to the Iranian authorities.  Hicham Aboutaam stated that his conviction stemmed from a "lapse in judgment."

The Egyptian authorities have accused Ali Aboutaam of involvement with Tarek El-Suesy (al-Seweissi), who was arrested in 2003 under Egypt’s patrimony law for illegal export of antiquities. Ali Aboutaam was tried in absentia, pronounced guilty and was fined, and sentenced to 15 years in prison in the Egyptian court in April 2004.  To date, he has not served any of the Egyptian sentence. 

The Aboutaams voluntarily repatriated 251 Antiquities valued at $2.7 Million to the State of Italy in May 2009 tied to one of Italy's most notorious smuggling rings.

Advice on collecting ancient art

ARCA encourages its readers to remember that the only way to avoid looting is to pressure dealers and collectors to not participate directly or indirectly in looting through their sourcing and purchases.  Collectors of ancient art are only the most current stewards of objects with long and telling histories. The provenance, or ownership history of a piece of art is important and should detail strong proof that an object has come from a legitimately traded collection.  

Buying and trading in ancient works of art, without well documented collecting histories, simply for their beauty or for the purpose of rescuing them from countries in conflict, only encourages further looting and further laundering of smuggled illicit objects. 

ARCA strongly discourages collectors and museums from buying or accepting objects that cannot pass the 1970 test or which lack a legitimate export permit from the actual and correct country of the object's origin.

By: Lynda Albertson

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.

June 3, 2014

The Gurlitt Collection: Kunstmuseum Bern will proceed with assessment as to whether or not to accept their inheritance

The Swiss museum Cornelius Gurlitt bequeathed his paintings will begin the process of deciding whether or not to accept the inheritance, they announced in a press release today:
On May 26, 2014, the board of trustees of the Kunstmuseum Bern met for the first time in a special session to examine the situation in regard to Mr Cornelius Gurlitt naming the Kunstmuseum Bern as his unrestricted sole heir. The will has not been opened yet; once this is the case, the museum will have a deadline of six months in which it must decide on whether it will accept the inheritance. In this period the Kunstmuseum Bern will make an assessment of the situation by collecting as much material containing relevant information as possible. Thus the Kunstmuseum Bern does not yet have an inventory at its disposal, and it has not been able to inspect the art collection. On the occasion of a visit to Munich, the president of the board of trustees and the director communicated with the authorities there. The political authorities in Switzerland are being kept informed on a regular basis. It has been decided that the Kunstmuseum Bern will seek legal assistance; the name of our legal advisor will be made known publicly when he or she has been definitively appointed. The Kunstmuseum Bern will notify the media when relevant new information is available, at the earliest at the beginning of July.

October 1, 2012

"Art Predators and The Rediscovered Heritage ... the story of recovery" at the National Etruscan Museum in Rome's Villa Giulia shows archaeological fruits of 20 year investigation


Here's a link to a video showing an exhibit, "Art Predators and The Rediscovered Heritage .. the story of recovery",  at the National Etruscan Museum at Villa Giulia in Rome (September 29 through December 15, 2012) of recovered stolen antiquity objects recovered by Italy's Carabinieri Department for the Protection of Cultural Heritage (Carabinieri Tutela Patrimonio Culturale), the Justice Department, and archaeologists in an investigation lasting more than two decades.

The Villa Giulia-Museo Nazionale Etrusco is located north of the Piazza del Popolo in the western outskirts of the Villa Borghese (a really long walk from the Galleria Borghese as I once found out).

These hundreds of works of art were stolen by grave robbers in clandestine excavations in Etruria, Puglia, Sicily and Calabria (Google Translation of article by Irene Buscemi, "Predatori d'arte e patrimonio ritrovato in mostra a Roma", September 30, 2012, Il Fatto Quotidiano).  These amphora, kylix (pottery drinking cups) and bronzes were illegally sold in the 1970s and 1980s by merchants and traffickers to famous foreign museums (Getty Museum in Los Angeles, The Metropolitan in New York, and institutions in Australia and Japan).  Two archaeologists, Daniela Rizzo and Maurizio Pellegrini, assisted in the project and curated the exhibit.  Many of these objects were seized from a warehouse in the Free Port of Geneva in 1995 (for more information you may refer to "The Medici Conspiracy" (Public Affairs, 2006) by historian Peter Watson and Italian journalist Cecilia Todeschini).  The Carabinieri used polaroid photographs, charts, and documents found in this investigation to recreate the illicit trade that funneled objects through art collectors and auctions houses such as Sotheby's in London.

Here's a link to the exhibit at the Villa Giulia.  The exhibitors explain here that for the first time the National Etruscan Museum of the Villa Giulia is presenting some archaeological materials chosen from among 3,000 artifacts seized in 1995 by the Carabinieri Cultural Heritage Projection from the Free Port of Geneva and returned to Italy after a long legal battle based upon documents found in the raid that allowed the Carabinieri and prosecutors to reconstruct the trafficking routes and illegal excavations.  In this illegal operation, objects were illegal dug up out of the ground, moved from Italy to Switzerland, cleaned and then provided paperwork to market the objects to international museums:
The exhibition aims to raise awareness of the general public the hard work done in recent years by the Judiciary, flanked by Carabinieri Cultural Heritage Protection, with the Guardia di Finanza and the archaeologists of the Superintendent [Soprintendenza per i Beni Archeologici dell'Etruria meridionale], which has led to some important results, perceived not only through a high number of artifacts recovered, by especially in the significant drop in illegal excavations at the archaeological sites of Cerveteri, Vulci, and Tarquinia, once the subject of real raids [translated with the help of Google].

April 14, 2012

Associated Press: Serbian officials announce recovery of Degas painting stolen from Bührle Collection in 2008; Ransom paid one year after theft

Degas' Ludovic Lepic and His Daughters/Bürle
by Catherine Sezgin, Editor-in-Chief

Serbian officials announced this week that payment of a 400,000 euro ransom returned Edgar Degas' painting Ludovic Lepic and His Daughters to the Bührle Collection one year after it was stolen, according to "SEE IT: Serbian and Swiss police raid nets stolen Cézanne painting", an article written by Dusan Stojanovic, Chief Correspondent for the Associated Press in Belgrade, and published April 13 on the website NYDailyNews.com.

This information was released at a news conference in Belgrade attended by Serbia's organized crime prosecutor Miljko Radisavljevic and Serbian Interior Minister Ivica Dacic, Stojanovic reported.

The FBI and Interpol had still listed the Degas painting as stolen and missing as of this week.

Other interesting details Stojanovic reported from the press conference:

The police raid recovered the Cézanne painting in the roof upholstery of a black van;

Four men, including the leader of the gang that conducted the robbery, were arrested in Belgrade and Cacak, according to Prosecutor Radisavljevic;

The police raids this week, planned since 2010, "took place when the suspected robbers decided to take the Cézanne painting to a wealthy Serb who agreed to buy it for (euro) 3.5 million ($4.6 million), according to Interior Minister Dacic.

Police also found $2 million in cash and firearms with the four men, according to Dacic.

Thank you to Marc Balcells, ARCA alum, who noticed the news on recovery of the Degas painting.