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February 26, 2014

OpEd: Italy’s Corte Suprema di Cassazione and the Getty Bronze: What will be the fate of the Fano Athlete?

By Lynda Albertson, CEO, ARCA

A story decades in the making, Italy’s Corte Suprema di Cassazione (Supreme Court of Cassation) was scheduled to hand down its final ruling today at the Palace of Justice in Rome on the fate of the l’Atleta di Fano, commonly known by as The Getty Bronze, the “Victorious Youth" or il Lisippo.  The bronze work of art, a representation of an athletic youth standing with all of his weight on his right leg, is depicted crowning himself with an olive wreath. It was purchased by the J. Paul Getty Museum under less than transparent circumstances in 1977 for $3.95 million.

After years of discussions Italy's highest court has elected not to issue its ruling today upholding a lower court's judgment that the "Victorious Youth" was illicitly exported from Italy and as such, is subject to seizure.  Instead the Prima sezione penale della Cassazione (First Penal Section of the Supreme Court of Italy) has elected to transfer the case to the Terzo sezione penale della Suprema Corte (Third Criminal Chamber of the Supreme Court) where a new hearing will be scheduled to establish whether or not the order of confiscation issued by the Court of Pesaro on May 3, 2012 should be affirmed.

The Getty Museum has been fighting a lower court's ruling by claiming that the statue was found in international waters in 1964 and was purchased by the Getty Museum in 1977 -- years after Italian courts concluded that there was no evidence that the statue belonged to Italy.  Throughout this elongated court process, the J. Paul Getty Museum has maintained that the statue's accidental discovery by Italian fishermen, who then brought the bronze to Fano and hid it from authorities, did not grant the statue the status of an Italian object.

Examining the merits of the case within the Prima sezione penale della Cassazione (First Penal Section of the Supreme Court of Italy) were the following magistrates:

Dott. Renato Cortese, Panel President
Dott. Angela Tardio, Consiglieri (Counselor)
Dott. Lucia La Posta, Consiglieri
Dott. Filippo Casa, Consiglieri
Dott. Francesco Bonito, Relatore (Speaker)

The Getty museum was represented in the case by Milan attorney Emanuele Rimini and attorney Alfredo Gaito from Rome. The Italian Ministry of Culture was represented by state cultural heritage attorney Maurizio Fiorilli.

But why fight over such a beautiful work of art?

This life-size Greek bronze statue is believed to have been created between the 4th and 2nd century BCE, possibly by the artist Lysippo, the court sculptor of Alexander the Great. While Lysippo was a prolific sculpture, few of his bronzes remain in existence making this particular statue and its high financial value something worth fighting for.  Italy has fought for the statue's return based on principle and for many years has utilized the judicial system within its means to make a point that its antiquities should not be trafficked.  The J. Paul Getty Museum is concerned that it will lose a substantial investment and a critical and cherished piece in their collection.  These opposing desires have placed the "Victorious Youth" at the epicenter of an international legal dispute that has lasted through the careers of two of Italy's finest cultural property attorneys, Giorgio Paolo Ferri and Maurizio Fiorilli.

The story of the statue begins with its discovery in 1964 off the northern Adriatic coast of Italy where it was fished from the sea by the Italian crew of the fishing trawler, Ferrucio Ferri who plied their trade out of Italy. Hauled aboard in the fisherman's nets and later hoisted from the boat onto Italian soil when the ship docked in Fano, the statue has changed hands and countries multiple times.  Its journey has been filled with fishermen, traffickers, shady middlemen and even a priest, making its journey from port harbor to one of the United State’s most prestigious museums a story worthy of more than just one article.

Rather than declare the statue’s discovery to customs officials, as required under Italian law, the fisherman and his brothers hid the bronze almost immediately.  To protect their asset, they buried the bronze in a cabbage field and began scouting for potential buyers.  The work of art was eventually sold to Giacomo Barbetti, a wealthy antiquarian, who was the first to identify the bronze as perhaps being the work of the Greek master, Lysippo.

In May 1965, the bronze moved from Fano to Gubbio, where, with the help of Father Giovanni Nagni, it was hidden for a brief period in a church sacristy. As the encrusted statue, covered in marine organisms and barnacles from its 2000 years in seawater began to smell, it drew unwanted attention forcing the resourceful conspirators to relocate the bronze from the church room for vestments to the priest’s bathtub.  There it was submerged in a saltwater bath to minimize its odor and slow its decay.  Investigators and lawyers tracing the statues journey say that Barbetti quickly sold the bronze to an unidentified buyer from Milan. 

Afterwards, the "Victorious Youth" passed through a number of other hands, crisscrossing its way through several countries after it was smuggled out of Italy.  In 1972 it passed through antique dealer Herzer Heinz in Munich who was tasked with removing the detritus that was encrusting the statue. It was in Heinz's studio in Germany that the bronze was examined, but not purchased, by Thomas Hoving from the New York Metropolitan Museum. 

In 1974 the Luxembourg-based company Artemis S.A, purchased the statue for $700,000.  Founded in 1970, evidence presented by the Italian state at the Tribunal in Pesaro in February 2010 suggests that the firm was created ad hoc to craft false provenance for antiquities trafficking.

During this period Herzer contacted Bernard Ashmole, at the British Museum who in turn approached J. Paul Getty about a possible purchase.   The American industrialist, turned art collector was skeptical enough of the statue’s sketchy provenance and Italian police interest in the piece that he declined to purchase the masterpiece.  Despite their founder's misgivings, the J. Paul Getty Museum bought the statue one year after Getty’s death.  The purchase in turn resulted in an INTERPOL notification to the Italian authorities that the Victorious Youth had found a museum buyer.
Palazzo di Giustizia, Roma

To understand how the case 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.  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 can 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 first passing through the Corte d'Assise d'Apello as was the case recently with the high profile murder case of Amanda Knox.  Both the defendant and the prosecution in this 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. 

The Getty Villa, California
But getting back to the case of the Getty Bronze that in some ways is as complex and hard to follow judicially as a 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 Pesara 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 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.

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 was 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 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 to back to the Tribunal of Pesaro for further examination of the merits of the case.

On May 3, 2012 Maurizio Di Palma, the Pre-Trial 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 today's final ruling.

If the Italian state affirms its final ruling with respect to this case at the Third Criminal Chamber of the Supreme Court it will be interesting to see how the repatriation order will be enforced and if the J Paul Getty Museum will to the right thing and relinquish the statue voluntarily.

When asked his opinion on today's postponement, Stefano Alessandrini, Perito Scientifico to the Italian state on this and other cultural heritage looting cases indicated that he would not celebrate (or give up) until he saw the statue arrive at Rome's Aeroporto Internazionale Leonardo da Vinci di Fiumicino.

Italy's cultural property attorney Maurizio Fiorilli retires April 12, 2014 meaning the torch will have to be passed to a third state prosecutor. 

For now, Italy continues to wait.