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cultural repatriation,Doctrine of Laches,Italy,Matthew Bogdanos,New York,repatriation,Request for Return,Safani Gallery,United States
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Judge Rules Against Safani Gallery in Fight Over Stolen Marble Head of Alexander
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| Image Credit: Safani Gallery TEFAF Maastricht advertisement |
On 12 November 2019 Safani Gallerym through their attorney David Schoen, filed a Federal lawsuit in the Southern District of New York seeking a declaratory judgment declaring that Safani Gallery, Inc. seeking, along with damages, a declaratory judgment that the gallery was the exclusive owner of a stolen, circa-1st-century CE, marble Head of Alexander and that the country of Italy had no rights in, or claims to, the artefact. The case was assigned to US District Judge Vernon S. Broderick, in the Southern District of New York.
On 2 August 2021, Judge Broderick dismissed the case, finding that Italy was protected from being sued in U.S. Court by the Foreign Sovereign Immunities Act (FSIA). Subsequent to that ruling, and through their attorney, Safani then amended its complaint, adding the Italian Ministry of Culture Heritage and Activities and Tourism (“MiBACT”) and the New York District Attorney's Office as defendants, asserting that the DA had violated its Fourth and Fourteenth Amendment rights.
Italy, its Ministry of Culture, and the DA subsequently sought a dismissal of the Second Amended Complaint filed by the New York antiquities gallery which was attempting to block the return of the ancient head of Alexander the Great as Helios, the Sun God to the country of its origin.
On Tuesday, 28 January 2025, Judge Broderick, again, concluded that Italy and its cultural ministry were immune under the FSIA and granted the District Attorney's motion to dismiss the Gallery's amended complaint, additionally finding that Safani lacked Article III standing to bring its federal claims against the State's DA. Accordingly, Count IV was also dismissed.
In making his ruling Broderick elaborated:
“A finding that the Manhattan DA violated the Constitution by seizing the Head without probable cause and without due process would not change the fact that only the state court can order the disposition of the Head.”“Finally, although “the state-law issues [are] not so groundbreaking as to preclude the exercise of jurisdiction” under 28 U.S.C. § 1367(a)(1), Korshnyi, 771 F.3d at 102, the consideration of comity also weighs in favor of dismissal, because dismissal avoids “needless” federal-court “decisions of state law,” Valencia, 316 F.3d at 305 (quoting United Mine Workers v.Gibbs, 383 U.S. 715, 726 (1966)).”
The backstory on this case
Previously on Monday, 23 July 2018 Matthew Bogdanos, Senior Trial Counsel in the Office of New York County District, through District 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 the 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.
To that end, and 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 22 February 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 2018 the object had been retained as evidence by the New York authorities while Safani's complaint and second amended complaint was being heard within the US justice system.
In terms of its history, DANY's 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.
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| Looking across the remains of the Basilica Aemilia towards the Severan Arch, the Tabularium, and the Modern Senate House Image Credit: B. Dolan |
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 which were 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 Antichità 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 these excavations which 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 New York Court's Application for Turnover it seems most likely that the marble head was 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 inside Rome's culturally significant 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 in which the object 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, this object indisputably has Italy as its country of origin. Predicated on the foregoing evidence, it can be proven that the marble head of Alexander was illegally 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.
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 in which the object 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, this object indisputably has Italy as its country of origin. Predicated on the foregoing evidence, it can be proven that the marble head of Alexander was illegally 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, this 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 through his estate when he passed away in 1988.
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 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 to Alan Safani of Safani Gallery for $152,625 on June 20, 2017.
Object Identified
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 marble head had been included highlighting Safani Gallery's offerings for the upcoming Maastricht sale scheduled to be held in the Netherlands from March 10 through 18 in 2018.
The photo in the advertisement and the old archival documentation photo of the head in the Museo Forense’s cloister were identified as one and the same object and as a result, Italy moved forward in requesting the object's seizure.
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, this 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 through his estate when he passed away in 1988.
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| Sotheby's Website Screen Capture taken 24 July 2018 |
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 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 to Alan Safani of Safani Gallery for $152,625 on June 20, 2017.
Object Identified
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| Safani Gallery Booth - TEFAF 2018 Image Credit: L. Albertson |
The photo in the advertisement and the old archival documentation photo of the head in the Museo Forense’s cloister were identified as one and the same object and as a result, Italy moved forward in requesting the object's seizure.
For now Judge Broderick’s decision has recognised the primacy of state court jurisdiction in adjudicating disputes over the seizure of stolen antiquities. Leaving the ultimate question of who owns the Head to the state court, he observed:
“[a] finding that the Manhattan DA violated the Constitution by seizing the Head without probable cause and without due process would not change the fact that only the state court can order the disposition of the Head.”
For now, Safani has one month to appeal against Judge Broderick's final dismissal decision.
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.
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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