On October 16, 2012 Dutch police confirmed that seven paintings had been stolen, shortly after 3 a.m. local time, from the Kunsthal museum in Rotterdam.  The paintings which were taken, Pablo Picasso's Tete d'Arlequin, Henri Matisse's La Liseuse en Blanc et Jaune and Waterloo Bridge, London,  Claude Monet's Charing Cross, London, Paul Gauguin's Femme Devant une Fenêtre Ouverte, dite La Fiancée, Jacob Meyer de Haan's Autoportrait, and Lucian Freud's Woman with Eyes Closed were estimated to be worth millions.  

The stolen art works were part of the museum's Avant Guard Exhibition, which highlighted material on loan from the private Triton Foundation collection. Built over twenty years, by Rotterdam oil and shipping magnate Willem Cordia and his wife Marijke van der Laan, the exhibition, was set to run from 7 October 2012 until 20 January 2013, and was the first time any artwork from the Triton Collection had been exhibited publicly. 

The Triton body of artworks is made up of approximately 250 paintings, drawings and pieces of sculpture belonging to art movements from 1870 through 1970.  The collection includes works by many by the most influential 19th and 20th century artists in the tradition of Impressionism, Expressionism, and Analytical Cubism.  At the time of the theft, the collection was reputed to be one of the 200 most important private collections in the world.  

Shortly after the theft, and as the law enforcement investigation progressed, formal charges were brought against a group of suspects of Romanian origin.   Charges against Radu Dogaru, the ringleader who was found to have orchestrated the heist, his mother, Olga, Eugen Darie and Adrian Procop were all eventually brought.  Around the globe, their trials were closely watched in the hopes that the defendants might shed some light during their testimony on whether or not the seven paintings and drawings remained safe.  Early in the investigation Mr. Dogaru’s mother claimed to have torched the artworks, in order to dispose of the evidence which could be used against her son.

Despite recanting her statement later, experts from Romania's Muzeul Naţional de Istorie a României (National History Museum of Romania - MNIR) provided testimony that seemingly validated Olga Dogaru's grim confession.  Ash and remains analyzed from a stove in her home in the village of Carcaliu in eastern Romania included nails from frames used before the end of the 19th century.  Yet, as pointed out by Maria Vasii, one of the attorney's for the defendants, the only painting with canvas tacks was the one by Lucian Freud.  As that artwork was completed in the year 2000, the nails would not have been made of copper and could not possibly have come from a 19th or 20th century production. Vasii also pointed out that the other paintings which were stolen were canvas glued onto cardboard and had no nails whatsoever. 

Despite the questions remaining as to what had actually become of the stolen artworks, Radu Dogaru and Eugen Darie, pled guilty for their roles in the theft on October 22, 2013. As a result of their confessions, the Third District Court of Romania sentenced Dogaru to 6 years and Eugen Darie to 5 years and 4 months (following sentencing appeals) for their involvement in the crime and for membership in a criminal organisation. 

Alexandru Mihai Bitu also received a sentence - two years for handling stolen goods. Adrian Procop, arrested in Manchester, England and extradited to Bucharest, was sentenced to prison for four years and 10 months for the formation of an organized criminal group and to four years and eight months for theft. Some of his prison time was reduced as the punishments were slated to run concurrently.  

Petre Condrat, involved in trying to find a buyer for the Matisse and the Gauguin, was fined 45,000 Romanian lei, the equivalent of approximately €9642. Dogaru's mother, Olga, was sentenced to two years in prison, convicted of aiding criminal behavior.

Interestingly, during Radu Dogaru's trial he gave a deposition that contradicted his mother's earlier confession to burning the paintings and told the court that his mother made false statements about incinerating the art works under pressure by interrogators. It was believed at the time that Radu may have been motivated by the hope that, along with her recanted testimony, his testimony might help his mother avoid a prison sentence.  

Now, six years later, an anonymous letter has been received by a Dutch writer of Romanian origin, Mira Feticu, the contents of which reportedly stated where one of the seven stolen works of art might be found.

But has the stolen Picasso really been spared the fiery furnace? 

Painted the year before the artist's death, Picasso's Head of a Harlequin (1971) is an art work done in pen and brush in black ink, colored pencil and pastel on thick brown wove paper.  It measures 38 x 29 cm and is "signed and dated in the lower right corner "Picasso/12.1./71". It was purchased by the Triton Foundation in 2009.

Mira Feticu has told reporters that the letter was sent to her at her Hague address because she wrote a book in 2015 about the Kunsthal theft which was also translated into Romanian.  Following the indications spelled out in a few short sentences of Romanian, Feticu and Frank Westerman have stated that they used the letter to guide them to Tulcea County, Romania.  There, they report they were able to identify the spot underneath a tree where the writer of the letter had indicated the missing Picasso could be found. 

Clearing away snow and leaves, the pair told law enforcement that they found the fragile artwork wrapped in plastic.   Photographing it in the car, they then turned the artwork over to the Dutch Embassy in Bucharest. Westerman has since posted video footage of law enforcement authorities examining the work of art on his Facebook page. 

For now, a team of DIICOT prosecutors and police officers of the Criminal Investigation Directorate - IGPR will conduct a follow up investigation.  To determine if the drawing is authentic, or part of an elaborate hoax, it has been sent to the National Museum of Art of Romania located in the Royal Palace Bucharest.  There art historians will work to assist in determining or negating the artwork's authenticity.  

Insured against losses, in September 2013 the Triton Foundation received a $24 million payout for the theft of their seven artworks from their insurance underwriter, Lloyd's of London.  In doing so, the foundation has relinquished the titles to each of the seven stolen works of art, should any of them ever be recovered.  This means, if this "Picasso" is authenticated, (and that's a pretty big if), the insurance firm would be the rightful owner.

Me, I have my doubts.  


Straightening the image presented by Feticu taken in the car, and then comparing it side by side with the original stolen artwork I see numerous points of difference in addition to many color variations. A few of these I have redlined.  I am not an authenticator, nor am I an expert on Picasso's work, or the degradation of paper drawings over time, but to me, it doesn't seem to be the original, as much as it would make me happy if it were.

UPDATE:

Theater makers Yves Degryse and Bart Baele have admitted that the found "Picasso" in Romania is a hoax, part of a publicity stunt for their performance True Copy, which premiered last week. 

By:  Lynda Albertson

While the Galleria d'Arte Moderna got its collection returned, by giving in and paying a thief's ransom, they encouraged further robberies.   Just three months later, on May 15, 1975, thieves struck the museum for a second time.

As if to add insult to injury, the second theft made use of the same security vulnerabilities.  Thieves entered the museum via the exact same avenue taken earlier, as if the first theft was a dress rehearsal for the second grand performance.

To break into the museum they came in over the high wall around the museum and then penetrated the building by climbing a ladder and entering through an upper floor window which had not been fitted with a burglar alarm. 

Once inside they reportedly overpowered four night watchmen.  Two were bound and gagged while making rounds and two were subsequently subdued in the Grassi Gallery where the criminals again made off with a substantial cache of paintings.

This time, even more Impressionist and Postimpressionist works of art were stolen, 38 in total. Many of the artworks stolen, including Van Gogh's watercolour Breton Women (after Emile Bernard), were the same ones taken during the previous robbery.

Perhaps because the thieves were banking on a ransom having already been paid?

One month later, on June 17, 1975, police got a break.  During an routine traffic stop, Giuseppe Pennestri was arrested by Italian authorities while driving a Mercedes with New Zealand license plates under an assumed name.  With him was a Yugoslavian also travelling with false identity papers.

Pennestri would turn out to be a truly unsavoury character, with a record that included not only masterminding the theft of the museum, possibly on both occasions, but also a rap sheet that included homicide, drug dealing, facilitating prostitution and apparent ties to organized crime. 

While the Galleria d'Arte Moderna got its collection returned, by giving in and paying a thief's ransom, they encouraged further robberies.   Just three months later, on May 15, 1975, thieves struck the museum for a second time.

As if to add insult to injury, the second theft made use of the same security vulnerabilities.  Thieves entered the museum via the exact same avenue taken earlier, as if the first theft was a dress rehearsal for the second grand performance.

To break into the museum they came in over the high wall around the museum and then penetrated the building by climbing a ladder and entering through an upper floor window which had not been fitted with a burglar alarm. 

Once inside they reportedly overpowered four night watchmen.  Two were bound and gagged while making rounds and two were subsequently subdued in the Grassi Gallery where the criminals again made off with a substantial cache of paintings.

This time, even more Impressionist and Postimpressionist works of art were stolen, 38 in total. Many of the artworks stolen, including Van Gogh's watercolour Breton Women (after Emile Bernard), were the same ones taken during the previous robbery.

Perhaps because the thieves were banking on a ransom having already been paid?

One month later, on June 17, 1975, police got a break.  During an routine traffic stop, Giuseppe Pennestri was arrested by Italian authorities while driving a Mercedes with New Zealand license plates under an assumed name.  With him was a Yugoslavian also travelling with false identity papers.

Pennestri would turn out to be a truly unsavoury character, with a record that included not only masterminding the theft of the museum, possibly on both occasions, but also a rap sheet that included homicide, drug dealing, facilitating prostitution and apparent ties to organized crime. 

In April 2014 the stolen art world ignited when a press conference conducted by General Mariano Mossa of Italy’s Comando Carabinieri Tutela Patrimonio Culturale art crime squad and the country’s Minister of Culture and Tourism, Dario Franceschini, announced that Italy had recovered two stolen paintings worth more than 33 million euros.

Originally owned by philanthropist Mathilda Marks, daughter of Michael Marks, who founded the Marks and Spencer retail empire and her husband, Terence Kennedy, the two paintings, Fruits sur une table ou nature au petit chien (Still Life with a Small Dog) by Paul Gauguin and Pierre Bonnard’s La femme aux deux fauteuils (Woman with Two Armchairs) had been stolen from a opulent London flat in Chester Terrace in 1970.  The art thieves, posing as burglar alarm repairmen, gained access to the house on the pretext of verifying the owner’s alarm system.  Pretending to go about their work, the criminals quickly removed the artworks from their original frames and bolted while the housekeeper was distracted preparing tea.

After their theft, the art works were smuggled out of England and on to France where they were later abandoned on a Turin-bound train arriving from Paris.  The culprits were never identified though police speculate that whoever was transporting the paintings may have abandoned them when they were spooked by customs officials on the train.

Found by railway inspectors, the two paintings languished for more than a year in the Turin train system’s lost property section before being auctioned off by Italy's national railway network in 1975 as unrecovered lost property.  This time period is significant because the sale occurred five years before the Carabinieri's famous art crime tracking database came into existence.  Unaware of their importance, the pictures were sold for a mere 45,000 lire – €26 in today's money, to a Fiat employee identified only as Nicolò, who later moved back to Siracusa, Sicily when he retired from the auto industry job as a metal mechanic in Turin. 

The Antiques Trade Gazette, reported that Rome’s public prosecutor Marcello Cascini, has stated that the Carabinieri TPC had been alerted to the paintings when a friend of the Italian buyer tried to sell them.  Other news services have reported that the autoworker’s son, Salvatore voluntarily contacted the Carabineri TPC directly when he began to suspect that his father’s paintings where not merely bargain basement knock-off’s.  In either case, the family members have been cooperative and have avoided the lime-light while the paintings were sequestered in 2014 until rightful ownership could be established.

Who is entitled to proceed for restitution and is possession really 9/10ths of the law?

Despite EU efforts to reach uniformity, each domestic law system in the EC provides specific regulations that may vary between Common Law and Civil Code approaches in determining who the rightful owner of a stolen object is. 

Following Art.1153 of the Italian Code, "Effects of the acquisition of possession”, in order to resist a forfeiture claim and protect his interests, the bona fides Sicilian buyer first would have to establish that he acquired the artworks and currently holds the items under dispute.  Second he would need to prove that he had a "valid" title upon which the goods have been acquired and third he would need to show that he was acting on good faith when he purchased the paintings.

Based on Italian civil code criteria the paintings would have had to have been owned by the Fiat worker for 10 years if he was unaware they were stolen goods or twenty years if he had any knowledge that the artworks he had purchased were hot art.

On the basis of the civil code in Italy,  information provided by the Carabinieri TPC that specializes in art and antiquities and given more than forty years had passed since the time of the London theft and subsequent purchase, the Italian courts ruled in the autoworker’s favor last month.  The property was returned to its Italian owner who reported that he planned to sell the Gauguin.

His victory proves there is some truth to the old adage, ownership is easier to maintain if one has possession of something and difficult to enforce if one does not.

Italian law. UK law. Swiss Law. 

But while Mrs. Marks and her American husband, Terence Kennedy, had no children they did have heirs to their vast fortune.

Terence Frank Kennedy met Mathilda Marks in Paris and were married shortly thereafter on 23 August 1951.  A flashy couple, they travelled frequently and spent their money on jewellery, cars, dogs and art. They would buy the Guaguin painting in 1962 from Sotheby’s in New York.

Speaking with Richard Ellis, director of the Art Management Group and a former head of Scotland Yard's Art and Antiques Squad, ARCA learned that when Mathilda Marks died 01 September 1964 she left her widower as the principal beneficiary to her personal estate, leaving him the pictures, which remained in his Chester Terrace home in Regents Park until the high profile art theft in June 1970.

Later he would close the house and travel between Switzerland, London and the South of France where he met John Henderson, then a young actor, who would go on to serve as his personal assistant after he suffered from a major stroke.  Henderson would become Kennedy's lifelong friend, support person  and constant companion for the next twenty years.

When Mr. Kennedy died in 1997 he made Mr. Henderson his sole heir under a will administered in Switzerland. In addition to a will, Mr. Henderson can produce the complete provenance of the paintings and their original frames, complete with exhibition history.

According to Ellis, the terms of Kennedy’s will means that all of Mr Kennedy's possessions, whether in his keeping at the time or not, now belong to John Henderson, inclusive of the now contested stolen pictures and the paintings' frames which he still has. The fact that investigations revealed no insurance payout having been made on the pictures, means that at least under UK law, Mr. Henderson retains clear title to the art works.

Where do the “owners” go from here?

Mr. Ellis reported that he is attempting to schedule a meeting with Roberto Matarazzo, Italian legal counsel to the 70-year-old retired Fiat factory worker arguing that this evidence seems to dictate that the Carabineri TPC and Italian Courts may not have satisfactorily investigated the claim to ownership with regards to these valuable artworks prior to their ruling in the retiree’s favor.  Ellis would like to set up an appointment to discuss the matter in Naples as soon as possible but definitely before any potentially, controversial sale.

This may be a perfect opportunity for all parties to consider the advantages of extra-judicial methods of dispute resolution through the use of a mediator. By sitting down to talk and finding an agreement via mediation on this matter, both parties may be able to arrive at a satisfactory resolution for all parties via Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008.  This directive is specifically intended to encourage amicable dispute resolution vs. long litigious drawn out battles, particularly in civil and commercial matters.

Its the appropriate recourse for art and cultural heritage dispute in the event of an art theft where both the heirs and the purchasing party have vested interests, financial or emotional, in the artworks.

By Lynda Albertson, ARCA

References used in this article:

http://www.antiquestradegazette.com/news/2015/jan/28/british-heir-challenges-italian-factory-worker%E2%80%99s-claim-over-stolen-%C2%A325m-gauguin/

http://www.boglione.eu/it/chi-siamo/focus/item/216-re-getting-back-stolen-valuable-goods-the-eu-perspective.html

http://europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_civil_matters/l33251_en.htm

Italian Studies in Law: A Review of Legal Problems, edited by Alessandro Pizzorusso

http://www.nytimes.com/2014/04/03/arts/design/two-stolen-paintings-are-found-in-italy.html?_r=0

http://www.panorama.it/cultura/gauguin-bonnard-capolavori/

http://www.thepeerage.com/p36836.htm

Lucian Freud, Woman with Eyes Closed

by Catherine Sezgin, ARCA Blog Editor

Book cover for a volume Yale Press  is publishing this December

by Lynda Albertson, ARCA CEO