Friday, November 15, 2019 - 
Alan Safani,cultural repatriation,Doctrine of Laches,Italy,Matthew Bogdanos,New York,repatriation,Request for Return,Safani Gallery,United States
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Alan Safani,cultural repatriation,Doctrine of Laches,Italy,Matthew Bogdanos,New York,repatriation,Request for Return,Safani Gallery,United States
No comments
Revisiting the case of the marble head of Alexander the Great as Helios, the Sun God
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| Sotheby's Website Screen Capture taken 24 July 2018 |
In its complaint Safani Gallery also represents that it was given express representations and warranties of the authenticity, ownership, export licensing, and other attributes of the provenance for the marble head from Foundation, Classical Galleries. Ltd., which sold the New York gallery the antiquity. The complaint also states that by seizing the sculpture, Italy seeks to receive a benefit, including the expropriation of the gallery's property for Italy's own use and gain, to which the country has no claim, interest, or right.
To provide background on this case, Matthew Bogdanos, Senior Trial Counsel in the Office of New York County District, through Attorney Cyrus R. Vance Jr., submitted an Application for Turnover on 23 July 2018 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) requesting the transfer of this antiquity, seized pursuant to a previously executed search warrant, from the custody of the court, to the custody of Italy.
Under order of the Supreme Court of the State of New York, County of New York, the marble head of Alexander the Great had been seized at Safani Gallery on 22 February 2018. As a result of that seizure, the object 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. That seizure was carried out based on evidence provided by the Italian authorities that the object had been stolen and illegally exported from the country of origin in contravention of Italy’s cultural heritage law (No 364/1909).
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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 |
The contested marble head was discovered at some point during Italian research excavations carried out by Professor Giacomo Boni and later by Professor Alfonso Bartoli, who conducted archaeological surveys of the Palatine Hill in Rome between 1899 and 1939. Written documentation from these explorations suggest that the head was once part of the “Statues of Parthian Barbarians” which are believed to have adorned the Basilica Aemilia. As such, these objects represent a valuable testimony to the art and architecture decorating buildings in the Forum during the Augustan Age.
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 to humiliate the ancient foreign enemy of Rome. Representing individuals from the Parthian Empire (also known as the Arsacid Empire), these human likenesses depicted the conquered Parthians as representatives of the Orbis Alter, subjects of Rome not considered to be part of the “civilised” world. Stylistically, they differ from representations we have from the same time period of people from the Orbis Romanus which makes this statue grouping particularly identifiable.
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| Correlating statue from the Basilica Aemilia |
According to New York court documents, the Italian Soprintendenza alle Antichità Palatino e Foro Romano began keeping archival ambrotype photographic documentation of the objects it discovered during these excavations beginning in 1908. This method of documentation most likely came about as a result of the country having instituted regional "Superintendencies" in 1907 on the basis of law no 386 dated 27 June 1907. Prior to that, Italy lacked a strong national framework to encompass cultural heritage laws and regulations, and the area's cultural heritage was protected by the individual laws and decrees inherited from the many states and kingdoms that formerly made up Italy prior to it unification.
To archive the excavation finds from the Roman Forum, the city's cultural authorities placed the smaller antiquities discovered during this excavation upon a table in the Museo Forense cloister for cataloging. The objects were then photographed against a dark background to aid in their identification and documentation.
Italy's archival records from this period document an image of the Head of Alexander, taken after its initial excavation, resting alone on this table in the aforementioned cloister. The location where this image was taken is confirmed via a second image photographed in the same cloister of additional excavation finds from the Basilica Aemilia excavation which depicts objects photographed on the same table, but taken from a wider angle which allows the viewer to see the architectural elements from the cloister. Based on these photographic records, the contested head of Alexander the Great is believed to have been discovered during the second phase of excavations which began after 1909, one year after the superintendency began using this type of photographic imagery for this excavation.
An ambrotype is an early form of photography dating to the 1850s which, in many ways, is a more cumbersome antique equivalent to the modern day slide, with the exception being the photograph was created by way of a fragile glass negative. To preserve them, ambrotypes are generally stored in cases called a casket or union case and in single envelopes which require special care given their fragility.
To date the find period for this object it must be remembered that the Italian authorities also have no contradicting written entries or alternative photographic archival documentation of any marble head finds, Alexander the Great or otherwise, from the Basilica Aemilia excavations related to the Barbarian statues prior to 1909. All records of this marble head date from 1909 and points thereafter.
It is important to note that Professors Bartoli and Boni began their explorations in the zone of the Basilica Aemilia, where the head has been reported to have been excavated, in September 1909. This time period, discussed at length in the State of New York's Application for Turnover, is documented in the archaeological record and demonstrates that in all likelihood, the marble head was found after September 1909 when excavations at the Basilica resumed. Possibly more precisely, the first written documentation of marble sculptural heads of this type being found at the Basilica Aemilia were documented in Bartoli's excavation journal in March and June 1910.
To archive the excavation finds from the Roman Forum, the city's cultural authorities placed the smaller antiquities discovered during this excavation upon a table in the Museo Forense cloister for cataloging. The objects were then photographed against a dark background to aid in their identification and documentation.
Italy's archival records from this period document an image of the Head of Alexander, taken after its initial excavation, resting alone on this table in the aforementioned cloister. The location where this image was taken is confirmed via a second image photographed in the same cloister of additional excavation finds from the Basilica Aemilia excavation which depicts objects photographed on the same table, but taken from a wider angle which allows the viewer to see the architectural elements from the cloister. Based on these photographic records, the contested head of Alexander the Great is believed to have been discovered during the second phase of excavations which began after 1909, one year after the superintendency began using this type of photographic imagery for this excavation.
An ambrotype is an early form of photography dating to the 1850s which, in many ways, is a more cumbersome antique equivalent to the modern day slide, with the exception being the photograph was created by way of a fragile glass negative. To preserve them, ambrotypes are generally stored in cases called a casket or union case and in single envelopes which require special care given their fragility.
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| Sample ambrotype photo in its union case. |
It is important to note that Professors Bartoli and Boni began their explorations in the zone of the Basilica Aemilia, where the head has been reported to have been excavated, in September 1909. This time period, discussed at length in the State of New York's Application for Turnover, is documented in the archaeological record and demonstrates that in all likelihood, the marble head was found after September 1909 when excavations at the Basilica resumed. Possibly more precisely, the first written documentation of marble sculptural heads of this type being found at the Basilica Aemilia were documented in Bartoli's excavation journal in March and June 1910.
This dating is critical to this restitution case in so much as Italy's Code of the Cultural and Landscape Heritage (No 364/1909) was made into law less than three months earlier, on 20 June 1909. According to that law, there is a presumption of State ownership for all archaeological objects discovered after the law's implementation, unless the Italian cultural ministry acknowledges that the object does not have a cultural interest. Given the importance of the Roman Forum excavations, it is not likely that the newly established Superintendency responsible for Rome would have categorized the symbolic head of Alexander the Great, from a site as important as the Basilica Aemilia, within the Forum Romanum, as insignificant.
History tells us though that records for the marble head notated "perduta" (Italian for the word "lost") in November of 1960, when a review of the photographic negative of the Head of Alexander, inventory number 5862, no longer could be matched with a correlating object within the state's collection inventories. Yet, at the time of this notation, there was no evidence to indicate that the object, or a second, also notated missing antiquity, had been stolen. It is for this reason perhaps that the object was not archived within Italy's Leonardo database, the Italian state's archive for stolen art and antiquities.
But where was the object bought and sold before ultimately being located by the Italians?
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, that auction house is now known simply as Sotheby’s. The buyer at this 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 when he passed away in 1988.
On 08 December 2011 the object then sold at Sotheby's for a second time, during Sotheby’s Egyptian, Classical and Western Asiatic Antiquities sale .
At the time of this second 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
At the time of this transaction, there was very little in the way of documentation to confirm the provenance narrative. Despite this, the marble head sold to a then unidentified buyer for $92,500 USD.
In May 2017, the head of Alexander surfaced once again, but on the other side of 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 in turn sold the head of Alexander to Alan Safani of Safani Gallery for $152,625 on 20 June 2017.
Object Identified by the Italians
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 art fair advertisement which featured a photo of the stolen head in a publication for the upcoming 2018 fine arts fair known as TEFAF. In the dealer's documentation, a photograph of the head had been included highlighting Safani Gallery's offerings for the upcoming Maastricht sale due to be held in the Netherlands, 10-18 March 2018. Fortini determined that the photo in the advertisement and the old archival documentation photo of the head in the Museo Forense’s cloister were of the same object.
That same day, 19 February 2018, Fortini contacted the Carabinieri Headquarters for the Protection of Cultural Heritage a informed them of her suspicions. On February 20, 2018, the Carabinieri likewise notified the New York authorities of Dr. Fortini's concerns. Two days later, on February 22, 2019, a formal theft report had been filed with the Italian authorities and Lieutenant Colonel Nicola Candido, Commander of the Italian Carabinieri Command for the Protection of Cultural Heritage in Rome, formally notified Matthew Bogdanos at the New York District Attorney's office that the Head of Alexander was “stolen from the L'Antiquarium Forense in Rome (Italy) - an Archaeological Site that belongs to the Italian State,” and that “the Italian Republic has never issued a state-approved license for the exportation of the [Head] from Italy; and has never transferred the ownership of the [Head] from Italy to any third party.” These statements and the accompanying evidence gathered in relation to the assertion resulted in the seizure of the sculpture from Safani Gallery.
Statute of Limitations and Clear Title
History tells us though that records for the marble head notated "perduta" (Italian for the word "lost") in November of 1960, when a review of the photographic negative of the Head of Alexander, inventory number 5862, no longer could be matched with a correlating object within the state's collection inventories. Yet, at the time of this notation, there was no evidence to indicate that the object, or a second, also notated missing antiquity, had been stolen. It is for this reason perhaps that the object was not archived within Italy's Leonardo database, the Italian state's archive for stolen art and antiquities.
But where was the object bought and sold before ultimately being located by the Italians?
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, that auction house is now known simply as Sotheby’s. The buyer at this 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 when he passed away in 1988.
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| Sotheby's Website Screen Capture taken 24 July 2018 |
At the time of this second 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
At the time of this transaction, there was very little in the way of documentation to confirm the provenance narrative. Despite this, the marble head sold to a then unidentified buyer for $92,500 USD.
In May 2017, the head of Alexander surfaced once again, but on the other side of 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 in turn sold the head of Alexander to Alan Safani of Safani Gallery for $152,625 on 20 June 2017.
Object Identified by the Italians
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| Safani Gallery Booth - TEFAF 2018 Image Credit: L. Albertson |
That same day, 19 February 2018, Fortini contacted the Carabinieri Headquarters for the Protection of Cultural Heritage a informed them of her suspicions. On February 20, 2018, the Carabinieri likewise notified the New York authorities of Dr. Fortini's concerns. Two days later, on February 22, 2019, a formal theft report had been filed with the Italian authorities and Lieutenant Colonel Nicola Candido, Commander of the Italian Carabinieri Command for the Protection of Cultural Heritage in Rome, formally notified Matthew Bogdanos at the New York District Attorney's office that the Head of Alexander was “stolen from the L'Antiquarium Forense in Rome (Italy) - an Archaeological Site that belongs to the Italian State,” and that “the Italian Republic has never issued a state-approved license for the exportation of the [Head] from Italy; and has never transferred the ownership of the [Head] from Italy to any third party.” These statements and the accompanying evidence gathered in relation to the assertion resulted in the seizure of the sculpture from Safani Gallery.
Statute of Limitations and Clear Title
Under New York law, barring the expiration of the statute of limitations or application of the laches doctrine, one cannot obtain title from a thief unless the present-day possessor's title can be traced to someone with whom the original owner voluntarily entrusted the art. As clear title is not possible in the case of this marble head, this leaves Safani and his counsel, David Schoen, to see if they can make their case based on the laches defense. The purpose of the doctrine of laches is to safeguard the interests of good faith purchasers, in this case of lost/stolen art, by weighing in the balance of competing interest against the owner's diligence in pursuing their claim.
While delay in pursuing a claim for the head could be considered in the context of laches under New York law, given that the theft occurred at an unknown time so many years ago, it has long been the law of the state of New York that a property owner, having discovered the location of its lost property, cannot unreasonably delay in making their demand upon the person in possession of that property. As Italy acted within days of its identification that its "lost" item was in fact stolen, this course of legal action doesn't seem to be a viable route for retaining the object in question.
Likewise, as of this date, Safani Gallery hasn't produced any records or bill of sale for any pre-1974 transaction for the Head of Alexander. Nor are there any records or invoices for the 1974 sale by Sotheby’s to Altertum Ltd., or any export visas or stamp authorizing the Head’s legitimate removal from Italy. Nor are there any records which would confirm a date for which the object was shipped out of the source country, such as a bill of lading or a customs declaration. This leaves Safani with little tangible evidence to disprove the NYDA's stance that the object was stolen and then illegally removed from Italy.
Despite this, on 14 November 2018 Safani's attorney reported that the New York courts denied the NY DA's Turnover Application.
To clarify on the aforementioned tweet by David Schoen, which only presents a portion of the facts, the judge in this complicated case has stayed the proceeding pending the outcome of the federal case, and ruled that New York does have jurisdiction to resolve ownership disputes of antiquities under PL 450.10, and that he will do so in appropriate cases.
So for now, the court wrangling continues to drag on.
To view the 22 February 2018 Seizure Order, please see here.
To view the 23 July 2018 Application for Turnover, please see here.
To view the 12 November 2019 Safani Complaint, please see here.
By: Lynda Albertson
Likewise, as of this date, Safani Gallery hasn't produced any records or bill of sale for any pre-1974 transaction for the Head of Alexander. Nor are there any records or invoices for the 1974 sale by Sotheby’s to Altertum Ltd., or any export visas or stamp authorizing the Head’s legitimate removal from Italy. Nor are there any records which would confirm a date for which the object was shipped out of the source country, such as a bill of lading or a customs declaration. This leaves Safani with little tangible evidence to disprove the NYDA's stance that the object was stolen and then illegally removed from Italy.
Despite this, on 14 November 2018 Safani's attorney reported that the New York courts denied the NY DA's Turnover Application.
To clarify on the aforementioned tweet by David Schoen, which only presents a portion of the facts, the judge in this complicated case has stayed the proceeding pending the outcome of the federal case, and ruled that New York does have jurisdiction to resolve ownership disputes of antiquities under PL 450.10, and that he will do so in appropriate cases.
So for now, the court wrangling continues to drag on.
To view the 22 February 2018 Seizure Order, please see here.
To view the 23 July 2018 Application for Turnover, please see here.
To view the 12 November 2019 Safani Complaint, please see here.
By: Lynda Albertson