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| Image Credit: S. King |
On December 3, 2018 Lisa Lapin, Vice President of Communications, J. Paul Getty Trust, released a press statement on the decision by Italy’s Court of Cassation on the Legal Ownership of the Victorious Youth. The museum also issued a timeline which I have elaborated upon below.
The JPGM's original timeline can be
downloaded here from the museum's website.
But before tackling the complexities related to the Getty's "right" to the ancient bronze statue known as "
the Getty Bronze", it seems appropriate to consider the imbroglio by examining essential phases of this antiquity's long story. As in the case with so many art restitution requests, situations are more complex than any one side of a story can tell.
To compare and contrast the points emphasized in the Getty's version of the bronze statue's history, we have re-published the museum's statements in blue with my added elaborative comments in green.
History of the Statue of the Victorious Youth (The Getty Bronze) December 2018
History of the Statue referred to in Italy as L'Atleta di Fano, L'Atleta di Lisippo, L'Atleta Vittorioso, or for short, often as a point of pride, or affection, "il Lisippo."
• The statue of a Victorious Youth was found in international waters by fishermen on an Italian vessel in 1964. The fisherman brought it ashore and sold to Italian buyers.
According to statements taken by Fano fishermen with knowledge of the event, who worked aboard the fishing vessel Ferruccio Ferri and were involved in the discovery, the bronze statue, which came to be known as l'Atleta Vittorioso, was found by coincidence, and was hauled up into fishing nets from the Adriatic sea in August 1964. The captain of the vessel was Romeo Pirani, the owner of the vessel was Guido Ferri. Statements given by Pirani, Ferri and a deckhand aboard the vessel, referring to the approximate location where the statue was found, have at times been inconsistent. Also the memory or capabilities of those making statements has also drawn questions as to abilities and motivations as we have pointed out in an earlier blog post.
In testimonies and statements given, the varying and conflicting distances which have been stated are:
- a few miles from the Fano coast, within Italian territorial waters. --as relayed by the testimony given by Renato Merli, an Imola merchant, on November 26, 1977 to the Italian Carabinieri. Merli reported to the Italian authorities that he had been told this distance directly by both Romeo Pirani and Guido Ferri, when approached about purchasing the statue in 1964. *Tribunale Ordinario di Pesaro, Criminal Section, Ufficio del Giudice per le indagini preliminary in funzione di Giudice dell’esecuzione, Ordinanza del 12 può 2009, n.2042/07 R.G.N.R. 3357/07 R.G.I.P. (It.)
- a few miles from the coast, within Italian territorial waters, where the fishing nets were thrown, in known shallow waters. --as told in the testimonies given by Romeo Pirani and Guido Ferri in December 1977 to the Italian Carabinieri. NOTE during his testimony, Pirani also admitted to his own role in the theft of this antiquity. By incriminating himself, his estimate could at least be considered reasonably honest. *Tribunale Ordinario di Pesaro, Criminal Section, Ufficio del Giudice per le indagini preliminary in funzione di Giudice dell’esecuzione, Ordinanza del 12 può 2009, n.2042/07 R.G.N.R. 3357/07 R.G.I.P. (It.)
- 32 (nautical) miles out from the Italian coast --as reported by Athos Rosato, a 15 year old deckhand at the time the statue was lifted aboard ship, to US journalist, Jason Felch in an interview sometime in 2006.
- 43 miles from (Mount) Conero, a promontory situated directly south of the port of Ancona on the Adriatic Sea and about 27 miles from the coast of the former Yugoslavia at a depth of about 75 meters --as written by Judge Lorena Mussoni, preliminary investigation judge at the Tribunal of Pesaro, in her July 2007 order for confiscation of the bronze statue, which she based upon a statement made by the head of the fishing vessel. NOTE: This may have been during testimony given in the courtroom.
- 40 (nautical) miles out from the Italian coast --as told by Romeo Pirani to an Italian reporter for the Italian news publication Il Tirreno on November 20, 2007
- 37/38 miles from the port of Ancona, and 24/25 miles from Fano. --as stated in a video statement made by Athos Rosato, a 15 year old deckhand at the time the statue was lifted aboard ship, published by the Italian news agency www.ilrestodelcarlino.it on December 4, 2018
Note: Estimating distances at sea by visual indications alone is reasonably possible up to a maximum of 4 nautical miles. Using baring methods, based on the isosceles triangle principle, and using a hand compass and the boat’s speedometer, (tools the fisherman may have had or used), one can estimate the distance of a fixed point with some reasonable approximation.
It is important to note though, that determining the approximate distance from landfall as well as the direction, location and depth from which individuals have noted that this statue was pulled from the seabed, cannot be accurately ascertained simply by taking into consideration any of the testimonies or statements given to authorities or journalists. None of the documentation I have been able to review has specified whether or not the aforementioned distances, given by the fishermen aboard the Ferruccio Ferri, and in one instance drawn from a notebook submitted as evidence in which Romeo Pirani drew a map of the find spot, is it known if these distances were made utilizing instrumental or mathematical calculation.
Without knowing if the vessel's estimated speed over elapsed time and course were factored in, also taking into consideration the effect of currents or wind on the vessel's trajectory on the day in 1964, in is impossible to ascertain, beyond reasonable doubt, which, if any, of the find spot statements, might be truly accurate.
• The statue of a Victorious Youth is Greek, not Roman or Italian. It was in Italian territory only for a fleeting period of time, and only in modern times.
Find spot of the sunken statue, in international waters or not, notwithstanding, Greek presence in what is now the modern country of Italy began with the migrations of the Greek Diaspora from the 8th to the 5th century BCE and included various ancient Greek city-states in Sicily and the southern part of the Italian peninsula, an area referred to by the Romans as Magna Graecia (Latin: Greater Greece). But the Greek's expansion did not stop there.
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Map of Ancient Greece and the Ancient Greek Colonies
Image Credit:
wikimedia.org
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Farther north, on the Adriatic coast in Italy's Le Marche region was the northernmost ancient Greek settlement located on the Italian peninsula, the city of Ancona (Greek: Ἀγκών), which sits not far from the part of the sea where the statue was recovered by the Italian fishermen. The Greek city was founded as the result of colonial expansion by Greek settlers from Syracuse, in about 387 BCE. Ancona also maintained its Greek physiognomy, even after the Roman conquest of the area of the Piceno and at varying times entertained trading relationships with the islands of Greece, as well as the Greek colonies of Africa.
The political geography of the ancient world, in the region we know of today as Italy, did not follow the current boundaries applied to our modern country states. Nor were the Greek inhabitants of Le Marche isolated from the outside world. To classify the entire list of ancient peoples who resided on what is today called Italy, as either Roman or Italic, or by proxy to classify their cultural output as either Roman or Italian fails to consider the interconnectedness of all the peoples in antiquity, Greek and otherwise, who inhabited what is now known as Italy.
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Calyx by the Greek Potter Euphronios
Museo Nazionale Archeologico
Cerveteri, Italy
Image Credit: ARCA |
Using the Getty's logic, I am curious how the museum would classify the presence and ownership of Greek made vases found on Italian soil, like the Euphronios Krater, which was looted from an Etruscan necropolis west of Rome or Greek pottery produced in Laconia, the region of Sparta, primarily in the 6th century BC., which also has been discovered in some quantity in Etruscan graves.
By the same token, how would they classify the Riace Warriors, two full-sized Greek bronzes of naked bearded warriors, cast around 460–450 BCE which were found at sea by a diver near Riace on the southern coast of Italy in 1974?
For that matter, how would the J. Paul Getty Museum classify any foreign antiquity or cultural remains found and preserved within the boundaries of Italy?
While we can hypothesize that the Romans likely carried l'Atleta Vittorioso off from one location in the attempt to bring it to another location, sometime during the first century BCE or CE, there is no absolute proof with which to consolidate the hypothesis. Nor can anyone clearly state where under what circumstance or motivation the statue was in transit.
As for the JPGM's state to the bronze's fleeting presence in Italy in modern times, it's worth mentioning that the introduction of the statue onto Italian territory was done so clandestinely, via two Italian vessels, the Ferruccio Ferri and the Gigliola Ferri, captained by Romeo Pirani and owned by Guido Ferri, in violation of the provisions set out in Articles 35, 36, 39, 42 , 48, 61 of Italian law n. 1089 of 1939.
Rather than declare the statue’s discovery to customs officials as required under Italy's law, the fishermen elected to hide the bronze from state authorities and to profit from its illegal sale. To protect their found treasure, they buried the bronze in a cabbage field at the home of Dario Felici, near Carrara di Fano before eventually selling it for a reported 3.500.000 Italian lire to the antiquarian Giacomo Barbetti. Barbetti in turn shifted the statue to his own property before moving it on to the church sacristy of Giovanni Nagni, a priest in Gubbio.
As the encrusted statue, covered in marine organisms and barnacles from its 2000 years in seawater began to smell, the ancient bronze drew unwanted attention. This forced the conspirators to again relocate the bronze, from under the stairs in the church's room for vestments, to the priest’s own bathtub. There it was submerged in a saltwater bath to try and minimize the odor and slow its decay. Sometime thereafter it was shifted again, though to an unknown location.
All of the above actions demonstrate willful intent on the part of the fishermen smugglers and their intermediaries to profit from the illicit sale of this unregistered antiquity. It also illustrates the extent the actors went to, in order to willfully circumvent the Italian legislation's restriction on selling antiquities of this significance.
• After years of criminal proceedings in the late 1960s, several Italians who had purchased the statue from the fishermen were acquitted of purchasing and concealing stolen property. In 1968, the Court of Cassation, Italy’s highest court, ruled that there was no evidence that the statue belonged to the Italian state.
The Italian authorities received an anonymous tip about the existence of the statue in April 1965, involving a trip made by Giacomo Barbetti to Germany to find a buyer for the bronze. As a result of that lead, Italian law enforcement officers opened an investigation in May 1965 which focused on Giacomo Barbetti, his two relatives, Fabio and Pietro, and the priest from Gubbio, Giovanni Nagni. That same month, Italian authorities raided the home of Giovanni Nagni looking for the statue only to discover that the bronze had already been moved.
Some accounts state that Pietro Barbetti was the individual who removed the statue from the priest's home and who later sold it on to an unidentified individual in Milan. Other accounts state that Giacomo Barbetti sold the statue to an art dealer only a few days after its purchase from Mr. Ferri and Mr. Pirani (therefore in 1964) but here the dates and transactions are not very clear.
In 1966 these four accomplices were formally charged with purchasing and concealing stolen property in violation of Article 67 of Italian law n. 1089 of 1939.
On May 18, 1966 the judge at the Court of First Instance ruled for the acquittal of Barbetti, his two relatives, and Father Giovanni Nagni on the grounds that there was insufficient evidence for the government to make its case. Like a smoking gun without a corpse, without the whereabouts of the missing bronze statue, the court was left with insufficient evidence to determine if the underlying crime, that the bronze was of historical and artistic value, was in fact true, without that, they could neither prove which governing territory the antiquity had been found.
The sentences of acquittal at the tribunal level were subsequently challenged before the Attorney General at the Court of Appeal of Perugia and on January 27, 1967 the Italy's Appellate Court reversed the lower court's decision. In doing so, they convicted Barbetti and his relatives for receiving stolen goods. Nagni was convicted of aiding and abetting.
In turn, each of these convictions were then also appealed, this time by the defendants, to the court of final resort, Italy's Supreme Court, known as the Court of Cassation. This court annulled the Appellate Court sentence in May 1968 and ordered that the case be reheard at a new trial.
On November 8, 1970 the Court of Appeal in Rome absolved the four defendants of wrongdoing, as again, the whereabouts of the statue remained unknown, and without the benefit of being able to examine the unaccounted for antiquity, there was insufficient evidence to prove the underlying crime.
Interestingly, both Giacomo Barbetti and Giovanni Nagni both confirmed during court proceedings that they had purchased the bronze sculpture (in contravention of existing law) and sold the antiquity (in contravention of existing law) to an unnamed individual in Milan.
In the end, despite their lengthy nature, none of this first series of legal court cases against the four incriminated individuals resulted in convictions or provided the Italians with sufficient information to ascertain who the purported Milan buyer was, or where the statue had gone after leaving Gubbio.
It was simple gone, only to conveniently resurface, after the acquittal, in London in 1971.
• The statue was acquired in 1971 by a consortium called Artemis S.A., a publicly traded fund specializing in art works. Munich-based German dealer Heinz Herzer offered to sell the statue to J. Paul Getty in 1972. Mr. Getty wrote Herzer that he would recommend the acquisition to the Getty Museum Board of Trustees at a price of $3.5 million.
While off the Italian radar, the statue of the "Victorious Youth" passed through a number of intermediary hands. After being smuggled out of Italy, the bronze crisscrossing its way through several countries including England and Brazil only to reappear again in documentation in the form of a document signed on June 9, 1971 where Établissement-Artemis is reported to have purchased the ancient statue from vendors in Brazil for $700,000.
Founded in 1970, and headed by German antiquities dealer Heinz Herzer, evidence presented by the Italian state at the Tribunal in Pesaro in February 2010 suggested that Artemis was created ad hoc, with the specific purpose of managing the exportation, restoration and subsequent purchase of this valuable statue.
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Image Credit:
NBC Documentary |
In 1972 that bronze was moved again, this time to Herzer in Munich, who was tasked with removing the corrosion and incrustations covering the bronze statue. That same year Herzer shopped the statue to Bernard Ashmole, then Keeper of Greek and Roman Antiquities at the British Museum. Ashmole is said to have spoken directly with John Paul Getty about the statue during a visit to the billionaire's UK home, which is located three miles north-east of Guildford in Surrey.
In a letter sent by Getty himself to Herzer on August 31, 1972, the billionaire asks the German dealer for documents related to the earlier Italian trials on the 4 accomplices. He also asked for all the documentation Herzer had surrounding the statue's acquisition.
A note signed by Norris Bramblett, longtime personal aide to Mr. Getty and Treasurer of the J. Paul Getty Museum, reads: "Mr. Getty said that, subject to obtaining the undisputed title of property and supposing to be able to obtain it, to the satisfaction of Attorney Stuart Peeler, (the lawyer for the Museum), he would recommend to the trustees to purchase the statue ." **Tribunale Ordinario di Pesaro, Ufficio del Giudice per le indagini preliminary in funzione di Giudice dell’esecuzione, Ordinanza del 12 può 2009, n.2042/07 R.G.N.R. 3357/07 R.G.I.P. (It.)
• As part of a robust due diligence process, Stuart Peeler, a prominent Los Angeles lawyer and Getty Museum trustee, reviewed the Italian court decisions from the 1960’s and a legal opinion provided by a pre-eminent Italian counsel and concluded, as had the highest Italian court, that Italy had no legal claim to the statue because there was no evidence it was of Italian origin or that it was found in Italy (or Italian waters), and that the Getty Museum could obtain good title. Negotiations continued into 1973, with Mr. Getty repeatedly offering lower prices.
The time period it took for this "robust" review by Peeler is not stated in the Getty's timeline, but according to court documents a letter was sent to Stuart T. Peeler on 4 October 1972, by lawyers Vittorio Grimaldi and Gianni Manca of the Ercole Graziadei law firm, which represented Herzer and the art firm Artemis. In the attorneys' opinion "on the question of the Greek bronze" the two Italians affirmed that the statue had been purchased by one of their clients (Établissement pour la Diffusion et la Connaissance des Oeuvres d'Art "DC") in Brazil by a group of Italian sellers on 9 June 1971. (This letter is part of Annex 10 of the defense evidentiary documents of December 21, 2009).
This event can also be corroborated via statements made by David Carritt who reported to the British police that the bronze had been purchased from a division of the Artemis firm referred to as the "Établissement DC", based in Vaduz in Liechtenstein.
Grimaldi and Manca both reported that the bronze had been the subject of an investigation and trial in Italy, which began in 1965 and which concluded in 1970, with a definitive sentence of acquittal delivered by the Court of Appeal of Rome. It is interesting to note that the lawyers also clarified that the acquittal had been determined by the lack of ascertaining both, the place of the statue's discovery, and the uncertainty about the nature of the good's archaeological or historical interest to the state. **Tribunale Ordinario di Pesaro, Ufficio del Giudice per le indagini preliminary in funzione di Giudice dell’esecuzione, Ordinanza del 12 può 2009, n.2042/07 R.G.N.R. 3357/07 R.G.I.P. (It.)
Stuart T. Peeler and his father were J. Paul Getty private lawyers and according to his own obituary, was responsible for the judicial process whereby Getty's will was "proved" in a court of law and accepted as a valid public document as well as managing the Getty Trust's general activities abroad. Peeler was also an executive of Santa Fe International Oil. Given that, I would suspect the time he spent on examining the ethical purchase of this statue was minimal in relation to the other affairs he was tasked with.
Getty left an estate worth nearly $700 million to the J. Paul Getty Museum Trust. By law, the Trust was required to spend 4.25 % of the average market value of its endowment per year. Given that, I suspect the time Peeler spent examining this statue's ethics was minimal at best.
• In 1973, Mr. Getty discussed the possibility of joint acquisition of the statue with Thomas Hoving, director of the Metropolitan Museum. Mr. Getty appears to have rejected this proposal because it would have required the Getty Museum to pay more than 90% of the purchase price while receiving only a 50% ownership interest.
It was in Hertzer's studio in Munich on December 13, 1972 that the bronze was first examined, by Dr. Thomas Hoving, then director of the Metropolitan Museum of Art in New York. According to statements Hoving made, in a news documentary produced by ABC News of Los Angeles on the Getty Museum's important acquisition, Hertzer had originally offered to sell the ancient statue to the Metropolitan Museum of Art for $4.4 million, a figure outside the superceded the museum's budget.
Initial talks began via a phone call between Hoving and Getty, regarding a possible joint ownership scheme between the J. Paul Getty Museum and the Metropolitan Museum of Art, funded primarily by John Paul Getty. The pair later met in London on June 14 1973. On that occasion Hoving received approval from Getty to negotiate a 3.5 million dollar asking price with Herzer and Artemis, with a tentative agreement being made between the two men that the bronze would be shared between the Metropolitan Museum of Art and the J. Paul Getty Museum in exchange for the Met providing a long term loan to the J. Paul Getty Museum of its 17 Boscotrecase frescoes.
Evidence presented by the Italian state at the Tribunal in Pesaro in February 2010 related that John Paul Getty was therefore fully aware of the criminal proceeding which had been brought by the Italian AG against the accomplices involved in the smuggling of the bronze. Also, to finalize the potential deal, John Paul Getty demanded the original title owned by Herzer, as well as to ascertain or negate the existence of any right to ownership from the Italian State, including all details on the methods of exit of the property from Italy and the existence or otherwise of the jurisdiction of the Italian State.
When Hoving returned to New York, he immediately contacted the members of the Met's Acquisitions Commission in order to agree upon the modalities of a formal joint acquisition agreement for the antiquity and to work out the written details of said agreement. Dietrich von Bothmer (a member of the Met's Acquisition Commission) completed the Lisippo acquisition form containing all the relevant details for the proposed deal. At point XII of this purchase form von Bothmer stated that he had learned of the existence of the ancient bronze via Elie Borowski, a prominent antiquities dealer who himself is is an individual of controversy. Borowski had told von Bothmer that he had witnessed seeing the statue while it was still hidden inside the bathtub at the priest's residence in Gubbio.
On June 25, 1973 Hoving hand-delivered a letter to David Carritt, the negotiator designated by Artemis for the potential sale informing the firm that he had been authorized by John Paul Getty to offer the sum of $ 3.8 million for the purchase of the bronze. In this letter Hoving stated:
"As I made clear in our conversations, (that you had previously heard by telephone) the conclusion of this purchase by Mr. Getty is subject to examination and approval of the Council of the Metropolitan Museum and of Mr. Getty's Legal Advisor, in relation to certain legal issues that may require qualifications or certifications ... "
In the days that passed the negotiated figure for the purchase of the statue changed several times; raised on the part of Hertzer through Carritt or negotiated lower by Getty, but always without the substantiating documentation required by the two museums being produced.
On November 3, 1973 Herzer wrote to Jiri Frel, curator of antiquities at the J.Paul Getty Museum from 1973 until 1984, to announce the failure of the negotiations to achieve an agreeable selling price among all parties for the joint acquisition of the statue between the J. Paul Getty Museum and the Metropolitan Museum.
• In 1973, at the request of Italian officials, German police investigated Herzer about receipt of stolen goods in connection with the statue. The investigation was dropped for lack of evidence of wrongdoing, mainly because the Italian high court had concluded that there was no evidence that the statue had been found in Italy (or Italian waters) or that it was of Italian origin.
In 1973 the Carabinieri TPC acquired a lead that a bronze sculpture attributed to Lysippos and coming from Italy, was in the Heinz Herzer antiquities shop in Munich. Following up on the lead, the Carabinieri visited Herzer's shop in July 1973 when they were in Munich for another investigation. Herzer was not present when the officers arrived, only his secretary and his lawyer were. They confirmed that Herzer was in possession of the statue in question, and claiming that Herzer was in possession of documentation proving the lawfulness of the statue on the art market. At the time of the visit, the lawyer refused to deliver any photographic imagery, detailing the bronze.
• In 1974, a prosecutor in Gubbio, Italy, sought an investigation of Herzer in connection with the statue. German authorities terminated the investigation in April 1974 for lack of evidence of wrongdoing.
On January 9, 1974 the Italian Magistrate in Gubbio opened a court proceeding against unknown persons for the crime of clandestine exportation and issued an international rogatory request asking for the seizure of the sculpture, as well as an interrogation of Herzer as a suspect potentially involved in the clandestine exportation of archaeological finds from Italy. The request also asked for any photographic documentation Herzer might have of the statue.
It should be noted that up until that date neither the German authorities nor the Italian authorities had acquired a photo of the trafficked artwork in its original state, having just been raised from the sea. This would be a critical piece of evidence, necessary for the authorities in both countries to compare and ascertain whether the plundered antiquity from the Adriatic was the same as the restored bronze now in Herzer's possession.
The request for judicial assistance was ultimately rejected by the the Public Prosecutor of the District Court of Bavaria, on the grounds that the crime hypothesized by the Italian GA (the crime of illicit exportation), and interpreted as receiving stolen goods in Germany (1973), was not an extraditable offense. The German courts therefore deemed the entire rogatory requested by the Italian investigation authorities as unenforceable.
• In October 1974, Mr. Getty saw the statue in person for the first time, in London, with Herzer and the English dealer, David Carritt. In his diary, Getty refers to “having heard so much about it and having been so interested in it at one time.”
Court documents and statements made by Jiri Frel show that in 1975 John Paul Getty, showed at least some continuing interest in the bronze statue, where, upon his request, the antiquity was shipped for a second time to the London warehouses of David Carritt Ltd., a branch of the Artemis SA, established in Luxembourg.
• J. Paul Getty died in 1976.
John Paul Getty Sr. died of congestive heart failure on June 6, 1976.
• The Getty Museum legally purchased the Bronze in 1977 in the United Kingdom, after extensive review of the relevant facts and law over the course of many years, including:
One year after his death, and without the relevant supporting documents originally requested by John Paul Getty in furtherance of this acquisition, the J. Paul Getty Museum went ahead with the statue's purchase. The antiquity was acquired in the United Kingdom on August 2, 1977 via an invoice issued by David Carritt Ltd., in its capacity as Agent of Établissement D.C. The purchase price was $3.95 million.
o the conclusion of German authorities in the mid-1970's that the statue could legally be offered for sale in Munich because the Italian high court had concluded that there was no evidence that the statue was of Italian origin or that it had been found in Italy (or in Italian waters).
This is not the factually correct basis for the German court's ruling as has been outlined earlier in this blog post.
o the failure of the Italian Ministry of Culture to join any of the Italian legal proceedings related to the Bronze in the 1960’s
Italy's Ministero per i Beni Culturali e Ambientali (ENGLISH: The Ministry for Cultural and Environmental Heritage) has gone through several name changes through differing elected Italian governments. The reason for the ministry's failure to join any of the Italian legal proceedings related to the bronze in the 1960s stems simply from the fact that the ministry did not yet exist as it was not until 1974 that it was formally established.
Set up by the Moro IV Cabinet through a December 14, 1974 decree, n. 657, the newly formed Italy's Ministero per i Beni Culturali e Ambientali (defined as "per i beni culturali" - that is for cultural assets) took over the heritage remit and functions previously found under the Ministry of Public Education (specifically its Antiquity and Fine Arts, and Academies division).
• A statement by Luigi Salerno, the senior Italian official in charge of export licenses for cultural property, that Italy would not pursue a claim to the object
The date of this statement, and who it was made to, and in what, if any, official capacity has not been clarified in the Getty Museum's timeline. In 1967 Luigi Salerno was appointed to be the director of the Fondazione della Calcografia Nazionale. At or near this same date he was also made a director at Rome's Ufficio esportazione. It is important to note that there are Uffici di Esportazione Oggetti d'Antichità e d'Arte in many Italian cities, each with their own directors. In 1973 Salerno left his Rome positions to become Soprintendenza dell'Aquila, retiring early from his administrative responsibilities to devote more of his time to his writing and research. As this is the same year in which John Paul Getty became interested in the bronze, it can be assumed that his recommendations were made in an unofficial capacity.
In Magistrate Gasperini's own June 2018 order of forfeiture, the judge mentions Salerno in the following passage:
A logical similar argument, equally effective in lieu of consulting this non-existing registrar, could have been that to request a direct ruling to the Italian Ministry of Cultural Goods, which the lawyers of the seller, as well as Paul Getty and so, at last, also the members of the Board of Trustees always failed to file, while lying down on the unofficial discussions held (in the firm of the professional) by Mr. Grimaldi with an official of the Ministry, Mr. Salerno, who had contacted him to verify whether there had been any negligence by the Italian Ministerial authorities. In that occasion, lying, Mr. Grimaldi said to Mr. Salerno that the statue originated from Greece. (the information is contained in the letter sent by Mr. Grimaldi to Mr. Brownell dated l.10.1973)
o an independent analysis of applicable international, federal and state law
Despite the lack of legal provenance documentation or export certificates substantiating the antiquity's legitimate export out of any originating source country where Greek remains might be found, and superseding the voiced concerns of the statue's legitimacy raised by John Paul Getty himself.
o the 1968 decision by Italy's highest court, the Court of Cassation, ruling that there was no evidence that the object belonged to Italy.
As stated above, the Court of Cassation annulled the Appellate Court sentence in May 1968 and ordered the case reheard in a new trial. On November 8, 1970 the Court of Appeal in Rome absolved all four defendants of wrongdoing, as again, the whereabouts of the statue was not known at that time and without the benefit of being able to examine the unaccounted for antiquity, there was insufficient evidence to prove the underlying crime that the bronze was of historical and artistic value or in which governing territory the missing bronze had been found.
• The statue was legally exported from the United Kingdom, where the 1977 purchase took place, and legally imported into the United States, where it went on view at the Getty Museum in 1978.
On November 25, 1977, the Embassy of Italy in London contacted officials in Italy and relayed that the director of the London gallery Artemis had specified that the lawyers Graziadei and Manca (lawyers of Artemis) had obtained a regular bronze export license for the object's transfer. A cross check was begun by the Carabinieri Command for the Protection of Artistic Heritage on January 2, 1978 who then sent a photograph of the statue of Lysippos to the Ministry for Cultural and Environmental Heritage, and from there on to the country's Export Offices in order to ascertain if an export license had ever been requested from any of them.
While taking many months to conclude, on May 23, 1978, the Central Office for Environmental, Architectural, Archaeological, Artistic and Historical Heritage of the Ministry for Cultural and Environmental Heritage reported that no license of export, for the bronze statue, had ever been issued by the Italian authorities.
• In 2006, the Italian Culture Ministry submitted a dossier to the Getty asking for the Getty to surrender the Bronze to the Italian state. The dossier acknowledged that the Italian state had no valid claim to the Bronze, but instead requested that the Getty surrender the Bronze in the spirit of collaboration between the Ministry and the Getty. The Getty refused this request on the ground that there was no basis to support repatriation of an object that had no connection with the Italian patrimony.
In September 2007 Italy announced that it had agreed to drop its civil lawsuit against Marion True, the former curator of the J. Paul Getty Museum after the Los Angeles museum signed a formal joint agreement to return a total of 40 antiquities plundered from Italian territory.
Thirty nine of the antiquities covered by the deal were scheduled to be transferred to Italy by the closure of 2007. The 5th century BCE cult statue of a Goddess, sometimes referred to as the goddess Aphrodite, would remain at the California museum through 2010. In turn, Italy agreed to loan other works to the J. Paul Getty Museum which were not looted in origin.
The Objects to be Transferred to the Italian State, identified as tied to known traffickers, was as follows:
1. Cult Statue of a Goddess, perhaps Aphrodite - 88.AA.76
2. Askos in Shape of a Siren – 92.AC.5
3. Fresco Fragments – 71.AG.111
4. Lekanis – 85.AA.107
5. Two Griffins Attacking a Fallen Doe – 85.AA.106
6. Attic Red-Figured Neck Amphora – 84.AE.63
7. Fragment of a fresco: lunette with mask of Hercules – 96.AG.171
8. Apulian Red-Figured Pelike – 87.AE.23
9. Apulian Red-Figured Loutrophorus – 84.AE.996
10. Attic Black-Figured Zone Cup – 87.AE.22
11. Attic Red-Figured Kalpis – 85.AE.316
12. Attic Red-Figured Kylix – 84.AE.569
13. Apulian Pelike with Arms of Achilles – 86.AE.611
14. Attic Red-Figured Kylix – 83.AE.287
15. Attic Red-Figured Calyx Krater – 88.AE.66
16. Attic Janiform Kantharos – 83.AE.218
17. Attic Red-Figured Phiale Fragments by Douris – 81.AE.213
18. Marble Bust of a Man – 85.AA.265
19. Attic Red-Figured Amphora with Lid – 79.AE.139
20. Apulian Red-Figured Volute Krater – 85.AE.102
21. Attic Red-Figured Calyx Krater – 92.AE.6 and 96.AE.335
22. Attic Red-Figured Mask Kantharos – 85.AE.263
23. Etruscan Red-Figured Plastic Duck Askos – 83.AE.203
24. Statue of Apollo – 85.AA.108
25. Group of Attic Red-Figured Calyx Krater Fragments (Berlin Painter, Kleophrades Painter) – 77.AE.5
26. Apulian Red-Figured Bell Krater – 96.AE.29
27. Statuette of Tyche – 96.AA.49
28. Attic Black-Figured Amphora (Painter of Berlin 1686) – 96.AE.92
29. Attic Black-Figured Amphora – 96.AE.93
30. Attic Red-Figured Cup – 96.AE.97
31. Pontic Amphora – 96.AE.139
32. Antefix in the Form of a Maenad and Silenos Dancing – 96.AD.33
33. Bronze Mirror with Relief-Decorated Cover – 96.AC.132
34. Attic Red-Figured Bell Krater – 81.AE.149
35. Apulian Red-Figured Volute Krater – 77.AE.14
36. Statuette of Dionysos – 96.AA.211
37. Attic Red-Figured Calyx Krater (“Birds”) – 82.AE.83
38. Group of three Fragmentary Corinthian Olpai – 81.AE.197
39. Paestan Squat Lekythos – 96.AE.119
40. Apulian Red-Figured Volute Krater – 77.AE.13
At the time of the joint agreement, both parties agreed to defer further discussions on the Statue of a Victorious Youth until the outcome of its legal proceedings.
Prior to the aforementioned signed accord then Minister of Culture Francesco Rutelli stated the following.
Italian: ''Vorremmo fare il punto sul rapporto con il Paul Getty Museum perché ci sono state alcune incomprensioni, mentre vorremmo che fosse molto chiara la nostra posizione: infatti, esiste una serie di provvedimenti giudiziari che hanno i loro corsi e, mentre la magistratura svolge i propri accertamenti, vorremmo trovare una soluzione di buona volontà con il Getty''.
English" We would like to take stock of the relationship with the Paul Getty Museum because there have been some misunderstandings, while we would like it to be very clear on our position: in fact, there are a number of judicial measures that have to run their courses and, while the judiciary conducts its investigations, we would like to find a solution of good will with the Getty ''
Rutelli's statement is in keeping with Italy's soft diplomacy approach of voluntary forfeiture, a negotiative strategy which is designed, not to strip a museum bare of its contested objects when they have been determined to have been looted, but to undertake a collaborative approach with museum administration in furtherance of "goodwill" and where long term loans can be made of alternative objects of know licit origin as part of those accords.
• Shortly thereafter, and following publicity about the statue, a local prosecutor in Pesaro, Italy filed a criminal case against the long-deceased fishermen who found the statue and seeking an order forfeiting the statue to Italy.
Putting its own public pressure on the J. Paul Getty Museum, on April 4, 2007, the cultural association 'Le Cento Citta' presented a complaint via the Public Prosecutor at the Tribunal of Pesaro for violation of customs regulations and for smuggling in relation to the theft of the bronze. This time, armed with the photographic evidence provided to the Carabinieri by Renato Merli on November 24, 1977, which showed the bronze statue as it appeared at the time of its discovery, still covered with marine life, Italian prosecutors finally had a body to go with their smoking gun as Merli's photo perfectly matched the statue sold by Artemis to the J. Paul Getty Museum.
• In November 2007, a Pesaro judge dismissed the case, finding that no one was alive to be prosecuted, that any applicable statute of limitations had long-since expired, and that the Getty should be considered a good faith purchaser.
As was the case with the earlier court proceedings the new Pesaro case dragged on for years within the Italian court system, with numerous reversals of verdicts and also noting the deaths of many of the original illegal actors.
Dismissed by the Lower Court in 2007, the decision was appealed by the Public Prosecutor with the support of Italy's Avvocatura dello Stato, and on 12 June 2009 the new magistrate Lorena Mussoni, preliminary investigation judge at the Tribunal of Pesaro ordered the forfeiture of the statue on the basis of the fact that the object had been exported out of the Italian territory in contravention of Italian laws.
The case heavily focused on the Italian Navigation Code, and the fact that Italian flagged fishing vessels, even if in international waters were by extension owned by Italy and the fact that the fishermen intentionally failed to report the statue's presence once it arrived on shore in Italy. It also relied on the fact that the bronze had been smuggled illegally out of Italy without a license for export.
In her June 12, 2009 order for seizure Mussoni acknowledged that the statue's find spot was contested but she based her ruling, in part, on the fact that Italy nevertheless owned the statue ab initio under Italian patrimony laws as article 4, second paragraph of the criminal code, defined the fishing vessel as the territory of the State for fictio juris, as Italian ships and aircraft are considered as the territory of the State wherever they are, unless they are subject, according to international law, or to a foreign territorial law.
• Notwithstanding this decision, the prosecutor improperly sought a forfeiture order from a different judge in a different part of the same court (called the “court of execution” because it is a judicial body that under Italian law serves to execute decisions by the court). The court of execution improperly refused to honor the trial court’s decision and ordered a forfeiture in 2010 after a closed-door proceeding in which the normal rules of evidence did not apply. The court denied the Getty’s requests to make the proceedings open to the press and the public, and refused to allow the Getty to challenge certain procedural aspects of the case related to administrative forfeitures.
In February 2010, Judge Lorena Mussoni, 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 connected to the June 12, 2009 ruling on the question of the jurisdiction.
The order for the statue's seizure was made on the grounds of Articles 666, 667, and 676 of the Italian Criminal Code, and article 174 section three of Legislative Decree no. 42 of 2004 and article 301 of Presidential Decree n. 15 of 1972. In her order of forfeiture the judge specifically cited the Getty's
"serious negligence and the consequent link between the current holder of the asset and the offense in charge of heading a) of the heading, which does not permit the qualification of the Museum "person unrelated to the offense" pursuant to article 174, paragraph 3 of Legislative Decree no. 42/2004."
• The Getty immediately appealed the decision to the Court of Cassation, which directed the Getty to ask the local court of execution (the “Pesaro court”) for reconsideration. The Pesaro court affirmed the 2010 forfeiture order in 2012. The Getty again appealed to the Court of Cassation.
The J. Paul Getty Museum subsequently challenged Judge Lorena Mussoni's order of forfeiture before the Italian Court of Cassation on February 18, 2011. At that hearing the case was remanded 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 have been the Higher Court's final ruling.
• Several years after the initial appeal, the Court of Cassation held in February 2014 that the Pesaro court’s refusal to open the proceeding to the press and the public might have violated the Italian Constitution and transferred the appeal to the Constitutional Court.
In February 2014 Italy's highest court elected not to issue any ruling upholding or rejecting the 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) elected to transfer the case to the Terzo sezione penale della Suprema Corte (Third Criminal Chamber of the Supreme Court) where a new hearing was scheduled to establish whether or not the order of confiscation issued by the Court of Pesaro on May 3, 2012 should be affirmed.
• In April 2015, Italy’s Constitutional Court concluded that the Getty had been deprived of its right to a public hearing, and the matter was remanded to the Court of Cassation, which, in turn, remanded the case to the Pesaro court for reconsideration.
Squashing the decision made by the Court of Pesaro on May 5, 2012, the Terzo sezione penale della Suprema Corte (Third Criminal Chamber of the Supreme Court) on June 4, 2014 remanded the case back to the Tribunal in Pesaro for a new opposition procedure, granting the Getty's request for the case to be heard in open court.
• From 2016 until 2018, the Pesaro court held episodic hearings to determine whether certain procedural arguments were available to the Getty. At no point did the Pesaro court even consider any new or competent evidence as to whether the statue had Italian origins or had been found in Italian waters. Indeed, no evidence was ever presented related to any assertion of Italian ownership.
 |
Judge Gasparini listens to Getty
council’s final argument in open court
Pesaro court house, 05 Feb 2018
Image Credit: ARCA |
Started under SIGE no. 35 of 2016 each party to the case, heard by Italian Magistrate Giacomo Gasperini was given the opportunity to speak, to challenge, to interrupt and to interject their thoughts during a series of open public hearings, where the documentary evidence was again reviewed, where oral depositions were taken, and where facts were again illustrated again or anew.
This series of hearings eventually concluded on February 5, 2018.
• Despite the total lack of competent evidence of Italian ownership or origin, and despite the clear expiration of the statute of limitations, in June 2018, the Pesaro court upheld the original order of forfeiture. The Getty appealed to the Court of Cassation.
On June 08, 2018, in a long-awaited judicial decision, four full months after the Pesaro open court hearings had concluded, Italy's Court of First Instance, the Tribunale di Pesaro issued a lengthy 46-page ordinance, written and signed by Magistrate Giacomo Gasparini firmly rejecting the Getty museum's opposition to Italy's order of confiscation on the grounds of Articles 666, 667, and 676 of the Italian Criminal Code, article 174 section three of the Legislative Decree no. 42 of 2004 and article 301 of Presidential Decree. 15 of 1972. In turn Gasperini affirmed the order of forfeiture for the statue known as the "Victorious Youth," attributable to the Greek sculptor Lysippos, as previously ordered on February 10, 2010.
Appealed to the higher court again, on December 3, 2018 Italy’s Cassation Court rejected the J. Paul Getty Museum's appeal against the lower court ruling in Pesaro, issued by Magistrate Giacomo Gasparini. The Supreme Court of Cassation has not yet published its explanatory statement of its decision.
• The Getty’s position:
o The statue of a Victorious Youth, also known as the Getty Bronze, is not Italian and was not found in Italian waters. Unless Italy can demonstrate that the object was found in Italian territory, which it cannot do, Italian patrimony law establishing state ownership does not apply. Further, US law requires that a country claiming cultural property in the United States requires a showing that the objects were found in that country.
Saying anything more here will make this already very long post unnecessarily redundant.
o Alleged illegal export is not grounds for return. Italian law imposes certain penalties on those who participate in illegal exportation. But the Getty had nothing to do with any illegal export, and first learned of the work’s existence years after its brief appearance in Italy. Like most countries, US law does not provide for return of illegally exported property.
In 1983 the Convention on Cultural Property Implementation Act (CPIA) became law in the United States, implementing the 1970 UNESCO Convention. This Act provides legal framework for bilateral agreements that combat looting.
Additionally the United States National Stolen Property Act of 1934 (NSPA) (18 U.S.C. §§ 2314 et seq.) prohibits the transportation in interstate or foreign commerce of any goods with a value of $5,000 or more with the knowledge that they were illegally obtained, and prohibits the "fencing" of such goods. The NSPA also allows foreign countries’ cultural patrimony legislation to be effectively enforced, within very specific circumstances, within U.S. territory by U.S. courts. These patrimony laws generally consider theft to include the unauthorized excavation or removal of artifacts from their archaeological context in the country of origin.
Ultimately, the Federal Bureau of Investigation has investigative jurisdiction for stolen property offenses as set forth in the NSPA. The Office of Enforcement Operations of the Criminal Division has supervisory responsibility over offenses arising under 18 U.S.C. §§ 2314 and 2315. It should be noted that the Convention on Cultural Property Implementation Act (CPIA) of 1983 provides civil remedies while the NSPA provides criminal sanctions.
For the Italians to win in the US, the bronze must be considered stolen in the United States. Additionally Italy's attorneys would need the US courts to agree that the statue was discovered within the Italian territories and that Italy's cultural patrimony law unequivocally vests ownership of such antiquities to the State.
o Half a century ago, the highest court in Italy found that there was no evidence that the statue belonged to the Italian state because there was no evidence that it had been found in Italy, or in Italian waters. The Getty relied explicitly on the Italian high court’s decision – as well as opinions by pre-eminent Italian lawyers, statements by the senior Italian official in charge of exports, decisions by German law enforcement officials, and other similar factors – in making its good faith decision to purchase the statue.
Partially correct, as mentioned early in this post, at the time of the original hearings the Italians were lacking in evidence tying the statue fished from the sea and taken on shore in Fano to the antiquity on sale, first in Germany and later in the UK via Artemis. The rest of the statements in the Getty's above paragraph have already been elaborated upon.
o International law imposes no obligation to return the object. The object left Italy before the 1970 UNESCO Convention existed, and long before Italy or the United States ratified the UNESCO Convention. Even the UNESCO Convention contains no requirement mandating return of objects, except those that have been stolen in the conventional sense, as from a museum collection. The 2001 bilateral agreement between the US and Italy, which provides for seizure and return under some circumstances, applies only to archaeological material originating in Italy, not to a Greek object that passed through Italy in recent times. Thus, even if any of these conventions applied to this case, none of them would compel the seizure of the statue.
That will ultimately be up to the US Courts to decide, assuming the J. Paul Getty Museum wants to continue this argument in the United States' jurisdiction and assuming the the Italians press for such via an ILOR.
o Presence on an Italian-flagged boat does not make the object Italian. One of the Pesaro Court’s bases for ordering the forfeiture is the theory that ships under the Italian flag (like the fishing boat that found the statue in 1964) are the equivalent of Italian territory. In addition to conflicting with the Third United Nations Law of the Sea Convention, adopted in 1982, this theory would lead to the absurd result that if an Australian fishing boat had found the Bronze, it would become Australian cultural property.
Interesting in theory, but realistically solely conjecture as again, the purported location of where the statue was fished has never been fully clarified. For now the Italian Court at the Tribunal level in Pesaro, the Court of Appeals and the Court of Cassation have all ruled (in some cases repeatedly) in favor of seizure based upon Italian current laws.
o Passage of time defeats any claim by Italy. The Getty has owned the sculpture since 1977. Its location was well-known to Italy since at least 1973. Any claim against the Getty –- or anyone else—would be long since time-barred. Even ignoring statutory limitation periods, the Getty is entitled, after 40 years of exhibition and study, to rely on its settled property rights in the statue. Also, if Italy’s fundamental position is that an object becomes part of a country’s patrimony by its mere presence in the country, Victorious Youth’s 40-plus years in Los Angeles presumably give California a superior claim.
In common law jurisdictions, such as the UK or the United States, a thief cannot transfer good title to stolen property. This means that each time the statue changed hands, it still remained tainted to all subsequent possessors. California law specifically recognizes that “each time stolen property is transferred to a new possessor, a new tort or act of conversion has occurred,” and so the statute of limitations begins to run again with each subsequent good or bad faith buyer.
This point may be mute however given the statue has been in the possession of the Getty Museum since 1977, a period of time greater than that allowed by California's statute of limitations, in part because of Italy's choice to pursue this case within the Italian judicial system vs. the US.
o This is the latest decision in a process that has gone on by fits and starts for many years, including a 50-year-old determination by Italy’s highest court that there was no evidence to support Italian state ownership, and another decision more than a decade ago, dismissing the proceeding. We will continue to oppose any effort to remove Victorious Youth from its home in Los Angeles.
And so I suspect shall the Italians. In court or out.
Frankly speaking whether or not the museum is ultimately obliged judicially to return the bronze to Italy, its ethical quandary, of maintaining a plundered object in its collection in spite of its known illicit nature, has been clearly exposed.
Clinging to this antiquity despite of its tainted pedigree, seems a little misguided. Doing so creates ill will with an important source country and its judiciary as is there for not prudent for that relationship. It also diminishes the stature of the museum in the eyes of scholars and the knowledgeable public as an ethical collecting institution.
To read all of ARCA's posts on the Getty case, follow our link here.
By: Lynda Albertson
2019 Postgraduate Certificate Program,american society of criminology,Art Crime and Cultural Heritage Protection,criminology
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2019 Postgraduate Certificate Program,american society of criminology,Art Crime and Cultural Heritage Protection,criminology
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