Author: Andrzej Jakubowski
Committee: Art & Cultural Heritage Crimes Committee
Date: 18/05/2024
On 2 May 2024, the European Court of Human Rights (“Court”) ruled in the case concerning the famous, ancient statue of the “Victorious Youth”, one of the highlights of the J. Paul Getty Museum in California. [1] It held that Italy by ordering the confiscation of the sculpture did not violate its human rights obligations under the European Convention on Human Rights (“Convention”). It recognized that Italy’s years-long efforts to recover this illicitly exported art treasure were proportionate and legitimate in light of pursuing the general interest in protecting cultural heritage.
This is another stage in the long-standing dispute over the ownership of the famous, Greek, life-sized bronze dating from 300 B.C. to 100 B.C. The statue was fished accidentally off the coast of Fano on 14 August 1964, by an Italian boat. Having been smuggled from Italy, it was purchased by the Getty Museum in Malibu in 1977. Various Italian governments (even together with the Region of Marche) have demanded the return of the statue to Italy, but the Museum has always responded negatively and deemed the requests unfounded due to the impossibility of determining the precise location of the recovery. However, without going into the details of where the artwork had been found, it should be emphasized that the export from the territory of Italy was illegal according to the laws of the time of exportation, which vested ownership of found archaeological goods to the state of Italy. Illegal exportation constitutes a crime, and the Italian legislation provides for the confiscation of unlawfully exported cultural objects.
On 11 February 2010, the judge for preliminary investigation (Giudice per le Indagini Preliminary – “GIP”) ordered the confiscation of the statue “currently at the Getty Museum or wherever it is located”. On 8 June 2018, the Pesaro Court rejected the Getty Museum’s objection against the confiscation of the statue. On 30 November 2018, the Third Criminal Chamber of the Court of Cassation rejected the appeal filed by the Getty Museum against the Pesaro Court’s order.
In these circumstances, the Getty Museum brought the case to the ECtHR, claiming that Italy violated its rights protected under Article 1 of Protocol No. 1 to the Convention. Accordingly, it argued that there was an unjustified interference with its right to the peaceful enjoyment of its possessions. It also argued that the confiscation measure had been unlawful, within the meaning of this provision, on account of the lack of foreseeability of the legal basis. Moreover, the confiscation order had not pursued any legitimate aim as, in the Getty Museum’s view, the “Victorious Youth” was not part of Italy’s cultural heritage; and that it had placed an excessive burden on the Museum.
The Court, after an extensive reconstruction of international law and domestic law framework found that the confiscation order “was adopted ‘in the public or general interest’, within the meaning of Article 1 of Protocol No. 1, of protecting Italy’s cultural heritage”. [2] It also emphasized that the statue was part of Italy’s cultural heritage, that international law strongly supported Italy’s efforts to recover it, and that the Getty Museum had been negligent when it bought it without properly ascertaining its provenance. [3] [4] [5].
It is now the question whether the US judicial will enforce the confiscation order assisting Italy in forfeiting and recovering the asset derived from criminal activities. Yet, irrespective of what the next legal steps will be on U.S. soil, one may indicate two general remarks that spring from this judgement. First of all, the Court has also strongly reaffirmed states’ sovereign rights and duties to formulate policies and adopt measures to protect and to recover lost cultural heritage. Secondly, the Court underlined the role of criminal law and criminal proceedings in curbing the trafficking in archaeological objects. In this regard, a deeper standardization of criminal law provisions may be advocated, including a wider ratification of the Council of Europe’s Convention on Offences relating to Cultural Property (2017) [6].
- [2]https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-233381%22]} (para. 360).
- [6]https://www.coe.int/en/web/culture-and-heritage/convention-on-offences-relating-to-cultural-property