Published on 4 October 2021
FIRST SECTION
Application No. 35271/19
THE J. PAUL GETTY TRUST and Others
against Italy
lodged on 28 June 2019
communicated on 13 September 2021
STATEMENT OF FACTS
1. The applicants are the J. Paul Getty Trust (“the Trust”), a non-profit legal entity registered in the United States in 1953, and fourteen physical persons, all United States nationals, who act in their capacity as trustees of the Trust. A list of the applicants is set out in the appendix.
2. They are represented before the Court by Mr. T. Otty, a lawyer practising in London.The circumstances of the case
3. The facts of the case, as submitted by the applicants, may be summarised as follows.Background to the case
(a) The discovery of the Statue and the first set of investigations
4. In 1964 an Ancient Greek bronze statue of a young man, sometimes referred to as the “Victorious Youth” (“the Bronze” or “the Statue”) was discovered in the waters off the coast of Pedaso, on the Adriatic Sea, by Italian fishermen who took it to the port in Fano.
5. The Statue was bought by the members of a family of antique dealers, Mr. P.B., Mr F.B. and Mr G.B., who hid it in the home of Mr G.N.
6. In 1965 the Bronze was sold to unknown persons and its whereabouts became unknown.
7. The antique dealers and Mr G.N. were charged with purchasing and concealing a protected archaeological object which belonged to the State.
8. By a final judgment of the Rome Court of Appeal of 18 November 1970, they were acquitted of all charges on the grounds, inter alia, that it had not been proved that the Bronze had been discovered in the national territory and was therefore the property of the State.
(b) The exportation of the Statue to Germany and the second set of investigations
9. In 1972 the Bronze reappeared in Germany in the possession of Mr H.H., a German art dealer.
10. The Italian authorities opened an investigation in respect of unlawful exportation.
11. In 1976 they closed the investigation on the grounds that the perpetrators of the alleged crime remained unknown.
(c) The Trust’s acquisition of the Statue and the third set of investigations
12. In July 1977 the Trust bought the Statue for 3,950,000 United States dollars (USD) from a company based in London. The purchase was publicly announced by means of a press release. The Bronze was subsequently taken to the J. Paul Getty Museum in California, where it has been displayed to the public ever since.
13. In December 1977 the captains of the two fishing boats who had discovered the Statue made statements, claiming that at the time of the discovery they had been fishing a few miles away from the Italian coast.
14. The Italian authorities reopened the investigation in respect of unlawful exportation; it was closed again in 1978 as the perpetrators of the alleged crimes remained unknown.
15. On 25 August 1980 the Gubbio magistrate (pretore) sent a letter to the General Prosecutor of Perugia, confirming that the investigation had been closed and that the “criminal proceedings in question appear ... not to be amenable to any further examination by the ordinary courts, which are in particular prevented from ordering measures aimed at recovering the statue”.
(d) Administrative and diplomatic attempts to recover the Bronze
16. In 1989 the Italian Ministry of Cultural Heritage sent a letter to the J. Paul Getty Museum, requesting the return of the Bronze to Italy. The request was denied and no further action was taken in that regard.
17. Further attempts to negotiate with the Trust were made in 1996 by the Italian consul in Los Angeles and in 2006 by the Italian Ministry of Cultural Heritage.The domestic proceedings
18. In 2007 local campaigners lodged a petition with the Pesaro Public Prosecutor’s Office requesting that action be taken to seek the return of the Bronze.
19. On 12 April 2007 the public prosecutor brought charges against the captains of the two fishing boats, the antique dealers, and unknown suspects. They were charged with having exported the Bronze without the required authorisation, of having failed to report the Statue to the port authorities and the competent administrative authorities, and of having violated border controls in importing the object to Italy.
20. Three months after bringing the charges, by an application dated 12 July 2007, the public prosecutor applied to discontinue the proceedings, “as they have become statute-barred, and because of the death of some of the persons investigated”. At the same time, the public prosecutor asked the preliminary investigations judge (giudice per le indagini preliminari) to order the confiscation of the Bronze.
21. By an order dated 19 November 2007, the preliminary investigations judge of the Pesaro District Court ordered that the proceedings be discontinued and dismissed the application for confiscation of the Bronze. He considered it clear that the actual purpose pursued by the criminal proceedings was to reclaim the Statue as part of Italian cultural heritage, but its confiscation could not be ordered because the applicants had not been involved in the criminal offences in question, and the good faith of their representatives could not be ruled out with certainty.
22. On 29 November 2007 the public prosecutor lodged a complaint (incidente di esecuzione) against the enforcement of the decision of 19 November 2007 given by the Pesaro District Court’s preliminary investigations judge, in so far as it had dismissed the application for confiscation of the Bronze.
23. On 10 February 2010 the enforcement judge ordered the confiscation of the Statue. He considered that, even if it had probably been found in international waters, the State had acquired ownership of the Bronze because a vessel flying the Italian flag had discovered it. Therefore, confiscation was intended to allow the State to regain possession of its property.
24. The applicants lodged an objection to the confiscation order, which was dismissed by a judgment of 3 May 2012.
25. The applicants then appealed to the Court of Cassation, complaining, inter alia, of the unfairness of the proceedings, in that the hearings before the enforcement judge had not been held in public.
26. By a judgment of 27 October 2015 the Court of Cassation, relying on the Constitutional Court’s judgment no. 109 of 2015, allowed the claim concerning the lack of public hearings, and consequently quashed the judgment of 3 May 2012, remitting the case to the enforcement judge for a fresh decision on the applicants’ objection.
27. By a judgment of 8 June 2018, the enforcement judge confirmed the confiscation order, holding that the purpose of confiscation included recovery of the Statue, since it was intended to allow the artistic object to be returned to the State’s ownership. As to the establishment of the facts, the enforcement judge considered that the discovery of the Bronze had occurred in Italian territorial waters, on the basis of the statements made in December 1977 by the captains of the two boats, who had recalled that at the moment of the discovery they had been fishing a few miles away from the coast. The judge also stated that the applicants had overestimated the relevance of the exact location in which the object had been found, since in any event the State had jurisdiction over the Statue as the vessel which discovered it had been sailing under the Italian flag.
28. Moreover, although antiquities experts had put forward diverse hypotheses (that the Bronze was an original, a Roman copy, a travelling exhibit, or part of an imperial collection), the Bronze could be attributed to the Greek artist Lysippus, and its connection with Italy was to be deemed “certainly not marginal”, as at the time the Statue was made the artist had most probably visited Rome and Taranto. At the relevant time Greece and Rome had enjoyed good relations and thereafter Roman civilisation developed on a continuum from Hellenic civilisation. The fact that the object had been found in the sea with significant encrustations implied that a vessel had sunk while transporting it; this was sufficient, according to the court, to establish a significant connection between the cultural object and Italy.
29. According to the enforcement judge’s decision, the Trust’s title to the property was null and void, as its legal predecessor (dante causa) and, before him, those who had discovered the Bronze and had taken it abroad without the necessary administrative authorisation, had breached Italian laws on the protection of objects of artistic and historic interest.
30. Even if the Trust had not committed criminal offences, as it had purchased the Statue when it was already outside Italian territory, it was not “a person extraneous to the crime” within the meaning of Article 174 § 3 of Legislative Decree no. 42/2004. In particular, the judge found that the Trust had been negligent in purchasing the Statue without a proper and independent inquiry concerning the legitimacy under Italian law of the previous transfers.
31. The court considered that the final criminal judgments of 1970 were not binding, in that they had been delivered in trials which were initiated in respect of different crimes. As to other decisions issued in relation to the proceedings which had taken place in the 1970s, it had been decided in those cases not to proceed to trial solely on account to failures in the execution of the international letters rogatory, which would have prevented the collection of the necessary evidence. According to the court, if the Italian State had failed for more than thirty years to identify the Statue and to carry out investigations concerning the transfers of the Statue, the blame fell on those who had failed to carry out the necessary formalities for the importation, exportation and payment of relevant customs duties.
32. The judgment was upheld by a final decision of the Court of Cassation of 2 January 2019.
33. According to the Court of Cassation, the confiscation had been ordered under Article 174 § 3 of Legislative Decree no. 42/2004 (see paragraph 38 below) and was aimed at restoring the original public ownership of the cultural asset. It confirmed that confiscation was a recovery measure, aimed at ensuring the substantive respect for the presumptive public nature of cultural heritage.
34. As to the place of discovery, the Court of Cassation stated that the discovery of the Bronze had been followed by its transportation into Italian territory. However, the court considered it possible to infer the existence of “a continuum between Greek civilisation, imported into Italic territory, and the subsequent Roman cultural experience”. It could reasonably be inferred that, irrespective of whether the Statue had been carried to Italy by a ship that in turn had sailed from the Italic territory, or whether it had been transported by a ship that had set sail from the Ionian coast of the Greek peninsula, the final destination was one of the Adriatic ports of the Italian peninsula. There was therefore a significant cultural link between the Bronze and the national context, which justified its special protection as part of the national artistic heritage.
35. Regarding the binding effect of the Rome Court of Appeal’s judgment of 8 November 1970, the Court of Cassation noted that the charges brought against the defendants in that case had concerned the commission of the offence of receiving stolen goods, whereas in the most recent case before the Pesaro District Court the disputed facts concerned the illegal export of the Statue, which constituted a cultural asset, outside the territory of the State, and its importation into the State without payment of customs duties and without its being duly reported to the authority responsible for the protection of historical and artistic heritage. The difference in the protected legal interests which had allegedly been violated by the conduct in question ruled out the possibility of any breach of double jeopardy in relation to the ruling issued by the Rome Court of Appeal as far back as 1970.Relevant domestic law and practice
36. At the time the Bronze was discovered, the confiscation of works of art and cultural items was governed by section 66 of Law no. 1089/1939. As in force at the material time, that provision reads as follows:
“The export or the attempted export of the objects falling within the scope of the present law shall be punished with a penalty ranging from 2,000 to 150,000 Italian lire
(a) where the object is not declared to customs;
(b) where the object is declared to customs with a false or wilfully misleading declaration, or when it is hidden or mixed with other objects in order to avoid the procedure for the release of the export licence as well as the payment of the relevant fee.
The object shall be forfeited. The forfeiture shall take place in accordance with the provisions of customs laws relating to smuggled objects”.
37. That legal framework changed, as the Constitutional Court declared some aspects of it to be unconstitutional. By means of judgment no. 2 of 1987, the Constitutional Court found that section 66 of Law no. 1089/1939 was unconstitutional in so far as it provided for confiscation even when works of art were owned by a third party who had not committed the offence and had not benefited from it in any way.
38. By the time the confiscation order was issued, Article 174 of Legislative Decree no. 42/2004 had amended the provisions on the confiscation of works of art and cultural items, in accordance with the decisions of the Constitutional Court. Article 174 establishes that:
“Anyone who transfers abroad items of artistic, historical, archaeological, ethno-anthropological, bibliographical, documental or archival interest, as well as the items set out in Article 11 § 1 (f), (g) and (h), without a certificate of free circulation or an export licence, shall be punished by imprisonment for a period of one to four years or by a fine ranging from 258 to 5,165 euros.
The punishment established in paragraph 1 shall likewise apply to anyone who, upon the expiry of the relevant term, fails to return to the national territory cultural properties for which temporary exit or exportation was authorised.
A judge shall order the confiscation of the items in question, except when those items belong to a person who is extraneous to the crime. Confiscation shall take place in accordance with the rules of the customs laws pertaining to contraband.
If the offence is committed by a person who engages in activities which involve selling to the public, or exhibiting for the purposes of sale, objects of cultural interest, the sentence shall be followed by the prohibition established under Article 30 of the Penal Code”.Relevant international law
39. In relation to property rights on works of art, Article 4 of the Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, signed in Paris on 14 November 1970, provides:
“The States Parties to this Convention recognise that for the purpose of the Convention property which belongs to the following categories forms part of the cultural heritage of each State:
(a) cultural property created by the individual or collective genius of nationals of the State concerned, and cultural property of importance to the State concerned created within the territory of that State by foreign nationals or stateless persons resident within such territory;
(b) cultural property found within the national territory;
(c) cultural property acquired by archaeological, ethnological or natural science missions, with the consent of the competent authorities of the country of origin of such property;
(d) cultural property which has been the subject of a freely agreed exchange;
(e) cultural property received as a gift or purchased legally with the consent of the competent authorities of the country of origin of such property.”
COMPLAINT
40. The applicants complain under Article 1 of Protocol No. 1 that the confiscation of the Statue was based on an unprecise and unforeseeable legal framework; did not pursue a legitimate aim, in that the Bronze was found in international waters and thus did not form part of Italy’s cultural and artistic heritage; and constituted a disproportionate interference with their property rights, particularly having regard to the delays on the part of the State and the absence of any compensation.
QUESTIONS TO THE PARTIES
1. Can the applicants claim to be “victims”, within the meaning of Article 34 of the Convention, of the alleged violation of Article 1 of Protocol No. 1? In particular, taking into account that the Statue is located in the State of California, United States of America (USA), and that therefore the enforcement of the confiscation issued by Italian authorities will have to be permitted by US authorities, has the confiscation produced effects on the applicants’ rights? Are the applicants currently facing damage as a result of the alleged interference? If so, in what way?
The parties are invited to indicate, having regard to the fact that the Statue is located in the State of California, what form of proceedings could allow for the enforcement of the confiscation.
2. Can the Trustees of the J. Paul Getty Trust claim to be “victims”, within the meaning of Article 34 of the Convention, of the alleged violation of Article 1 of Protocol No. 1?
If so, have they exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
3. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?
4. If so, was the interference in accordance with the law? More precisely, which legal provision in the domestic system served as a basis for the confiscation of the Statue? Was that provision of a sufficient quality, i.e. was it accessible, precise and foreseeable (see, for example, Beyeler v. Italy [GC], no. 33202/96, § 109, ECHR 2000‑I; Dimitrovi v. Bulgaria, no. 12655/09, §§ 45 - 46, 3 March 2015)?
The parties are invited to supplement their replies by means of relevant domestic case‑law concerning the application of any relevant provision.
5. Did the interference pursue a legitimate aim? In particular, did the Statue form part of the cultural heritage of the State? The parties are invited to supplement their replies by referring to the relevant national and international legal framework, including Article 4 of the Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, signed in Paris on 14 November 1970.
6. Did the interference impose an excessive individual burden on the applicants (see Beyeler v. Italy [GC], no. 33202/96, § 122, ECHR 2000‑I)?
In particular, did the national authorities respect the principle of legal certainty (see, for example, Kirova and Others v. Bulgaria, no. 31836/04, § 32, 2 July 2009) and act promptly and in an appropriate and consistent manner (see, for instance, Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000-I)?
Was there a reasonable relationship of proportionality between the means employed and the aim pursued (see G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 300, 28 June 2018)? Was the measure proportionate in relation to the degree of culpability or negligence on the part of the applicants or, at the very least, the relationship between their conduct and the offence in question (see G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 301, 28 June 2018)?
In this respect, it having been ascertained that the Statue was in Italy before having been exported to Germany, did the applicants verify whether, how and when the exportation took place and that the relevant Italian provisions on customs declarations and duties had been complied with?
The Government are also invited to inform the Court on whether they started proceedings aimed at enforcing the confiscation and, if so, on which legal basis.
APPENDIX
No.
Applicant’s Name
Year of birth/registration
Nationality
Place of residence
1.
THE J. PAUL GETTY TRUST
1953
American
Los Angeles
2.
Megan Brody CHERNIN
1954
American
Los Angeles
3.
James Bash CUNO
1951
American
Los Angeles
4.
Bruce Wall DUNLEVIE
1956
American
Los Angeles
5.
Catharine Drew Dilpin FAUST
1947
American
Los Angeles
6.
Frances Daly FERGUSSON
1944
American
Los Angeles
7.
Maria Denise HUMMER-TUTTLE
1944
American
Los Angeles
8.
Pamela JOYNER
1958
American
Los Angeles
9.
Paul Omer LECLERC
1941
American
Los Angleses
10.
David Li LEE
1949
American
Los Angeles
11.
Robert Whitney LOVELACE
1962
American
Los Angeles
12.
Thelma Esther MELENDEZ DE SANTA ANA
1958
American
Los Angeles
13.
Neil Leon RUDENSTINE
1935
American
Los Angeles
14.
Ronald Paul SPOGLI
2019
American
Los Angeles
15.
John Joseph STUDZINSKI
1956
American
Los Angeles
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