The Victorious Youth: A Statue's Odyssey and the Battle for Cultural Heritage
The fight over the "Victorious Youth," a captivating bronze statue from antiquity, has taken a dramatic turn. In a recent decision, the European Court of Human Rights (ECHR) sided with Italy, piling pressure on the J. Paul Getty Museum in Los Angeles to return the artwork. We delve into the fascinating story of the Victorious Youth, its journey to the Getty, Italy's relentless pursuit of its return, and the legal wrangling that culminated in the ECHR's landmark decision
Unearthed from the Deep: The Victorious Youth Emerges
Our story begins in 1964, amidst the turquoise waters of the Adriatic Sea. Italian fishermen, casting their nets, snagged something unexpected: a life-sized bronze statue of a young athlete, standing about 1.5 meters tall, depicted in a moment of triumph with a laurel wreath adorning his head. The statue’s remarkable preservation and exquisite detail make it a masterpiece of ancient Greek art. It has been attributed to Lysippos or one of his followers and dates to around 300-100 BC. The bronze became known as the Victorious Youth.
The fishermen sold the bronze. The buyers were subsequently charged with receiving and handling a stolen archaeological object belonging to the Italian State but the Italian Courts acquitted them as there was insufficient evidence to conclude that the bronze had been discovered in Italian territorial waters and that even if it had, there was insufficient evidence to provide that the then possessors knew of its unlawful origin as the sellers had asserted that it was found in Yugoslav waters. That decision was reversed by the Italian Court of Appeal, then quashed by the Italian Court of Cassation before being sent back to the Court of Appeal which acquitted the possessors in 1970.
Italy's Effort to Recover the Bronze
In the early 1970's, the bronze appeared in Munich where an art dealer held it on behalf of a Liechtenstein company. In 1972, J. Paul Getty Sr became interested in acquiring it. In 1976, as purchase negotiations were ongoing, Mr Getty Sr died. The following year, the Getty Trust acquired the bronze. By March 1978, the bronze was on display at the Getty Museum in California.
Upon becoming aware that the bronze was with the Getty Museum, the Italian authorities began investigating its acquisition. The US investigation concluded that the no US customs laws had been violated. They did enquire with the Italian authorities as to whether the bronze been unlawfully exported but the Italian authorities did not follow it up and the investigation by Interpol and the US authorities ended in 1984.
The matter arose again in 2007 when the Public Prosecutor of Pesaro near Fano where the bronze was first brought ashore charged the captains of the two fishing boats that found the bronze, and others, for failing to report the find and for illegally exporting the bronze from Italy. This led to the investigating judge of the District Court of Pesaro issuing an order to confiscate the bronze in 2010. By then, the bronze had been on display in California for over 30 years.
Part of the problem – then as now – was the difficulty of proving that the bronze was found on Italian territory. The evidence showed that the fishermen had found it in international waters, not in Italian territorial waters. Italy now argued that the bronze had been discovered in Italy. This was on the basis either that the fishermen had, in fact, still been in territorial waters when they found the bronze or, alternatively, that the ship was an Italian-flagged vessel and thus subject to Italian jurisdiction even though sailing in international waters. The argument ran that vessels flying the Italian flag are part of the State’s territory, therefore, the bronze had been found on Italian territory and Italy had acquired ownership of the bronze.
Italy also argued that:
- under Italian maritime law, if the finder of an item of artistic, historic or archaeological interest fails to declare the find in accordance with their legal obligations, ownership of the find automatically passes to the Italian State (s. 511 of the Italian Maritime Code).
- there is no dispute that the exporter of the bronze did not obtain a license to export it from Italy. Accordingly, the bronze is liable to confiscation (Law of 1 June 1939, N.1089 s. 66.2).
The decision of the investigating judge of the Court in Pesaro was ultimately approved by the Italian Court of Cassation which, in January 2019, found in favour of Italy and upheld the confiscation order. The Court concluded that the Getty could be subject to a confiscation order because, even though it was not party to the original removal from Italy, it had failed to exercise sufficient due diligence when acquiring the bronze in 1977. The Court took the view that the prosecutor's assessment of the Getty’s bad faith or negligence was reasonable, observing that: (i) during the negotiations, Mr Getty Sr had expressed serious doubts about the provenance of the bronze; (ii) the Getty’s representatives had asked for information exclusively from the vendor’s representative who, although a professional in the field, had a clear interest in presenting the provenance as legitimate; (iii) the Getty's representatives had failed to ask the competent Italian authorities whether the export formalities and other provisions of Italian heritage law had been complied with. The Court of Cassation concluded that the Getty’s representatives had purchased the bronze without sufficient due diligence, accordingly a confiscation order could be directed at them even though they were not a party to the illegal export from Italy.
On the question of whether the bronze was part of Italy's cultural heritage, the Court had a challenge on its hands. How can a Greek sculpture form part of Italy's national heritage? This is not the first time that Italy has stretched the concept of national heritage to breaking point: some years ago, Italy claimed a painting by the Spanish artist Salvador Dalí as part of Italy's national cultural heritage. As far as the bronze was concerned, the Court argued that either the bronze had been made by an artist on the Italian peninsula – there was no evidence whatsoever that this was the case, so this was mere speculation -, or if it had originated in Greece, it was nevertheless part of “a continuum between Greek civilisation, which had expanded onto Italian territory, and the subsequent Roman cultural experience; a continuum confirmed by the presence off the coast of Pedaso, in what is now the Marche Region, of the Statue of the ‘Victorious Youth"– a cryptic and deeply unsatisfactory claim that simply because Italy and Greece traded with each other, and the bronze was found "off the coast of Italy", that was sufficient to make the bronze a piece of Italy's cultural heritage. Equally cryptically, the Court added that “ ... it may be reasonably inferred that, whether the Statue was carried by a ship that in turn had sailed from Italian territory – the presence of Lysippus of Sicyon in what used to be Taranto has been indeed documented – or whether it was 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, in further support of the artefact’s place within our country cultural orbit from as far back as that time.” In other words, any artefact destined to an Adriatic port of the Italian peninsula is, by definition, a piece of Italy's cultural heritage.
Armed with the decision of the Court of Cassation, on 4 July 2019, the Pesaro public prosecutor’s office sent the US authorities an international letter requesting the enforcement of the confiscation measure pursuant to the Treaty of Mutual Assistance in Criminal Matters between Italy and the United States of America.
The Getty refused to comply with the order, seeing it as a foreign decision that could not be enforced in California. The Getty then challenged the final decision before the European Court of Human Rights (ECHR), claiming that the confiscation order was a violation of the First Protocol to the European Convention on Human Rights, that of “peaceful enjoyment of possessions” protected by Article 1.
The ECHR Weighs In: A Landmark Decision
Before the ECHR, the Getty complained that the adoption of the confiscation order constituted a violation of their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1 to the European Convention on Human Rights. They further complained of the risk of being deprived of that right if the Italian authorities succeeded in obtaining recognition and enforcement of the confiscation in the United States of America (US).
As is standard in cases involving alleged infringements of the right to peaceful enjoyment, the ECHR first considered whether the Getty's claim was admissible. The first test was whether the Getty could be significantly affected by the confiscation order. The Court answered affirmatively. The second test was whether the bronze could be considered the Getty’s ‘possession’. Italy argued that it could not because the Getty had not acquired title to what was, in Italy’s view, an inalienable piece of its cultural heritage. The Court then noted that the Getty had has been in possession of the bronze since 1977. That length of time had the effect of conferring on the Getty a proprietary interest in peaceful enjoyment of the bronze that was sufficiently established to amount to a “possession”.
The claim being admissible, the ECHR turned to the merits of the Getty's claim. Under Article 1, any interference with possessions must be (i) lawful, (ii) in the public interest and (iii) proportional.
Lawfulness
As to lawfulness, the ECHR concluded that the legal basis for the contested measure was sufficiently clear, foreseeable and compatible with the rule of law, and that it was therefore compliant with the principle of lawfulness. The following reasons were given:
- when the confiscation order was issued, that is, the moment when the interference at stake took place, the notion of a “person not involved in the criminal offence” was clearly established by the Italian case-law, accordingly the standard of diligence required of the purchaser of a cultural object for the imposition of the confiscation order was sufficiently clear;
- it was foreseeable that the confiscation order could be imposed when the offence of unlawful export had not been committed by the Getty and was statute-barred. The ECHR found that confiscations, being aimed at the recovery of an object in the public interest, can be applied to third parties owning the relevant objects in the absence of their participation in the criminal proceedings, of a criminal conviction or of a finding of guilt, When the Getty purchased the bronze in 1977, said the ECHR, Italian case-law already provided that confiscation could be imposed on third parties which owned or were in possession of smuggled items, if it could be demonstrated that they had been at least negligent;
- the Getty did not establish that the Italian judicial authorities applied Italian law in an arbitrary or unreasonable manner, notably the absence of a time-limit for adopting the confiscation order was neither arbitrary nor unreasonable.
Public interest
Next, the ECHR examined whether Italy’s imposition a confiscation order was in the public interest. The Getty argued that the bronze was not part of Italy’s cultural heritage, accordingly the order had not therefore been justified by any public or general interest.
Conservation of the cultural heritage and, where appropriate, its sustainable use, have been considered by the ECHR as being in the public interest. Under the system of protection established by the Convention, it is for the national authorities to make the initial assessment of whether the public interest warrants measures of deprivation of property or interfering with the peaceful enjoyment of “possessions”. The national authorities enjoy a wide margin of appreciation. The Court will respect the national authorities' judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation. Furthermore, the notion of “public interest” is necessarily extensive. The Court normally shows deference to the Contracting States’ arguments that interference under its examination was in the public interest and the intensity of its review in this regard is low. As a result of this deference to the domestic authorities’ judgment, examples of where the Court found no public interest justifying interference are rare.
The Court acknowledged that "the present case leaves some doubts as to the fulfilment of the aim relied upon to justify the [confiscation order]", accordingly, "the Court will therefore assess whether the general interest referred to by the [Italian] Government may be deemed legitimate for the purpose of the [Human Rights] Convention and whether, in the specific circumstances of the present case, the measure was aimed at fulfilling that interest".
The ECHR was clearly not inclined to interfere with findings of fact made by the Italian Courts. It noted that the domestic proceedings did not lead to a definitive conclusion that the bronze had been found in Italian territorial waters or on the high seas. However, the Italian Court of Cassation made it clear that the bronze was part of Italy’s cultural heritage and that it belonged to the State as it had been found by an Italian-flagged vessel and had subsequently been brought into Italy without the relevant reporting obligations being complied with. In the Court of Cassation’s view, the confiscation order was therefore aimed at restoring the State’s ownership of the bronze. Moreover, irrespective of the issue of ownership, the bronze was an object of cultural interest and its export required an export licence. Under Italian law, the absence of an export licence resulted in the mandatory confiscation of the unlawfully exported cultural object.
The ECHR acknowledged that it would respect the domestic authorities’ judgment unless it is “manifestly without reasonable foundation”, and in this case, stopped short of considering whether the national courts had manifestly without reasonable foundation, declared the bronze part of Italy's national heritage. The ECHR seems to have focused more on that fact that the Italian Court of Cassation gave reasons for its decision that the bronze was owned by the Italian State and that it formed part of Italy's cultural heritage, rather than on the reasoning itself. It was almost a case of saying, if the Italian Courts say so, we have no reason to doubt that it is correct. Arguably, this was a missed opportunity to probe the reasoning of the Italian Courts which some might argue, was not necessarily persuasive on the issues of State ownership ab initio and the bronze forming part of Italy's cultural heritage.
Proportionality
Even if the confiscation order was lawful and pursuant to the public interest, it still must meet the test of proportionality. The Getty argued that it had suffered an excessive burden on account of the absence of a time-limit within which the confiscation order could be imposed, and further argued that the Italian authorities had failed to act “in good time” as the proceedings which led to the confiscation order had been instituted more than thirty years after they had become aware of the identity of the owner of the bronze and its location.
The ECHR stated that the concern to achieve a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights entails the need for a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The requisite balance will be upset if the person concerned has had to bear “an individual and excessive burden”. The Court considered the Getty’s own actions and again raised what it saw as a lack of appropriate due diligence in 1977. This purported failure on the Getty at the time of purchase allowed the Court to conclude that the Getty had no legitimate expectation when it came to the action eventually taken by Italy. Italy’s delay in bringing that action (30 years) was not held to create a legitimate expectation: the Getty should have realised that a confiscation order was at least possible in the foreseeable future. Whilst the ECHR was somewhat critical of Italy for the delay in taking action until 2007 and for failing to institute legal proceedings in the US, on balance, the Court placed more weight on the Getty's perceived negligence when acquiring the bronze than on Italy's delays and concluded that Italy "did not overstep their margin of appreciation".
The Road Ahead: Uncertainties and Implications
The saga of the Victorious Youth is a complex one, highlighting the tension between private ownership and national cultural heritage. While the ECHR's decision offers a measure of closure, the bronze's destination remains to be seen.
Final observations:
1. The claim by Italy that the bronze was unlawfully exported was of prime importance, in the absence of conclusive evidence that the bronze was found in Italian territorial waters. As a matter of Italian law, given that an Italian export licence was not obtained, the bronze was illegally exported. But was it? According to the Court of Cassation, the bronze was sent to the Staatliche Antikensammlung in Munich, Germany, where it remained for two years, and from Germany, it travelled to the UK where it was sold to the Getty. The removal to Germany would have occurred in the late 1960's when both Italy and Germany were members of the European Economic Community (EEC). At the time, the freedom of movement of goods was already well established. Article 36 of the Treaty of Rome set out limited exceptions to that freedom. One exception was the protection of national treasures of artistic, historical or archaeological value. The concept of "national treasure" under EEC law has not been tested[5]. Can Member States freely determine what constitutes a “national treasure”? Can Italy reasonably claim that the bronze is an "Italian national treasure" as a matter of EEC law? If not, arguably, Italian restrictions on the movement of the bronze were illegal as a matter of EEC law. The implication might be that the claim by Italy that the bronze was illegally exported cannot stand.
2. The other observation relates to the enforceability of Italian law outside Italy. Laws applicable to cultural property tend to be one of two types. First, there are the patrimony laws that provide that ownership of cultural objects vests automatically in the State. Secondly, there are norms prohibiting or restricting the export of cultural property. The formal distinction between patrimony laws and export regulations is critical because only the former category enjoys extraterritorial effect. Outside the EU, and in the absence of inter-State treaties, national courts generally do not recognize or enforce the export regulations of other States. In other words, whilst source nations can adopt export control laws, foreign courts typically will refuse to enforce them. The prevailing principle in England is that domestic courts have no jurisdiction to entertain an action for the enforcement, either directly or indirectly, of penal, revenue or other public law of foreign States. The reluctance of English courts to accept the extraterritoriality of these types of foreign laws was accepted in the Ortiz litigation[6]. In that case, the English Court of Appeal asserted that, by virtue of international law, no State had sovereignty beyond its own frontiers and, hence, no Court would enforce foreign laws to allow a foreign State to exercise such sovereignty beyond the limits of its territory. That included legislation prohibiting the export of works of art. In the more recent case of Iran -v- Barakat[7], the English Court of Appeal found that Iran had sought to assert an ownership right (patrimonial claim) and not to enforce a public law or to assert sovereign rights. In other words, the Court distinguished between the recognition of a country’s ownership rights and the enforcement of the country's public or penal laws. It analysed Iranian law as giving the State rights equivalent to ownership in English law, accordingly English law would treat that as ownership for the purposes of the conflict of laws. That led the Court to conclude that Iran enjoyed both title and an immediate right to possession of the antiquities in dispute. The Court classified the claim as a “patrimonial claim, not a claim to enforce a public law or to assert sovereign rights”. In effect, Iran advanced a claim that was based upon a title that was conferred by legislation (and not acquired by confiscation or compulsory process). The Court also held that “when a State owns property in the same way as a private citizen there is no impediment to recovery”. Therefore, the Court of Appeal affirmed that English courts should recognize Iran’s national ownership law in order to allow Iran to sue to recover the disputed antiquities. The issue for Italy is that unless it can provide evidence that the bronze was found in Italian territorial waters, accordingly ownership vested in the Italian State, subject to the maritime law argument that the bronze was found by an Italian-flagged vessel, its other claims to the bronze appear to derive from Italian penal laws, namely the expropriation by the State under s. 511 of the Italian Maritime Code and State confiscation under s. 66 of Law 1089 for illegal export. The Californian Courts may take a different from the English Courts on enforceability, however if they adopted a similar approach, Italy may struggle to persuade the Californian Courts to do its bidding.