Monday, January 28, 2013

The Law of Repatriation under "The Great Giveback"

Hugh Eakin's New York Times  commentary titled "The Great Giveback" is flawed.  The opinion piece argues that museums "are supposed to be in the business of collecting and preserving art from every era, not giving it away."  But Lee Rosenbaum and several others have correctly highlighted many of the article's problems.  Some legal observations are worth mentioning here.

"The Great Giveback" overlooks the general principle that stolen property cannot be owned lawfully or that contraband antiquities (smuggled antiquities) are legitimate. The article instead appears to encourage museums to retain tainted antiquities so long as they "have not been compelled by any legal ruling to give up the art."  This assertion is fraught with risk for museums.

Waiting for a court order to demand the repatriation of stolen or smuggled artifacts when potential settlement options are available disrespects the rule of law and undercuts a museum’s reputation.  Attorneys, museum directors and trustees, museum donors, the general public, and the courts likely would not support the courtroom clashes resulting from "The Great Giveback's" call to legal arms.  Museums are highly respected, and there is an expectation that they will "do the right thing" by finding acceptable legal solutions before initiating or inviting litigation that might result in the forced return of stolen or smuggled property.

Etruscan kalpis returned to Italy.  ICE
Few museums welcome judicial oversight, which is a rare occurrence.  But it happened recently in a matter involving an illicit kalpis purchased in good faith by the Toledo Museum of Art (TMA).  Reported delays slowing the resolution of that case prompted the intervention of federal prosecutors. The matter concluded last year with a federal court order from the northern district of Ohio compelling the TMA--with the museum's assent--to forfeit the Etruscan jug to Italy.  Both the museum's lawyer and its new director agreed to "the seizure of the Kalpis by HSI [U.S. Homeland Security Investigations], the judicial forfeiture of the Kalpis pursuant to 19 U.S.C. § 1595a(c)(1), and the return of the Kalpis to the Italian Government following forfeiture to the United States," according to the June 22, 2012 order.  The court ordered the seizure and forfeiture of the kalpis from the TMA because the jug constituted stolen property unlawfully imported into the United States.  This example offers a mild preview of Eakin's sought after "legal ruling to give up the art," which museums themselves should not hope for unless their trustees desire judicial supervision.

Eakin, meanwhile, maintains that unnamed "[c]ultural property lawyers say it is doubtful that foreign governments could have successfully claimed in court most of the works museums have handed over to them." This assertion is specious.

Looking once again at the TMA kalpis case, federal prosecutors likely would have been successful had they litigated the matter under 19 U.S.C. § 1595a(c)(1)(A).  That law authorizes forfeiture when "[m]erchandise ... is introduced or attempted to be introduced into the United States contrary to law," specifically when the merchandise "is stolen, smuggled, or clandestinely imported or introduced."  The "probable cause" or "preponderance of the evidence"standards of proof used in civil forfeiture cases to repatriate antiquities are lower than the "beyond a reasonable doubt" standard used in criminal cases. "Probable cause" would simply require federal attorneys to show that the jug’s import more probably than not violated the law, which is not a high standard.  "Preponderance of the evidence" asks on whose side is the greater weight of the evidence.  Investigators in the kalpis collected compelling evidence for a jury to readily conclude that the Etruscan jug was stolen, smuggled, and clandestinely imported into the United States.  The Ohio district court's final order outlined this persuasive evidence::
1) an export license from Italy’s Ministry of Culture does not exist for the Kalpis which was alleged to have been originally purchased in 1935 by a private Swiss collector after Italy’s cultural patrimony laws originally took effect in 1909, 
2) a Polaroid photograph was discovered amongst the entire Becchina archive of documents, invoices and photographs seized during a search warrant in Basel, Switzerland on February 23, 2002,...4) the Polaroid photograph appears to show mud on the Kalpis itself along with dirt on the actual photograph which demonstrates that the Kalpis was photographed in a non-institutional setting long after 1935, its alleged original sale date to the private Swiss collector, 
5) similar Polaroid photographs of the Kalpis were seized during a search warrant executed in Geneva, Switzerland on September 12, 1995 at the offices/warehouse of Giacomo Medici (“Medici”), a known Italian art smuggler, who was convicted and sentenced in December 2004 by the Tribunal of Rome for violating Italy’s law of criminal association with the intent to receive stolen archaeological artifacts illegally removed from Italy’s cultural patrimony, 
6) Medici’s sentencing document states that the Kalpis was sold by Medici to Becchina, 
7) Medici’s sentencing document directly contradicts the information contained in the provenance and invoice provided by Becchina to the Museum at the time of purchase on August 26, 1982, that the Kalpis was (a) purchased by a private Swiss collector in 1935 at an art market and (b) sold by Karl Haug (“Haug”), the alleged son and heir of the private Swiss collector, to the Becchinas in 1980,...9) Ursula Becchina provided evidence after her arrest establishing that Gianfranco Becchina collected artifacts illegally in Italy from diggers and from Medici and provided fake documentation to create a provenance for the artifacts including other vases from southern Italy, 
10) Ursula Becchina also provided evidence after her arrest establishing that she and Becchina used fake documents to create false provenances for other illegally obtained artifacts attesting to Haug as owner, and 
11) the Kalpis, despite its high quality and worth, did not appear in any scientific publication until 1981, one year before the Museum acquired it.
A museum that is in the business of collecting and preserving legitimately excavated and imported antiquities--and that is in the business of following the law--absolutely could not keep the ancient Etruscan kalpis.

So was the TMA case one of needless restitution?  Or could this case have been won in a hard-fought and expensive court battle?  No.  That is why "The Great Giveback" should reexamine its opinion about the legal issues surrounding the repatriation of stolen and smuggled cultural heritage.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: