The ‘Getty Bronze’ is in the news again. As though cursed, the ancient sculpture of the victorious youth has been contentious for years now, beginning not long after it was discovered by Italian fishermen in 1964. The statue was purchased by the Getty Trust in 1977 and put on display in Malibu the following year, but Italy considers it part of the country’s cultural heritage. The latest development is a decision by the European Court of Human Rights, the first time this court has dealt with a country’s ability to control the movement of works of art since Beyeler v. Italy in 2000. That case also involved Italy’s attempt to ‘confiscate’ a work on the basis that the work was part of the national heritage.

The background here is worthy of a novel. In fact, it was the subject of the first chapter of the excellent Chasing Aphrodite by Jason Felch and Ralph Frammolino, an account of the many controversial antiquities acquired by the Getty over the years. In 1977, the Getty bought the piece from a Liechtenstein seller under a contract entered into in the UK, although the piece at the time was in Germany. The trail of the bronze from the fishing vessel to the point of sale was convoluted. Four individuals were charged with smuggling the piece out of Italy, but they were ultimately acquitted by the Italian courts in 1970. Part of the problem – then as now – was the difficulty of proving that the statue was found on Italian territory. The evidence showed that the fishermen had found the piece in international waters, not in Italian territorial waters. Further Italian investigations into the matter were discontinued by 1978 and Interpol gave up its involvement by 1982.

The matter arose again in 2007 when the prosecutor of the locality near where the fishermen had brought the bronze ashore issued a confiscation order for the piece, which by this time had been on display in California for 30 years. The argument now was that the bronze had been discovered on Italian territory. This was on the basis either that the fishermen had, in fact, still been in territorial waters when they found the piece or, alternatively, that the ship was an Italian-flagged vessel and thus subject to Italian jurisdiction even though sailing in international waters. The bronze was said to form part of Italy’s heritage under the Heritage Law of 1939 (Law no. 1089 of 1 June 1939).

The arguments of the prosecutor were ultimately approved by the Italian Court of Cassation which, in January 2019, found in favour of Italy and upheld the order for the Getty to hand over the statue. The Court concluded that the Getty could be subject to a confiscation order because, even if not party to the original removal from Italy, it had nevertheless failed to exercise sufficient due diligence when acquiring the piece in 1977. On the national heritage point, it was found that either the piece had been sculpted by an ancient artist on the Italian peninsula or, if it had originated in Greece, was nevertheless part of “a continuum between Greek civilisation, which had expanded onto Italian territory, and the subsequent Roman cultural experience“, and so fit within the definition of national cultural heritage in Italy. This last argument is not necessarily unprecedented in Italy, which has in the past claimed a painting by the Spanish artist Salvador Dalí as a work of Italian heritage.

Of course the Getty refused to comply with the order, seeing it as a foreign decision with no territorial purchase in California. The Getty Trust (and its individual trustees) then challenged the final decision before the European Court of Human Rights, claiming that the confiscation order was a violation of a right under the First Protocol to the European Convention on Human Rights, that of “peaceful enjoyment of possessions” protected at Article 1.

The European Court’s decision last month came as a shock. While many had been watching the case move through the Italian courts over the years, it was often viewed with a sense of “Italy doing what it does“. Of course, even if the Italian courts affirmed the confiscation order, it was thought that the outcome could not bind the Getty – nor would it ever be approved by a foreign or international court.

As is standard in cases involving alleged infringements of the right to peaceful enjoyment, the Court applied its usual approach to Article 1. Firstly it asked whether the Getty Trust could be significantly affected by the confiscation order as to be subject to the protection. Italy argued, rather counter-intuitively, that the order could not have a direct impact on the Getty as any subsequent action (e.g. seizure of the bronze) would have to be undertaken by American authorities and not by Italy itself. The Court disagreed, finding that whatever action was taken in relation to the bronze, it was in the end attributable to Italy.

Another preliminary point was whether the bronze could be considered the Getty’s ‘possession’ for the purposes of the protection. Italy of course said it couldn’t because the Getty had not acquired title to what was, in Italy’s view, an inalienable piece of cultural heritage. The Getty argued that title was duly obtained in 1977 and persisted under California law since then. The Court tried to thread the needle: not wanting to admit that the Getty had title, it relied instead on the broad definition of ‘possession’ under the case law, finding that the Getty’s continuous possession since 1977 was sufficient to give it a ‘proprietary interest’ protected under Article 1.

Once these threshold points were settled, the Court turned to the merits. Under Article 1, any interference with possessions must be (i) lawful, (ii) in the public interest and (iii) proportional. As to the lawfulness, the Getty argued that the confiscation order imposed an unreasonable and unforeseeable standard of due diligence on an acquisition that had occurred several decades earlier. It also called into question the delay in bringing the order when the relevant criminal offences for unlawful export had been statute-barred many years earlier, the extra-territorial impact of the order and the absence of a time-limit within the confiscatory law itself.

The Court upheld the lawfulness of the order. It explained how the standard of due diligence was well established at the time of the order itself (2007). It then distinguished criminal prosecution for unlawful export from the confiscation actions, explaining that the latter were unaffected by the outcome of the former. As to the question of Italy seeking to impose its order beyond its territorial jurisdiction, the Court was apparently shown no case law standing for the principle forbidding the extra-territorial application of a confiscation order of this nature; rather, the Getty had “merely cited academic opinions in that regard” (at paragraphs 290 and 318). The lack of a time-limit in the confiscatory law wasn’t seen as extraordinary or unlawful, with the Court referring to ‘several countries’ that do not impose limitation periods in recovering stolen or unlawfully exported cultural objects (at paragraph 323) – though the Court didn’t name any particular examples.

Next, the Court examined whether Italy’s imposition of a limit on the Article 1 right was in the public interest. As we already know from Beyeler v. Italy, states have a wide margin of appreciation when it comes to the protection of cultural heritage. The Court made much reference to different international conventions underlining the importance of fighting the illicit trade in cultural artefacts (the 1970 UNESCO Convention, the 1995 Unidroit Convention), as well as EU laws and certain conventions of the Council of Europe. Ultimately, though, the Court deferred the factual point about the discovery of the statue and its status as part of the national heritage to the Italian judiciary.

Even if the limit was lawful and pursuant to the public interest, it still must meet the test of proportionality. Here the Court ultimately asked whether a fair balance had been achieved between the purpose of the limit and the actual infringement of the right. In doing so, 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 eventual action taken by the state of origin (in 2007). Italy’s delay in bringing that action (30 years) was not held to create a legitimate expectation favouring the status quo: the Getty should have realised that a confiscation order was at least possible in the foreseeable future… In any event, the Court excused Italy’s delay: Italy was at the time operating in a legal vacuum when it came to international repatriation efforts. That notion – the effect of a past ‘legal vacuum’ – was tantalisingly mentioned by the Court, but given no further explanation.

The conclusion was that, while the Getty’s right under Article 1 was triggered, the infringement by Italy was justified. It was considered a lawful limit pursuant to a clear public interest around protecting cultural heritage that was ultimately proportional, achieving a fair balance due to the Getty’s (alleged) lack of due diligence in 1977 and the (accepted) excuses for Italy’s delay in bringing the case.

It nevertheless remains unclear what will come of the Italian proceedings and the European Court’s recent affirmation. Neither decision has jurisdictional effect in the US and any letter of request from Italy would still be heavily scrutinised (and possibly rejected) by US authorities. Of course this latest development may provide added weight to such a request, an international stamp of approval on the Italian courts’ earlier determination. We also know that the California Attorney’s office and Homeland Security are not impervious to out-of-jurisdiction requests in relation to allegedly looted property.

But there remain confusing elements in the European Court’s decision. The Court seemed to brush aside some of the more problematic aspects of the confiscation order: firstly that it was made 40 years after the initial criminal case (which had ended in acquittal) and 30 years since the Getty’s known acquisition of the statue; secondly that it sought to compel an out-of-jurisdiction possessor to return property held for many years, a seeming disregard for private international law rules. The assumption made by the Court that other states don’t impose time limits on recovery needs further explanation. And the casual dismissal of the principle that orders of this nature cannot by their nature have extra-territorial application as ‘academic’ is surprising: a lack of cited case law may be explained by the simple fact that the point is such an obvious one. And then there are the factual disputes around the discovery itself and whether it could reasonably be held to have taken place on ‘Italian’ territory – a matter that was perhaps too swiftly deferred to the determination of Italy’s own courts.

And is it right to demand a modern due diligence approach for an acquisition that occurred in 1977? It seems the European Court accepted the Italian courts’ conclusion, which was to set aside an acquisition latterly regarded as faulty. Here the Court strayed into ethical territory. Of course the continuing possession of a thing acquired in a manner determined to be wrongful by today’s standards places ethical pressure on a possessor to ‘do the right thing’. But should it impart a legal duty? That’s a difficult ask, and it’s hard to see the basis by which the courts did so here.

For these reasons, the recent decision by the European Court of Human Rights can be seen as ground-breaking, progressive and utterly surprising – but also rather problematic. Many of the weighty questions it sought to address remain at least partly unanswered.

Image Credits:

Dave and Margie Hill, Victorious Youth, 300-100 BCE, 2010, CC 2.0 via Wikimedia Commons.

Statue of a Victorious Youth, front, public domain via Wikimedia Commons.