The ups and downs of Turkish repatriation in New York

Posted on: March 24, 2023 by

Alvin Bragg, the Manhattan District Attorney, is a busy man. Not only is he the one deciding whether to bring charges against former President Donald Trump, but he has also been occupied with repatriation events this week. Such handover ceremonies are of course only the final stage in longstanding investigations undertaken by the D.A.’s Antiquities Trafficking Unit (ATU), captained by Assistant D.A. Matthew Bogdanos. In fact, since it was founded in 2017, the ATU has seized more than 4,500 antiquities originating from 28 countries and has repatriated more than half of these (latest numbers in this press release).

The first handover was Tuesday and involved the return of 29 items to Greece, including a bronze calyx krater from 350 BCE and a rare coin of Julius Caesar. Then on Wednesday 12 items were returned to Türkiye, including a bronze statue of Emperor Septimius Severus, a theatre head from Perge (pictured left) and a remarkable Anatolian female figure dating from 6000 to 5000 BCE. Many of the returned pieces had been taken by the D.A. from the collection of the late Leon Levy and his widow Shelby White. The Anatolian piece, for instance, had been purchased by White in London in 1985.

We already know about ‘Bogdanos Rules’ in New York, which have become the scourge of dealers, collectors and museums over the past five years. Of course, Bogdanos and the ATU operate under the laws of New York, which has traditionally been a jurisdiction favourable to the recovery of stolen or misappropriated items from long-time possessors. ‘Once stolen, always stolen’ is the mantra of the ATU, which tends to be underpinned by New York penal law, the National Stolen Property Act and the rules emanating from the state’s Statute of Limitations. In relation to title, New York abides by the common law principle of nemo dat quod non habet (‘no one gives what they do not have’), making the state even more English than the English. While the principle continues to exist under English law, it is often watered down by the operation of the English statute of limitations, the Limitation Act 1980. While in some circumstances Bogdanos can be seen to go a little too far, one cannot dispute that he is capitalising on the legal tools available to him within the state of New York.

How different then was the outcome from another matter earlier this month in the very same state, the decision of the Court of Appeals for the Second Circuit in the matter of the ‘Guennol Stargazer’. This was a civil case brought by Türkiye, though at the time that proceedings commenced in 2017 the country was still calling itself Turkey. The case is Republic of Turkey v. Christie’s Inc, Michael Steinhardt and others, decided on 8 March 2023 by Judges Pooler, Chin and Lohier. We already covered the trial decision in 2021, which resulted in an unfavourable ruling for Turkey in its attempt to reclaim a 6,000 year-old Anatolian ‘Kiliya type’ marble idol, called a ‘stargazer’ because it appears to be gazing up at the skies (pictured below, as reproduced in the Second Circuit decision).

As a reminder, the claim had been brought on the premise advanced by Turkey that the object had been illegally exported from the country at some point after the enactment of its antiquities law of 1906, a law which would have vested title to any newly excavated antiquity in the state. The only problem was that the object was ‘unstratified’, meaning there was no evidence of its findspot, find date or excavation.

What is most helpful about the appeal decision is that it clarified the evidentiary burden in relation to claims for the recovery of property brought in conversion and replevin. While the trial judge had used a ‘preponderance of evidence’ standard, requiring Turkey to prove on a balance of probabilities the likely removal of the idol from Turkish territory after 1906 (at trial, it had failed to do so), the Second Circuit specified that this was the wrong approach. Instead, a court should only require of the plaintiff a ‘threshold showing’ of an ‘arguable claim’, a substantially easier bar for plaintiffs like Turkey to meet. This approach seems logical, as it would otherwise be nearly impossible for a country of origin to prove that a particular object had been the subject of clandestine excavation and removal. That said, the Second Circuit only clarified the appropriate test; it did not come to a particular holding in relation to the Stargazer.

Nevertheless, the claim still failed on the basis of the equitable doctrine of laches (as it had at trial). It was affirmed that Turkey had unreasonably delayed bringing its action which prejudiced the current possessor, here the collector Michael Steinhardt. Like the trial judge, the Second Circuit did not look favourably upon Turkey’s failure to act when the Stargazer and its whereabouts had been widely known: it had been on display at the Metropolitan Museum for over 30 years (1968-1993 and 1999-2007), it had been widely published in academic papers and it had even been written about by the Turkish Ministry of Culture in the 1990s. As stated several times throughout the judgment, Turkey ‘slept on its rights’ or ‘sat on its hands’ for far too long before acting and this caused prejudice to the defendant’s position. An example of this prejudice was the death of certain key witnesses years earlier who, had the claim been brought in a timely fashion, could have explained more about the object’s provenance and how it came to the United States.

Stepping back we see two very different outcomes. Türkiye recovered 12 important artefacts this week, care of D.A. Bragg, Bogdanos and the ATU. And yet it failed in its civil claim for the Stargazer. The ATU operated on the basis that the antiquities it seized were – and continued to be – stolen. It has the resources and manpower to research, investigate and prosecute such cases. But the civil claim brought by the country of origin shows just how hard the legal hurdles can be to overcome, whether in relation to proving title or in defeating the defence of laches. It begs the question whether the criminal and civil rules should be better aligned, as both ultimately relate in such cases to the present ownership of movable property.

It also throws up an intriguing hypothetical: if Turkey had waited before filing its claim for the Guennol Stargazer, would the idol have later been seized by the ATU as ‘stolen’ property? Of course the ATU has seized pieces from Steinhardt in the past and entered into a settlement with him fifteen months ago, resulting in the repatriation of 180 artefacts, so the prospect is not entirely fanciful. In such a scenario, the ATU would have been bringing its vast powers of investigation and enforcement to bear, placing incalculable pressure on the possessor to settle the dispute. Instead, Turkey decided to take matters into its own hands, and it failed. The tantalising lesson for claimant countries therefore appears to be: if someone has your antiquity in New York, don’t call your lawyer – call Bogdanos.