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Case Review: Getty v. Italy (2024)

July 24, 2024

screen shot from Getty museum website with an antiquities sculpture

By Livia Solaro

While cultural heritage disputes have often proved heralds of international tensions, very few cases have caused quite the stir as the one revolving around Victorious Youth, a rare example of a life-size bronze statue from the classical Greek period. After sinking in the Adriatic Sea during its transportation, the statue remained on the seabed for around two millennia until, in the 1960s, Italian fishermen inadvertently fished it from the waters off the Marche region of Italy.^{^[1]} The J. Paul Getty Museum eventually acquired it, and the bronze has been on display in Los Angeles since 1978.^{^[2]} The controversies surrounding its rightful ownership, however, did not fade over time. Over the decades, the Italian authorities repeatedly requested the restitution of the bronze, which they considered part of their national cultural heritage.^{^[3]} As the decades went by, even the name of the statue became heavily politicized with some referring to it as “the Getty bronze,” and others as “the Athlete of Fano” (from the Italian city it was brought to after its initial retrieval).^{^[4]}

The legal and diplomatic crescendo building around Victorious Youth found its (temporary?) climax in the litigation before the European Court of Human Rights (ECtHR), which reached a verdict in May.^{^[5]} In the latest development of this restitution saga, the ECtHR rejected the Getty’s appeal of a 2019 confiscation order issued by the Italian courts.^{^[6]} According to the Getty Trust, the order – and, consequently, the Italian State – had violated Art. 1 Protocol 1 of the European Convention on Human Rights, which sanctions the right to the peaceful enjoyment of one’s possessions.^{^[7]} More specifically, the appeal argued that the legal basis for the confiscation order lacked foreseeability, pursued an illegitimate aim, and put an excessive burden on the Museum. The ECtHR however deemed that, while constituting a prima facie violation of Art. 1 Protocol 1 of the Convention, the confiscation order was justified by the overarching need to ensure the process of restitution of cultural property.

The Facts

The discovery of Victorious Youth dates back to 1964, when a group of Italian fishermen accidentally caught it in their nets off the coast of Pedaso (a village located in the Marche region). Instead of reporting the finding to Italian authorities, as required by the Italian cultural heritage law,^{^[8]} the fishermen privately sold the statue. All traces of Victorious Youth were then lost until 1972, when the statue resurfaced in Munich, Germany. Soon afterwards, the Getty Trust entered into negotiations to acquire the bronze, and finally purchased it in 1977.^{^[9]} Victorious Youth arrived in Malibu, California in 1978.^{^[10]}

The restitution attempts by the Italian government

The Italian authorities first tried to retrieve Victorious Youth when it reappeared on the market. In 1973, the Italian Ministry of the Interior reached out to the Munich police, asking for their cooperation to stop the statue from being resold. The German authorities, however, discontinued all investigations less than a month after the request. The following year, an Italian prosecutor issued a second request for cooperation with the German authorities, but this was also met with a similar fate. After the Getty Trust acquired the bronze, the Italian customs authorities contacted Interpol, asking to verify whether Victorious Youth had legitimately entered the US territory. The ensuing investigation excluded any violation of US customs law. That same year, another Italian public prosecutor sent a request for judicial assistance, asking US authorities to seize the bronze directly. While this was not admissible, the response clarified that the Italian authorities could potentially initiate legal proceedings for the restitution of Victorious Youth before a US judge; they never did. At this point, restitution efforts transferred to a political and diplomatic level, with members of the Italian Ministry for Cultural and Environmental Heritage and of the Italian Ministry of Foreign Affairs contacting the Getty Museum in 1982, 1989 and 1995, urging the restitution of the bronze on moral and ethical grounds. The Getty Museum dismissed these requests.

The Italian legal proceedings

Between 1966 and 1970, a first set of criminal proceedings took place in Italy, as the people suspected of having received and handled Victorious Youth faced accusations of fencing cultural property that belonged to the State.^{^[11]} The defendants were acquitted, due to a lack of evidence that Victorious Youth even existed (let alone that it was found in Italian waters). Following the bronze’s reappearance in Germany, new investigations focused on its possible illicit export from Italy.^{^[12]} These were also dismissed in 1976, as the perpetrators remained unknown. Then, only a few months after the Getty Trust acquired the bronze, a group of fishermen confirmed to the Carabinieri that they had found the statue while fishing “a few miles off the Italian coast”.^{^[13]} Once again, investigations ceased as the perpetrators remained unknown. Thirty years later, in 2007, the court of Pesaro opened new criminal proceedings based on newly emerged information. While the criminal charges were dismissed due to the crimes being time-barred, the prosecutor still requested the Pesaro judge to issue a confiscation order for the bronze, based on Italian cultural heritage law.^{^[14]} While the Getty Trust opposed this order, in 2019 the Court of Cassation confirmed it, thus making it final under Italian law.^{^[15]}

Legal Issues and the ECtHR Judgement

In order to obtain the actual return of the statue, the Pesaro prosecutor had to seek the recognition and enforcement of the confiscation order from a Los Angeles court, pursuant to the Treaty of Mutual Assistance in Criminal Matters between Italy and the United States of America. With the procedure still pending, the Getty Trust lodged its complaint with the ECtHR, lamenting a violation of Art. 1 Protocol 1 of the Convention.

Employing a balancing test,^{^[16]} the ECtHR first considered whether the measure in question amounted to a prima facie violation of the Convention (in this case, of its First Protocol). It then went into the analysis of whether such violation was justified by the competing interests and rights at stake in the case at hand. In doing so, the Court touched on a series of questions that are at the very heart of cultural property disputes. Furthermore, it provided new insights into the potential extra-territorial reach of national cultural heritage laws, and the international circulation of domestic restitution orders.

The confiscation order’s interference with Art. 1 Protocol 1

The first step of the ECtHR’s analysis required the assessment of whether the Getty Trust could claim a proprietary interest in Victorious Youth in the first place and whether the confiscation measure could interfere with such right.

In this regard, two distinct features of the Getty complaint before the ECtHR should be considered. It is important to keep in mind that Art. 1 Protocol 1 codifies an autonomous concept of “possessions” that does not correspond to a traditional understanding of ownership. Accordingly, the ECtHR did not have to adjudicate which party held an actual proprietary right to the statue.^{^[17]} This allowed the Court to bypass all the – rather thorny – questions of choice of law, which typically plague cultural property disputes.^{^[18]} In this case, for example, the ECtHR found that, after forty years of continuous possession, the Getty Museum had acquired a fair expectation in the “peaceful enjoyment” of the statue. In particular, the domestic legal proceedings that took place during this time had never directly questioned the Getty Museum’s entitlement to the statue, as they had focused on the criminal liability of the direct perpetrators. According to the ECtHR, this had also contributed to the creation of a proprietary interest upon the Museum.

Whether the confiscation order represented an interference with Art. 1 Protocol 1 became the subject for further discussion. In this case, in particular, not only had the measure been issued by a foreign court, but was also not yet recognized as enforceable by the domestic authorities.The interference with the Getty Museum’s interests thus remained somewhat hypothetical. However, the ECtHR adopted a commendably pragmatic approach on this point. First, the Getty had already suffered some consequences from the confiscation order. For one, it had to cancel plans to loan the Victorious Youth for an exhibition in Florence out of fears the statue would be seized by Italian authorities.^{^[19]} Second, previous case law had already extended the Protocol’s protection to applicants who could prove it was likely that a future violation would affect them. Considering the existing framework for the mutual recognition and enforcement of criminal decisions, the ECtHR decided to shift the burden of proof on the defendant. The Italian government, in turn, failed to provide specific and convincing evidence that its request would likely be dismissed by the US authorities. Finally, the fact that the material enforcement of the measure would be carried out by the US forces did not exclude nor alter the fact that the confiscation itself was attributable to Italy.

Accordingly, the ECtHR found that from the very moment the Italian judge had adopted the confiscation order, the Getty Museum’s proprietary interest in Victorious Youth had been violated. The second part of the judgment then focused on whether such violation was justified by the unique qualities of the property in question, the peculiarities of its discovery, or the Italian State’s interest in preserving the integrity of its cultural patrimony.

Justification of the interference in the case of cultural heritage

For an interference with the Convention to be justified, it needs to be lawful, in pursuit of the public interest, and proportional to its aim. The ECtHR set the scene for this analysis by highlighting that cultural property disputes unfold against a specific background — namely, the development of an international framework for the recovery of stolen and unlawfully exported cultural goods, as well as the custom ary acceptance of States’ discretionary regulation of their own cultural heritage. The standards applicable to cultural property cases thus need to be interpreted in light of the globally recognized values that have developed through the adoption of a body of ad hoc conventions.^{^[20]} In this context, the possibility to question the national legislators’ choices concerning cultural goods is significantly limited, if not completely excluded. This is perfectly illustrated by the ECtHR’s evaluation of the fundamental questions that needed to be answered when deciding if the confiscation order for Victorious Youth was justified or not.

Victorious Youth and the Italian Cultural Heritage

Perhaps the most controversial question the ECtHR had to address concerned whether Victorious Youth – a statue attributed to Lysippos, a Greek sculptor – belonged to the Italian cultural heritage or not. A confiscation order aimed at restoring the integrity of the Italian cultural patrimony, in fact, would be considered to be in the public interest. According to the Getty Trust, the only ties the bronze had with the Italian State came from its brief transit through the national territory, at the time of its initial discovery in the 1960s. The Italian authorities, on the contrary, consider the statue strongly linked to their national cultural heritage, pointing to a sort of intellectual and spiritual “continuum” between the Greek and Roman cultures.^{^[21]} They further hypothesize that the bronze’s intended destination and/or its place of manufacture had to be on the Italian coast, considering the proximity to the uncertain place of discovery.^{^[22]}

In line with the spirit of the international system for protecting cultural property, the ECtHR approached this question from a markedly nationalistic perspective.^{^[23]} While mentioning en passant the need to effectively facilitate public access to works of art, it completely ignored the Getty Museum’s attempt to bring attention to the issue of the accessibility of the bronze. On the contrary, it limited the scope of its analysis to the application by the Court of Cassation of the relevant law, under the assumption that its aim remained legitimate for the purposes of the Convention.

According to Italian cultural heritage law, the “patrimonio culturale” (cultural patrimony) consists of objects of artistic, historic, archeological or ethno-anthropological interest located within the national borders.^{^[24]} If they belong to the State, they are automatically part of the national cultural heritage; if they belong to private parties, their entry into the cultural heritage follows an administrative procedure regulated by law.^{^[25]} When such goods are found underground or on the seabed (either by private or public parties), they are considered property of the State, and immediately enter into the national cultural heritage.^{^[26]} Whether the statue had been found in Italian territorial waters or on the high seas, however, was never conclusively ascertained. To address this point, the Italian courts had adopted an interpretative strategy according to which the bronze was technically found on Italian soil, because it had been discovered by a ship flying the Italian flag that, outside territorial waters, represented the Italian territory.^{^[27]} Consequently, the statue belonged to the State and to the national cultural heritage.

When confronted with this interpretative argument, the ECtHR found it not “manifestly arbitrary or unreasonable” under customary international law and the relevant international treaties.^{^[28]} State ownership of Victorious Youth, however, was not deemed necessary to justify the adoption of the confiscation order. The national cultural heritage law in fact also provided for a blanket ban on all exports of cultural goods (whether publicly or privately owned), unless authorized by the national authorities according to a standard procedure. The mere passage of the statue on Italian soil, therefore, qualified Victorious Youth as an illicitly exported cultural object, thus justifying the State’s actions aimed at its recovery. This ultimately turned the controversy into a case of illicit export of cultural property.^{^[29]}

The passage of time

The second crucial question presented by this case revolved around the impact that the passage of time might have had on the legitimacy of the confiscation order. The legal proceedings leading to the adoption of this measure took place thirty years after the Getty Museum’s initial purchase, giving rise to a series of issues concerning the timeliness of the Italian State’s action and its legal consequences.

The first controversial point was the fact that, at the time of the adoption of the confiscation order, the underlying criminal offense was time-barred.^{^[30]} Instead of viewing this as an issue, the ECtHR accepted the Italian argument that such decoupling is justified in restitution cases, where the confiscation bears a restorative rather than punitive function. In these situations, the measure does not target the individuals responsible for the initial criminal offense, but rather the objects themselves. From this perspective, even if the order in question was adopted in the context of criminal proceedings, it had civil (administrative) effects; a criminal conviction was therefore not a prerequisite for its adoption.^{^[31]}

The second issue identified by the Getty Trust with the Italian approach was that the provision in question did not contain any specific limitation period, allowing a confiscation order to be adopted indefinitely after the illicit export. Here, too, the nature of the targeted good informed the Court’s review: the legal uncertainty that inevitably stems from the lack of a clear limitation period was in fact justified by the “unique and irreplaceable object” the measure aimed to recover. In fact, according to the ECtHR, such an approach was “a distinctive feature of several countries.” Taking this into account, the Italian law’s disregard for the passage of time, by itself, did not render the measure in question unlawful.^{^[32]}

The third issue connected to the passage of time was that the forty years that had lapsed between the Getty’s acquisition and the confiscation order seemed at odds with the principle of “good governance”, which required public authorities to act in good time. Italy’s constant attempts to retrieve Victorious Youth, however, excluded any profiles of negligence on its part. The ECtHR’s review of the Italian State’s conduct focused on the number and consistency of the relevant initiatives: from requests of judicial cooperation, through numerous sets of investigations, to insistent diplomatic attempts to establish a dialogue with the Getty Museum, the Italian authorities’ intention to retrieve Victorious Youth had never waived. However, the Court did not question the effectiveness of such initiatives, and whether more efficient alternatives had been neglected. For one, in thirty years the Italian authorities failed to bring their case before US courts, as explicitly recommended by the US Secretary of State. They had also failed to justify why the proceedings that led to the confiscation order had only been initiated in 2007. Nonetheless, these considerations were absorbed by what the ECtHR identified as the main obstacle to the return of Victorious Youth: namely, the “legal vacuum” in which the Italian authorities had to operate. In the Court’s view, the absence of an international framework of restitution within which the Italian State could operate explained the latter’s continuous failures to retrieve the bronze.

Due diligence and compensation

The third crucial point of this adjudication revolved around the evaluation of the Getty Trust’s level of due diligence at the time it acquired Victorious Youth. Restitution requests brought within the international framework created by the 1970 UNESCO Convention and the 1995 UNIDROIT Convention entail the compensation of innocent possessors if they can prove to have implemented the appropriate due diligence at the time of the purchase.^{^[33]} As the confiscation order at issue was adopted outside such a framework, it did not provide for any indemnification. In light of this, the Getty Museum argued the Italian measure was excessively burdensome (as Victorious Youth was acquired by the Getty Trust for $ 3,950,000, and is currently valued at $16,000,000).^{^[34]}

To properly consider this claim, it is important to look at the Italian cultural heritage legislation at the base of the confiscation order.^{^[35]} The relevant provision grants full protection to bona fide possessors by outright excluding them from its application.^{^[36]} This means that no confiscation order can be issued against a “person not involved in the criminal offense”.^{^[37]} Over time, however, domestic courts have applied a rather restrictive interpretation to this exception, clarifying that people who have profited from the crime, either knowingly or because of their negligence, will also be considered as being “involved in the criminal offense” and, consequently, subject to confiscation. From this perspective, while there is no doubt that the Getty Museum did not participate in the illicit appropriation and export of Victorious Youth, it is also clear that they have profited by gaining possession of the statue. Furthermore, while the Getty representatives might not have known at the time of the acquisition that the statue had been exported from Italy in violation of its national law, they were very much aware of issues concerning its provenance. This was reportedly an element of discussion during the negotiations.^{^[38]} In light of this, the ECtHR qualified the Getty Trust’s conduct as “negligent, if not in bad faith”.^{^[39]}

With specific regard to the Getty’s due diligence, the Court considered how, instead of engaging in an expert assessment of the bronze’s provenance or contacting the Italian authorities, the Getty representatives relied solely on the legal advice of the vendor’s experts. The vendor’s experts, although professionals of the sector, could not be exempt from the possibility of being biased in favor of their employer. Their opinion should have therefore been corroborated by that of independent experts. The Getty Trust also claimed to have relied on the 1970 acquittal of the individuals accused of fencing the statue as proof of clear title. This argument also failed because the Italian ruling was based on a lack of evidence and did not exclude the possibility that a violation of Italian law had indeed occurred. Thus, all considered, the elements the Getty Trust had relied upon did not meet the “high standard of diligence” required by the specificities of the transaction. In light of these faults, the ECtHR concluded that the Getty Trust had implicitly accepted the risk of confiscation without compensation.^{^[40]} In other words, even if the Museum had acquired a legitimate interest in the peaceful enjoyment of the statue, thanks to its prolonged possession thereof, it had not developed a legitimate expectation of retention.

Comment and Analysis of the Case

While the Getty v Italy ruling marks a crucial development in the debate over Victorious Youth, it does not represent the end of this legal battle. For one, the Getty Trust retains three months from the publication of the ruling to lodge an appeal.^{^[41]} More importantly, the process of recognizing and enforcing the confiscation order in the US is still pending. According to the Treaty of Mutual Assistance in Criminal Matters between the US and Italy,^{^[42]} before the measure can be carried out by the local authorities, the competent domestic court first needs to assess whether the request is admissible under US law. According to the dual forfeiture requirement, this will only be the case if, under the same circumstances, a US court would have also adopted an order of forfeiture.^{^[43]} This might indeed be the case here under the National Stolen Property Act (whose application has often led to the restitution of cultural goods illicitly exported from foreign countries).^{^[44]} According to this Act, however, the US judge would have to assess whether Victorious Youth could be considered stolen according to the forum’s own standards.^{^[45]} Considering the peculiar circumstances of the bronze’s discovery (and, in particular, the lack of conclusive evidence that this occurred in Italian territorial waters), this might still prove a rather controversial point.

Nonetheless, the ECtHR’s ruling highlights certain aspects of cultural heritage disputes that offer an interesting insight into the evolution of these kinds of controversies. Against the exponential growth of global awareness around the process of restitution, the Getty case functions as an important reminder that diplomatic and informal channels might still fail to reach an amicable solution, even when the claimant is a sovereign State.^{^[46]} In these cases, domestic courts and national heritage laws play a fundamental role in adjudicating opposing claims, especially in light of the numerous limitations inherent to the relevant international framework. On this point, the decision under analysis appears a bit confusing in the passage where the ECtHR attempted to draw a distinction between the situation at the time of the Getty purchase and the present one. While it is true that, since 1977, a number of international instruments have been introduced on the matter, they are nevertheless not applicable to the case at hand, as they are not binding on the US.^{^[47]} Yet, the ECtHR put great emphasis on the “legal vacuum” within which the Italian State was forced to act. This justified the downgrading of the delays in pursuing restitution of the bronze to excusable, “occasional mistakes”.^{^[48]} However, had the purchase occurred today, the Italian authorities would find themselves in approximately the same situation; it remains unclear whether their conduct would be judged equally leniently or not.

In addressing the profiles of negligence on the part of the Italian State, the ECtHR explicitly distinguished the Getty case from its previous Beyeler decision.^{^[49]} This latter case also involved the Italian State in the role of the defendant for an alleged violation of Art. 1 Protocol 1, in connection to the sale of a work of art. Crucially, in Beyeler the Italian authorities’ delay in taking action had proved advantageous to them, resulting in a form of unjust enrichment.^{^[50]} Here, on the contrary, no advantage was enjoyed by the Italian State in connection to its failure to take certain steps in due time. In the assessment of the public authorities’ diligence in pursuing the return of their cultural heritage, therefore, the ECtHR will not really consider the appropriateness of their chosen course of action but rather focus on the resulting practical effects (also as an indication of the intentions behind it).

The Getty ruling followed closely – if implicitly – the Beyeler precedent on the separate issue of the requirements for works of art to be considered part of a State’s cultural heritage. In Beyeler, the artwork at the center of the controversy was Van Gogh’s The Gardener; this triggered the question of whether a painting realized in France by a Dutch artist could be recognized as part of the Italian cultural heritage, thus justifying the State’s prerogative to exercise some control over its sale. The answer, in that case, was pretty much the same one the Getty Trust received when it questioned the Italian ties with Victorious Youth: States enjoy ample discretion in establishing what belongs to their cultural heritage. Forms of control of the art market – such as export restrictions, or a right of preemption – are generally to be regarded as legitimate measures for the protection of such cultural heritage.^{^[51]} Interestingly, in Beyeler the ECtHR also hinted at the possibility that a deeper inquiry into this issue might be warranted when one of the actors claims to be the State of origin of the contested cultural good.^{^[52]} In other words, were Greece to enter the debate over Victorious Youth, the Italian claim to the bronze might be severely affected. On the contrary, issues of accessibility do not seem to affect the legitimacy of a State’s claim on cultural objects. In this case, for example, the ECtHR completely ignored the Getty’s attempt to highlight how the bronze’s presence in Malibu ensured its enjoyment by a larger public, also in light of the philanthropic nature of this institution. In practice, universalistic arguments bear very little consequence on the adjudication of restitution claims.

The Getty decision also functions as an indicator of the standard of due diligence by which purchasers of artworks are required to abide. Since the ECtHR did not apply any national laws, its conclusions on this issue primarily relied on the development, at the international level, of some consensus over what should be the appropriate conduct for an acquirer of a major piece of art such as Victorious Youth. The Court explicitly referenced the 1995 Unidroit Convention, as well as the Directive 2014/60/EU, that provide some criteria to consider in this assessment. However, both instruments were adopted well after the Getty Trust’s purchase of the bronze. Furthermore, most of the Italian case law cited by the ECtHR, when discussing the conditions under which negligent third parties may be targeted by a confiscation order, was also subsequent to the acquisition of the statue.^{^[53]} Conclusive evidence that Victorious Youth had been present at some point on Italian soil too had only emerged after the sale. While the concept of due diligence as a necessary benchmark for legitimate art transactions had already been established in 1977, the way the ECtHR framed it in the Getty ruling seems to retroactively impose a standard that has been developed and refined after the relevant events took place. According to the Court’s view, the mere suspicion that the bronze might have been illicitly exported from Italy should have triggered a more accurate and neutral research on the part of the Getty, which should have contacted the Italian authorities (albeit one could argue that the latter might have also been as inherently biased as the seller’s lawyers). In other words, actors in the global art market should abide by a sort of precautionary principle.^{^[54]}

A final element emerging from the Getty decision is that confiscation orders and/or forfeiture actions premised on criminal offenses have proved rather handy tools for the public authorities to pursue restitution. In this regard, the ECtHR also confirms that the restorative quality of restitution endeavors justifies the decoupling of these instruments from the formal and definitive assessment of the underlying criminal liability, thus sanctioning their “hybrid” nature.^{^[55]} In this sense, the decision under analysis supports the Italian judge’s evaluation of confiscation as a “fragmented archipelagos” of different measures, whose natures and characteristics vary depending on their specific goals.^{^[56]} The international convergence on this point, highlighted by the Getty decision, bears two fundamental – and connected – consequences. First, the reach of domestic cultural heritage laws is significantly expanded, as confiscation orders are more likely to be recognized and enforced by foreign courts that share a similar understanding of the use and nature of such instruments. Second, the domestic fora of the requesting State regain centrality in the restitution process: once the circulation of decisions concerning the entitlement to cultural goods is (more) likely, it is not necessary to pursue restitution before the courts of the place where the object is physically located. This evolution might contribute to bringing restitution disputes “home,” as such claims may be disputed before the courts of the cultural objects’ countries of origin, instead of those of market nations.

Select Sources:

For a full account of the story of Victorious Youth, see Jessica Clementi, Mariateresa Curcio and Rachele Dubbini (eds), Un Atleta Venuto Dal Mare. Criticità e Prospettive Di Un Ritorno (‘L’Erma’ di Bretschneider 2023). ↑
As reported on the Getty Museum’s website: see <file:///C:/Users/p70076838/Zotero/storage/KLRFIC35/103QSX.html> (last accessed: 8 July 2024). ↑
Alessandro Chechi, Raphael Contel and Marc-André Renold, ‘Victorious Youth – Italy v. J. Paul Getty Museum’ (Platform ArThemis, Art-Law Centre, University of Geneva) <https://plone.unige.ch/art-adr/cases-affaires/victorious-youth-2013-italy-v-j-paul-getty-museum> (last accessed 8 July 2024). ↑
The politicization of names is indeed a distinctive trait of cultural property disputes: the Elgin or Parthenon marbles offer the most famous example of such phenomenon. ↑
Case of the J. Paul Getty Trust and Others v. Italy, 35271/19, Judgment 2.5.2024, ECLI:CE:ECHR:2024:0502JUD003527119. It should be noted that, according to Article 44 §2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the Getty Trust has three months after the date of the judgment to lodge an appeal. ↑
The order was adopted by the Tribunale di Pesaro (Tribunale sez. uff. indagini prel. – Pesaro, 10/02/2011), and confirmed by the Court of Cassation (Corte di cassazione penale, sez. III, 2/1/2019, Sentenza n. 22). “Confiscation” and “forfeiture” will be used interchangeably here; it should be noted that the ECtHR used mainly the term “confiscation”, as this is closer to the Italian word confisca. ↑
The full text of this Article states: “[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”. The Convention and its protocols can be found at <https://www.coe.int/en/web/conventions/full-list?module=treaty-detail&treatynum=005> (last accessed: 8 July 2024). ↑
See Art. 48 of the cultural heritage legislation applicable at that time, Legge 1 giugno 1939, n. 1089 (now transposed into Art. 90 of Decreto Legislativo 22 gennaio 2004, n. 42). For the full texts of both laws, see respectively: <https://www.normattiva.it/atto/caricaDettaglioAtto?atto.dataPubblicazioneGazzetta=1939-08-08&atto.codiceRedazionale=039U1089&tipoDettaglio=originario&qId> and <https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2004-01-22;42> (last accessed: 8 July 2024). ↑
Case of the J. Paul Getty Trust and Others v. Italy, par. 23-37. ↑
Ibid., par. 38. ↑
According to Art. 67 of Legge 1 giugno 1939, n. 1089, the appropriation of fortuitously discovered cultural goods is considered and punished as theft. ↑
In violation of Art. 66 of Legge 1 giugno 1939, n. 1089, which established a fine and the mandatory confiscation of the exported good. ↑
Arma dei Carabinieri is the Italian national gendarmerie. Since 1969, a special unit – the Comando Carabinieri Tutela Patrimonio Culturale – has been created, with the specific task of protecting the Italian cultural heritage. For more information on this unit, visit <https://www.carabinieri.it/chi-siamo/oggi/organizzazione/mobile-e-speciale/comando-carabinieri-per-la-tutela-del-patrimonio-culturale> (last accessed: 8 July 2024). ↑
The cultural heritage legislation in force at the time of the illicit export (Legge 1 giugno 1939, n. 1089) was supplanted, in 2004, by the one currently in force (Decreto Legislativo 22 gennaio 2004, n. 42). Art. 66 of the 1939 law, which required the confiscation of illicitly exported cultural goods, was transposed and adapted into Art. 174 of the 2004 law, invoked here. In 2022, the Italian legislator created a specific title within the Criminal Code dedicated to the offences against cultural goods; in this context, Art. 174 was further transposed into Art. 518-duodevicies of the Criminal Code (Codice Penale). ↑
Corte di cassazione penale, sez. III, 2/1/2019, Sentenza n. 22. ↑
For more information about the ECtHR’s use of balancing, see the Oxford Public International Law Encyclopedia at<https://opil.ouplaw.com/display/10.1093/law-mpeipro/e3426.013.3426/law-mpeipro-e3426> (last accessed: 8 July 2024). ↑
The exclusion of a strict property law question may give current holders of contested goods a new fighting chance, especially where national laws exclude a proprietary entitlement even to long-time possessors. In common law jurisdictions, for example, the demo dat rule excludes the possibility to legitimately acquire stolen goods. Moreover, certain jurisdictions consider goods that belong to the State inalienable, thus regarding their acquisition by other parties as void (see, for example, Arts. 53-54 of Decreto Legislativo 22 gennaio 2004, n. 42). ↑
In this case, for example, the statue had remained in California for forty years when the case arrived before the ECtHR; initially, however, it had been exported in violation of Italian law; and while the bronze was acquired in Germany, the contract of sale had been concluded in the United Kingdom. On this topic, see: Patricia Youngblood Reyhan, ‘A Chaotic Palette: Conflict of Laws in Litigation Between Original Owners and Good-Faith Purchasers of Stolen Art’ (2001) 50 Duke Law Journal 955; Symeon C Symeonides, ‘A Choice-of-Law Rule for Conflicts Involving Stolen Cultural Property’ (2005) 38 Vanderbilt Journal of Transnational Law 1177; Monique Lee, ‘A Choice of Law Dilemma: The Conflict and Reconciliation of Laws Governing Cross-Border Transfers of Stolen Art’ (2009) 7 Cardozo Public Law, Policy, and Ethics Journal 719; Christa Roodt, ‘Restitution: Complexities and Opportunities Introduced by Private International Law’, Private International Law, Art and Cultural Heritage (Edward Elgar Publishing 2015) <https://china.elgaronline.com/view/9781781002155.xml> (last accessed: 8 July 2024); Tamás Szabados, ‘In Search of the Holy Grail of the Conflict of Laws of Cultural Property: Recent Trends in European Private International Law Codifications’ (2020) 27 International Journal of Cultural Property 323. ↑
The ECtHR did not really consider the alleged reputational damages lamented by the Getty Trust (see Case of the J. Paul Getty Trust and Others v. Italy, par. 222), which therefore seem to not bear much relevance on the issue at hand. ↑
See note 28. ↑
Corte di cassazione penale, sez. III, 2/1/2019, Sentenza n. 22, par. 18.3. ↑
Ibid. ↑
See, by way of example, Case of the J. Paul Getty Trust and Others v. Italy, par. 340-341. As for the distinction between cultural nationalism and internationalism, see John Henry Merryman, ‘Two Ways of Thinking about Cultural Property’ (1986) 80 American Journal of International Law 831. From this perspective, the Getty’s argument that– based on the available evidence – Victorious Youth did not fall under the basic definition of cultural heritage provided by Art. 4 of the 1970 UNESCO Convention Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (see par. 327) could only be but rejected. Firstly, the Italian restitution claim was not based on the text of the Convention; secondly, the UNESCO Convention, as well as the subsequent UNIDROIT Convention, and the EU instruments regulating the circulation and restitution of cultural goods, all adopt an approach to the definition of cultural heritage that is extensively deferential to the domestic legislation of the State parties. In this sense, Art. 4 provides only a “basic standard” for objects that should always be considered part of the cultural heritage. ↑
Art. 10 Decreto Legislativo 22 gennaio 2004, n. 42. ↑
This procedure is outlined by Art. 13 Decreto Legislativo 22 gennaio 2004, n. 42. ↑
Art. 91 Decreto Legislativo 22 gennaio 2004, n. 42. ↑
Art 4 Codice della navigazione, Regio Decreto 30 marzo 1942, n. 327, available at <https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:regio.decreto:1942-03-30;327!vig=2023-01-24> (last accessed: 8 July 2024). ↑
Case of the J. Paul Getty Trust and Others v. Italy, par. 351. In particular, the ECtHR referred to the European Convention on the Protection of the Archaeological Heritage, available at <https://www.coe.int/en/web/culture-and-heritage/valletta-convention> (last accessed: 8 July 2024); the United Nations Convention on the Law of the Sea, available at <https://www.un.org/depts/los/convention_agreements/convention_overview_convention.htm> (last accessed: 8 July 2024); the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, available at <https://www.unesco.org/en/node/66148?hub=416> (last accessed: 8 July 2024); and the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage, available at <https://www.unesco.org/en/legal-affairs/convention-protection-underwater-cultural-heritage?hub=412> (last accessed: 8 July 2024). ↑
As observed by Judge Wojtyczek in par. 2 of his partly dissenting, partly concurring opinion. ↑
Art 518-duodevicies Codice Penale, which was introduced by the Italian legislator in 2022 (see note 9), currently clarifies that a confiscation order can be issued also when the action targeting the underlying offense is time-barred. The provision in place before the 2022 reform, on the contrary, did not explicitly address this point, which was therefore left to the courts’ interpretation. ↑
However, some additional conditions need to be fulfilled, as observed by the Court. A criminal conviction or a finding of guilt are not required, “provided that the fact of the unlawfully acquired possession has been objectively ascertained […], and that the persons concerned have had the right to present their arguments before the competent authorities”; see Case of the J. Paul Getty Trust and Others v. Italy, par. 313. ↑
It is important to keep in mind that, in the context of the ECtHR’s balancing test, such delay might still render the measure disproportionate, as the Court further considered at pars. 391- 400 of the ruling. ↑
See Art. 7(b)(ii) of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, available at <https://www.unesco.org/en/node/66148?hub=416> (last accessed: 8 July 2024), and Art. 6 of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, available at <https://www.unidroit.org/instruments/cultural-property/1995-convention/> (last accessed: 8 July 2024). ↑
James Imam, ‘Italy Passes Restitution Resolution amid Renewed Calls for Return of the “Victorious Youth” Bronze from Getty Museum’ (The Art Newspaper – International art news and events, 19 July 2021) <https://www.theartnewspaper.com/2021/07/19/italy-passes-restitution-resolution-amid-renewed-calls-for-return-of-the-victorious-youth-bronze-from-getty-museum> (last accessed: 8 July 2024). ↑
See note 14. ↑
According to Art. 174(3) Decreto Legislativo 22 gennaio 2004, n. 42, now replaced by Art Art. 518-duodevicies Codice Penale. ↑
Id. ↑
The correspondence between the Getty representatives and the Munich seller mentioned “some possible legal complications” in connection to its unclear provenance; see Case of the J. Paul Getty Trust and Others v. Italy, par. 24. ↑
Ibid., par. 390. ↑
Ibid., par. 404. ↑
In force of Article 44 §2 of the ECHR. As the decision was published on the 2^nd of May 2024, the term to bring an appeal will lapse in August 2024. ↑
Italy (85-1113) – Treaty on Mutual Legal Assistance in Criminal Matters between the united States of America and Italy, Signed at Rome November 9, 1982. The full text of the Treaty is available at <https://www.state.gov/85-1113/> (last accessed: 8 July 2024). ↑
Derek Fincham, ‘Transnational Forfeiture of the Getty Bronze’ (2014) 32 Cardozo Arts & Entertainment Law Journal, p. 489. ↑
National Stolen Property Act, U.S. Code Title 18 – Crimes and Criminal Procedure, Sections 2314 and 2315. This Act was first applied to a case concerning illicitly exported cultural goods in US v Hollinshead [1974] 495 F2d 1154 (United States Court of Appeals, Ninth Circuit). See also US v McClain [1977] 545 F2d 988 (United States Court of Appeals, Fifth Circuit); US v Schultz [2003] 333 F3d 393 (United States Court of Appeals, Second Circuit); US v Davis [2011] 648 F3d 84 (United States Court of Appeals, Second Circuit). ↑
It should be noticed that, starting with US v Turley [1957] 352 US 407 (Supreme Court of the United States), courts have given a rather broad interpretation of the term “stolen” for the purpose of this Act. In US v McClain [1977] 545 F2d 988 (United States Court of Appeals, Fifth Circuit), for example, some pre-Columbian artefacts were considered “stolen” for having been imported in the US in violation of Mexican law vesting the State with ownership of all such objects. The Getty case is however complicated by the circumstances of the discovery of the statue, which might still lead a US court to the conclusion that the Italian State never had a better title to the bronze than the fishermen who actually found it. ↑
In particular, the Getty case illustrates that even within a framework of established diplomatic relationships on cultural matters, such as those existing between Italy and the US (which include the Getty Museum directly, as this institution has already engaged in voluntary restitutions to the Italian State in the past), tensions can still escalate rather quickly. With regards to the Getty’s past voluntary restitutions, see ‘J. Paul Getty Museum to Return 26 Objects to Italy |Getty News’ (21 November 2006) <https://www.getty.edu/news/getty-to-return-26-objects-to-italy/> (last accessed: 8 July 2024); ‘Getty Museum to Return Objects to Italy |Getty News’ (11 August 2022) <https://www.getty.edu/news/getty-museum-to-return-objects-to-italy/> (last accessed: 8 July 2024). ↑
The instruments highlighted by the ECtHR were, in particular, the 1995 UNIDROIT Convention, the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage, Directive 2014/60/EU, and the 2017 Council of Europe Convention on Offences relating to Cultural Property. ↑
Case of the J. Paul Getty Trust and Others v. Italy, par. 400. ↑
Beyeler v. Italy [GC], 33202/96, Judgement 5.1.2000, ECLI:CE:ECHR:2000:0105JUD003320296. ↑
Beyeler v. Italy, par. 121. ↑
The first comments of the Getty representatives after the publication of the ECtHR’s ruling, however, forcefully rejected such conclusion, as they stated that they “believe that Getty’s nearly 50-year public possession of an artwork that was neither created by an Italian artist nor found within the Italian territory is appropriate, ethical and consistent with American and international law”. See Benjamin Sutton, ‘European Court Rules Italy Can Pursue Restitution of Getty Museum’s Prized Greek Bronze’ (The Art Newspaper – International art news and events, 3 May 2024) <https://www.theartnewspaper.com/2024/05/03/european-human-rights-court-italy-getty-museum-victorious-youth> (last accessed: 8 July 2024). ↑
Beyeler v. Italy, par 113. ↑
Case of the J. Paul Getty Trust and Others v. Italy, par. 124. In this regard, at par. 306, the Court seems to be satisfied by the fact that “at the moment of the issuance of the confiscation order, that is, the moment when the interference at stake in the present case took place […] the notion of a “person not involved in the criminal offense” was clearly established under the Italian case-law” (emphasis added). ↑
For a definition of the precautionary principle, see the Oxford Public International Law Encyclopedia at <https://opil-ouplaw-com.mu.idm.oclc.org/display/10.1093/law:epil/9780199231690/law-9780199231690-e1603?rskey=hHYzep&result=1&prd=OPIL> (last accessed: 8 July 2024). ↑
As defined by Jennifer Anglim Kreder, ‘Executive Weapons to Combat Infection of the Art Market’ (2011) 88 Washington University Law Review, p. 1353. ↑
Corte di cassazione penale, sez. III, 2/1/2019, Sentenza n. 22, par. 8.3.2. ↑

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.

Case Review: Getty v. Italy (2024)

The Facts

The restitution attempts by the Italian government

The Italian legal proceedings

Legal Issues and the ECtHR Judgement

The confiscation order’s interference with Art. 1 Protocol 1

Justification of the interference in the case of cultural heritage

Victorious Youth and the Italian Cultural Heritage

The passage of time

Due diligence and compensation

Comment and Analysis of the Case

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