Readers know the long saga of the so-called “Getty Bronze” (otherwise known as the “Victorious Youth” or “Athlete of Fano” or the “Lysippus of Fano”), a bronze statue dating back to the classical Greek period. The statue was discovered off the Italian coast by fishermen in 1964. The Getty bought it in 1977 and it has been on display at the Getty Villa Museum in the US almost continuously since. And it was reported widely in the press that in May 2024 the European Court of Human Rights (“ECHR”) ruled that the Italian Government was entitled to confiscate the statue and return it to Italy.
But what was this case doing in the ECHR anyway, and what exactly was at issue? It might surprise you to know that the Getty was the plaintiff (“applicant”) in the case, and the case concerned whether Italy’s conduct, including its issuance of a letter to the U.S. Government requesting recognition and enforcement of its domestic confiscation order – violated the Getty’s right to “peaceful enjoyment of its possessions” under the European Convention of Human Rights. The court dealt quickly with whether the Getty Trust could claim to be a victim of such a violation, ruling that in fact the Getty was harmed because it could not display the statue in Italy because of the confiscation order, and because Italy’s letter to the U.S. Government would lead to the statue being taken from the Getty. Oddly, Italy argued to the court that the U.S. Government might take no action on its request, and if it did Italy would not be responsible for it. The court rejected these arguments and concluded that the U.S. Government was legally bound to take action, that the Getty would be harmed by such an action, and that Italy could be held responsible because it was the initiating country: “By setting in motion a request for enforcement of the confiscation order, Italy had been under an obligation to ensure that the order was compatible with the Convention.”
The court went on to consider Italy’s claim that the Getty had no proprietary interest in the statue because under Italian cultural heritage law, cultural objects belonging to the state were inalienable. The court rejected that argument, finding that even the Italian courts had recognized that the Getty had “some proprietary interest” in the statue, but that the length of time that had passed between the Getty’s acquisition of the statue in 1977 and the Italian confiscation proceedings had conferred upon the Trust “a proprietary interest in peaceful enjoyment of the statue that had been sufficiently established and weighty to amount to a “possession” within the meaning of the rule expressed in the [Convention].
The court continued to what it referred to as the “merits”, namely whether Italy’s issuance of the confiscation order followed by its letter to the U,S. Government “amounted to an interference with the applicant’s proprietary interests protected by [the Convention],” and taking into account that “due to the unique and irreplaceable nature of cultural objects, States enjoyed a wide margin of appreciation where cultural heritage issues were concerned.”
The first issue, according to the court, was whether the confiscation order complied with the “principle of lawfulness.” The court concluded that it did, because it had a basis in Italian domestic law – Article 174 § 3 of Legislative Decree no. 42/2004, and because the lack of a time limit in the law “was not a factor that, on its own, could automatically lead to the conclusion that the interference in question was unforeseeable or arbitrary and therefore incompatible with the principle of lawfulness.”
The court then considered whether this law was “adopted in the public or general interest”, which the court quickly determined was the case given that several international and EU treaties had as their subject matter the protection of cultural and artistic heritage. The bigger question was whether Italy’s proceedings against the Getty were aimed at protecting Italian cultural heritage. The court noted that “The disputed issues had been discussed at length in the domestic proceedings, during which the Trust’s arguments had been duly considered,” after which the Italian court ruled that the statue formed part of Italy’s cultural heritage and had been owned by the Italian State when the confiscation order had been issued. The ECHR noted that “Those conclusions had neither been mani-festly erroneous or arbitrary.” The court further noted that as the Italian courts had found that the statue had been taken to Italian territory without complying with the appropriate reporting obligations, and had been exported from Italy without the necessary license and payment of customs duties, Italy was entitled to “reobtain control” over it regardless of whether the statue belonged to the Italian State. The remedy of confiscation was found by the Italian courts to be appropriate given that, “by purchasing the statue in the absence of any proof of its legitimate provenance, despite being aware of the existence of at least some doubts in that respect, and with full knowledge of the Italian authorities’ claims over it, the Trust had disregarded the requirements of the law, at the very least, negligently, if not in bad faith.” The ECHR found that this assessment was not “arbitrary or manifestly unreasonable.”
The court closed its analysis by examining whether delays and “negligence” by Italian authorities over the years vitiated Italy’s claims to the statue. The court noted that the authorities “operated in a legal vacuum, as there had been no binding international legal instruments in force at the time when the statue had been exported and purchased by the Trust which would have allowed them to recover it or, at the very least, to obtain the full cooperation of the foreign domestic authorities.” The court further noted that domestic authorities would now be governed by time limits and procedures laid down in the 1995 UNIDROIT Convention and with the domestic provisions which implemented Directive 2014/60/EU, in cases such as this one.
Overall, it could be said that the ECHR did not consider the merits of the Getty’s claims at all. By essentially adopting all of the findings of the Italian domestic courts, and stressing the broad discretion given to governments to determine how best to protect their cultural heritage, the ECHR had no choice but to uphold Italy’s confiscation decree. The question of whether the statue – which was made in Greece and probably was on its way back there when the ship carrying it sank in the Adriatic – was Italian cultural heritage in the first place, was sidestepped. The court used the Getty’s own alleged negligence and possible bad faith to find that a violation of reporting and customs obligations by someone other than the Getty itself justified not a fine, but confiscation of a statue that had been located in the U.S. for more than 40 years. By closing their decision with a clear message that nothing like this could ever happen again because there is no longer a “legal vacuum”, the ECHR essentially caved to Italy’s determination to obtain the statue, and punished the Getty for its having purchased the statue knowing that Italy was claiming it. It’s hard to think that this should be sufficient grounds for the ECHR’s decision.
