Since the early 1990s and until today, the number of disputes regarding the ownership of cultural property has grown exponentially worldwide.
In this regard, the greatest plunder of cultural property has been made by the Nazis in the occupied territories between 1935 and 1944. In fact, they stole about 1/5 of all the cultural property belonging to the occupied territories, about 150,000 works in Western Europe and 500,000 in Central and Eastern Europe.
There are several examples of cultural property, stolen or otherwise illegally acquired by the Nazis, which generated legal disputes all over the world and some of them are still being discussed today.
The disputes over the “Lancellotti Discobulus”, the “Christ carrying the cross dragged by a rogue” and the “Flower Pot” concern Italy and Italian law and will be therefore analyzed below.
- THE LANCELLOTTI DISCOBULUS
The “Lancellotti Discobulus”, a marble copy of the original Greek bronze statue, was found in Rome in 1781. In 1938, Benito Mussolini sold the Discobulus to Adolf Hitler. The statue came back to Italy in 1948, as part of the Germany’s restitution of the works stolen by the Nazis, although its base is still in a museum in Munich.
Recently, Germany has claimed the ownership of the Discobulus. The dispute arose because the Director of the Roman museum, where the Discobulus is held, requested the restitution of its base, which is at the Glyptothek in Munich. After such request, Germany started to claim the restitution of the Discobuls. The Italian Minister of Culture, Mr. Gennaro Sangiuliano, strongly opposed to such request, by stating that the Discobulus is part of the Italian cultural heritage.
The dispute has been solved after the meeting between the Italian Minister of Culture, Mr. Gennaro Sangiuliano and the German Ambassador in Rome, Mr. Hans-Dieter Lucas. In fact, Germany waived its claims regarding the ownership of the Discobulus, as clarified by the Ambassador. It was an initiative of the Director of the Glyptothek in Munich and the German government was not involved.
- CHRIST CARRYING THE CROSS DRAGGED BY A ROGUE
The “Christ carrying the cross dragged by a rogue”, a painting of 1538 by Girolamo da Brescia, also called “Romanino”, has been subject to a dispute of over 10 years.
Originally, the painting was purchased by the Jewish family, Gentili di Giuseppe, in 1914. The painting disappeared during World War II. In 1998, the painting belonged and was held at the “Pinacoteca di Brera” in Milan.
In 2000, the heirs of Federico Gentili di Giuseppe claimed the ownership and the consequential restitution of the painting. Such request was denied by the Italian State Attorney, since it was purchased in good faith by the “Pinacoteca di Brera”.
In 2010, the painting was brought to the “Mary Brogan Museum of Art and Science” in Tallahassee, Florida for a temporary art exhibition. In 2011, the painting was seized in Florida and, after the relevant ruling, the painting returned to the Gentili di Giuseppe heirs, who sold it at auction. The US authorities decided to return the painting to the Gentili di Giuseppe family, since it was stolen by the Nazis and the claims of ownership by the family have not been opposed by the Italian authorities. However, the Italian State Attorney stated that the seizure was unlawful and in contrast with Italian law.
- THE FLOWER POT
The “Flower Pot”, a painting by Jan Van Huysum, the greatest Dutch painter of still lives of the eighteenth century, finally returned to Italy in 2019.
The painting has been hidden in 1940, when “Palazzo Pitti” was evacuated in order to save the works from the Nazis’ plunder. However, all the traces of the painting were lost until 1989, when the family, that had possession of the painting, decided to renovate it. Since 1991, such family attempted to sell the painting to the Italian State. In 2016, a new intermediary reached out to the Uffizi gallery, requesting, again, the payment of the painting. Therefore, the Florence Office of the Public Prosecutor opened a case for attempted extorsion. After a joint operation of cultural diplomacy, the painting finally came back to Italy in 2019, where it is now exhibited at “Palazzo Pitti”.
- What are the remedies for the restitution of stolen property?
With regard to the disputes analyzed above, these present the following common grounds:
- The theft of such works occurred more than 50 years ago;
- The cultural properties have been subject to several transfers of ownership in order to create situations of good faith, favorable to the subsequent buyers, disguising the unlawful origin of such works;
- They have been transferred all over the world so that they could not be retraced;
- The negligence of the museums, which did not carry out the relevant activities in order to verify their origin.
The circulation of stolen cultural property, especially of the ones stolen by the Nazis, has been actually favored by the protection guaranteed to the buyers in good faith and by the fact that the judicial restitution of such work cannot be requested after 50 years.
Italian law guarantees the protection of the buyer in good faith, who acquires a lawful title of ownership over the work if he/she did not know about the unlawful origin of the work or that it was purchased without knowing that the seller was not the actual and lawful owner of the work. This is the reason why, in Italy and generally in all civil law countries, it is very unlikely that the work will return to the original owner and therefore the relevant request for restitution will feasibly be unsuccessful. For example, the Romanino painting only returned to the Gentili di Giuseppe family, after its seizure and ruling in the US. Therefore, the judicial restitution applies the law of the country where the proceedings were brought (lex rei sitae).
Regarding the restitution and the return of stolen or illegally exported cultural property, the matter is internationally regulated by the “1995 Unidroit Convention”, ratified in Italy with law no. 213 of June 7, 1999. The aim of the Convention is to ease the restitution of stolen cultural property, whose request shall be made to the national courts.
The request of restitutions shall be made within three days from the date when applicant discovered the location of the work and within fifty years from the date of the theft, the latter time limit does not apply to the works belonging to public museums.
In case of restitution, the owner of the work is entitled to receive a compensation for damages if he was in good faith.
It should be noted that the extent of the provisions of the Convention and of the law no. 213/1999 apply only to works that were stolen after the date of their entry into force (respectively 1995 and 2000). This represents a very serious issue, since the majority of cultural property thefts occurred before 1995, such as the ones made by the Nazis.
In addition, the Convention allows the States to order the seizure of cultural property under certain conditions. In some cases, the seizure of cultural property favors the possible success of the restitution of the work to its original owners. It, in fact, happened with regard to the Romanino painting, which actually returned to the Gentili di Giuseppe family after its seizure in Florida, which was ordered because the painting was not protected by an “Immunity from Seizure Act”.
In light of the above, the restitution of the cultural property stolen by the Nazis still represents a heated issue, which has not been completely resolved yet. However, the Italian authorities made an excellent work in ensuring the restitution of stolen works: only in 2022 more than 80 thousand stolen works returned to Italy. Moreover, few days ago, the Manhattan’s Public Prosecutor announced the return to Italy of 19 antiquities, object of illicit exportation.