Malta: Facing Return -The Legal Ground Covering Stolen or Illicitly Removed Cultural Objects

The following article by Dr Jeanine Rizzo discusses the legal ground covering the return of stolen or illicitly removed cultural objects. The author specialises in Art & Antiquity law having specialised in the subject with an LL.M. at University College London under the supervision of Professor Norman Palmer and is now a member of Fenech & Fenech's Art & Cultural Heritage department.

August marks the anniversary of two famous art thefts: that of the Mona Lisa by da Vinci from the Louvre and that of the portrait of the Duke of Wellington by Goya from the National Gallery in London. They were both recovered after, curiously, the thieves kept them for some time then decided to return them.

Why steal these paintings? When paintings are so famous they are hard to shift, leading thieves to return them once the realisation hits that they cannot sell them. Theories behind the theft of famous works abound; some are Hollywood-inspired, Dr No collectors hell-bent on owning the rare painting, but others have "humbler" reasons.

Following theft, the problem is the recovery. Apart from the admirable police investigations which surround these crimes, there are other legal implications connected thereto. What if it leaves the country? What if it surfaces after criminal law prescriptive periods have lapsed? What if someone, somewhere, unaware of the theft has acquired it in good faith?

The beauty, and the curse, of the art market is the fact that it is international, and that there are many players within it who pay little to no attention to provenance. This international flavour has been the focus of a number of international conventions relating to the law surrounding such matters.

First on the scene was the 1970 UNESCO Convention on the means of prohibiting and preventing the illicit import, export or transfer of ownership of cultural property. The Convention was the first of its kind to offer countries a tool to recovering illegally exported items of cultural heritage. To many, this was a first step in the right direction. However, the Convention was criticised for failing to provide the appropriate redress to persons who suffered theft from their private collections. The 1995 UNIDROIT Convention on stolen or illegally exported cultural objects sought to solve this, by widening its remit to include stolen works.

Some notable countries that have chosen to opt out of these Conventions are the UK and Switzerland, and have done so out of choice. They are famously art market nations who, by staying out, have removed the risk of receiving countless requests for return.

In 1993, the European Union took matters into its own hands with a Directive on the return of cultural objects unlawfully removed from the territory of a Member State. This exercise aimed to harmonise the Community's market, and highlight the value of cultural objects. The core provisions require requested Member States to return "unlawfully removed" objects which are now found within their territory. Return is not possible if the removal has ceased to be an unlawful activity.

For return to occur, each of the Conventions and the Directive lay out a specific procedure. According to the EU Directive, a written request must be a made by one Member State to another; individuals or institutions do not have direct rights, creating bureaucratic problems. The requesting Member State must know the whereabouts of the object and the identity of the person holding it. The right applies against both possessors and holders of the object, however, they must be known.

Another common feature in all the mentioned instruments is compensation for good faith possessors. The UNESCO Convention provides for just compensation to innocent purchasers while UNIDROIT is more vocal on this issue, stating that compensation is due when the possessor neither knew nor reasonably ought to have known that the object was stolen, and can prove that s/he exercised due diligence when acquiring the object. Proving this may be difficult, so UNIDROIT stipulates that all circumstances are taken into account, including for example whether the buyer had consulted a register of stolen cultural objects before buying the item. According to the EU Directive, if the current possessor of the item had exercised due care and attention when acquiring it, then the requesting Member State will have to compensate the good faith possessor for the recovery.

Most notably, they are alike in one negative matter, which is their non-retroactivity. The remedies provided in these legal instruments cannot be applied to looting or theft which has taken place before their entry into force. This rules out many historic events.

Malta, unfortunately is not a signatory to any of the conventions, but did transpose the Return Directive into Maltese law in 2003, in subsidiary legislation enacted under the Cultural Heritage Act. Even though the Directive is not a world-wide solution, since it only applies between EU Member States, it is nevertheless a good start on the road to recovery.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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