10 December 2018 - Article
Under Italian law, Italy is the owner of antiquities found in Italian soil. Individuals who remove antiquities in breach of Italian law may be convicted of theft. If they trade in Italian antiquities, they may commit the offence of handling stolen goods. Furthermore, Italian antiquities, like most antiques more than 50 years old, may not be exported from Italy unless their export is allowed by an Italian export office. Violation of Italian export laws is also a criminal offence.
Italy is not the only country with strict antiquities laws. Many Southern European and Middle-Eastern countries claim title to antiquities found in the ground. The export of antiquities is also prohibited. Accordingly, the removal of antiquities from these countries is treated as theft and as illegal export.
In countries where ownership of antiquities rests with the State, private citizens may have custody of antiquities with express or implicit permission from the State. The nature of their right to maintain possession of antiquities varies from country to country. Whatever the nature of their right, they are unlikely to have permission to sell or export antiquities in their possession without consent from the State.
Over the last 10 years, the Italian police have been increasingly active in seeking to recover antiquities which they say were unlawfully removed from Italy. They are assisted by Italian prosecutors who pursue those engaging in illegal excavations and trading in or acquiring Italian antiquities. Recent high profile cases have drawn attention from the media. After years of investigation, the curator of antiquities at the Getty Museum was charged by Italy with conspiracy to receive stolen goods. She has denied charges. She is now being tried in Italy. Dealers in antiquities have also been charged. One of them has already been sentenced to 10 years in prison.
When Italian prosecutors allege theft, handling or illegal export, they take action against individuals rather than the organisations to which they belong. It may come as a surprise that the national of a foreign country may be charged under Italian criminal law for an action apparently committed outside Italy. It may come as even more of a surprise that foreign nationals can be tried by Italian Courts in their absence for an offence committed abroad.
There are several lines of argument available to Italian prosecutors. One is that the foreign national, by his actions in his home country, “participated” in the theft or the illegal export. This can occur if the prosecution can show that the foreign national financed the excavation, trade or export, or was otherwise directly involved. It can also occur if the prosecution shows that the foreign national knew that the art would be removed or exported before the removal or export took place and accepted the art (as principal or as agent) with that knowledge. Participation is deemed to have occurred in Italy even though the individual might not have been in Italy when the alleged participation in the illegal act took place. In that case, the individual may be prosecuted and tried in Italy, even in his or her absence.
Another line of argument is available where the foreign national was not aware that the art was being illegally removed or exported before the removal or export from Italy, but he accepted the art at a later stage knowing that it was stolen or illegally exported. In that case, the Italian prosecutor may take the view that the individual committed the offence of handling stolen or illegally exported goods in a foreign country. This is an offence under Italian law. However, in that case, the alleged offender will benefit from the protection in Article 10 of the Italian Criminal Code which provides that where a foreigner violates Italian law in a foreign country, he or she may be prosecuted in Italy only if certain conditions are met. These conditions include his or her presence in Italy and the penalty for the offence must be at least one year in prison. Accordingly, the foreigner may not be tried in Italy in his or her absence if he committed the alleged offence of handling on foreign territory.
Italian prosecutors may try other lines of argument. One is that under Italian law, it is an offence not to report to the authorities the fortuitous discovery of antiquities in Italian soil. The argument is that the law extends to foreign nationals who fail to report such findings, and prosecutors may argue that the offence is committed in Italy because this is where the report should have been made. If so, the individual failing to make a report may be tried in Italy in his absence.
The prosecution must show knowledge on the part of the accused. Italian prosecutors must also show that the antiquity originated in Italy. The accused, on the other hand, may be able to show that he acquired the right of possession of the antiquity through uninterrupted possession over twenty years, or that the antiquity was discovered prior to 1909 when the law giving title to Italian antiquities to the State was first introduced.