by ADA | Jul 17, 2023 | News, Uncategorized
Ministry’s legal head reinforces ‘innocent until proven guilty’ principle in interpreting law
The Italian Ministry of Culture has issued a potentially ground-breaking statement, following a court ruling. It challenges current thinking on cultural heritage and patrimony and reinforces private property rights.
Essentially the statement addresses conflicting priorities between private property rights and the Italian state’s desire to protect its cultural heritage, and how this conflict addresses proof of ownership.
Recent years have seen a significant shift in attitudes among state authorities and law enforcement towards the idea of reversing the burden of proof regarding the legitimate ownership of antiquities and ancient coins. This is despite private property rights being enshrined in all fundamental clauses of international human rights conventions and in both common law and natural justice. Guilty until proved innocent has almost become the new normal.
Now, however, comes evidence of a fight back against this fundamentally undemocratic idea. This statement is one of them, and it has an additional welcome twist.
It arose after Italy’s Directorate-General of the Department of Archaeology, Fine Art and Landscape sought advice from the legal department on how to interpret Article 72 of the Cultural Property Act. As Coins Weekly notes: “This article governs the import of archaeological (numismatic) objects originally from Italy and demands extensive proof of origin.”
The legal department’s head, renowned professor of law Antonio Tarasco, came back with a surprising statement, acknowledging competing views. On the one hand, some lawyers argue that protecting Italian cultural heritage is a priority that renders significant objects as state property unless private ownership can be proved (reversal of the burden of proof); on the other are lawyers who argue that private ownership should take priority except in the most exceptional circumstances.
Law professor acknowledges Court of Cassation ruling as precedent
This dichotomy led the professor to look at the part documentation has played over the years in establishing ownership rights for coins in Italy. The first thing he noted was that as late as the 1980s, retaining proof of purchase was highly unusual. But he also noted that in 2009, his department insisted that “proper documentation issued by the countries of origin” was essential in establishing the lawful circulation of objects.
Importantly, this meant that any certification issued on import had to be renewed at the appropriate time or the Italian State might take possession of the item in question.
Fast forward to 2021, however, and Italy’s Court of Cassation – the highest appeal court which focuses only on how laws are interpreted – re-established the priority of private ownership without automatically having to provide supporting documentation (innocent until proven guilty).
Professor Tarasco points out that this meets the test of proportionality and reasonableness (just as the ADA has been arguing needs to happen with the EU import licensing regulation 2019/880). Of particular note is what Professor Tarasco has to say about this: “Forcing citizens (be they collectors or professional numismatists who buy abroad) to provide (almost fiendishly extensive) proof of the legitimate origin of the coins they buy, which must even date back to before 1909 [when Italy’s patrimony law was passed], is ultimately making it more difficult to buy – and therefore import into Italy – significant numismatic material that may one day enter public collections.”
The welcome twist Professor Tarasco adds at the end of his statement argues that making imports more difficult is actually damaging to Italian cultural heritage: “If we look closely, we can see that this approach – even if applied with good intentions – will not result in Italy protecting its national cultural property, but rather losing it.”
A fascinating statement from the head of the legal department of Italy’s Ministry of Culture, then. With all this in mind, how does Professor Tarasco view Italy’s application of Article 4 of the EU regulation 2019/880 from June 2025? It insists on the sort of “fiendishly extensive” documentation and evidence that effectively reverses the burden of proof in the way he decries here. And how does he feel about the Memorandum of Understanding Italy shares with the United States, which does exactly the same?
Professor Tarasco has highlighted the importance of proportionality and reasonableness here – qualities echoed in the European Commission President’s guiding principles for policy. If the Italian government’s leading legal authority on the issue, together with its highest court, acknowledges that private property rights have priority over what may be seen as the national interest in this way, how can it continue to move forward with either the new EU law or its MoU?
by ADA | Jul 10, 2023 | Views
As the UK Parliament amends the rules on detectorist and other heritage discoveries, ADA chairman Joanna van der Lande reflects on its role and effectiveness
When Chris Chafin of The House, the Politics Home magazine for the UK parliament, asked to interview ADA chairman Joanna van der Lande about changes to the Treasure Act, it proved an excellent opportunity to reflect on the Portable Antiquities Scheme.
No system is perfect, but the PAS comes closer than any other Joanna knows of balancing the interests of the nation with those of individuals who devote their own time and money to helping us uncover the past in an informative way that protects our heritage.
Just published, Chafin’s article, titled Treasure Island, explains how and why the changes are being made, and what factors must be considered in revising our heritage laws such as this.
Understandably, he could not include the full answers to all of the questions on the trade’s perspective, which he asked Joanna, so here they are for your interest:
Can you briefly give me an idea of how private antiques dealers traditionally interact with the Treasure Act?
Private antique dealers really only interact either as Valuers for the Treasure Valuation Committee or as independent valuers for the finder. There is no reason for dealers to be involved within the process.
I’m sure you’re familiar with the changes which have now gone through to the Act. Do you generally consider them well-considered, or do you feel they fall short in any way?
Generally, my association and colleagues in the trade think the changes have been well considered after a fair period of consultation with all parties concerned. With a certain subjective measure now introduced into the Treasure system, the trade awaits further guidance prior to the changes coming into force in July.
What effect do you anticipate them having?
Very few finds are of the importance covered by the changes, so any impact should be minimal, but it will mean previously significant British finds will not end up at auction. This means museums will have to worry less about raising funds for bidding bid at auction, or about being outbid. It also means that finders and landowners may benefit less from huge auction prices, as significant finds auctioned in recent years have often exceeded pre-auction estimates. I have no doubt the Treasure Valuation Committee and their valuers will understand the implications of fewer comparable objects appearing on the market which are used to help value treasure finds.
There is a great deal of respect for the Treasure system and the Portable Antiquities Scheme, which are extremely well run and been successful in building bridges with all the groups involved.
Much of the discussion around these changes from members of government poses a kind of public/private dichotomy, where things sold at auction “disappear” into private collections. What’s your reaction to those lines of argument?
I think they demonstrate little understanding of what motivates a collector, but they do expose the difficulties collectors face in this age of repatriation and returns, where private ownership of cultural objects is often demonised. Many museums and academics appear to be distancing themselves more and more from the private sector. It is important that for the public benefit we re-kindle museums’ and academics’ increasingly fractured relationships with the trade.
Private collectors and the trade have a wealth of knowledge, gained by many years of experience, as well as personal study, to offer. They have the advantage over museum curators of seeing many more fresh objects as they pass through their hands. This knowledge and experience should be shared.
Pieces rarely disappear completely from public view. While some collectors seek privacy, collections inevitably reappear on the market at some point. Also, there is a long-standing tradition of private collectors publishing their collections, either online or in books, at their own expense. In addition, it is very unusual for dealers not to have their stock listed publicly online or in printed catalogues; the same applies to auction houses.
Privately owned cultural objects have never been so visible and often at considerable risk to collector and trade alike in terms of security and insurance. Added to that are the frequent claims from foreign embassies and campaigners making public demands for the return of cultural objects, even where there is no valid reason for doing so. The media tend to lap these up because they make a good story, but rarely question the validity of these demands.
The situation is different with British finds because there are no foreign claims on them; the trade is very supportive of significant British finds remaining in the United Kingdom and in the public domain.
A member of my trade association was the winning bidder of the Ryedale Hoard when it came up for auction in 2021. There was understandable upset that York Museum lost out to higher bidders, but it all came out well in the end. That was because the winning bidder, a dealer, got together with a private numismatics collector and others to negotiate a deal for the hoard to be gifted to York Museum, where it is now on public display. The Crosby Garrett helmet, cited as a catalyst for the amendments to the Treasure Act, might have sold to a private collector, but that collector has loaned it for public display four times already.
One of the benefits of the legislative changes should be to reduce friction between museums, collectors, detectorists and the trade. This is, however, only possible because the system, unique to the UK, is admirably fair and largely respected by all parties – the composition of the Treasure Valuation Committee reflects this. It is a system we can all be proud of, but these are complex relationships that we need to constantly nourish and help evolve – it is easy for misunderstandings to arise.
Are there any other areas of antiques law where you feel changes are needed?
The wider antiques trade (so not just antiquities) has been subject to many legal and regulatory changes in recent years, the two most notable being the Ivory Act and the 5th Anti-Money Laundering Directive.
The Ivory Act will soon extend beyond the ban in antique elephant ivory. Whatever the benefits to the natural world – and the jury is out over whether a single elephant’s life will have been saved – it will mean the destruction or loss of pieces containing antique ivory that is not of museum quality and will be rendered unsalable. We can see the impact already as objects containing more than the maximum amount of ivory allowed for trade are being dismembered.
I think we need to be very careful of introducing any more laws that could mean antiques are not protected, as this can put even objects in museums at risk in the long term from deaccession and possible destruction. The Ivory Act has also caused a great deal of damage to relationships.
In a world where ‘up-cycling’, recycling and ‘pre-loved’ are ever more popular, we should be giving tax breaks to support the second-hand goods market – be they old or ancient. The antiques business has long been a trail-blazing business for the green economy, and we should all do more to help it flourish.
Understood if this isn’t your area, but I’ve heard that many small museums don’t have the budget or space to showcase even more objects, which is what these changes would ideally lead to. Do you have any insight there?
The number of objects involved is likely to be under 50 each year, so I can’t see it overwhelming museum storerooms, but it’s an interesting point. Supposedly storerooms are accessible for public study, but the reality is that few people know this, and generally not enough staff are available to allow this to happen. The British Museum and the V&A have less than 1% of their holdings on public display. It would be interesting to conduct a survey of other museums, both in the UK and overseas, to establish what percentage of their holdings are actually on public (or online) display. For museums to fulfil their public benefit remit, they should focus on digitally recording objects for online study.
Any other general comments you’d like to make here?
Although it is an EU law, the new import licensing regulation due to come into force in June 2025 is likely to prove disastrous for art markets across the world, including the three largest, in the US, UK and China. However, the EU art market is likely to suffer the most. The measures are unrealistic, oppressive, unjustified and will prove very costly. They also risk damaging customs operations across the EU.
The EU will essentially close its borders and prevent its private citizens from buying a wide range of cultural objects because the paperwork and costs required will make it impossible. The UK and European trade have been working hard to communicate the dangers posed by this regulation since it began working its way through the European Parliament prior to Brexit, and we continue to do so, collaborating with our European trade partners. However, this is a battle none of us can fight alone.
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