[MSN] A common thief does not obtain ownership of stolen goods, and it is no different when the thieves are the Bolsheviks

[Museum Security Network Mailing list]

From: MARZIO VENEMAN [mailto:max.rythmos at yahoo.com] 
Sent: dinsdag 5 februari 2008 15:35
To: msn-list at te.verweg.com
Subject: A common thief does not obtain ownership of stolen goods, and it is
no different when the thieves are the Bolsheviks


Dear subscribers Museum Security, 
 
http://www.theartnewspaper.com/article.asp?id=7511 
 

It is trite law that a common thief does not obtain ownership of stolen
goods. And it is no different when the thieves are the Bolsheviks of the
February 1917 Revolution. 

The Royal Academy's "From Russia" Exhibition is showing looted art. In
international law "looted" is anything stolen, i.e. anything not bought and
sold by a willing buyer and seller. It is for this reason that our Culture
Secretary, James Purnell, has bounced into law with unseemly haste, the so
called, "immunity from seizure" legislation or Part 6 of the Tribunals,
Courts and Enforcement Act 2007, which came into force early, on 31 December
2007.

The speed of this implementation is almost unprecedented other than in a
period of National Emergency-consultation on the details of the legislation
only concluded on 21 December. The inescapable conclusion of this timescale
is that the legislation was (wrongly) prepared in advance of concluding the
consultation.

The original malefactors did not take good title to the pictures, leaving
the legitimate owners (and now) their heirs every good right to claim back
what should have been legitimately theirs all along. That basic right to
have stolen cultural property returned is embodied as a modern cultural and
civilised norm by treaties and declarations uttered by the likes of Unesco
and Unidroit. It is also a right recognised in international law.

Against this international standard, Russian law prevents reclamation of
looted art in Government hands-and post 1917 pretty much anything worth
having was in Government possession; not that they owned much of it
legitimately. The 1917 proclivity for spoliation later became something of a
Russian national pastime-particularly at the end of World War II. The
Russians happily looted and pillaged the collected cultural spoils of Nazi
Germany-both artefacts looted by the Nazis but also, and all too often
overlooked, the contents of pre-War German museums and cultural
institutions.

This means that the only opportunity to recover looted works of art is when
they travel abroad.

The Russians could have lawfully "nationalised" the cultural objects taken
at the time of the 1917 Revolution. The difference between the thieving
state and legitimate compulsory purchase is not a fine one. The state must
pay compensation to anyone it takes assets from-a bit like the compulsory
purchase powers exercised every day by so many local authorities in the UK.
The absence of a compensation payment makes the acquisitions by Russia
illegal in international law as well as UK law.

It is clear then why the Russians are so very nervous about sending abroad
stolen goods. It is very much less clear, why the British government and the
Royal Academy should be content knowingly to receive looted goods and then
set about preventing the true owners from recovering them.

The actions of both the British government and the Royal Academy are morally
reprehensible and put them both in fundamental breach of the domestic and
international standards, to which they apparently only pay lip-service.

This legislation has much wider ramifications as it will also apply to
future exhibitions, including, for example, loans from abroad of Nazi
Holocaust looted art if they are borrowed without any indication that they
might have been spoliated. Put plainly, this legislation fundamentally
undermines the commitments of the British government and our National
institutions to right past wrongs.

However, the owners of this art may yet have the last laugh. Since October
2000 the government has been obliged only to bring in legislation which
complies with the Human Rights Act. Article 6 of the European Convention on
Human Rights-part of our domestic law-assures all citizens the right to
their property free from state interference. The Russian State has in its
hands stolen goods (shortly to be "fenced" to the Royal Academy for a short
period); the British government is aiding and abetting that wrong with this
legislation.

The Courts are empowered both to review legislation for compatibility with
the rights granted by the European Convention and also to admit claims for
breaches of the property rights assured by the Convention.

Our government's actions in passing this legislation render it susceptible
to a Declaration of Incompatibility by the English Courts. Courts which are
thankfully still more interested in seeing justice done than bending in the
Russian breeze; courts which are also keener to see property rights properly
assured than give their imprimatur to state sponsored theft.

A just outcome of this diplomatic farrago is-and should be-that the British
government is saddled with legislation struck down by its own courts,
proving an acute embarrassment in front of the very Russian tsars who
insisted on first receiving British legislative assurances before permitting
their stolen art to leave Russia. If the legislative assurances prove
worthless it will result in the looted works being returned to their
rightful owners. Ah-justice at last.

The writer has practised art and cultural property law for 27 years; he also
operated the first English law firm to open for business in Moscow under the
Soviet regime.

 
Yours sincerely,
 
Marzio Veneman-Gigante
The Netherlands
ICQ:  377511089