Picasso. Matisse. Modigliani. Their paintings were part of a group of five paintings stolen in last week's art heist at the Paris Musee d'Art Moderne, with an estimated value of €500 million.
Why steal these paintings? Paintings so famous are notoriously the hardest to shift, and some thieves return them once they realise that they cannot sell them. Theories behind the theft of famous works abound. Some are Hollywood-inspired, with Dr No type collectors hell-bent on having the paintings.
Other times, it has happened that the works are stolen to be ransomed back. The Cellini salt cellar, stolen in 2003 from a museum in Vienna, was an art crime rated in the FBI's top 10, where the thief, after some years attempted to ransom it back, threatening that he would melt the gold and enamel table decoration unless paid €10 million. The museum bided its time, and in the meantime a photo of the thief was circulated until he had no choice but to turn himself in.
The theft of Goya's Portrait of the Duke of Wellington in 1961 was allegedly committed by a pensioner to petition the unfair situation whereby the elderly and people of less means were being made to pay a full TV licence. The painting was recovered in 1966.
Paintings by Van Gogh, Gauguin, and Picasso were stolen from the Whitworth Gallery in Manchester in 2003 by thieves who wanted to highlight the poor security in the museum. The paintings were recovered the next day rolled up and stashed in a public bathroom.
The reasons, therefore, are plenty, and sometimes quite surprising. The problem lies in 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 the prescriptive period lapses? What if someone, somewhere, unaware of the theft has acquired it in good faith?
These international considerations were the focus of international conventions; the first being the 1970 Unesco Convention on the means of prohibiting and preventing the illicit import, export or transfer of ownership of cultural property. It offered countries a hope to recover illegally exported items, but failed to provide 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 have by staying out removed the risk of receiving countless requests for return.
The EU in 1993 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 harmonised the community's market, and highlighted 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.
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.
For return to occur, the procedure laid out in the directive must be followed. 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 right applies against both possessors and holders of the object, however, they must be known. The requesting member state must in fact know the whereabouts of the object and the identity of the person holding it.
A common feature in all the mentioned instruments is the compensation of 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. 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.
The legal instruments discussed here really do try to give life to the "long arm of the law", when it comes to the art world, however they too have their shortcomings, most notably their non-retroactivity, and therefore cannot be applied to looting or theft which has taken place before their entry into force.
Dr Rizzo specialises in intellectual property law and art at Fenech & Fenech Advocates.