Switzerland, a country which lies at the heart of the global trade in illicitly excavated artefacts and looted art, is moving towards ratification of the 1970 Unesco convention designed to stem the illegal trade in archaeological goods and stolen works of art.
Last November the Swiss Federal Council submitted to the Federal Chambers official approval of the 1970 Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Signatories to the treaty are obliged to prevent the export and import of cultural property without licence and assist in the repatriation of stolen assets. A Federal draft bill on the international transfer of cultural property—the proposed national legislation required before the Unesco Convention can be implemented—was also submitted.
The law on the international transfer of cultural property aims to establish a legal framework to help fight the smuggling of cultural property; to incorporate the Unesco Convention of 1970; to support and strengthen international co-operation in the transfer of cultural property; to bring statutory regulations up to an internationally acceptable minimum standard; and to promote the international exchange of cultural property in a spirit of openness and legality.
Switzerland’s pivotal role in the underground network that moves illicitly excavated artefacts from so-called source countries—nations with rich archaeological heritages such as Italy, Turkey, Greece, among others—to countries like Britain and the US where the demand and the market for art is strong, has long been acknowledged. In 1995 police raided four warehouses in the Freeport of Geneva and discovered some 10,000 unprovenanced antiquities collectively valued at around $40 million. And a number of works of art returned to source countries in recent years from collectors and museums in the US were shown to have passed through Switzerland on their way to American buyers. Unesco, as well as archaeologists and investigators, has lobbied long and hard for Switzerland to clean up its act.
in Swiss law
Swiss law currently categorises artefacts and works of art with other moveable property: there is no distinction made between art and other consumer goods. Works of art are covered by the generic regulations of the civil and penal codes. This deficiency not only affects the movement through Switzerland of artefacts and works of art, it also affects the protection of the Swiss cultural heritage.
In the case of stolen goods, the civil code makes a distinction between acquisitions made in good faith and those made in bad faith. Anyone acquiring stolen property knowing that it is stolen, and assuming, therefore, that the object is the product of a criminal offence, is not entitled to assume legal ownership of the object in question and may also be required to return it to its rightful owner.
For acquisitions made in good faith the previous owner who has been robbed may reclaim the property within five years, after which time the good-faith purchaser becomes the legal owner. Should there be contentious jurisdiction it is for the purchaser to demonstrate his good faith, but for the claimant to establish the purchaser’s bad faith.
In their submission to the Chamber, the Federal Council noted that five years is too short a time for claims on cultural property. Given the lack of import and export controls in Switzerland, and the fact that once five years are up one can become the legal owner of stolen property if good faith can be proved, it was noted that international art smugglers may be using Switzerland as an “intermediary deposit”. Items with dubious provenance could be stored in the country for five years at the end of which time they can be freely sold in other countries such as the US or Great Britain.
Limitation period to be extended to 30 years from five
The time limit of five years on the acquisition and restitution of stolen cultural property has been extended in the draft legislation to 30 years; this change will entail a modification of the terms set out in the Swiss civil code. The maximum time is limited, however, by the principle according to which the law can be applied for one year from the moment when the owner of the property becomes aware of the location of the property and of the identity of the unlawful holder.
The law is designed to control the import of cultural property into Switzerland, and its transit, export and repatriation; it also sets out new regulations relating to the marketing of such property and it gives the State from which the property has been illegally exported the right to prosecute the possessor of this property in Switzerland and to have the works in question repatriated.
The draft law also states that the property can be transferred only when the person who proposes to transfer it is in a position to presume that it has not been stolen, miscarried or otherwise removed against the wishes of its owner, or imported illegally.
No less important is the principle which states that anyone who has in good faith acquired cultural property illegally imported into Switzerland and is ordered to return the property, has the right to adequate compensation based on the purchase price and on the expenditure incurred in the safeguarding and conservation of the property. Compensation shall be paid by the government involved; until the compensation is paid the person obliged to return the property has the right to retain it.
Neither this new law nor 1970 Unesco Convention, will have retrospective effect.
The ratification of the convention and of the national legislation required to implement it has been approved in the great majority of cantons, and by cultural and ecclesiastical organisations. Also in support are the Socialists and the Christian Democrats while those opposing the new law include the Radicals and the Populists. Dealers, collectors and museums are also strongly opposed to both initiatives.
It will still take some time before the new legislation is finally approved and implemented. Once it goes into effect, it will make the transfer of art and artefacts in Switzerland more transparent and it will deal a severe blow to international art smuggling networks.
Originally appeared in The Art Newspaper as 'The beginning of the end?'