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paul.russell@russell.nl +31 20 301 55 55Countries can recover cultural heritage that was illegally exported. Art dealers and collectors might be confronted with such a claim unexpectedly, for instance if they have bought an artwork at an auction. If it turns out that the artwork was indeed exported illegally, it must be relinquished to the state in question. If the buyer has bought it in good faith, he is entitled to a compensation.
For cultural heritage from the European Union, this is all covered by the directive on the return of cultural objects (Directive 2014/60/EU). How this scheme works in practice is illustrated by a case before the District Court Gelderland.
An art dealer had bought several Italian paintings at an auction and offered them for sale via his own website. A secretary recognized the paintings as altarpieces that were stolen from the Abbey of Santa Maria in Sylvis, a listed building in Italy, in 2002. At the request of the Italian police, the Dutch Public Prosecution Service seizes the two altarpieces. The aim is the return of the altarpieces to Italy where (1) further investigations regarding the paintings will be carried out and (2) the paintings will possibly be returned to the original owner.
In preliminary relief proceedings against the Dutch Public Prosecution Service, the art dealer requests the return of the artworks. According to him, the seizure is not necessary to determine the truth. He is willing to cooperate in an investigation into whether the artworks involved are indeed the stolen paintings. The immediate restitution to the Abbey is no ground for seizure. As he is a buyer in good faith, he is the one who is entitled to the artworks. In addition, he is entitled to a compensation if he has to return the artworks to Italy. If the works of art are immediately relinquished to the Abbey, he will lose that right.
The court determines that further investigations regarding the paintings are required. According to the description, the characteristics of the works of art offered for sale partly differ from those of the stolen paintings. Therefore, the seizure remains in force.
However, restitution to the Abbey is no ground for seizure. If the paintings turn out to have been stolen, there is a standard procedure for restitution within Europe, so-called revindication proceedings. Thus, after the authenticity research the paintings have to be returned to the art dealer. The Dutch Public Prosecution Service must ensure that they are indeed returned.
If the paintings turn out to have been stolen, the Abbey can ask the Italian State to commence legal proceedings for the restitution of the paintings in the Netherlands. Then, the Dutch court will decide who is entitled to the paintings. In the event of proven theft this will be the Abbey. The question then arises whether the art dealer is entitled to compensation. This will only be the case if he was in good faith. The Public Prosecution Service doubts this, as the paintings had appeared on the internet as stolen at the time of the sale. The judge does not rule on this. This is not possible in preliminary relief proceedings.
After investigation, it turned out that these were indeed the stolen paintings. However, in accordance with the judgment, they were returned to the art dealer and then seized again by the Dutch Public Prosecution Service in 2019. However, they were not returned to the original owner. Instead, the Public Prosecution Service initiated proceedings against the seller, the auctioneer, the two buyers, and their company.
In December 2024, the Public Prosecution Service demanded community service and suspended prison sentences for them and a fine of €10,000 for the company. The Public Prosecution Service believed that the auctioneer and the buyers were guilty of intentional or negligent handling of stolen goods because they had not investigated the provenance, even though their experience should have made them aware that the paintings were stolen (intentional handling of stolen goods) or likely to be stolen (negligent handling of stolen goods). In addition, the sellers had posted a false provenance, namely Belgium, on their website.
The auctioneer and the buyers were acquitted of receiving stolen goods. The paintings were only listed on page 459 of the Italian website for stolen art and were therefore not very easy to find. There was no reason to suspect that the works were stolen based solely on the descriptions “originally from Italy” and “Italian school,” which would have required a more thorough investigation into their provenance. The paintings could also have had a different provenance. Based on their experience, the buyers suspected that the paintings came from Belgium and had therefore stated this on the website. According to them, they could not have come from Italy, because paintings from that country could not be legally exported.
The abbey chose not to have the Italian state initiate separate revindication proceedings, but to go directly to the Dutch courts and join the cases initiated by the Public Prosecution Service. The criminal court ruled that now it was clear that the paintings had been stolen, they did indeed have to be returned. Without compensation for the art dealer, because that is a matter for the civil court to decide.
The art dealer will therefore have to initiate new proceedings if it wants to receive compensation for the paintings. The criminal court did, however, issue a warning to the art dealers by noting that compensation is only payable in the case of a purchase of stolen cultural property in good faith. The fact that there was no question of handling stolen goods does not automatically mean that the buyer acted in good faith.
Could the art dealer have prevented all this fuss and bother that lasted from the seizure in December 2017 till the verdict in January 2025 at the least? As a general rule, if the buyer does not carry out any research prior to the purchase of a work of art, it is at his risk if he buys a stolen or false work of art. In this case a provenance research was not possible, because at auctions works of art are regularly auctioned without the name of the seller being made public.
Can the buyer at an auction do nothing to prevent this? The buyer can check prior to the purchase whether works of art appear on a national list of cultural heritage or in the Art Loss Register. This is also a legal requirement in order to invoke good faith and be entitled to compensation. This seems cumbersome for works of art of low value, but it can prevent a lot of legal issues and years of stress.
Is your purchase claimed by a previous owner or would you like to claim an artwork that was stolen from you? Do you want to know how to prevent the purchase of stolen or false art? Or do you have any other questions regarding buying and selling of art? Please contact us:
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