Memorandum submitted by Major General
Roberto Conforti, Italian Carabinieri
1. THE ITALIAN
STRUCTURES IN
THE FIELD
OF POLICE
ENFORCEMENT AGAINST
ILLEGAL ART
TRAFFICKING
The operational activities aimed at countering
illegal art trafficking fall in Italy within the jurisdiction
of the Carabinieri. The total work force specifically assigned
to this mission numbers 200 men (Central Command in Rome and local
Nuclei), comprising officers and Carabinieri. Their task is to
collect reports from the Territorial Force of the Carabinieri
(totalling 110,000 men), to conduct investigations, to report
in turn to the magistrates for any judicial follow-up, to assist
in subsequent enforcement of legal orders and to ensure the retrieval
of works of art.
The National Co-ordinating Authority in this
field is the Comando Carabinieri Tutela Patrimonio Artistico,
set up in 1969 and under my responsibility, based in Rome and
attached to the Ministry for Cultural Heritage and Activities.
The Comando comprises 130 men. It controls the
central database for all stolen art, which is continuously updated
and constitutes a prime point of reference to ascertain whether
a work of art of uncertain history or dubious provenance has been
the object of illegal acquisition. Seven local Nuclei, composed
of 10-15 men each, are currently set up in Monza, Venice, Bologna,
Firenze, Naples, Bari and Palermo. Two more will be operational
soon in Turin and Genoa. As the priority for this type of enforcement
has become more and more important, new Nuclei will be set up
accordingly.
2. NATIONAL AND
INTERNATIONAL DIMENSION
OF THE
PROBLEM
Italy accounts for one of the largest art heritages
in the world. Britain is host to what is possibly the world's
largest art market. It is therefore evident, considering that
illegal trafficking of cultural goods is second only to the "black
market" of illegal drugs and weapons, that co-operation between
our two countries in this area should be of paramount importance.
The sensitiveness to the issue of illegal art
trafficking runs very high in Italy. It is obviously a matter
of national interest. Italy takes the view that, given the magnitude
and insidious forms (racketeering) of the illegal trafficking
of art goods at world level, an adequate response would require
co-operation among States of a quality and commitment equal to
the fight against organized crime. On the occasion of preparatory
meetings to the Summit of the G8 in Okinawa, Italy has put forward
a Plan of Action. Needless to say, support from the British side
would be most welcome in this significant endeavour.
I said that sensitiveness to the problem runs
very high in my country. As I had the opportunity of explaining
to the Chairman, two months ago in Rome, Italy as a source of
highly sought after cultural goods in world markets, has long
been the victim of systematic pillaging. It is still afflicted
by unlawful activities of this kind: thefts from museums, homes,
churches, archaeological areas, both terrestrial and marine, and
by illegal exports.
It is quite clear that the phenomenon would
be of a lesser magnitude but for the existence of financially
powerful lobbies, which are capable of manipulating market operations,
and foreign clients sheltered by laws that are sometimes inadequate
to protect the historical and cultural heritage of other countries.
Organised crime is always on the alert: it has established novel
and more varied alliances of a transnational nature and is more
ready than ever to take advantage of any opportunity, be they
the void left by discrepancies of legislation between different
countries, the loopholes in the various legal systems, the lifting
of border controls, the relaxation of controls and so on. The
problem is compounded by the enormous amount of money involved,
thanks to international financial transactions fostered by the
so-called "fiscal paradises". It must also be noted
that at times works of art are used as currency to purchase arms
or drugs, as is the case for the Khmer guerrilla fighters in Vietnam
and Cambodia and for other clandestine forces in other countries.
This is a general problem. I don't need to stress
that the efforts of any country to ensure adequate protection
for its cultural property will be in vain if there is a lack of
support from other countries.
Italy is making strenuous efforts in this regard:
first by allocating substantial financial resources towards improving
the safety, preservation and enhancement of its immense and unique
wealth of cultural patrimony, secondly by adopting legislation
aimed at deterring theft and fostering preventive action.
The Carabinieri Unit under my command exercises
preventive and repressive action. This applies to items belonging
to our national cultural heritage as well as to those of other
countries. From 1993-99 we recovered 2,537 works of art unlawfully
removed from Italy and 695 in Italian territory. Artefacts illegally
removed from other countries, including the United Kingdom, were
seized and returned to the interested nations. This is in line
with the spirit of the relevant European Union legislation, which
recognises the concept of national and European cultural property,
as the Convention of Paris of 1972 had recognised the concept
of World cultural property.
It is clear in fact that illicit traffic of
cultural goods can be successfully tackled only by putting in
place an appropriate body of laws, national and international.
EU Directive 93/7/CEE dated 15 March 1993 and Regulation 3911/92/CEE
have enabled us to take a small step forward. However, these are
not enough in the absence of a firm commitment to fight crime
in this area and without all possible efforts to harmonise national
legislations in order to ensure reciprocity.
EU legislation does not restrict circulation
of cultural goods: it regulates circulation in order to safeguard
individual as well as collective interests of nations. Such legislation
could perhaps be perceived as having a limited scope, since it
targets only specific categories of goods and excludes those in
private hands. For the latter, the UNIDROIT Convention may be
recalled, but I understand that this Convention has yet to be
ratified by the United Kingdom. I take the liberty, if I may,
to stress the importance of the issues tackled in the Convention.
3. JUDICIAL CO-OPERATION
BETWEEN ITALY
AND THE
UNITED KINGDOM:
ROOM FOR
IMPROVEMENT
There is no doubt in my mind that judicial co-operation
between our two countries, which is so precious and so crucial
in this area, could be substantially improved. Permit me to speak
with frankness in this regard and to expand on some of the problems
we encounter in our dealings with the UK authorities.
I mentioned that in Italy crimes against cultural
property mainly include illegal export of works of art following
thefts from museums, churches, homes, terrestrial or marine archaeological
areas. They also include those committed by the owners themselves
in order to gain access to the more lucrative European markets
where the work of art is considered a financial asset.
What happens in many cases of judicial requests
of assistance is that the British authorities raise the objection
that the crime does not find an equivalent in British legislation.
I find such responses, when they occur, puzzling.
It seems to me that the UK is accepting the EU Directive that
I just recalled, has accepted the very principle that cultural
properties unlawfully removed from the territory of another State
should be returned to the same State. If this does not happen,
then we are as far back as disputing the very meaning of "unlawful",
which is a regrettable state of affairs and calls, in my opinion,
for consideration, review and an effort towards mutual clarification.
As a result of this diversity of perception,
there are now 24 pending cases of judicial requests of assistance,
which have been outstanding for a good number of years. Five of
them relate to illegal exports of a large quantity of cultural
objects from Italy and 18 to illegal exports subsequent to thefts
of paintings and archaeological items. Knowledge of the presence
in the UK of these items was acquired not from notices from the
UK, as the EU Directive would require, but by checking the catalogues
of the auction houses, where these artefacts usually resurface,
years after the criminal event. We have evidence of artefacts
stolen in Italy in 1975, which appeared on the art market at auction
houses in Britain in 1997. As soon as we had an indication of
where the items were located, we asked for restitution, but we
met with obstacles and difficulties.
Surprisingly, neither the norms of the European
Convention on Judicial Assistance signed in Strasbourg on 20 April
1959 and ratified by the United Kingdom on 27 November 1991, nor
those of the subsequent Convention of 8 November 1990 seem to
be working. Yet they are quite clear and pertinent. These norms
do not seem to be working because no request of temporary handing
over of the objects of crime, based on Articles 3 and 6, has ever
been granted to Italy from the United Kingdom.
All States that are party to the Strasbourg
Convention undertook to pass all legislative measures necessary
to seek items, including cultural ones, that may be seized as
objects of the crimes that are investigated. The Convention of
1990 gives also a useful, albeit synthetic, definition of recycling.
The provision that requires States to "criminalise"
acts aimed at concealing the nature, the origin and the location
of the items is of special importance. This targets appropriately
the "triangular operations", where items are sent to
a country whose legislation is more permissive and subsequently
transferred in another that offers more profitable markets. (By
the way, if I can be allowed a note of "immodesty",
evidence of the good work carried out by my Unit lies in the fact
that there has never been a single case of recovery of cultural
property involving Italy in any part of the triangle.)
In short, the international norms I have just
recalled set the framework for a wide and useful co-operation
and it is all the more regrettable that these norms do not translate
easily into practice. And this despite generic reassurances that
we receive that our notion of illegal export of cultural items
as a criminal offence is compatible with the provisions of British
legislation.
In practice, requests of assistance receive
only long-delayed, interlocutory and discouraging answers. I regret
to say that requests that normally are met in six to 12 months
time when addressed to the authorities of other countries take
years in the case of the United Kingdom: and this happens despite
the fact that in some cases, in order to avoid unnecessary delays,
requests are tailored in a way as to seek only what can be rapidly
obtained, while postponing what may need further clarification.
Let me recall a typical category of cases: the
ones in which the auction houses are unknowingly used by art thieves
to "launder" items of illegal provenance. There have
been cases of works of art which were stolen in Italy, illegally
exported to the United Kingdom and then sold at auctions to persons
who subsequently brought them back to Italy, where they have been
finally seized. Criminals—and I mean criminals—present
themselves as sellers—relying on the principle of confidentiality
toward clients—and then, under the cover of a different
name or a different firm, "purchase" their own items
in order to get them "cleaned": this way they manage
on the one hand to acquire an apparently clean title of possession
and on the other to inflate the prices of the same items. This
happens often and on a large scale.
It is clear that, to counter effectively these
tactics, it would be necessary to conduct, as speedily as possible,
a substantive investigation and not to be contented with the acquisition
of generic "statements" on the part of the persons involved,
as unfortunately is the case: I do not need to stress that, when
the investigation is superficial, this leads invariably to new
requests of clarification and integration, thus dragging the process
for a very long time. We face similar difficulties when dealing
with exports subsequent to thefts, when we often get the easy
answer that the consignor claims possession in good faith, without
any assessment of the credibility of the claim. Different story,
same ending: the widespread traffic in archaeological artefacts,
many looted through illegal excavations that have damaged large
areas of Italian territory. The objects are illegally exported
to the UK, sometimes through Switzerland, making it difficult
to identify the route and giving the items new certificates, before
they finally resurface in auction houses. Also in this case we
often come up against a brick wall, since judicial requests on
our side often remain on file for many years. Some still pending
date back to 1996.
If necessary, I could quote specific cases.
They all illustrate the problems I have outlined, namely:
— lack of "quality" of co-operation;
— long delays before requests are processed;
— spurious demands for clarification,
sometimes years after the initial request; and
— lack of conformance to the principles
of the Conventions on Legal Assistance and to the European Union
Directive.
For the sake of fairness, I have to say that
the 19 cultural objects, both paintings and artefacts, which we
have re-acquired in the UK between 1993 and 1999, are the result
of our excellent relationship with Scotland Yard. They have constantly
supported our activity, as has Interpol. Policy co-operation could
be further strengthened also through study missions to exchange
expertise and acquire familiarity with investigative techniques,
style of work, etc.
In any case, it is certain that the police can
only do so much, as it is limited in resources and bound like
everybody else by norms and procedures. That is why I placed a
special emphasis on a wider issue: the need for appropriate implementation
of the EU Directive and the Conventions, namely of Article 10
of the Strasbourg Convention of 1990.
Great Britain, like Italy, must report to the
interested countries the presence on its territory of goods illegally
exported from a State which is party to the Convention. Perhaps,
in order to achieve this task, an adequate police unit specifically
mandated and with adequate resources and powers should be set
up to carry out the controls specifically recommended by the UNESCO
Convention of 1970—incidentally, not ratified by the UK.
In addition, there should be a computer network connecting the
data banks of the respective police forces to speed up the transfer
of information.
A proper screening would ascertain whether an
artefact coming from another country is accompanied by a certificate
of free circulation or by an export licence. Failing that, the
artefact should be returned to the requesting country, after the
necessary investigation, as long as the investigation is carried
out in an acceptable time frame.
To conclude, I feel the need to strike in this
area a fair balance between "protectionist" and "liberal"
norms and procedures.
It might be useful to reach bilateral agreements
to codify more effectively the restitution of the stolen goods,
even if—I insist—proper implementation of the existing
Conventions already serves the purpose.
Finally, we should believe in the importance
of what we are doing. We should agree on the categorical imperative
that binds us: to preserve the legacy of the past and pass it
intact to future generations, so that they can benefit from it
as an integral part of their traditions, their education and their
identity.
Impoverishing this wealth would mean abdicating
an important part of our mission.
May 2000
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