NEW YORK – The Ministry of Culture and Sports of the Hellenic Republic (the “Greek Ministry”) reiterates its claim of dominion over a bronze sculpture from the 8th century BC, an object the Ministry reasonably believes was illegally exported from Greek territory. The Greek Ministry was sued by the heirs of Howard and Saretta Barnet (Barnet Family), and by Sotheby’s Inc., the auction house that was preparing to auction the antiquity on the Barnet Family’s behalf. These parties sued the Greek Ministry in the U.S. District Court for the Southern District of New York seeking to establish valid title to the sculpture.
The Greek Ministry moved to dismiss the case, but on June 21, 2019, the court denied Greece’s motion, finding that the court had subject matter jurisdiction over the case pursuant to the commercial activity exception of the Foreign Sovereign Immunities Act (the “FSIA”).
The Ministry has appealed this decision to the United States Court of Appeals for the Second Circuit, as reported in The National Herald. In particular, the Greek State Legal Council in cooperation with the Greek Ministry assigned the case to the law firms of Amineddoleh & Associates LLC and Foley Hoag LLP.
The lawsuit against the Greek Ministry, according to the first publication of the case in the Financial Times, was filed in New York on June 5, 2018. The case is considered the first of its type because this is the first time an auction house has sued a foreign government for taking steps to protect its national heritage. Typically, national governments and their agencies seek to protect cultural heritage by ensuring that looted art and antiquities do not appear on the international art market.
The item in dispute, a bronze horse sculpture dating to the 8th century BC was to be auctioned by Sotheby’s in New York on May 14, 2018, along with other items from the Barnet Collection. (The sculpture was expected to realize an estimated sales price of between $ 150,000 and $ 250,000.) Regarding the provenance of the sculpture, Sotheby’s catalog noted that the work was anonymously consigned to, and then anonymously purchased through, Münzen und Medaillen AG in Basel, Switzerland on May 6, 1967. That is the first appearance of the work in modern times. Sotheby’s catalog stated that British art dealer Robin Symes (a dealer with a criminal record and extensive history of dealing with looted antiquities) “probably” acquired it in the above-mentioned auction. (After withdrawing the sculpture from auction, Sotheby’s revealed that the information provided in the catalog was not true). Howard and Saretta Barnet purchased the item from Symes on November 16, 1973 and held it until their deaths.
The Greek Ministry sent a formal letter to Sotheby’s requesting two actions be taken. First, the Greek Ministry requested the withdrawal of the bronze sculpture from the scheduled auction. This request was based on the lack of documents demonstrating legal export from Greek territory, the suspicious circumstances surrounding the object’s first appearance on the art market in Switzerland, the anonymous nature of the sale in Switzerland, Symes’ involvement, the Ministry’s knowledge that the sculpture most likely was found in an area in Greece that was heavily looted during the decade in which it appeared on the market, and the three photos of the sculpture in the group of confiscated items on the island of Schoinoussa from the 2006 Symes-Michaelides Photographic Archive. Second, the Greek Ministry requested Sotheby’s cooperation in the repatriation of the sculpture as an ancient movable monument belonging exclusively to the Greek State, in accordance with Greek archaeological legislation and international conventions.
Before communicating with Sotheby’s, the Greek Ministry, on May 4, 2018, requested Interpol to investigate all relevant documents regarding the sculpture’s acquisition, focusing on the ownership and export documents relating to its first auction in 1967. Unfortunately, the ongoing investigation is fraught with difficulties because it had been half a century since its first auction, and the Swiss auction house’s documents had been destroyed during the past six decades.
In the meantime, Sotheby’s withdrew the bronze sculpture from the auction. Sotheby’s also sent the Greek Ministry a response letter asserting that the Ministry’s communication had placed a “cloud” over the object which affected its marketability. In the same letter, Sotheby’s demanded specific information about the time and manner of the sculpture’s export. The auction house demanded this information within ten days. Obviously, this was an impossible deadline, and left insufficient time for a full investigation and official translation of the documents to be sent in support of the Greek Ministry’s position.
The Greek Ministry was informed by an article in the Financial Times on June 5, 2018 that it was being sued in the United States. The Plaintiffs asked the court to: (1) to recognize the Barnet Family (not the Greek State) as the owner of the item, to hold that no property rights for the sculpture vested in the Greek State, and to find no basis for the object’s repatriation to Greece under U.S. or international law; and (2) to allow Sotheby’s to proceed with selling the sculpture on behalf of the Barnet Family.
The Greek Ministry, in cooperation with the Legal Council of State, assigned the case to the American law firm of Amineddoleh & Associates LLC to defend the rights of the Greek Ministry based on the provisions of the archaeological law, according to which ancient movable monuments belong exclusively to the Greek State, are not privately held, and are prohibited from trade on the international art market.
The American law firm filed a Motion to Dismiss on behalf of the Greek Ministry for lack of subject matter jurisdiction under the FSIA. Sotheby’s responded to the Motion to Dismiss, arguing that the Greek Ministry’s letter was commercial activity, and thus left the Greek Ministry vulnerable to suit in the United States. By order dated June 21, 2019, the District Court denied the Greek Ministry’s Motion to Dismiss, finding that it had subject matter jurisdiction over the case pursuant to the commercial activity exception of the FSIA.
The Greek Ministry has appealed this decision to the U.S. Court of Appeals for the Second Circuit, and added Foley Hoag LLP, which has extensive experience with the FSIA, to its legal team. Unfortunately, the Greek State is forced to spend resources defending itself in a foreign court. This case stems from the Greek Ministry fulfilling its constitutional mandate to protect the nation’s heritage by diligently examining the marketplace for antiquities that were looted, or potentially looted, from within its borders. The bronze sculpture undeniably originates from Greece, and it lacks a developed provenance or documentation attesting to its lawful removal from Greece. Greek law mandates that ancient property is exclusively owned by the Greek State and its people, and prohibits the export of certain types of property from Greek territory without permission. This principle has been protected by legislation since the early years of the Hellenic Republic. The first Greek archaeological legislation was enacted in 1834, and has since been updated to sufficiently protect against looting. But rather than working with the Greek Ministry to resolve this matter through a cooperative approach, Sotheby’s and its consignor sued to haul the Greek Ministry into a foreign court.
Parties interested in the lawsuit should be aware of the differences between fine art and the cultural heritage of a country. Antiquities deemed cultural heritage in Greece are protected by the sovereign for its people, and for all of humanity. The very survival of valuable treasures dating back to antiquity relies on sovereign protection and the intervention of a functioning cultural ministry. To silence the Greek Ministry in its efforts to protect against the sale of potentially looted items is to silence and stifle the very purpose of the Greek Ministry. And most dangerous is that this case could have long-standing consequences for other cultural agencies aiming to protect human heritage. These principles should be understood by members of the public interested in respecting and protecting cultural heritage.