01/03/2001
by Dorian Cara

Increasing steps are being taken to compensate owners of stolen works of art. On June 24th, 1995 the Unidroit agreement approved a framework for monetary restitution of stolen cultural assets. The agreement obliges the owner of a stolen artwork to return it and pay partial compensation to victims of art theft. The act will in some way counter the problems created with the removal of European trade frontiers and the increasing movement of goods, including stolen works of art. Unidroit is an intergovernmental institution located at the Villa Aldobrandini in Rome which studies legal aspects of art theft thus forming the basis of the new contract. The Institute is financed by annual contributions from its 58 member states.

This pro-active agreement integrates the 1970 UNESCO, which though the first attempt to provide a global anti-theft art agreement, lacked however strong enforcement procedures from member states and did not include the opportunity for restitution to private buyers and sellers of assets from art works. UNESCO’s main deficiency was by not obliging the contracting countries to adapt their internal legal systems. The Unidroit convention confirms that the restitution of the assets is in any case due, whether the stolen asset belongs to a private person or to a public institution, and make no differentiation as to whether the new owner had acted in good or bad faith.

Unidroit establishes that the private person can take action for the restitution of the asset. The owner who has been robbed is entitled to be returned the stolen object only subject to a condition, that he has to pay a fair compensation to the owner in good faith (cost chargeable to the owner himself). Due diligence in purchasing is not presumed but shall be proved by the buyer. The convention also indicates that in order to ascertain the buyer's bad faith a judge can have access to records, data banks and inventories. When the buyer purchases a cultural asset in good faith he is entitled to demand an adequate compensation, if he is able to prove that when he bought it he acted with due diligence.

It is furthermore agreed that the exported national cultural artworks will be repatriated at the request of the country of origin, when this country can prove that the illegal exportation definitely jeopardised scientific or cultural interests or that the asset in question is culturally important for the country itself. The prescription term to claim the right of restitution or repatriation is of three years, starting from when the location of the owner of the cultural asset has been known, and of 50 years in absolute terms. As to date, the 1995 Unidroit Convention has been signed by 22 Countries, including Switzerland, and ratified by 11 Countries; Bolivia, Brazil, China, Ecuador, Finland, Italy, Paraguay, Peru, Romania and Hungary.