13 November 2019

Landmark decision of the Swiss Federal Supreme Court on the return of cultural property to the country of origin

Earlier this year, the Swiss Federal Supreme Court (“the Supreme Court”) overturned a decision of the lower Courts to order the confiscation of a painting that was exported from Italy to Switzerland in breach of Italian law. This decision provides useful guidance on the circumstances in which the principle of mutual legal assistance will apply, highlights the discrepancies between different domestic legal frameworks dealing with the export of cultural property and acts as a reminder to collectors to proceed with caution when moving their collections across borders.

The sixteenth century painting, “Portrait of Isabella d’Este”, which was once attributed to Leonardo da Vinci, was transferred by its Italian owner to Switzerland. Italian law states that artworks older than 70 years and attributed to a deceased artist cannot be exported without an export licence from the Italian authorities; the painting was therefore seized by the Swiss police. The Italian Courts held that the owner was guilty of exporting cultural heritage illegally and ordered that the painting be confiscated. Although the owner's appeal was rejected by the Federal Criminal Court, the Supreme Court later overturned that decision.

The Supreme Court clarified that the principle of mutual legal assistance would only allow for the seizure of the painting if the principle of double criminal liability were applicable. The decision therefore turned on whether under the same circumstances the exportation of the painting from Switzerland would have been illegal under Swiss law.

Since no bilateral agreement between Switzerland and Italy was applicable in these circumstances, the Supreme Court examined whether the export of the painting from Switzerland would have constituted a breach of the relevant Swiss domestic law, i.e. the Federal Law on the International Transfer of Cultural Property ("FLTCP"). Exporting cultural property is only illegal under the FLTCP if the relevant property is listed in a federal inventory (these list cultural property belonging to the Swiss government that has significant importance to cultural heritage). On the basis that the painting was not owned by the Italian government or listed in an Italian inventory, the Supreme Court held that the confiscation was based solely on Italian law, meaning that the double criminality requirements were not satisfied and mutual legal assistance could not in these circumstances be granted.

If you have any questions in relation to the points raised in this article, or in relation to a piece of art or other cultural property, please get in touch with a member of our Heritage property and art group.

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