The Russians are right to be nervous

The Times 29 January 2008

It is trite law that a common thief does not obtain ownership of stolen goods. So it is when the thieves are those of the 1917 Russian Revolution.

Two families suffered particularly badly: Sergei Shchukin, a businessman and collector of Impressionist work, and Ivan Morozov, an entrepreneur and art collector. Shchukin’s close link with Matisse led to the acquisition of The Dance, the iconic image of From Russia, the current Royal Academy exhibition — a exhibition, controversially, that is showing stolen art.

Irina Antonova, director of the Pushkin Museum, once remarked about Shchukin: “He started to collect unpopular art that was snubbed by the Louvre and other museums.” The collection also featured a hundred choice works by Picasso, including most of his earliest Cubist and some key Blue and Rose periods pieces, too. From 1909 Shchukin opened his home on Sundays for public viewings, introducing Impressionist painting to Muscovites.

But during the revolution the Government appropriated the collection. Shchukin fled to Paris where he later died. In 1948 the collections were divided between the Pushkin and the Hermitage museums.

The Russian Government took no good title to the pictures, leaving the legitimate owners, and now their heirs, every right to claim what should have been theirs. That right to have stolen cultural property returned is embodied in our domestic law as well as being a modern cultural and civilised norm that has crystallised into international law.

Perversely, Russian law prevents reclamation of looted art in government hands. This means that the only opportunity to recover stolen artworks is when they travel abroad — hence the controversy about whether the works would actually be sent for exhibition.

The Russians could have lawfully “nationalised” the cultural objects taken during the revolution. The difference between the thieving State and the legitimate compulsory purchase is not a fine one. The State must pay compensation to anyone from whom it takes assets — a bit like the compulsory purchase powers exercised by local authorities. The absence of compensation makes the acquisitions by Russia illegal.

It is clear, then, why the Russians are so nervous about sending abroad stolen goods. It is much less clear why the Royal Academy should be content to knowingly receive and display stolen goods and furthermore why the Government would set about preventing the true owners from recovering them. This morally represensible. Their actions put them both in fundamental breach of the domestic and international standards to which they apparently pay only lip service.

James Purnell, then Culture Secretary, bounced into law with unseemly haste with the so-called immunity from seizure legislation. Part 6 of the Tribunals, Courts and Enforcement Act 2007, the statutory instrument, was made on Sunday, December 23, 2007. The speed of this implementation is breathtaking. The inescapable conclusion is that that the legislation was wrongly prepared in advance of concluding the consultation.

Importantly, this Act has much wider ramifications, as it will apply also to future exhibitions, including, for example, loans from abroad of Nazi Holocaust looted art. Put plainly, the legislation undermines the commitments of the Government and our national institutions to right past wrongs. It is difficult to see how the then Culture Secretary could, in all conscience, have correctly certified that the Act complies with the Human Rights Act, given that its purpose is to deprive owners of the right to enforce property rights against admittedly stolen goods.

Cultural objects are being returned almost daily by national museums and cultural institutions. To aid this process the Department for Culture, Media and Sport has the spoliation advisory panel specifically to ensure the return of stolen cultural objects. It is a pity that its good work is so fundamentally undermined by such an ill-thought-out Act.

Courts are now empowered both to review legislation for compatibility with the rights granted by the European Convention and to receive claims for breaches of the property rights assured by the convention. The Government’s actions render it susceptible to a declaration of incompatibility by the British courts. Courts are thankfully still more interested in seeing justice done than bending in the Russian breeze. Courts are (also) keener to see property rights properly assured than give their imprimatur to state-sponsored theft.

A just outcome of this farrago is — and should be — that the Government is saddled with legislation struck down by its own courts, proving an acute embarrassment in front of the very Russian tsars who insisted on first receiving British legislative assurances before permitting stolen art to leave Russia. That the legislative assurances proved worthless will result in the looted works being returned to their rightful owners. Ah, justice at last . . . well, perhaps.

The author has practised art and cultural property law for 27 years and practised in Moscow
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