CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 mai 2024

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PAUL GETTY TRUST AND OTHERS v. ITALY (Application no. 35271/19)   JUDGMENT   Art 1 P1 • Peaceful enjoyment of possessions • Proportionate confiscation order issued by Italian authorities aimed at recovering from the Getty Museum in the US a bronze statue from the classical Greek period • Applicant trust sufficiently affected by contested measure although not yet enforced • Impugned order engaged respondent State’s responsibility for the purposes of Art   1 • Proprietary interest sufficiently established and weighty to amount to “possession” • Art   1 P1 applicable • Legal basis for contested measure sufficiently clear, foreseeable and compatible with the rule of law • Mere lack of time-limit for recovery actions could not automatically lead to interference being unforeseeable or arbitrary • Protection of country’s cultural and artistic heritage a legitimate aim for Convention purposes • Strong consensus in International and European law with regard to need to protect cultural objects from unlawful exportation and return them to their country of origin • Italian authorities reasonably demonstrated that the statue was part of Italy’s cultural heritage and legally belonged to the State when confiscation order was issued • Domestic courts’ conclusions neither manifestly erroneous or arbitrary • Order given “in the public or general interest” with a view to protecting Italy’s cultural heritage • Purchase nature of transaction justified high standard of diligence • Trust’s failure to act with requisite diligence when purchasing the statue • No   legitimate expectation to retain the statue or obtain possible compensation • Domestic authorities had operated in legal vacuum as no binding international legal instruments were in force at the time the statue was exported and purchased by the Trust • Wide margin of appreciation in cultural heritage issues not overstepped   Prepared by the Registry. Does not bind the Court.   STRASBOURG 2 May 2024   FINAL   02/08/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of The J. Paul Getty Trust and Others v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Marko Bošnjak , President ,   Alena Poláčková,   Krzysztof Wojtyczek,   Lətif Hüseynov,   Ivana Jelić,   Gilberto Felici,   Raffaele Sabato , judges , and Ilse Freiwirth, Section Registrar, Having regard to: the application (no.   35271/19) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the J. Paul Getty Trust and fourteen American nationals (“the applicants”), whose names are indicated in the appendix, on 28   June   2019; the decision to give notice to the Italian Government (“the Government”) of the complaint concerning Article 1 of Protocol No. 1 to the Convention and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 19   March   2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns a confiscation order adopted in respect of the “Victorious Youth”, also referred to as the “Athlete of Fano” or the “Lysippus of Fano”, a bronze statue dating back to the classical Greek period (“the Bronze” or “the Statue”) in the possession of the J. Paul Getty Trust (“the Trust” or “the first applicant”). The domestic judicial authorities found that the Statue, which was protected by Italian cultural heritage and customs law, had been unlawfully exported from Italy and then negligently purchased by the Trust despite the absence of an export licence and repeated attempts by the Italian authorities to recover it as part of Italy’s cultural heritage and on account of the non-payment of customs export duties. 2.     The Trust and the members of its board of trustees (“the trustees”) alleged that the adoption of the confiscation order constituted a violation of their right to the peaceful enjoyment of their possessions, as guaranteed by Article   1 of Protocol No. 1. They further complained of the risk of being deprived of that right if the Italian authorities succeeded in obtaining recognition and enforcement of the confiscation in the United States of America (US), where the Statue is still being kept and exhibited, at the Getty Villa in Malibu, California, one of two campuses of the Getty Museum. THE FACTS 3 .     The first applicant is a non-profit legal entity, which was founded by Mr   J. Paul Getty Senior (“Mr Getty Senior”) and registered in the United States in 1953. The fourteen individual applicants are all American nationals and members of the first applicant’s board of trustees. They were represented by Mr T.   Otty, a lawyer practising in London. 4.     The Government were represented by their Agent, Mr L.   D’Ascia, Avvocato dello Stato . 5.     The facts of the case may be summarised as follows. I.         Background to the case A.    Discovery of the Statue 6.     In 1964 an ancient Greek bronze statue of a young man, known as the “Victorious Youth”, was discovered in the waters off Pedaso on the Adriatic coast by Italian fishermen, who took it to the port of Fano. 7.     The Statue was then taken to Carrara, a suburb in the municipality of Fano. 8 .     It was then bought by Mr   P.B., Mr F.B. and Mr G.B., who placed it in the home of Mr G.N. in Gubbio. 9.     In 1965 the Bronze was sold to unknown parties and its whereabouts became unknown. B.    Criminal proceedings for the offence of receiving and handling a stolen archaeological object belonging to the State 10 .     Mr P.B., Mr F.B., Mr G.B. and Mr   G.N. were charged with receiving and handling stolen goods in connection with the theft of a protected archaeological object belonging to the State, pursuant to section   67 of Law   no.   1089 of 1   June 1939 (“Law no.   1089/1939”; see paragraph   114 below). 11.     On 18 May 1966 the Perugia District Court acquitted them. It   observed (i) that there was insufficient evidence to conclude that the Statue had been discovered in Italian territorial waters and therefore belonged to the State, and (ii) that, even if it had been found in Italian territorial waters, there was insufficient evidence to prove that the defendants knew of its unlawful origin, as the vendor had reassured them that it had been found in Yugoslav waters. Consequently, it could not be proved that they “knew or ought to have known” that they were receiving and handling “stolen goods”. 12.     On 27 January 1967 the Perugia Court of Appeal reversed the first ‑ instance judgment. Mr P.B., Mr F.B. and Mr G.B. were convicted of receiving and handling stolen goods, while Mr   G.N. was convicted of aiding and abetting the concealment of the product or profit of a criminal offence. 13 .     On 22 May 1968 the judgment was quashed by the Court of Cassation, which observed that the offence of receiving stolen goods presupposed the theft of an archaeological object belonging to the State. The court further concluded that the judgment was insufficiently reasoned with regard to the discovery of the Bronze on Italian territory and referred the case back to the Perugia Court of Appeal. 14 .     On 18 November 1970 the Perugia Court of Appeal acquitted the defendants. It held that there was no direct and convincing evidence of the origin and location of the discovery of the Statue in Italian territorial waters and, accordingly, of the crimes with which the defendants had been charged. C.    Export of the Statue to Germany and first investigation into unlawful exportation 15 .     The Bronze reappeared in Munich, Germany, on the premises of a German art dealer, Mr H.H., who was holding it on behalf of a company registered and based in Liechtenstein (see paragraph 23 below). 16.     On 27 July 1973 an official of the Italian Ministry of the Interior wrote to the Munich criminal police informing them of the circumstances in which the Statue had been exported and that it was in the possession of Mr   H.H. They were requested to urgently intervene to prevent any resale and to allow Italian experts to examine and photograph the Statue. 17.     The actions taken by the German police are referred to in a letter dated 17   August 1973 from Mr H.H. to his Italian lawyer: “On [30 July] 1973, the Munich criminal police, accompanied by two Italian officials, entered our gallery, presenting an order to arrest [the word here is intended to mean ‘to seize’] our Greek bronze statue, and – if necessary – to search for it in our premises, as well as in my private home. The argument being that of suspicion of having received stolen goods, and the suspicion of having smuggled the said statue from Italy, illegally. ... On [31 July] various talks took place, between our lawyer and the investigating judge, as well as with the two head-officials of the Munich criminal police, in charge of the matter ... our lawyer was able to stress that the suspicion of having received stolen goods was completely unfounded, same as the suspicion of having smuggled the object from any country. He also made a point in warning that no photograph should be taken, and that no unnecessary information should be given to anybody, nor any authority. ... The Munich criminal police waived all their original intentions to view the statue, to have copies of our import documents, or to receive any other details and evidence. The   two abovementioned orders ... have simply been withdrawn, and given back to the police – it was us who insisted of [ sic ] having a complete documentation of these acts, especially a copy of the withdrawn order, and the Public Prosecutor’s order to discontinue the case.” 18.     On 1 August 1973 the German police interviewed Mr H.H., who expressed doubts as to whether the statue being investigated at the request of the Italian authorities corresponded to the statue in his possession. In any event, he stated that he had received it from the company Artemis, that he had no reason to doubt the validity of the latter’s title to it and that, if the Italian authorities had any plausible claim to it, they should have instituted civil proceedings. 19.     On 3 August 1973 the German authorities brought charges against Mr   H.H. However, on 22   August   1973 the Munich public prosecutor’s office discontinued the case as “the criminal act of handling stolen goods [could] not be proved ... with the certainty necessary for an indictment”. 20.     The following year the Gubbio magistrate ( pretore ) opened an investigation into the unlawful exportation of a cultural object under section   66 of Law no.   1089/1939 (see paragraph 113 below). On 9   February 1974 the magistrate sent a letter of request to the German authorities, requesting them to: (i)   seize the Statue, if necessary, after searching the places where it could be found; (ii)   hear Mr H.H. as a suspect of having committed such a crime and ask him about the circumstances in which he had come into possession of the Statue and for any other information concerning its provenance and ownership; (iii) provide photographs of it; (iv)   inform them of compliance with the requests; and (v) hold onto the Statue before sending it to Italy. 21.     On 2 April 1974 the Munich public prosecutor’s office dismissed the Italian authorities’ request and discontinued the investigation against Mr   H.H. 22.     In 1976 the Italian authorities discontinued the investigation on the grounds that the perpetrators of the alleged crime remained unknown. II.       PURCHASE OF THE STATUE BY THE FIRST APPLICANT 23 .     While the Statue was in Germany, the Trust entered into negotiations for its purchase with Mr H.H., the vendor’s representative, acting on behalf of the owner, a company registered and based in Liechtenstein (see paragraph   15 above). 24 .     On 30 August 1972 Mr N.B., Mr Getty’s adviser, informed the vendor’s representative that Mr Getty had stated that, subject to and assuming that clear title could be obtained to the satisfaction of Mr S.P. (Mr   Getty’s attorney) he would recommend that the trustees purchase the Statue. The letter noted the existence of “some possible legal complications” as “it   [was] not known when the [object had] left Greece or Italy, or when it [had   been] discovered”. The Trust’s representatives asked the vendor to provide information to allow a proper assessment of the legality of the purchase. 25 .     In a letter dated 31 August 1972 Mr Getty Senior informed the vendor’s representative that he had recommended that the trustees buy the Statue for 3,500,000 United States dollars (USD). He requested a copy of the Italian courts’ decisions in the criminal proceedings concerning the circumstances surrounding the discovery of the Bronze in the Adriatic Sea (see paragraphs 10-14 above). 26 .     On 4 October 1972 Mr G.M., the vendor’s Italian lawyer, assured Mr   Getty’s attorney that, under Italian law, Italy could not claim any rights to the Statue. He argued, in particular, that it could not be proved that the statue under negotiation was the same as that which had been the subject of the above-mentioned criminal proceedings. In any event, he further observed that the criminal proceedings had concluded that it could not be proved that the statue had been found in Italian territorial waters (see paragraph 14 above), that the Italian government had failed to claim ownership of the statue in those criminal proceedings and that it was therefore an ordinary object belonging to his clients in a private capacity. 27 .     The letter was accompanied by a translation of the Italian judgments issued in the criminal proceedings (see paragraphs 10-14 above) prepared by Mr   V.G., a lawyer from the Italian law firm representing the vendor. 28.     On 30 June 1973 Mr Getty’s adviser sent a letter to Mr   Getty   Senior with regard to the possibility of the Getty Trust and the Metropolitan Museum of New York jointly purchasing the Statue. 29.     On 25 August 1973 the vendor’s representative assured Mr   J.F. (then   curator of antiquities at the Getty Museum) of the vendor’s willingness to share all the available information. With regard to the origin of the Statue, the letter read as follows: “In the meantime one of Mr Getty’s main worries have been proved absolutely to his satisfaction: even the Italians admit that we do have a clear title to this Bronze: [Mr.   Getty’s advisor] will be properly informed about this, by our Italian lawyers ...” 30 .     On 25 September 1973 Mr V.G., another of the vendor’s Italian lawyers, sent a letter to Mr Getty’s adviser including information concerning the investigation opened by the Munich public prosecutor’s office. The relevant part of the letter reads as follows: “According to the Munich District Attorney, the allegation originally raised against our client is not substantiated. This should settle once and for all a case destitute of any legal foundation ... On the other hand, the Italian authorities appear to be perfectly aware that no charge can be brought in this country against our clients after the judgment rendered by the [Perugia] Court of Appeal on [18 November] 1970 which, as you know, is a final one. Moreover, the applicable statute of limitation precludes any charge of unlawful exportation even though this may be a superfluous notation since no such charge could ever be preferred against our clients who purchased the statue abroad.” 31 .     In a letter dated 1 October 1973, the vendor’s Italian lawyers further informed Mr Getty’s adviser of the circumstances concerning the purchase of the Statue, its ownership and the Italian State’s claims: “You will find enclosed herewith copy of the order issued by the Munich District Attorney. As you know the order in question is the most recent development in the legal entanglements which followed the excited speculation raised in March 1973 by Il   Messaggero , a Rome paper with some local importance. In this connection I think you should be aware of certain facts which, even though of general knowledge, may be regarded as relevant by a proposed purchaser of the Bronze. Our firm originally advised the present owners of the Statue (Etablissement D.C. of Vadu[z]), in respect of the undisputable good title of their acquisition which took place in June 1971. Our opinion followed a thorough factual and legal investigation concerning the whereabouts of the bronze as well as historical and judicial precedents involving discoveries of work of art in international waters. We subsequently continued to act for the D.C. group, by disclosing legal considerations on which our opinion had been based, [1] to the Getty Museum in Malibu, as one of the proposed purchasers of the Bronze. ... The statements made by Il Messaggero , although dramatically misleading, were more prejudicial to the Italian Government authorities in charge of the surveillance of works of art than to the reputation of our clients. Which accounted for the informal request of explanation which we received from Mr [L.G.], a high official of the Ministry of Education, through the good offices of a mutual friend. During a meeting with Mr   [L.G.] which took place in March 1973 in our office, we disclosed to him our findings and told him the very simple truth that, to the best of our clients’ knowledge, the bronze had only one true country of origin: Greece, some 2,400 years ago. Mr   [L.G.] was quite openly relieved to be able to confirm to his Minister that, after the judgment of the [Perugia] Court of Appeal in 1970, no charge of negligence could be advanced against the Government and stated that as far as the Ministry of Education was concerned the matter could be set aside. In fact we have been able to ascertain through confidential channels that the investigation conducted in Germany by the Italian Police was but the personal and somehow arbitrary initiative of a well-known figure in the Police who, in an internal feud with officials of another department, acquired a certain notoriety by suggesting that a number of works are Nazi war-lot or contraband from Italy... May I add, knowing that the contents of this letter will be treated with the utmost confidence, that I personally learned by one of the policemen [ sic ] who has been dealing with the subject matter, that the Italian police regards the same as finally closed.” 32.     In a letter dated 3 November 1973 the vendor’s representative informed the curator of antiquities at the Getty Museum that the vendor would not sell the Bronze for less than USD 4,000,000. 33 .     On 6 June 1976, while negotiations were still ongoing, Mr   Getty Senior died. 34 .     On 8 June 1977 the trustees discussed the purchase. It was agreed that the legal opinion obtained from the Italian lawyer in October   1972 (see paragraph   26 above) should be updated. 35 .     In a letter dated 8 July 1977 the vendor’s representative wrote to the curator of the Getty Museum that he had instructed the vendors’ London office to send him by post the complete documentation on the legal aspects concerning the Statue. The letter stated that the file contained “every possible document”, namely: (i) “the complete documentation of the case in the Italian courts”; (ii) “all documents relating to the first attempt by the Italians to appropriate the Statue”; and (iii) “all documents relating to the second attempt by the Italians to appropriate the Statue”. 36 .     The letter included a legal opinion obtained by the vendor on 7   January 1974 from Mr P.R., a German lawyer, which stated that ownership of the Statue had been validly acquired by the fishermen who had found it and therefore validly transferred to the vendors. 37 .     The Trust purchased the Bronze on 27 July 1977 for USD   3,950,000 through a contract concluded in the United Kingdom. The purchase was officially announced by means of a press release. Clause 2(a) of the purchase agreement between the vendor and the Getty Museum stipulated as follows: “It has good title to the Statue, free of all rights and claims of others, and ... has the power and authority to enter into and perform its obligations hereunder in accordance with the terms and provisions of this Agreement.” 38 .     The Statue entered the United States through the port of Boston on 15   August 1977 and arrived at the Getty Villa in Malibu in March   1978, where it has been displayed ever since. III.     THE ITALIAN AUTHORITIES’ RECOVERY ATTEMPTS 39 .     Following the Statue’s arrival in the United States, the Italian authorities took steps to investigate the circumstances surrounding its purchase and entry into US territory. A.    International request for an investigation 40 .     In December 1977 the Italian customs authorities, through Interpol in Rome, sent a request for an investigation, which was forwarded to the US Customs Service in Washington D.C. It was requested to verify whether the Statue had entered the United States properly, to obtain copies of all entry documents and to interview Getty Museum staff to determine what action they had taken to satisfy themselves that the purchase had been legitimate. The request was forwarded on 27 December 1977 to the office of the Special Agent in charge in Los Angeles. 41 .     The Special Agent conducted an investigation between 3 and 11   January 1978. The results of the investigation were included in a report dated 17 January 1978, which concluded that the Statue’s entry into US territory did not appear to have violated US customs laws. 42.     On 23 May 1978 the Central Office of the Italian Ministry for Cultural and Environmental Heritage clarified that the Export Office had ascertained that no export licence had been issued with regard to the Statue. 43 .     On 30 May 1979 the Cultural Heritage Protection Department of the carabinieri received a note from the US authorities via Interpol in Rome, requesting clarification as to whether the Italian authorities considered that the Statue was protected under Italian cultural heritage law, and whether it had been unlawfully exported from Italy. 44 .     Following the discontinuance of the domestic investigations (see paragraph   54-55 below), the Italian authorities did not follow up the matter. The documents available to the Court show that the investigation was closed by Interpol and the US authorities in 1984. B.    Second investigation into unlawful exportation 45 .     On an unspecified date the Gubbio magistrate opened an investigation into the unlawful exportation of a cultural object. 1.      Taking of statements 46 .     The Imola carabinieri were informed that Mr R.M., a local dealer, had seen the Statue covered in marine encrustations in 1964 while it was still with the fishermen who had found it. When questioned on 24   November 1977, he gave the carabinieri a photograph of the Statue taken on that occasion. 47 .     In December 1977 the carabinieri again questioned the captains of the fishing boats and the fishermen who had found the Statue. They said that they had found the object by chance while they had been fishing a few miles off the Italian coast, not far from the coast of Pedaso. 2.      Letter of request to the British authorities 48 .     On 14 January 1978 the Gubbio magistrate sent a letter of request to the British authorities asking them to cooperate in the investigation into the circumstances surrounding the purchase of the Statue and its transit through British territory. 49 .     On 2 May 1978 the British authorities provided information concerning the transit of the Statue. However, they dismissed the other requests, observing, inter alia , that the United Kingdom was not a party to the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (see paragraph   150 below) which had been relied on by the Italian authorities. 3.      Letter of request to the US authorities 50.     On 17 February 1978 the Italian embassy in the US received a letter of request from the Perugia public prosecutor’s office, following a request from the Gubbio magistrate, asking the US authorities for judicial assistance in the investigation into the circumstances surrounding the entry of the Statue into US territory and its seizure. 51 .     On 27 February 1978 the US Department of State dismissed the request on the grounds that, under the US Secretary of State’s circular letter of 3   February 1976, the seizure of property on US territory could not be effected by means of a request for judicial assistance accompanied by a letter of request. The dismissal clarified that the Italian authorities could have instituted proceedings before the US judicial authorities in accordance with US law. 4.      Further investigations 52 .     On 9 March 1978 the Gubbio magistrate ordered the Cultural Heritage Protection Department of the carabinieri to search the marine area where the discovery had taken place to determine its exact location. 53 .     On 13 September 1978 the Cultural Heritage Protection Department of the carabinieri replied that the requested search was impossible for technical reasons and because of the risk of undertaking actions in Yugoslav waters. 5.      Discontinuance of the investigations 54 .     On 25 November 1978 the Gubbio magistrate discontinued the investigations into the unlawful exportation of a cultural object as the perpetrators of the crime remained unknown and the offences had become statute-barred. 55 .     Following the information request submitted by the US authorities through Interpol (see paragraph 43 above), on 25 August 1980 the Gubbio magistrate sent a letter to the Perugia public prosecutor’s office confirming that the investigation had been discontinued and that the “criminal proceedings in question appear[ed] ... not to be amenable to any further examination by the ordinary courts, which [were], in particular, prevented from ordering further measures aimed at recovering the Statue”. It considered that, according to him, any competence in that regard lay with the Ministry of Foreign Affairs and the Ministry for Cultural and Environmental Heritage, which could have tried to recover the Statue by resorting to the means referred to in the note of the US Department of State (see paragraph 51 above). 6.      Further proceedings 56.     The documents available to the Court show that on 3   November 1989 the Pesaro public prosecutor’s office ordered the seizure and examination of certain marine encrustations removed from the Statue after its discovery. 57.     According to the results of the scientific examination, dated 9   July 1992, no clear information could be drawn from the assessment. 58.     The authorities also collected statements from several individuals who had been involved in hiding the Statue after its discovery. 59.     It is not clear from the material submitted by the parties when these investigations were discontinued. C.    The Italian authorities’ administrative and diplomatic attempts to recover the Bronze 60 .     On 28 September 1982 a meeting took place between representatives of the Trust and those of the Italian Ministry for Cultural and Environmental Heritage. The content of the discussion is unknown. 61.     On 19 April 1984 the Italian Ministry for Cultural and Environmental Heritage acknowledged that it had received a note from Interpol Washington stating that until concrete evidence concerning ownership of the Statue could be provided, it could not be recovered. 62 .     In 1989 the General Director for Archaeological Objects of the Italian Ministry for Cultural and Environmental Heritage wrote to the Director of the Getty Museum, asking for the Bronze to be returned to Italy. The letter highlighted the “ethical and legal inconsistency of the reasons that [seemed to have been] given [by the Trust] for retaining the Bronze”, reiterated that “the [object had been] found by an Italian boat and immediately transported onto Italian soil, where it [had] stayed for a long time before being exported without a proper licence”, and referred to the 1970 UNESCO Convention, which had in the meantime been ratified by both Italy and the United States. On 15   May 1989 the Trust replied that there was no relationship between the Statue and Italy, and it refused to return the Bronze. 63 .     In 1995 the Italian Ministry of Foreign Affairs, through the Italian Embassy in Washington, instructed the Italian consul in Los Angeles to negotiate the return of the Bronze with the then curator of antiquities of the Getty Museum. The latter reiterated that the Trust had purchased the Statue in good faith, seven years after the acquittal decision issued in the Italian criminal proceedings, and six years before the United States had acceded to the 1970 UNESCO Convention. She observed that it was unrealistic to expect that the Bronze would be returned unconditionally. 64.     The curator of antiquities of the Getty Museum therefore dismissed the restitution request on the grounds that the alleged offences had become time-barred and that the Trust had acted in good faith when purchasing the Statue. The Trust’s representatives proposed an agreement whereby the Getty Museum would finance the restoration of works of art in Italy and lend the Statue for long periods of exhibition in Italy, in exchange for an end to the dispute over its ownership. 65 .     Between 2006 and 2007 the Italian Ministry for Cultural Heritage and Activities and the Trust negotiated the return to Italy of around forty archaeological objects. The parties jointly decided to postpone the negotiations concerning the Statue. According to the Government, the agreement had contained an express confidentiality clause preventing the parties from producing it in a court of law. They therefore chose not to provide the agreement to the Court. IV.    DOMESTIC PROCEEDINGS AND THE CONFISCATION ORDER 66 .     On 11 May 2006 the Los Angeles Times published an article containing certain statements made by Mr T.H., then Director of the Metropolitan Museum of New York, with regard to the Statue. 67.     On 5 April 2007 local campaigners lodged a petition with the Pesaro public prosecutor’s office requesting that action be taken to seek the return of the Bronze to Italy. 68 .     On 12 April 2007 the Pesaro public prosecutor’s office brought charges against the captains of the two fishing boats, as well as Mr   P.B., Mr   F.B., Mr G.B. (see paragraph 8 above) and some unknown individuals. They were charged with exporting the Bronze without the required licence, failing to report the Statue to the competent authorities after its discovery and violating border controls in importing it to Italy. 69.     On 24 April 2007 the Italian carabinieri took a statement from Mr   T.H. (see paragraph 66 above), who stated that he had seen the Statue for the first time in Munich in 1972, at the gallery of Mr H.H., and that during the discussions between the Getty Trust and the Metropolitan Museum of New York about the joint purchase of the Statue, Mr Getty Senior had reported concerns about the circumstances in which the Statue had been discovered and exported. Mr T.H. further stated that “Mr Getty [had] made the acquisition of written authorisations by the Italian authorities a condition for the purchase of the Bronze”. A.    Discontinuance of the criminal proceedings and dismissal of the confiscation request 70.     On 12   July   2007 the Pesaro public prosecutor’s office requested the preliminary investigations judge ( giudice per le indagini preliminari – “the GIP”) of the Pesaro District Court to discontinue the proceedings “as they [had] become statute-barred and some of the people under investigation [were] deceased”. The public prosecutor requested the confiscation ( confisca ) [2] of the Bronze on the grounds that it had been unlawfully exported. 71.     By an order dated 19 November 2007, the GIP of the Pesaro District Court ordered that the proceedings be discontinued. 72 .     The GIP dismissed the confiscation request. He observed that the domestic provisions concerning the confiscation of unlawfully exported cultural objects (see paragraphs 113 and 121 below), as amended in the light of the Constitutional Court’s case-law (see paragraph 125 below), did not allow the imposition of such a measure on a “person not involved in the criminal offence” ( nei confronti di persona estranea al reato ). It therefore considered that the confiscation could not be ordered because the Trust had not been involved in the offences in question, and as their representatives’ good faith could not be ruled out with certainty. In particular, the Statue had been purchased after a final decision adopted by the Italian judicial authorities had ruled out the offence of receiving and handling stolen goods. B.    Enforcement proceedings and the first confiscation order 73.     On 29 November 2007 the Pesaro public prosecutor’s office lodged an objection to enforcement ( incidente di esecuzione ). 74 .     On 10 December 2008 the GIP of the Pesaro District Court informed the Trust, in its capacity as current possessor of the item ( attual[e] detentor[e] del bene ), of its right to attend the hearing and to submit observations. The Trust participated in the proceedings through its representative. 75 .     By an interlocutory order of 12 June 2009, the GIP dismissed an objection by the Trust to the admissibility of the enforcement proceedings. 76 .     On 10 February 2010 the GIP ordered the confiscation of the Statue, “wherever located”. The GIP considered that the measure was mandatory under the applicable domestic legislation, as it was aimed at recovering possession of a cultural object belonging to the State. 77 .     The GIP further observed that a confiscation order, given its “recovery” purpose, could be imposed in the enforcement proceedings even if the relevant criminal offences had become statute-barred, if the individual who owned or was in possession of the object was not a “person not involved in the criminal offence”: under the relevant case-law, the measure could be imposed on individuals who had not committed the crime if a “lack of vigilance” could be ascertained and attributed to them (see paragraph   124 below). In this connection, the GIP observed that the Trust’s representatives had not conducted a proper inquiry into the lawful origin of the Statue and, therefore, had been at least negligent. 78 .     The GIP found that the investigation had not succeeded in identifying the location of discovery of the Statue and concluded that it had probably been found in international waters. However, the GIP considered that the Italian State had acquired ownership of it. He observed, in particular, that the Bronze had been discovered by an Italian-flagged vessel. Taking into account the customary international law principle of the freedom of high seas and the corresponding principle of the exclusive jurisdiction of the “flag State”, Article   4 of the Italian Navigation Code (see paragraph 116 below) was applicable. Under those provisions, vessels flying the Italian flag are part of the State’s territory. As a consequence, the Bronze had been found on Italian territory, Italian heritage law was applicable and Italy had therefore acquired ownership of the Statue. 79.     The GIP further observed that, in principle, confiscation could not be ordered with regard to cultural objects, which, by definition, belonged to the State. However, when the relevant cultural object was outside the State’s territory, it could be recovered exclusively through international judicial cooperation mechanisms, which needed as a basis a formal confiscation or similar order. The decision observed that there were no examples of case-law, only academic opinions, stating that the measure in question could not be imposed in cases in which the cultural objects were located outside Italian territory. 80.     On 13 February 2010 the applicants lodged an appeal on points of law with the Court of Cassation. By judgment no. 6558 of 22   February   2011, the court reclassified the appeal as an objection to confiscation within the meaning of Article   667   §   4 of the Code of Criminal Procedure and ordered the case to be transferred to the GIP of the Pesaro District Court. 81 .     On 3 May 2012 the latter dismissed the applicants’ objection. C.    Annulment of the confiscation order for lack of a public hearing 82.     The first applicant lodged an appeal against that decision with the Court of Cassation, complaining, inter alia , that the proceedings had been unfair as the hearings before the GIP had not been held in public. 83.     By order no. 24356 of 4 June 2014, the Court of Cassation raised a constitutionality issue with the Constitutional Court as regards Article   666 §   3, Article 667   §   5 and Article 676 of the Code of Criminal Procedure in so far as those provisions did not allow, upon the request of the parties, proceedings concerning an objection to a confiscation order to be conducted in the form of a public hearing. 84 .     By judgment no. 97 of 15 June 2015, the Constitutional Court declared the above-mentioned provisions unconstitutional in so far as they did not allow enforcement proceedings to be held in public. 85.     By a judgment of 27 October 2015, the Court of Cassation upheld the appeal concerning the lack of a public hearing. It consequently quashed the judgment of 3   May   2012 (see paragraph 81 above), remitting the case to the GIP of the Pesaro District Court for a new decision on the applicants’ complaints. D.    Reopening of the enforcement proceedings and the second confiscation order 1.      Order of 8 June 2018 of the GIP of the Pesaro District Court 86.     By an order of 8 June 2018, the GIP of the Pesaro District Court upheld the confiscation order. The