Case Law Database

Participation in an organized criminal group

Offences

• Agreement to commit a serious crime (conspiracy)

Trafficking in cultural property

[A] and [B]1995-2008

Fact Summary

In Italy, links between all these players and this complex underground were first discovered thanks to the investigations into [A] Giacomo and Gianfranco Becchina, two Italian dealers involved in a wide traffic of works of art of certain Italian provenance, which had as presupposed facts, criminal offences of theft and/or illicit excavation and exportation of the goods themselves. As assessed, the documentation gathered during the investigations throws light on what we might call the strategic organization of the antiquities underworld and the discoveries in this realm are a major contribution to the history of both archaeology and criminology in this sector during a long period of time, from the 60s to the late 90s. And we can summarize, as it follows, the investigations conducted by the Public Prosecution Office in Rome.

In 1995 a criminal procedure was started against [A] Giacomo, thanks to the Swiss Authorities who had seized from [A], at Geneva Free Port (Switzerland), thousands of archaeological objects, many of which still had Sotheby’s tags indicating the pertinent sales. The importance of the above acquisition was completed by paper documents, transmitted by Sotheby’s lawyers. Then, in June 2000 the Swiss Authorities delegated the proceeding which had been opened in Switzerland to the Italian Authorities, transmitting all the objects seized (almost 4000) which had in the meantime been examined by experts on Swiss territory, and also all the paper and photographic documentation seized in Geneva.

Then, in 2001 the Swiss Authority were once again very helpful, searching and seizing many documents and archaeological items which [B] had been holding in the Porto Franc of Basel. And in 2005 these evidence too was transmitted in Italy. Italian technician-archaeologists immediately began working on the material acquired: the aim of the examination was to unravel the events concerning some of the most important objects, since it was not possible to trace them all. From the examination of the documents held by the Prosecutor’s Office, various connections were found with other dealers, shippers, mediators and restorers of archaeological material, operating throughout the world. These, in turn, brought about a series of rogatory letters with assistance requests almost in the entire world, from Switzerland, from France, from Great Britain, to the United States, Japan, Denmark, Germany, Australia etc. Further investigations also took place in Italy, with raids and interrogations. Both the Italian Carabinieri and the Italian Guardia of Finanza, as well as technicians from the Italian Cultural Ministry, actively collaborated in this monumental work. Rogatories resulted in further acquisitions in Switzerland and elsewhere, with new seizures of objects and documentation, both against [A] himself as well as Phoenix A.A., also of Geneva; against Fritz Burki and his son Harry in Zurich; in France there was a particularly significant raid on Robert Emanuel Hecht, resulting in the seizure of objects as well as paper and photographic documentation, and a sort of “memoir” found in his home. Marion True, ex-responsible for purchases for the P. Getty Museum, was interviewed in the United States. Significant and serious with regards to [A]’s responsibilities, are statements by Casasanta Pietro, Guarini Walter, [B]Gianfranco, Tchacos Nussberger Frederique Marie, Jiri Frel and particularly by Robert Hecht, who basically confirmed the content of the memoir seized, of which he claimed paternity.

At the end of the extremely complex investigation which verified Giacomo [A]’s and Gianfranco Becchina’s activity over a period of almost forty years (their criminal actions lasted continuously, without downturn, for this length of time), one can with certainty maintain that the examination of the voluminous documentation with cross-checks of the same, has allowed us to verify and prove most of the suppositions both in relation to the objects seized, as well as with those not found, of which there are unmistakable photographs. For example, objects are frequently depicted in polaroids taken on sights of digs, in fragments and/or still dirty with earth; and polaroid technique is used by tombaroli so as to avoid diffusion beyond a circle of people known to them, of images regarding material excavated. This technique, as is testified by many, is never used in scientific circles. We could therefore state that the traffic run by [A] and Becchina, or of which they were certainly the principal players, might be quantified in more than 20.000 objects, some of which of enormous cultural value as well as economic value, the overall figure in economic terms being calculated in more than 100 million Euros. Objects were bought by some of the most important museums of the world, frequently for over $100.000 each. But the major damage was inflicted to the archaeological areas which were devastated so as to make this traffic possible (damage quantified by experts around 200 million Euros). In this excursus we must also recall the practices for “laundering” objects: practices in which [A] and [B]were supposed to be maestro, together with the members of the “club” which they concurred to head; practices which frequently consisted in attribution of provenance, known to be false, from collections or from auction houses which were the universitas or subjects delegated to the apparent transit of artistic goods, for the obvious reason of misleading any investigation.

Switzerland had to appear the “country” of provenance of the objects, which instead had recently been illicitly excavated, taken out of Italy and sent abroad thanks to [A]and Gianfranco Becchina, in so much as they were the reference point for thieves and/or Italian tombaroli and other people connected to them. From Switzerland the goods were then fictitiously attributed as being the property of other companies (see the above mentioned list), which acted as “clearing and laundering-house”, and which then sent the archaeological goods mostly to England, Germany, the U.S. and even to Japan or Australia. The brokering and triangulation had one only aim: that of rendering the purchases credible and unchallengeable for the buyers. Not only. At times the Art Loss Register (a data-bank for stolen goods similar to that of the Italian Carabinieri, obviously never double-checked) was approached, so as to be able to vaunt good faith. Since the objects had been illegally excavated, they could never have been catalogued or inventoried, nor, obviously, reported as having been stolen. With regard to proof and documents of particular weight for the incrimination of conspiracy in the present case, we must recall the following specific circumstances:

- In the course of a raid carried out on Pasquale Camera, well-known trafficker of Italian archaeological objects, which took place on the day of his death (30.8.1995), a page was found with the organigram of people in Italy involved in illicit trafficking of objects. [A], [B]and Hecht occupy an important position on this chart;

- The important documents regarding a trial held at Knightsbridge Court in London in the month of November 1991 against James Hodges, once employee of Sotheby’s London, refer to the interrogation of Mrs. Felicity Mary June Nicholson, responsible for the Antiquities Department of the above-mentioned London auction house.

From her questioning one learns, in synthesis, how some of Sotheby’s personnel was, in different ways, involved in trafficking goods of artistic, historical and archaeological interest, illicitly originating from Italy, be it by handling, be it because they had been illicitly exported, and held in violation of Italian laws;

- In the course of his interrogation, Guarini Walter (he too a well-known Italian trafficker), indicated [A] and [B]as being amongst the people interested and in contact with Italian and foreign traffickers; his statements appear even more significant in that Tchacos Nussberger Marie Frederique spoke of Guarini as the person who many times furnished [A] and [B](through Raffaele Monticelli, another trafficker) with archaeological objects, in particular those coming from southern Italy;

- In the course of his interrogation Casasanta Pietro (a well-known Italian tombarolo) confirmed that there were competitive groups, trying to send the best objects out of Italy, and that these groups were led respectively by [B]and Giacomo [A]; that [B]and [A] had divided Italy into two areas of influence and had become millionaires from nothing; that absolutely everybody in the milieu of the traffickers in archeological material knew that [A]and [B]were bosses who managed to intercept all almost the material excavated in Etruria and in South of Italy; that it was well known that Hecth and [A] were partners since the sixties; that the criminal group reported their rivals to the authorities whenever their interests were threatened;

- It is then Fritz Burki who, to the Swiss Authorities who were interrogating him in December 1997 and October 2001, ends up by admitting that at times he had acted as front-man for the buying and selling of objects dealt by, amongst others, [A], [B]and Hecht;

- Hecht himself had to admit that he had been a front for sales to the J.P. Getty Museum, allowing it to be understood that the Museum could not or would not buy directly from [A]. On the other hand, Hecht, in his memoir, says of [A]: “In spite of this G.M. (Giacomo [A]) was loyal… he appeared at our (of Hecht and his wife) apt. In Villa Pepoli (Rome)… with polaroids of a Kr (Krater) signed by Euphr (Euphronios)… I could not believe my eyes… took the train to Lugano (Switzerland) where G.M. had the Krater in a safe deposit box. The negotiation did not take long… we agreed on 1,500,000 S.F. (Swiss Francs)… That same evening I went on to Zu (Zurich), left the Kr to F.B. (Fritz Burki)…”. Also: “…G.M. (Giacomo [A]) soon became a faithful….. The next memorable purchase from G.M. was a group of a Etr (Etruscan) chariot fixture….”. And also: “The sale of the Kilix was an eye opener for G.M. He saw that quality had high premium…”. Also: “…G.M. (Giacomo [A]) had become more prosperous, selling mainly to me... he sold me a... kilix, which I put at auction at Sotheby’s. F.N. (Felicity Nicholson, head of department in Sotheby’s London) called me… said that Scotland Yard was inquiring about the kilix at the request of Italy… she wanted to give it to Italians. I told her to resist…”. There is more: “…G.M. (Giacomo [A]) at that time was the man of E.B. (Elia Borowski: wellknown collector)… this prompted G.M. to go to E.B. with the excuse that the police (Italian) were after the cup… so, in the evening on the Lungotevere (Rome), in front of the palace of Justice, in my car… L. (Luzzi)… G.M. showed me the cup…”.

With regard to their business relationships, to the “omertà” which had to surround the relations between the associates and their ties with museum institutions, it is well worth recalling the following expressions, taken from the same Hecht’s memoir: “…H.C. (Herbert Cahn, a well-known Swiss antiquarian) did not realize or want to realize that he was dealing in contraband… that in this activity it is ignoble to inform against your collaborators…”; and also: “…So I went into exile, not even permitted to return to Italy…. My friends were loyal during this period and brought to me such fine objects as the Attic r/f Kilix now in Munich (Museum)…”; and further: “…I read off a list of museums I had sold to including the B.M. (British Museum), Louvre, Glyptothek Munich, Glypt. Copenhagen, M. of A. (Museum of Art) Boston, Toledo, Cleveland, Harvard Univ… and the Campbell Soup Museum…”;

- Of significant probationary value are also Marion True’s statements, as are those of Tchacos Nussberger Frederique Marie (a Swiss dealer), who depict [A] and [B]as persons who tended to monopolize the market; as persons who had no compunction in using corruption so as to enter into the good graces of a museum; as someone who bought objects at very high prices at auctions (with no chalance, in fact they were buying the same objects they themselves had put on sale, obtaining the double advantage of “laundering” the object and raising its commercial value in a field where prices are obviously not pre-set). But there is more. Tchacos, heard on this point, said that in the organization there were two “ropes”: the first with the axis Robert Hecht (operating mainly in New York, Los Angeles, Paris and Geneva) [A] Giacomo, with Symes (operating mainly in London, New York, Los Angeles and based in Greece too) as reference point; the second, still with Hecht as the preeminent figure, involved amongst others, Giovanni Franco [B]and Raffaele Monticelli (the latters operating mainly in South Italy, Switzerland, Japan and Australia);

- Of significance are the places chosen for [A]’s and Becchina’s activity of stocking, buying and selling, that are, Free Port of Geneva and Basel, where it was obviously possible to carry out the first activity of receiving the archaeological objects just excavated and seeing to their restoration, either directly or with the help of third parties, far from prying eyes; places which were possible to search only thanks to the active collaboration of the Swiss Authorities. [A] and [B]evidently felt so safe, that at the warehouses inside Free Port, as said above, an imposing amount of photographic documentation of objects was found, objects frequently depicted in fragments on the sights of illicit digs; also found, a quantity of compromising documents, precious for the reconstruction of events concerning some of the objects; also, many archaeological objects of inestimable value, some of which put on sale and then re-purchased by the same people through auction houses, in clear laundering operations aimed at attributing legitimate provenance and artificially raising the price of the objects themselves. Other objects appeared still dirty with earth, packed in fruit boxes coming from Italy, with the names printed on them, or were wrapped in daily newspapers, these too Italian;

- Many of the photographs seized to [A] in Geneva and to [B]in Basel had writing on them and sometime showed interiors that were easy to spot as appertaining to the other associates, so helping to piece together the complex web of criminal interrelationship . Moreover, because at times illicitly excavated archeological objects, even when found intact, were deliberately fragmented, or, if found in fragments, were, once again, deliberately not restored: the criminal links of the conspiracy were traced not only thanks to the documents collected, but through the fragments and their subdivisions amongst the various participants;

- Thanks to the documentation collected, we came across a set of names that was the most surprising of all. This was a list of archaeologist or art historians and of museum curators who appeared to have been in touch with [A] and Becchina, and had offered to them their expertise. Evidently those experts as well as many restores were having an important part inside the criminal organization;

- Considering the confidential relations and meetings, which took place also in Italy, between [A]and Marion True (there are very friendly letters and photographs which depict the associates in convivial attitudes: documents found in Geneva belonging to [A]), it would undoubtedly have been more economic for Marion True -and through her for the Getty Museum- to buy directly from [A] instead of going through elaborate triangulations and intermediations, which, being illicit, were kept strictly secret, with agreements on the version to be upheld when any inconvenience or “accident along the way” took place. On the other hand, relations between the parts were stable and lasting and to illustrate this it is sufficient to recall the letter which Marion True sent [A]on the 22.1.1992. True says: “I intend to be in Rome… on February 19th through the 23rd. I will back in Rome again from March 8th through approximately March 12th. During one of these visits, I hope that you will be able to get together and have some further discussion about future acquisition”. Obvious indication that the collaboration between the two was at that time “flourishing”; that negotiations took place in Italy with respect to objects of Italian provenance. Also obvious that the modalities would have been the usual ones, seeing that no direct purchases result between the J.P. Getty Museum and Giacomo [A];

- We have to stress that Marion True should have been well aware of the illicit provenance of the objects dealt and often acquired through photos, depicting their illegal excavations. In this respect, it is sufficient to recall the letters published by the Los Angeles Time. Hecht on September, 22, says to True: “…am sending photographs of corinthian pots… that might be interesting as documents…. My friend called me + said that since the Carabinieri were looking for the pelike with the arms of Achilles he abandoned negotiations. So I will not have it. Perhaps others may acquire it. Sorry…”. And also the letters Hecht sent to True on the 1st of October 1986, and on the 7th of January 1987: “…I hope to have this -it was obviously sent a photo of the object- when you receive the letter. Found near Cumae. Maybe Turnus!….”. Or: “…whether this (h.14 cm)….. -it was obviously sent again a photo of the object- …..is within a few feet of your dying youth….”. However, in his memorandum written to Deborah Gribbon on the 24th of October 1985, Arthur Houghton, the previous curator for the J.P. Getty Museum, showed the same awareness. This memorandum reads: “….it has still seemed possible to go back through the chain of individuals through whom the material passed to try to find out exactly where all three originated. It was. At the beginning of this month I had a chance to discuss the matter with the dealer who had bought all three objects from the excavators. This individual, Giacomo [A], had sold one (the lekanis) to a second dealer, Robert Hecht, and the griffins and Apollo to a third, Robin Symes….. [A] informed me that he had acquired the lekanis and Apollo in 1976 or 1977, and that both had been found at the same location, a tomb which included a number of vases by the Darius Painter, at a site not far from Taranto. Hecht said the site was Ortanova…”.

We must also stress that the criminal phenomenon with which we have above dealt with was spread out over almost the entire world, from Italy, to Swiss, to England, to the U.S., to Japan, to Australia etc. And the laundering operations of this complex criminal organization -which mainly took place through English and U.S. auction houses and through certain private collections, created ex novo or certainly significantly incremented- were only possible thanks to the multiple relationships with foreign entities of the promoters and organizers of this criminal group; to the trans-national attitude of this conspiracy; to the fact that criminality trusted and trusts, especially in the matter of artistic goods, in the customs barriers and up to a few years ago it was almost impossible to obtain assistance for some kind of crimes; to the past liable indifference of many foreign Authorities whose cooperation is -vice versa- nowadays very important to fight the criminality in this sector.

Commentary and Significant Features

The prosecution was versus many dealers and other relevant persons, not only in Italy, but also in the rest of Europe, as well as in America, Japan and Australia. And all these efforts were culminating in one of the most important trial in this field. In particular, as of July 2005, I have represented the prosecution in the case before the Court of Rome, versus Emanuel Robert Hecht and Marion True (former curator of the J.P. Getty Museum of Los Angeles-California), who have been charged with conspiracy and handling, in relation to an illicit traffic of archaeological items of huge proportions. This case has marked the beginning of a new policy regarding acquisitions on the part of many Museums all around the world who made themselves available to return many cultural goods stolen in the past.

For letters rogatory it is important to know the keys of access to the procedural system to ask for information or procedural elements. For that matter with regard to cultural property there are not many systems to be known, in general: the State of New York, the State of California, England, Switzerland, Germany, France, Japan and Australia.

And precise knowledge serves to overcome technical difficulties and sometimes also political difficulties. Continuous updating is therefore necessary although it is opportune to be as simple as possible to avoid misunderstandings in view of the difference in the systems of proceedings, language and practice. It will therefore be best to start with a simple request, and then to answer in an articulated manner if there is resistance and objections by the countries requested. As to making the requests and the times of the answers to them, everything depends on the systems.

However, here it is possible to give the following, general suggestions from a learned experience. As known, States are required to rely upon letters rogatory, but there are well established police to police channels through which much essential information has been and continues to be shared. These channels range from direct relationships between police officers and police forces, to the posting of police liaison personnel in foreign States, to the auspices of Interpol. All of these measures remain critical to cooperation in evidence gathering and have not been replaced by the more formal process of mutual assistance. However, the reality is that there are types of assistance which cannot be provided between States, through police or informal channels. The most obvious is where the type of assistance sought will require resort to the legal process within the requested State; where some type of judicial order or compulsory measure must be applied to produce the desired information or evidence, in an acceptable form. However, letters rogatory does not often provide for the scope of assistance required, nor are they efficient enough to allow for the production of the evidence, within a reasonable period of time. As well, because of fundamental differences between investigative authorities and process in civil and common law States, letters rogatory are in many instances ineffective as between States of a different legal tradition. Unfortunately, in a great number of cases, despite the existence of an applicable instrument, evidence is not forthcoming; it arrives in a form such that it is not useful to requesting authorities; or it is provided so late as to be of little practical value. In fact, as assessed, a country may have an excellent legislative and treaty scheme for mutual assistance and an established administrative process and it still may be virtually impossible to provide effective assistance; because the best designed system is only as good as the people who operate it on a practical level. In many instances, success in mutual assistance is dependent almost entirely on the knowledge and most critically -the flexibility- of the authorities request and, even more importantly, providing the assistance. In this respect, direct personal contact may improve the results of the required assistance. Without attempting to address all the problems, the following are -according to a shared experience- five basic general tips on the content of requests that would appear to be applicable for all States: a) non system specific language. Every legal system has its own terminology. As a request for assistance is addressed to and intended for a foreign authority, system specific terminology should be avoided. Instead the request should describe what is sought, rather than referring to a term. Moreover, the use of abridgements should be avoided, no matter how common or clear they might be; b) relevance. While the test that must be met before a compulsory order will issue can vary from State to State, in almost every legal system the relevance of the evidence sought to the investigation or prosecution will have to be established. Every request for assistance therefore should address that issue, i.e. there should be a clear description of why or how the evidence in question is relevant to the investigation or prosecution; c) specificity. In most legal systems "fishing expeditions" are not permitted. All requests for assistance should be specific as to the assistance sought, at least as to the principal theme of investigation elicited by the requesting authority. However, as it is upheld by many international judgments, the question of knowing whether the information requested in the context of an application for assistance is necessary or of use in the proceedings underway in the applicant State, in general, must be left up to the assessment of the latter’s authorities. The State applied to does not, in fact, have the means to be able to pronounce on the advisability of adopting certain evidence and cannot, therefore, put its own power of assessment in place of that of the foreign authority carrying out the inquiries. Furthermore, it is plain necessary, when dealing with a request for assistance, to examine more material than would ultimately constitute evidence at any trial, since when one is speaking of “evidence” in the context of a criminal investigation, there is some flexibility in the whole concept of evidence and the permissible area has inevitably to be wider than when once the investigation has been completed. So a margin of “fishing” can be justified. This might be useful at developing a better strategy and might be allowed by the requested authority, considering that proof of facts is “in fieri”; d) form of evidence. In preparing a request, prosecutors should focus not only on the evidence sought but the form or manner in which the evidence must be provided for it to be admissible at trial. Those requirements as to form and procedure must be set out in detail in the request and be included from the very beginning; e) time constraints. Requests for assistance take time to execute. While urgent situations and emergencies may arise, investigations and prosecutors should strive to submit requests on a timely basis, with reasonable deadlines that take into consideration the resource constraints in a requested State.

Moreover, the investigation abroad will be particularly useful if they are supported by direct and continuous contacts, thereby avoiding misunderstandings and, in fact, improving the consciousness of reciprocal problems in a spirit, not only of collaboration, but also of promotion of new themes. And I would like to point out that the struggle against the illegal traffic in cultural goods is more penetrating and successful if it is made by a “roving Public Prosecutor”, as in the past I -somehow- managed to make. This Prosecutor, in compliance with the laws of the requested country and following standard forms of acquisition, should go in the places for the taking of the evidence, making investigations directly, obviously in the most important cases.

Keywords

Organized Crime Convention:
Article 5 UNTOC

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)
• legal persons

Offending

Details

• involved an organized criminal group (Article 2(a) CTOC)
• occurred across one (or more) international borders (transnationally)

Involved Countries

Italy

Switzerland

United Kingdom of Great Britain and Northern Ireland

United States of America

Denmark

Japan

Germany

Australia

Investigation Procedure

Involved Agencies

• Interpol

Confiscation and Seizure

Seized Property

documents, archaeological objects, paper and photographic documentation, cultural goods

 

Special investigative techniques

• Special investigative techniques
• Electronic or other forms of surveillance

Comments

There were many seizure measures, especially abroad, and most of them were possible inter alia thanks to electronic and other forms of surveillance; use of confidential source; requests to the Interpol Database in order to check provenance and verify the good faith of purchasers.

 

International Cooperation

Involved Countries

Japan

Switzerland

Legal Basis

• UNTOC

Multilateral Treaties

• The European Convention on judicial assistance in criminal matters (Strasbourg April 20, 1959)
• The Convention on laundering, research, sequestration and confiscation of the proceeds of criminal offences (Strasbourg November 8, 1990)
• The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, signed on 29 May 2000
• The joint action on good practice in mutual legal assistance in criminal matters
• The UNESCO Convention (Paris 1970)
• The European Convention on the Protection of Archaeological Heritage of May 6, 1969, as amended on January 16, 1992
• The European Cultural Convention, signed in Paris, on 19 December 1954
• The EC Treaty, binding each Member States to cooperate and support their action, inter alia, in the areas of conservation and safeguarding of cultural heritage of European significance
• The Council EC Regulation n. 3911/92 of December 9, 1992
• The Council Directive 93/7/EC of March 15, 1993

Measures

• International cooperation for confiscation/asset recovery
• Mutual legal assistance
• International law enforcement cooperation (including INTERPOL)

Procedural Information

Legal System:
Civil Law
Accused were tried:
together (single trial)
 
 
Proceeding #1:
  • Stage:
    first trial
  • Court

    • Criminal

    Sentences

    Sentence

    Term of Imprisonment:
    8 years
     

    Fine

    Payment

    16000 €
  • Amount ordinary in USD:
    10,000-50,000
  • Compensation to victim

    Payment

    10000000 €
  • Amount in USD:
    More than 500,000
  • Decision Appealed:
    Yes
  • Proceeding #2:
  • Stage:
    appeal
  • Court

    • Criminal

    Defendants / Respondents in the first instance

    Number of other accused:
    2
    Respondent:
    A
    Gender:
    Male

    The following companies gravitated around [A] and Becchina: Edition Service, Fiduciarie Tecafin, Xoilan Trade, all three off-shore -originated in Panama- and with the same legal address, that is, at No. 7 Avenue Krieg in Geneva; Arts Franc, Mat Securitas and Phoenix Ancient Art with legal address at Free Port in Geneva, and Hydra Gallery of which [A] himself claimed being the owner to the Swiss Authorities, just as he claims -and it has been proved- being the owner of Edition Service. Most of these companies results as having been run by [A] through third parties, fronts or pseudonyms (C. Boursaud, S. Vilbert, J. Albert and “Guido’s”, the latter probably a pseudonym for [A] himself).

     

    [A] and [B] associated themselves with other companies such as Kunst Palladium based in Basel, such as Robin Symes Limited in London (as well as the other companies which in turn referred to Robin Symes), and Atlantis Antiquities and Athena Galleries, both in New York, and the Summa Gallery in Los Angeles, California.

     

    All of these companies were used by the criminal organization in order to launder through triangulations the cultural goods illicitly acquired.

    Charges / Claims / Decisions

    Respondent:
    A
    Charge:
    Conspiracy Handling Illegal exportation
    Verdict:
    Guilty

    Sources / Citations

    UNODC