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Persia artifacts  


 


 

Khurvin ramshead earth (grey)ware; H.17x Ø10 cm Persian; 1000 BC, grayware. Ask for availability.

CAVEAT EMPTOR

Long read partly quoted Lambrecht Law Office ©

The Khurvin case in a nutshell

Published on 31/08/2015

the Khurvin case (in a nutshell)

On the eve of Christmas Day 2014, 349 archaeological objects originating from the Khurvin site in Iran left the reserves of the Belgian Royal Museum of Art and History, also known as the Cinquantenaire Museum(1), for Teheran, after the Iranian State had been claiming them for more than thirty years.

The 349 objects in question (348 ceramics and one bronze piece) had been brought into Belgium by a French-Belgian woman collector through the case of a Belgian diplomat in 1964. Then married to an Iranian physician named Maleki, she had acquired the objects while based in Teheran partly through local excavations partly from local dealers.

It all started in 1981 when the Iranian Islamic Republic, in a first attempt, sought the return of the archaeological objects before the Brussels Court of first instance on the basis of their illegal exportation, however without claiming title to the objects. At that point in time the objects had ended up, after passing the hands of several middlemen, at the University of Ghent under the control of professor Vanden Berghe, who had assisted Mrs Maleki in the excavations on the Khurvin site. At the instigation of Mrs Maleki the objects were placed under custodianship in the Cinquantenaire museum, pending the legal proceedings.

The Brussels civil court dismissed the claim of the Iranian Republic.

Refusing to give in, both the Iranian Republic and Mrs Maleki challenged the decision.

In 2011, the Court of Appeal again dismissed Iran’s claim.

In June 2013, the Court of Cassation rejected the finding of the Brussels Court of Appeal.

In accordance with Cassation procedure the case was then referred to the Court of Appeal of Liège, which resolved this issue on a definitive basis.(6)

The Court of Appeal of Liège decided to allow the objects to return to Iran and that Mrs Dutreix was to pay all costs of sequestering the archaeological objects for so many years in the Cinquantenaire Museum.

This last judgment stands opposite to the previous decisions .

8).

In other words the Court of Liège, not knowing how to apply the foreign legal rules, decided – rather quickly jumping to conclusions – to do its own analysis of the legal rules as applied to archaeological finds.

For one thing, the Brussels Court stated that the 1930 Law deals with ownership rights and recognises private ownership, including that of the finder. The Court of Liège, on the other hand, found that this Law does not deal with the a priori ownership question at all (i.e. the question who is legally to be considered as the original owner of an archaeological find), even though the latter court eventually concluded, but then on the basis of its reading of article 26 of the Iranian Civil code, that every archaeological find is a priori State ownership.

For another, while the Brussels Court observed that the antiquities in dispute had never been affected to the Iranian service nor been used as such and hence article 26 of the Civil Code could not apply, the Court of Liège actually held this provision to found the Iranian Republic’s title and ordered their return on that very basis!

Second, concerning the title question, the Court of Appeal of Liège found that Mrs Maleki could not prove she had acquired the objects in a lawful manner, nor did she have sound possession and she could therefore not be recognised any ownership rights. The Court held that, all archaeological finds being a priori State property according to Iranian law, the current owner is and remains the Iranian State and on this ground it ordered the return of the archaeological objects.

In that aspect the Court of Appeal of Liège followed the Court of Cassation and rejected the argument that the title claim of the Iranian had expired after 30 years.

This explains why the Liège Court’s reasoning strikingly differs from the Brussels Court of Appeal’s. The Brussels Court had assumed that it was for the Iranian Government to prove that it has a rightful claim to recover the objects which a Belgian court can endorse. The Brussels Court eventually refused to accept that the exportation by Mrs Maleki was illegal or at least not in a sufficient degree to justify the return in flagrant denial of her ownership right.

Third, the analysis of the possession of Mrs Dutreix itself also differs between the two Courts of Appeal. For the Court of Appeal of Liège Mrs Dutreix’s possession in Belgium was not sound in view of the fact that neither she nor her mother, Mrs Maleki, almost ever had the physical control of the objects. But the Court forgot to mention that Mrs Maleki had filed a complaint in 1975 against the Belgian diplomat for fraudulent conversion because the objects were temporarily stored in his cellar before being handed over to another middleman and finally to professor Vanden Berghe. This may suggest that Mrs Maleki was seeking to repossess the objects and certainly wanted them back for herself, which is not the same as merely holding (détention) the objects for another.

Thus it looks as if in Belgium too, the Napoleonic  adagio ‘possession vaut titre’ (bona fide possession confers title) - that for ages brought legal comfort to unsuspicious collectors of (stolen or looted) property -  is to give way to a tendency for Belgian courts to favour the original owner, at least in the absence of a valid export license.

As a final note, in the case under review none of the international or European treaties dealing with illegal exportation or trade in cultural heritage (Unesco 70, Unidroit 1995, EU Directive,…) applied as the facts had occurred outside the timeframe (in the 1950s and early 1960s). That made the courts need to confine the scope of their judgment to the traditional Civil code rules. That is why the outcome of the case may leave us, lawyers, used to work in this traditional environment, perplex. Unless, of course, evidence was overwhelming of the importer purposefully acting to violate the prevailing export regulations. In which case, end of story.

Brussels, August 2015

Authors: Lucie Lambrecht(*) and Marie-Sophie de Clippele(**)

(*) founder and managing partner of Lambrecht Law Office (www.lambrechtlaw.be)

(**) F.N.R.S. PhD researcher on the topic of responsibility towards cultural heritage, a revisited property

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The paintings are 20 th Century (???), imitating 16 th-17 th Century Persian originals, painted on to unrelated Arabic and Persian manuscript leaves, which are themselves 17 th-19 th Century. This was a very common practice from the early part of the 20 th Century in the Middle East and India, for the tourist market, and there are enormous numbers of them around. They would have a decorative value of less than £50 each.



On Silk painted

20th cent; frames; paint on paper; added camel bone painting; 7x4 cm;