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.
The judicial story behind this restitution case is interesting, not to say puzzling.
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 but also denied Mrs Maleki the right to claim the objects back from Professor Vanden Berghe.(2)
Refusing to give in, both the Iranian Republic and Mrs Maleki challenged the decision before the Brussels Court of Appeal. In the course of the lengthy proceedings Mrs Maleki passed away and her daughter, Mrs Dutreix, continued them in her stead.
In 2011, the Court of Appeal again dismissed Iran’s claim - which was now primarily based on the Iranian Republic’s original title to the objects - declaring the title claim expired(3) while restoring Mrs Dutreix’s rights.(4) However, the Iranian Republic sought judicial review of the ruling before the Court of Cassation, mainly invoking the issue of whether ownership is a perpetual right (in which case the title claim could not expire).
In June 2013, the Court of Cassation rejected the finding of the Brussels Court of Appeal that the title claim of the Iranian Republic had expired after 30 years on the basis of art. 2262 of the Civil Code and annulled the Court of Appeal’s judgment to that extent(5).
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 and should therefore be reviewed with a critical look. Without going into detail here(7), it is particularly rewarding to highlight the difference in reasoning between the Brussels and the Liège Courts of Appeal.
First, concerning the analysis of international private law, the Court of Appeal of Liège starts by admitting the paradox between, on the one hand, the obligation for the Belgian judge to take into consideration the interpretation of foreign (in casu Iranian) laws while, on the other hand, stating that no interpretation, neither case law nor legal doctrine for the Iranian rules in the present case exists.
The Liège Court then proceeds to analysing briefly the legal rules at stake, mainly article 26 of the Iranian Civil Code (dealing with state property designed for the public use) and an Iranian Law of 1930 relating to the conservation of antiquities(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.
This short reading of the legal rules, as opposed to the Brussels Court of Appeal which devoted a more complete analysis to them, leads the Court of Liège to a peculiar application of the Iranian laws.
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. In that respect, the Brussels Court considered that the Iranian law on which the claim was based was basically of a penal nature and sought to enforce Iranian confiscation measures - which the Court correctly ruled it could not apply outside Iranian territory. Nevertheless, the Court conceded that the 1930 Law also contains clear ownership rules and therefore the Iranian state was not prima facie precluded from claiming the return of the objects as a civil measure to sanction illegal exportation. Remember that the Court had already concluded that Iran had no title to claim ownership of the archaeological objects, and that even if it had, their claim had expired (that second part was annulled by the Court of Cassation).
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.
By contrast, the Brussels Court of Appeal had considered that the acquisition by Mrs Maleki from both sources (through archaeological excavations she had organised as well as from local dealers) were not unlawful according to Iranian law and that the Iranian officials had knowledge of these transactions (by reference to several official letters produced by Mrs Maleki) ; there was also a book that had been published about those excavations, all of which invalidated any argument that she would have been in bad faith.
The Court of Appeal of Liège did not scrutinise all these elements as it considered that the Iranian State had in any case a priori ownership of the finds of those excavations and – by implication – that Mrs Maleki could not assert a better title.
Yet the Court of Appeal of Liège admitted that Iran had not been diligent during the proceedings and did not pay enough attention to the administration and the surveillance of the archaeological objects, even though some of the finds were published.
If there is one conclusion one can draw from this court case, which really had a strange twist in the end, it seems like it suffices for a claimant, typically a source country, to convince the court that it had a priori or original title to an archaeological object according to its local law, no matter how long ago and in which manner the object left its jurisdiction, and that it is for the defendant party, the current ‘owner’, to prove a better title, but it is also clear from the Liège decision that the burden of proof for the latter is being made very tough and that mere good faith possession will no longer suffice.
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
(2) Trib. Bruxelles, 26 December 1988, unpublished.
(3) On the basis of Article 2262 of the Belgian Civil code, which reads: “Toutes les actions réelles sont prescrites par trente ans, sans que celui qui allègue cette prescription soit obligé d'en rapporter un titre, ou qu'on puisse lui opposer l'exception déduite de la mauvaise foi.” (free translation : “All rights in rem expire after 30 years, with no obligation for the party invoking prescription to prove his title or to invoke any bad faith exception.”)
(4) Brussel, 20 June 2011, unpublished, p. 8.
(5) Cass., 4 October 2012, published on the official website of Belgian case law (http://jure.juridat.just.fgov.be).
(6) Liège, 14 October 2014, unpublished.
(7) This case merits an in-depth legal analysis as the various court decisions, particularly those of the two appeal courts, tackle a number of crucial concepts and doctrines relating to the application of foreign laws imposing export restrictions as well as dealing with title to archaeological objects.
(8) The Law of 12 Aban-Mah 1309 (3 November 1930) and its implementing decree of 28 Aban-Mah 1311 (19 November 1932).