Without secure descent, probable punishment

With the extension of the responsibility to include crimes against the cultural heritage, which is now subject to the penal code, the risk for auction houses also increases. Impact 231: it is important to establish the origin of works for sale in Italy or abroad

The latest law n. 22 of 9 March 2022 (“Provisions on crimes against the cultural heritage”) introduced into our system the administrative criminal liability under Legislative Decree 231/2001 for legal persons operating in the so-called “art market”.

A number of organizations, national and international auction houses, public and private museum institutions, artist archives, foundations, credit institutes that manage collections of works of art, foundations that invest in art, etc., will be able to respond directly, in crime trials, to crimes against cultural goods committed in their interest or advantage of subjects who hold top positions or of those who are subject to their supervision or supervision.

The list of predicate offenses under Legislative Decree 231/2001 was in fact integrated with the inclusion of criminal acts for the protection of cultural heritage, which are now all regulated by the Criminal Code and no longer by Legislative Decree 42/2004 (Code of Cultural Heritage). In addition to counterfeiting of works of art, theft, embezzlement, receipt of stolen goods, money laundering and self-laundering of cultural property, we point out the current relevance, again with regard to the liability of legal persons, of the crimes punishing the violation of alienation (Article 518-novies , criminal law) and illegal export or export of cultural property (Article 518-undecies, criminal law) due to the impact that these cases may have on the day-to-day operations of some operators in the sector.

In fact, these are behaviors that in certain situations may involve the activity of Italian and international auction houses, typical expressions of those who manage the various issues that the legislator has decided to address on a daily basis as a “collective” responsibility and not just individual, such as the international circulation of works of art, both inside and outside our country, both to EU countries and non-EU countries, and the sale of cultural assets that are subject to special protection by law.

The dynamics of the circulation and alienation of works of art are closely linked to the central theme of ownership, understood, the latter, also in the form of traceability: in this perspective, it is precisely the auction houses that do not have to ignore from the strict finding, as well as the authenticity , of the actual ownership and thus of the origin of the goods intended for auctions in Italy and abroad.

This type of study should be carried out through the most careful historical reconstruction of all phases (if the identification and documentation can sometimes be very complex), which has characterized the whole “work” of the work of art until the moment it reached the sphere of the person declaring to be the legitimate owner.

The documentary traceability of the asset actually represents a passage of extreme importance and delicacy, especially for the potential related criminal implications: in fact, if that asset were auctioned off without reasonable certainty about its legitimate owner, it would inevitably be relocated ‘within a circle’ , which almost certainly provides for the export and sale of the same, with the risk that the auction house will be involved in a criminal investigation: not only in the hypothesis of receiving stolen goods (whose relevance from previous legislation Decree 231/2001 already existed Act no. 22/2022), but today also for crimes of illegal export and / or violation of alienation.

More specifically, it could turn out (only later) that this asset, although “equipped” with a certificate of free circulation / export license and already “disappeared” from the national territory, belongs to a different topic than the one that presented itself even, in malicious or even unconscious terms, as the owner of the auction house, giving it the mandate to sell.

If the property can then be attributed to a public entity (state, regions, other territorial public bodies, public bodies and institutions) or to a non-profit private legal entity, the final withdrawal and disposal of the asset may be, in the cases specified by the Cultural Heritage Act , legally prohibited (under Articles 10, 65, Decree-Law 42/2004) and thus constitutes the precondition for the public prosecutor to be able to challenge a hypothesis of crime also to the auction house with possible consequences a sanctioning nature (with special reference to disqualification measures that could even paralyze its activity) and inevitable consequences at the reputation level.

For these reasons, uncertainties or even just unresolved doubts about the ownership of an asset to be auctioned off must be managed, even at the level of the organization of an effective “231 system”, with great attention and extreme rigor given the physiological and frequent transnational operations that characterize the activity of these and other actors in the sector.

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