The owner of the oil painting attributed to Leonardo da Vinci was represented in the proceedings before the Swiss courts by our internationally renowned art law attorney Dr Marc Weber.
The owner of the painting was sentenced to prison by the Italian Corte di Cassazione because she transferred the painting from Italy to Switzerland without an Italian export permit. The painting had been located in Switzerland for more than 100 years and was brought to Italy for a technical expertise. After four hours, the owner brought it back to Switzerland.
Italy’s request for the return of the artwork was finally dismissed by the Swiss Federal Supreme Court. The court held that the request made in reliance on international mutual assistance in criminal matters did not fulfill the respective legal requirements. Under the applicable international and Swiss law, such request may only be successful if the transfer of cultural property is a criminal act both in the requesting state and the requested state, but the latter was not the case here.
The court’s decision is crucial for future cases. The court clearly stated that the import to Switzerland of cultural property without any foreign export permit is only illegal if the object falls within the categories of the bilateral agreement with Switzerland. At the case at hand, there was a bilateral agreement but oil paintings are not covered by the agreement. In short: export control provisions cannot be executed in a foreign country, and the object cannot be claimed back if it has not been stolen but “only” illegally exported.