To open Season 6, Katie and Steve discuss the shocking arrest of Jean-Luc Martinez, director of the Louvre in Paris from 2013 to 2021, related to his involvement in the alleged trafficking of antiquities for the Louvre Abu Dhabi with French criminal lawyer Sarah Arpagaus. They discuss cultural property crimes more broadly and take a detour into the world of French criminal law and its striking difference with the system here in the US.
Resources
https://www.nytimes.com/2022/05/26/arts/design/louvre-jean-luc-martinez-trafficking.html
https://hyperallergic.com/750267/louvre-advisors-detained-in-art-trafficking-investigation/
https://news.artnet.com/art-world/louvre-abu-dhabi-report-egyptian-antiquities-2128348
Episode Transcription
Steve Schindler: Hi, I’m Steve Schindler.
Katie Wilson-Milne: I’m Katie Wilson-Milne.
Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City.
Steve Schindler: Hi, Katie.
Katie Wilson-Milne: Hi, Steve.
Steve Schindler: We are here today to talk about some exciting developments or—
Katie Wilson-Milne: Shocking developments.
Steve Schindler: —Shocking developments in France. And as it happens, I was in Egypt in late May visiting my daughter, and I heard the startling news that Jean-Luc Martinez, the former director of the Louvre from between 2013 and 2021, was charged with money laundering and fraud in connection with the illicit trafficking of Egyptian antiquities that were acquired by the Louvre Abu Dhabi. And today we’re going to hear from a French lawyer, Sarah Arpagaus, about the allegations against Mr. Martinez— and I’ll introduce Sarah in a second— but I thought a little bit of background about the problem of illicitly trafficked antiquities and Egypt’s particular 1983 patrimony law called Law 117 might be helpful for our listeners to put this discussion into context.
So after World War II, there was an explosion in illicit trade and cultural property. And eventually it was clear that there needed to be an international solution to this growing problem. So in the 1960s, UNESCO began drafting a new international Convention, which resulted in the 1970 UNESCO Convention on the means of prohibiting and preventing the illicit import, export, and transfer of ownership of cultural properties. Sometimes this is just called the 1970 UNESCO Convention. Eventually, over a hundred nations signed on to the Convention, and it took 13 years for the US to pass enabling legislation in the form of something called the Convention on Cultural Property Implementation Act or the CPIA. I don’t want to get too far into the weeds, but it’s important to try to understand this.
The CPIA which is the US’s way of kind of recognizing the 1970 UNESCO Convention, or at least putting it into practice, is a civil law and it’s part of our customs law. And it generally prohibits the import of cultural materials, either identified as stolen from an institution in another party state. And it also allows the US to apply controls for materials that are specifically identified by another party state that are in danger of being pillaged. And the remedies for a violation under the CPIA are traditional customs laws, namely seizure and eventual return of seized materials. Important to note that this is not a criminal law, it’s a customs law. Now going back to Egypt for a second, because of its rich history, Egypt has long been a target of international trafficking of its cultural patrimony. So at about the same time as the US was implementing the 1970 Convention, Egypt passed a law called Law 117, and Law 117 is Egypt’s so-called patrimony law, which essentially states that all antiquities found in Egypt after 1983 are owned by and are the property of the Egyptian government. They can’t be owned by an individual, an institution, and they can’t be exported.
Other countries, so-called source nations, have patrimony laws as well. And we spoke recently about the Ottoman-era patrimony law under which Turkey claims ownership of cultural property that came out of the ground in Turkey after 1909. And it’s important to know that Egypt has enforced Law 117 within its own borders, and the penalties are both monetary and also penal. You can go to jail in Egypt for violating Law 117. So patrimony laws like Law 117 differ from the 1970 Convention and export laws that many nations have. France, for example, has export laws which essentially require you to get a license if you want to export art of a certain age and national importance. If you want to take a Monet Water Lilies out of France, you have to apply for a license. And either the French government will decide that the work is too important to leave the country and purchase it or grant a license. But importantly, France does not assert ownership, but just simply says that you cannot remove it from the country without a license.
Historically, the United States has not enforced the export laws of other nations. If you take a work out of France without a license, you face consequences in France, and you certainly face consequences within the art market, but the United States is not going to enforce that law here. And the difference between these two types of laws is important. The difference between patrimony and export laws, and this was illustrated most clearly in the case of the United States v. Frederick Schultz.
Now, Mr. Schultz, who was a successful art dealer in New York, and his English co-conspirator Jonathan Tokeley-Parry arranged to smuggle into the US for sale sculptures that were illegally excavated and removed from Egypt in violation of Law 117. What Mr. Schultz and Mr. Parry did, was essentially take these cultural artifacts, paint them made to look like cheap souvenirs, and then exported them out of the country. Mr. Schultz was eventually charged and ultimately convicted of one count of conspiracy to receive stolen property under the US National Stolen Property Act, a federal law originally enacted to go after organized crime where stolen property was being transported across state lines. The US government and the US attorney in the Southern district put two things together. They put together Law 117, which basically said that Egypt was the owner of this property, and a US law which prohibited the transportation of stolen property. And Mr. Schultz was ultimately convicted and went to jail. Now, Schultz in his defense argued that the US doesn’t enforce export laws and that the Egyptian government never actually really owned these works. I mean, the fact that they were asserting ownership was somehow different than whether the works were actually in an institution, say, in Egypt. And so therefore, according to Mr. Schultz, they could not have been stolen. Ultimately, a federal court in New York disagreed with this argument and a jury convicted Schultz, who went to prison. So of course these laws and the enforcement of these laws never really diminished the demand for Egyptian antiquities. And in the wake of the Arab Spring in Egypt in 2011, the supply of those antiquities to the marketplace increased.
Katie Wilson-Milne: And of course, Steve, European countries have their own ways of dealing with these cultural property issues and issues of repatriation. And today we’re going to talk about one example in France, where France is using its much more traditional criminal laws to both go after and return objects and punish wrongdoers who have allegedly either stolen or trafficked in cultural property that originates elsewhere.
Steve Schindler: And here’s where Mr. Martinez comes in, and here’s where our guest comes in. So we’re joining today by Sarah Arpagaus, who is both a French lawyer who studied law at the University of Paris and received her Master’s Degree in law at the University of Paris, and then came to the United States and got her LLM at Duke University School of Law, and is admitted to the bar here in New York, as well as in Paris, where she is a practicing attorney and among other things is involved in both civil and criminal litigation in France. So thank you for joining us on the podcast today, Sarah.
Sarah Arpagaus: Thanks, Steve.
Katie Wilson-Milne: Yes, thanks for joining us.
Steve Schindler: Alright. Well, Sarah can you tell us a little bit about what’s going on in Paris with Mr. Martinez and a little bit of the background and what he’s been charged with?
Sarah Arpagaus: Well, Steve, Martinez, as you said, was head of the Louvre between 2013 and 2021, and he’s currently under judicial supervision.
Katie Wilson-Milne: And what does that mean? Does that mean he’s under arrest or he’s under house arrest?
Sarah Arpagaus: He’s under house arrest, and at any point he can be put into custody.
Katie Wilson-Milne: And are we right to say that he is the first director of the Louvre to be arrested in France? Or is this more common than one would think?
Sarah Arpagaus: No, he’s the first director of the Louvre to be arrested. So basically the case was opened in 2018, two years after the Louvre Abu Dhabi purchased five ancient Egyptian artifacts, including a very rare pink granite stele of Tutankhamun for several million Euros. And since then, the investigation has been going on, and three people have been detained and charged besides Martinez. So of course Martinez is the center of the investigation, but many people acted with him or helped him selling this very rare antique to the Louvre Abu Dhabi. Actually the inquiry conducted in France by the investigating judge called Jean-Michel Gentil led the police taking Martinez into police custody on May 23rd, 2022.
The investigators suspect that a man called Christophe Kunicki, an art dealer, and another man called Roben Dib, a German-Lebanese art dealer, have produced false documents and invented false origins in order to launder hundreds of objects looted in different countries in the near and in the Middle East and Roben Dib, might have helped broker the sale. And he was arrested in Germany and then extradited to Paris in March 2022.
Steve Schindler: And how do these kinds of investigations work in France, because I know they’re different— they work differently than they do in the US? You say that he was taken into custody. What’s the process by which that happens?
Sarah Arpagaus: So first of all, the police start an investigation, and they gather a lot of evidence. When the police think that they have enough evidence to hear at least as a witness or as an accused person, they arrest someone. In this case, they arrested Martinez, and they took him into custody in order to hear him during 24 hours and asked a lot of questions. During this custody, Martinez called his lawyers, of course, because he has the right to an attorney during this custody, and he stopped answering the questions. At the end of this custody he was released, but he was placed under judicial supervision, meaning that investigation is still going on and the police is going to keep working on the case and is going to keep gathering a lot of evidence in order for Martinez to stand trial. But the investigation might take a lot of time.
Katie Wilson-Milne: Like years or something.
Sarah Arpagaus: Might take years.
Katie Wilson-Milne: So Sarah, is there some standard before, like, Jean-Luc Martinez gets charged? What is the standard? I mean, here in the US, we have hundreds of years of jurisprudence to protect criminal defendants through due process, right? And that’s obviously very different in France. But what are the standards before you can be charged? Or is it just some investigating judge thinks Jean-Luc might have been involved in this trafficking ring and so he has to go to trial or is there some sort of check or evidence standard?
Sarah Arpagaus: Now, as you said, Katie, there is also in France a due process, but it’s a bit different from the US, because the investigating judge has a lot of power in France. So he’s the one in charge of the investigation going on and he’s going to order the police and he’s going to issue a lot of warrants, allowing the police to gather the evidence.
And the investigating judge will be the one in charge of saying now we have enough evidence to say that Martinez knew what he was doing and that he had a very important role in this whole trafficking case. And at this point, he’s going to close the investigation and Jean-Luc Martinez is going to stand trial.
Katie Wilson-Milne: It’s unfettered discretion, like the investigating judge who just to be clear for our listeners is sort of a cross between a court official and a prosecutor who kind of decides what cases are going to go to trial in the criminal system in France. Is there any check on that person? I mean, let’s say that person has a— is wrong. I mean, just has poor judgment about certain thresholds of evidence or is it totally within an investigating judge’s discretion and if there’s a mistake, it gets pushed to trial?
Sarah Arpagaus: Well, Katie, you just put the finger on the weakness of the French judicial system. Meaning of course the investigating judge is not alone in the investigation, but he has a lot of power and a lot of discretional power. So he will be the one eventually to decide that there is enough evidence, but in order to decide that there is enough evidence, he will be checking in with the prosecutor and also with the police. And he’s going to relate to the French penal code, because we have very traditional penal code. And the investigation judge is here to make sure that the evidence the police found will match all the criteria.
Katie Wilson-Milne: So, Sarah, what are the charges against Mr. Martinez? I mean, legally what’s he being accused of?
Sarah Arpagaus: He’s being accused of fraud and money laundering.
Katie Wilson-Milne: And how does that relate to these Egyptian antiquities that the Louvre Abu Dhabi purchased a few years ago?
Sarah Arpagaus: Fraud is very broad in France and it’s any way of trafficking, either money, or things, or antiques, or documents. Martinez is also charged with money laundering, which can happen by two ways: first, facilitating false justification of the origin of the property or the process of purifying dirty money. So Martinez is charged with both. But it’s very important to say right now that in France, he can be charged at the beginning of the investigation with those crimes, but the charges can change. And the investigating judge can point out that it won’t be money laundering, but it might be fraud and theft or complicity of theft. And he might stand trial for fraud and another crime. It won’t have to be the same charges as the ones pointed out by the investigation judge at the beginning of the investigation.
Katie Wilson-Milne: So that’s totally within the discretion of the investigating judge to just change his or her mind, let’s say in a year, based on the evidence? And that’s just the criminal defendant here, Martinez just waits to see what the investigating judge decides?
Sarah Arpagaus: It’s up to the investigating judge and to the prosecutor, because the investigating judge will make sure that the police gather all the evidence to constitute the crime. And once the prosecutor gets the case and gets all the evidence, he’s going to check with the French penal code and he’s going to make sure that the charges will match an article or two articles of the French penal code.
Katie Wilson-Milne: So just to maybe ground this back to earth, because those are very, very broad sounding statutes you just read that seem like they could fit a variety of factual circumstance. The facts as I understand them are this art dealer Christophe Kunicki, who is widely known as a Paris-based, I guess, antiquities dealer, sold a lot of objects to the Met— which we can talk about, because the Met recently went through something very similar, although didn’t have to do with a criminal procedure— he and his partner, Richard Semper, somehow were purchasing antiquities from this German dealer, Roben Dib, who was purchasing the objects himself from looters or thieves in the Middle East who were pillaging objects during the Arab Spring. Is that right? Is that the chain of events here?
Sarah Arpagaus: Exactly.
Katie Wilson-Milne: They were operating in the US through Christophe Kunicki, and they were operating in Europe and the Louvre and the Met and other institutions. And recently with the high profile looting that was going on, were purchasing from Kunicki. So how does Martinez come into play here? He obviously oversees the purchase of these five objects from Kunicki for the Louvre, Abu Dhabi. But what do we know about what he’s accused of doing that is itself criminal versus just being duped by Kunicki as everyone else was?
Sarah Arpagaus: Well, at this point, we know that the police think that Martinez knew the documents provided by Kunicki were false documents. And that Martinez knew as a professional as the director of the Louvre that those false documents would be used to sell those antiquities to the Louvre Abu Dhabi.
Katie Wilson-Milne: And maybe was complicit in this himself? I mean, had some personal motivation to be part of this fraud? I mean, that seems like it’s part of the case as well, that somehow he would be personally benefiting from the purchase of these objects. Although I don’t know how he did.
Sarah Arpagaus: Well, he might very well have a personal interest in this crime. We don’t know for sure that he has personal motive or that he took personal benefit from those sales. But since he’s been charged with fraud and money laundering, we can definitely assume that the police has some evidence, maybe not enough at this point to think that Martinez, first, knew that those documents were false, but also has gained some profits somehow and benefited from this crime.
Katie Wilson-Milne: And is that the money laundering aspect that I assume that for money laundering charges to be sustained against him, he would’ve had to either been involved in the sale of these objects, knowing that they were looted and the liquidation of those assets and/or use the profits he received personally in some way?
Sarah Arpagaus: Yes, definitely. For the money laundering to sustain Martinez needs to know when he buys or sells the stolen pieces, or when he uses the stolen documents, he needs to know that those are false and/or that the objects or antiques have been stolen.
Steve Schindler: Right, I think unlike our money laundering laws here, I think the laws in France can be a little bit broader in that he doesn’t actually have to use the proceeds or the liquidated proceeds, but just the fact that he is participating in the acquisition of these looted objects may make him subject to money laundering charges. Is that right?
Sarah Arpagaus: Yes, that’s correct, Steve. Money laundering is one of the broadest crimes in France.
Katie Wilson-Milne: Other than fraud, which is the other one he’s charged with.
Sarah Arpagaus: Exactly, other than fraud. And I suspect that’s the exact reason why Martinez has been charged with those two crimes.
Katie Wilson-Milne: Because it gives the investigating judge a lot of leeway to sort of fit the facts into those charges depending on what he finds as the case develops.
Sarah Arpagaus: Yes, the police are going to need a lot of warrants to search for evidence in general. And since the charges are very broad, the police will be able to search a lot of places and eventually find a lot of documents that are going to confirm or maybe deny that Martinez knew what he was doing and that this is a crime organization. Because we really have to understand that Martinez is not the only one being charged with this crime. And even though Dib and Kunicki were released from custody, and right now they aren’t under judicial supervision, there are still—
Katie Wilson-Milne: I thought Kunicki was under judicial supervision. I thought he was under house arrest.
Sarah Arpagaus: No, he’s not anymore. Right now, he’s totally free.
Katie Wilson-Milne: That’s weird, because he is the one who everyone agrees is the real criminal.
Sarah Arpagaus: Yeah, but I bet the police don’t have enough evidence right now. And they might want to hear Kunicki as a witness during the investigation process.
Katie Wilson-Milne: I thought and Dib was also— had been arrested?
Sarah Arpagaus: Yeah, he was arrested. He was extradited, but then he was released after custody, but it doesn’t mean that he won’t be arrested later or that he might be put into custody later. The investigating judge has a lot of power with regard to the custody and to the arrest. So if at the end of the summer, for example, the police have enough evidence to show that Kunicki is definitely the person in charge of this antiques trafficking ring then the police can arrest Kunicki. He can be put into custody. He might even go to prison before he stands trial.
Steve Schindler: Okay. And there are other participants that have been charged in France. Isn’t that right? I think an auction house and other individuals.
Sarah Arpagaus: Yeah, a lot of individuals were heard by the police. Most of them as witnesses, because France has a very precise description of what a witness is. And you can have two types of witnesses. You can have just a regular witness, as you can have in any country, so the person will be heard by the police and that’s it. And you have what we call an assisted witness, and in this case, this witness has also the right to be heard by the police with an attorney of his choice. And it’s most of the time, the first step the prosecution and the investigating judge take before arresting this person or before putting this person into custody. Because for example, an assisted witness can come freely to the police station, answer a lot of questions during three or four hours. And at the end, the police can go to the investigating judge, say this is what we got from the witness, from the assisted witness, and the investigating judge and the prosecutor can decide that there is enough evidence to arrest this person and put this person into custody.
Katie Wilson-Milne: So I think Steve was referring, too, to the fact that there are many, many people in this sort of suspected smuggling ring who are either being investigated, have been charged, have been bought in for questioning. So it’s not just Martinez, but he’s one of many people who the authorities in France have been targeting.
Sarah Arpagaus: It’s one of many, because the charges are money laundering but with an aggravated circumstance, meaning in this case, the aggravated circumstance is the organized gang crime. So it requires at least three people to constitute a gang ring in France and to sustain the crime of aggravated money laundering.
Steve Schindler: Right. I mean, I think what’s so startling to us of course that we keep forgetting maybe, or I do sometimes, that Mr. Martinez— who, by the way, denies any wrongdoing— I guess we should say that was the former director of maybe the most preeminent art institution in the world. He was the director of the Louvre. And so he was also co-chair of the bilateral acquisitions committee of the Louvre Abu Dhabi museum. So this was a very, very sophisticated person. And I gather the Louvre itself has not been charged, right, Sarah?
Sarah Arpagaus: No, the Louvre has not been charged at this point. And even more, the Louvre is now a third party, a civil third party in this case. Meaning the Louvre will have access to the criminal case and to all the evidence that will be gathered by the police and by the prosecution. That’s the only way for the Louvre to know what’s in this case. Otherwise, the Louvre won’t be able to claim prejudice from this crime committed, probably by Martinez and probably by the other people.
Katie Wilson-Milne: So Kunicki, his partner, and Roben Dib, who are widely suspected of basically initiating and facilitating the trafficking of these Arab Spring-looted objects. They are all awaiting trial in Paris as well, right?
Sarah Arpagaus: Yes, they are awaiting trial, but we don’t know right now what the charges will be for Kunicki, for Semper, or for Dib. It might be the same as Martinez, probably money laundering and fraud also, or complicity of fraud or complicity of money laundering. It might be all those charges as well.
Katie Wilson-Milne: Okay, so they’re the core group, with Martinez awaiting trial. And then there were a few other people that were detained at one point, right? There was a museum curator at the Louvre who’s the head of the Egyptian Antiquities Department. He was released. His name was Olivier Perdu, I think. And then there was a collector and another dealer who were brought in for questioning and maybe facing charges as well, I believe. And it’s not clear to me, and maybe it’s not clear to anyone except the investing judge, how all these people interacted in this scheme. Sarah, do you have a sense of that or is that all part of a closed file and we won’t really know that until the trials start?
Sarah Arpagaus: What we know at this point is that the museum curator called Vincent Rondot and an Egyptologist, Olivier Perdu, were taken into custody and were further released. But as you said, once the investigating judge is in charge everything is kept under seal and secret. That’s part of the investigation process in France. So if you are not a civil third party, you cannot have any access.
Katie Wilson-Milne: Like the Louvre here, so they have access to what’s going on. Martinez has access, presumably Kunicki and Dib have access, but the public will have no idea what the connection is between these people or what the facts are showing.
Sarah Arpagaus: Yes, as you said, if you are accused of the crime, of course, for the defense to have those rights, Martinez will have access to the file. All the accused persons have access to the file through their lawyers. And I really mean it that the accused persons won’t have access to the file, only their lawyers. And their lawyers are not really supposed to show the documents to their clients. I mean, they can relate to those documents. They can say to their clients, here’s what the police gathered against you. So please explain, and please help me out with your defense. But they’re not supposed to show the file or any documents to their clients. And that’s the same for the Louvre. I mean, the Louvre has become a third party in this case to make sure they are granted access to the file. So the Louvre counsels have access to the file, and they know what is supposedly wrong or false document provided by Kunicki to Martinez and this crime ring. But that’s it. I mean, otherwise the public won’t definitely have access to the file and the public will know what the charges will be once these persons stand trial.
Katie Wilson-Milne: So Steve, maybe it would be helpful for our listeners if you could remind everyone how the US is very different than this process, right? How does a criminal defendant get charged here? And I mean, in some ways, it now seems to me to be a very enlightened open system compared to what we’re hearing from Sarah.
Steve Schindler: Yeah, sure. And I think the other thing that’s interesting is Sarah is reminding me, as she’s talking about this notion that the lawyers get to see certain documents, but they’re prohibited from sharing them with clients. And that aligns with a rule that they have in France that I became acquainted with in working on some cases there, which is that there are these lawyer to lawyer privileges, right? That lawyers can share things with other lawyers, and they’re prohibited from sharing those things with their clients. And that’s maybe a way that lawyers facilitate honest and open conversations among themselves. But I think for US-style lawyers that seems like a very strange concept, because normally your loyalty is to your client. And so keeping things from your client just seems kind of odd to us.
But yeah, in the US, of course, an investigation is usually conducted in the federal system through the US Attorney’s Office, working with an impaneled grand jury. They do work in secret and they hear testimony and they look at documents, and then eventually if there’s probable cause to believe that a crime has been committed, the grand jury will return an indictment.
And then, and only then will the indictment be unsealed, and it will be public. And that’s when the individual is called to the court to either plead guilty or not guilty. And then is ready to stand trial. What’s different and certainly for— to our ears, in France as Sarah’s been describing it, is that there’s a prosecutor kind of judge rolled into one and that’s the investigating judge. And while he or she is working with the prosecutor who ultimately takes the recommendations of the investigating judge and goes to trial with them, the power of this investigating judge is really quite broad and much broader than our prosecutors have, because prosecutors here when they’re investigating even with a grand jury, have to go to a judge to get warrants, to get permission. And they can’t just take someone into custody and hold them for 24 to 36 hours and question them. So it is a different process in France.
Katie Wilson-Milne: Yeah. And it’s worth, I think emphasizing the key differences to me are no one’s arrested and no one’s going to trial until this process with a grand jury, which is a selection of regular people like any jury before a judge is completed and the indictment is made public. So there’s this requirement that the prosecutors obviously in conjunction with the police or the FBI bring their best case, prove it to neutral third party citizens who say, “yes, we’re also convinced there’s enough here.” And the judge agrees and then the defendant is brought into the criminal system and something heads to trial. And it sounds like at France, that that kind of early process doesn’t really exist in the same way. And it kind of all happens at trial together.
Sarah Arpagaus: Well, like you said, in the US, you have the indictment period. In France, we don’t have the grand jury and we don’t have the indictment. So basically everything is secret and is a really well kept secret during the investigation process. And once the investigating judge has finished his or her job, he sends his or her recommendations to the prosecution and then the accused person is going to stand trial. And that’s probably the only time during the criminal case in France, when the public is going to know what the charges are against the person, what are the remedies, what the prosecution is looking for. Because even if you have the article in the French penal code— it says, for example, for aggravated money laundering, it can go up to 10 years of prison and a huge fine. But the jury doesn’t have to sentence the accused person of 10 years. I mean, for some reason, the jury can decide that this person is going to face six years or seven years. It doesn’t have to be the maximum remedy.
Katie Wilson-Milne: Right. And so, I mean, of course your point, Sarah is that we’re all speculating here because we don’t know anything at this point about how the facts relate to these charges. Which is frustrating I think us for American lawyers, because we want to understand how someone like Martinez can fit into this scheme, how the Louvre might have been involved. But is it fair to assume that his lawyers at least are coordinating with Kunicki lawyers and Dib’s lawyers that all the people who are sort of part of this big purchase for the Louvre and are thought to be involved in this scheme are sharing information and coordinating or what do you think is their level of interaction now?
Sarah Arpagaus: Well, I think it’s fair to say that there are two ways of doing this. First, as you said, they can coordinate their defense to make sure that information that will get out will match what the other says. So for example, we can assume that Kunicki’s lawyers will speak to Martinez lawyers, to Dib’s lawyers and that the story that will be told by all the lawyers and by Kunicki himself, by Dib himself, and by Martinez himself will match somehow. And that it will be the same.
The other option is that Kunicki’s lawyers will want to reduce the remedy or the crime that his client is being accused of. And that he will share information with the police, with the investigating judge. And he might give them some information about what Martinez did or what Martinez said to somehow cut a deal with the prosecution saying, well, I cooperated a lot with you now you have all evidence you need against Martinez. So then the prosecution can ask the jury during the trial to take into consideration—
Katie Wilson-Milne: A cooperation, right?
Sarah Arpagaus: Yeah, and everything that Kunicki said and did to facilitate the investigation process.
Katie Wilson-Milne: My guess is it’s the opposite. I mean, if I was Martinez, I was the director of the Louvre, you know, I would say I was the victim of a huge fraud myself. You know that Kunicki and Dib are known to do this. They’ve sold looted objects to other institutions. I wasn’t aware of it. They gave me false documents. I had no way of knowing. I mean, that’s what I’m assuming that Martinez is going to say and he would want to distance himself from them, because they’re such high profile dealers.
Sarah Arpagaus: Definitely.
Steve Schindler: Yeah, but here’s the thing. And this is— I still come back to, I mean, the fact that he was the director of the Louvre. The Louvre Abu Dhabi issued a statement saying that it applies a strict international protocol for artworks entering their collection. And that protocol is strictly aligned with the 1970 UNESCO Convention. And just to take a step back again for a second, even though the 1970 UNESCO Convention puts forward in a way a date, 1970, even though it’s of no particular legal significance, and we know that most major museums in the world, if you go and you try to donate a collection of cultural property, antiquities, to a museum the first thing that they’re going to look at is what is the provenance and how can we show that this object left its originating country before 1970.
If we can’t show that, museums are simply not going to take those objects except maybe under extraordinary circumstances. It just is somehow defies explanation or my own imagination to understand how a major museum can be looking at incredible Egyptian antiquities and not be able to do sufficient diligence to sort of establish that these are genuine or not genuine. And so I get, we’re speculating a little bit about what Martinez is likely to say, but I still have some doubts based upon the way that museums operate that there’s a good explanation for this, and I’m waiting to hear it.
Katie Wilson-Milne: Well, the Louvre interestingly is not charged. So that is something perhaps we can address, but it’s just Martinez in his individual capacity. But I think what he would say, which is what the Met Museum said in 2019, when it returned a sarcophagus— a very significant Egyptian antiquity, which was a sarcophagus it had itself purchased a few years earlier through Kunicki and Dib— just said they were provided with the right documentation that showed its legal export on a date that was not problematic. Names were provided and provenance history was provided, and so they felt like they had the proof they needed. And that’s the Metropolitan Museum of Art in New York. It’s like if there’s another museum in the world besides the Louvre that is as big and encyclopedic, the Met is one of them. And I think that’s what Martinez will say too. I mean, that’s what’s been in the press that he was— there were documents, they were just fake, but there were documents showing legal export on the right dates. And that’s really the only process museums follow is to ask for that documentation showing legal export before or after 1971, with differing requirements, depending on the date. I’m suspicious too. But I mean, I don’t know really what museums do beyond ask for those documents, and once they get them, are they hiring handwriting experts or are they— ? I don’t think so. And we have this example recently of the Met, which wasn’t criminally charged, but voluntarily with great apology returned this object to Egypt in very similar circumstances. And actually we know, much more recently, the Manhattan District Attorney’s Office has seized even more objects, Egyptian antiquities from the Met that were also sold through Kunicki and Dib. So it’s an ongoing unraveling saga. There’ll probably be other museums involved as well at some point. And they were all operating under I guess, this ask for some basic documentation, get it, and that’s enough.
Steve Schindler: Yeah.
Sarah Arpagaus: Basically the only thing that leaked a little bit from the police in some newspapers in France is that Kunicki provided the police with documents claiming the stele had been exported by a German Navy captain named Johannes Behrens in 1933. And that at some point in the process an expert thought he never saw the name Johannes Behrens before. And that this was weird, because he was a specialist of Egyptian antiquities, and he never saw this name before. So he started doing a lot of research and heard out this name was false. I mean, Johannes Behrens was not a German Navy captain. And that the first document provided by Kunicki was actually false documents, claiming ownership of the antiques.
So this is how the story apparently started in Paris with this expert going to the police and going to the director of the Louvre saying this is kind of unnerving because Johannes Behrens is not a real person. And what you got for those Egyptian antiques seem to be false documents. And this is how everything started.
Katie Wilson-Milne: And that’s very similar to what happened at the Met too. I mean, there were false documents showing good provenance. I think what the choices are for these museums are pretty sobering. And as Steve said, many of them, even these museums we’re talking about, are much less likely to accept donations of antiquities now, because they know that they do not have the capacity to run down their legal status. And that’s for a few reasons. One is there’s not an expert team of people at the Louvre or the Met, who are trained in provenance research, who are experts in antiquities, who have access to every database necessary for example, to look up who was in the German Navy in 1933. They just don’t have that capacity, and they aren’t using their resources to outsource it to other experts. And I don’t know how reasonable it is to expect that museums are going to somehow build expert departments to accept donations or justify sales that can really dig down deep like that. I think much more likely is and what we’re seeing— Steve and I have seen this in our own practice— is just a reticence to accept these objects at all, because they’re too problematic.
There’s often no paperwork demonstrating when something was exported, if it was done a long time ago or what the provenance trail was. And so it’s just too risky and they’re not going to accept these gifts. They’re not going to make these purchases as much anymore. And so they’re going to avoid the problem entirely. Obviously the sad thing about that is that there are going to be either legitimately exported or homeless antiquities that have been in collections in let’s say the United States or France for a very long time that are going to go unseen by anyone, because the paperwork isn’t there and museums aren’t going to take them. And so these works of great status that are worthy of study by experts are kind of going to stay in the dark, because of these legal hurdles. But I don’t know what the answer is to that. It just seems like there’s no good obvious answers for these institutions.
Steve Schindler: I think it’s interesting— because I agree with what you’re saying— but I also think some of these objects, they’re very significant pieces that were acquired for millions of dollars. And so the notion that there’s no resources to do due diligence checks of the type that we’ve certainly seen done in the art context just seems— it’s just strains credulity a little, at least to me. And it reminds me a little bit of even when we’ve seen cases of fakes and forgeries in the art context, in the Knoedler cases for example, where people, because they want to believe, they want to— you have a curator maybe who really, really wants these objects for whatever reason— are willing to accept provenance information that when you look at it, you say how could they have believed that? Right? And sometimes people believe it, because they want to believe it. And maybe that’s what happened here, but I don’t know.
Katie Wilson-Milne: It’s probably some combination, right? You’re not a handwriting expert or a paper dating expert and you see a legitimate expert document and it looks fine and you also don’t really want to ask more questions. So you have no red flag, necessarily, but you also have no interest in looking for them. So I think that’s also right, Steve. It’s also the issue that you have perhaps not the right chain of command at these museums making the decisions, for the most part. You may have curators who really want the object for art historical reasons, but aren’t lawyers, aren’t compliance people, aren’t necessarily trained to do this kind of due diligence and they’re not incentivized to. Of course, in the case of the Louvre where you have the director of the whole institution who’s also the French government’s ambassador for cooperation on cultural heritage, that’s a little harder, because how much higher in the chain are you going to go? But it is interesting to think about how to catch these issues in these institutions. Sarah, do you have any parting thoughts or predictions for how this case is going to go in Paris?
Sarah Arpagaus: Well, I think it’s fair to say that it’s going to take many years for Martinez to stand trail. Because as you said, it’s not only Martinez, it’s also many other people and a very large and famous auction house called Bergé & Associates.
Katie Wilson-Milne: Which is where Kunicki worked?
Sarah Arpagaus: Yeah, exactly. So I think it’s fair to say that the police are not going to come up with all the evidence before a couple of years. And I really hope we’re going to get all the information on this case. But as I said before, the investigation is secret in France. So it might turn out that in five years or so the investigating judge is going to say, well, there is not enough evidence against Martinez or against Kunicki or the action house. And Martinez didn’t know those were false documents. They’re probably going to try to charge him with any other offense or crime to make sure that this won’t just remain a lost case and that Martinez won’t be just free to go. But I think we can assume that it’s going to take a solid couple of years before anything or anyone has to choose on this matter.
Katie Wilson-Milne: So we’ll have you back then to talk about this again.
Steve Schindler: Thank you Sarah, for joining us today. It was a real pleasure.
Sarah Arpagaus: Thank you very much.
Steve Schindler: And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts and send us feedback at podcast@schlaw.com. And if you like what you hear, give us a five-star rating. We are also featuring the original music of Chris Thompson. And finally we want to thank our fabulous producer, Jackie Santos, for making us sound so good
Katie Wilson-Milne: Until next time. I’m Katie Wilson-Milne.
Steve Schindler: And I’m Steve Schindler bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.