TORNO v. ITALY
Inadmissible
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
1. The applicants, Mr Giuseppe Torno, Mr Ettore Giovanni Torno and Mr Alberto Torno, are Italian nationals. They were born in 1963, 1964 and 1966 respectively and live in Milan. They were represented before the Court by Mr Giorgio De Nova, Mr Daniele Maffeis and Mr Vittorio Pellegatta, lawyers practising in Milan. 2. On 10 February 1981 the Ministry of Cultural Heritage and Environment brought an action before the Milan District Court against the applicants’ father and his siblings, claiming that several archaeological relics – dating from Roman, Greek and Etruscan times and held in the defendants’ family house – fell within the definition of State-owned public property (patrimonio indisponibile dello Stato). 3. By a judgment delivered on 10 March 1986 the Milan District Court dismissed the action. The court considered that, as the principle of public ownership of items of archaeological heritage had been established for the first time by Law no. 364 of 20 June 1909, the claimant should have proved that the defendants’ possession was illegitimate, namely that the archaeological material in question came from excavations carried out after the above-mentioned law had entered into force. 4. The Ministry challenged the decision, contending that the application of the general principle “possideo quia possideo” in the realm of items of archaeological heritage (that is to say, the recognition that the defendants’ factual possession sufficed to prove their property right) amounted to a probatio diabolica [impossible proof] for the State, whereas for the defendants – who must have been aware of the origin of their property – the burden of adducing the proof of the lawfulness of their possession, namely that the goods in question came from excavations carried out prior to the enactment of the abovementioned law, was perfectly feasible. In any event the Ministry objected that it had produced such proof since the expert technical evidence examined at the trial had proved the unlawfulness of the applicants’ possession of two archaeological pieces and it was undisputed that the defendants’ father had assembled his collection between the 1930s and 1960s, well after Law no. 364 of 20 June 1909 had entered into force. 5. On 10 November 1992 the Milan Court of Appeal dismissed the Ministry’s appeal, except for the two above-mentioned pieces that had undisputedly been discovered after 1909 and were thus declared to constitute public property. 6. On 2 October 1995 the Court of Cassation quashed the decision and remitted the case to the Court of Appeal for retrial. The former found that the applicable legislation (Law no. 364 of 20 June 1909, Law no. 1089 of 1st June 1939, and Article 826 § 2 and Article 840 of the Civil Code) confirmed a principle that already existed in the judicial system, namely the assumption that, in general, items of archaeological heritage fell within the realm of public property. Hence – the defendants’ private property being the exception rather than the rule – pursuant to Article 2697 of the Civil Code it was up to them and not to the claimant ministry to prove their lawful possession of the goods in question, in particular their discovery and acquisition prior to the enactment of Law no. 364 of 20 June 1909. Such principle was followed in subsequent judgments on the matter (see Domestic Law and Practice below, paragraph 20). 7. On 18 April 1999 the applicants’ father passed away and the applicants declared their intention of continuing the proceedings as heirs. 8. On 20 December 2002 the Milan Court of Appeal declared that the relics were public property and ordered the defendants to hand the archaeological goods back to the claimant. 9. The applicants lodged an appeal on points of law against the aforementioned decision, which was dismissed by the Court of Cassation on 5 August 2008. The Court observed in particular that the interpretation of the rules governing the burden of proof in the applicants’ case was neither disproportionate nor unreasonable, especially in the light of public interest in the maintenance of artistic, historical and archaeological material. Moreover, contrary to the applicants’ assertion, the above-mentioned interpretation did not constitute de facto expropriation without compensation since it did not breach the right of access to a court or the right of defence in proceedings concerning the goods in question. 10. In response to a request from the Court, on 15 January 2014, the applicants stated that, notwithstanding a formal notice issued on 23 January 2009 followed by an inventory of the relics in question, the Court of Cassation judgment of 5 August 2008 had not yet been enforced. 11. This law regulates the status of items of historical, archaeological, paleontological or artistic interest, stating the general principle of their inalienability if they can be classified as public property. 12. It also sets out a number of restrictions on the free use of such items when they belong to private owners in order to ensure their preservation and avoid their exportation out of the country. 13. As a general principle, this law provides that items of archaeological heritage, whether discovered by mere chance or through excavation, do not belong to the owner of the land or to the finder but to the State. 14. This law reinforces the above-mentioned principle of the public ownership of archaeological material, imposes a series of restrictions on its free use, circulation and exportation, and declares all items of archaeological heritage discovered on Italian territory to be public property. 15. The appropriation of such items, and the failure to report the finding thereof, amount to criminal offences. 16. Moreover, any alienation or legal act executed in violation of the binding provisions of the above-mentioned law must be deemed null and void. 17. Under these provisions, any item of historical, archaeological, paleontological or artistic relevance found in the subsoil by anybody whatsoever and by any means whatsoever, constitutes “a non-disposable public asset” (patrimonio indisponibile dello Stato) and cannot be prevented from being designated as public property except in the cases prescribed by law. 18. These provisions – which make reference to the special laws concerning items of archaeological and artistic value – provide for exceptions, with specific regard to items of archaeological heritage, to the general principle of the extension of private ownership to any items discovered in the subsoil, and to the general rule governing rewards in the event of discovery of a treasure. 19. Under this provision the burden of proof concerning the existence of a civil law right falls on the claimant, whereas the person disputing such existence must prove the facts on which his or her objection is based. 20. Pursuant to this judgment, since private ownership of archaeological goods is the exception rather than the general rule, the burden of proving their lawful ownership falls on the defendant and not on the claimant ministry. In particular, the former must prove that the goods in question were discovered before Law no. 364 of 1909 entered into force (the same principle is expressed in the Court of Cassation’s judgment no. 2995 of 10 October 2006).