Summary of the facts

In 1977, Jaime Botín, a prominent Spanish banker, purchased Picasso’s painting Head of a Young Woman from Marlborough Fine Art in London for his private collection. In December 2012, Christie’s Ibérica S.L. applied to the Spanish Ministry of Education on behalf of Botín for a “definitive export license.” The license was not granted, and the painting was declared “non-exportable” by several consultative bodies and authorities within the ministry because it was over 100 years old, there was no similar work of art in Spain, and it was one of the few paintings made by Picasso during the Gósol period (summer of 1906), where his work had been clearly influenced by Iberian art and was an obvious precursor to cubism, thus establishing not only its artistic and historical relevance but also its importance for Spain. Botín unsuccessfully lodged several appeals against these decisions, first before the Ministry of Education itself and then before Spanish administrative courts.

In May 2015, the Ministry of Education became concerned about the whereabouts of the painting and asked the Spanish police to locate it. The police inspected Botín’s yacht—the Adix—at the marina in Valencia, Spain, but its captain, following Botín’s instructions, did not include the painting in the ship’s manifest with all the works of art on board. The Adix then berthed at the island of Calvi in Corsica, France, in July, with the painting inside. Botín chartered a flight to take the painting to Geneva and requested authorization (bon de sortie) from the French authorities. This request led the French customs police to inspect the Adix. They found the painting inside without an export permit from the Spanish authorities. The French police then reported this finding to their Spanish counterparts, who requested them to seize the painting, which they did.

On 6 August, a Spanish investigative judge issued a European investigation order (EIO) requesting the French Prosecutor’s Office to release the seized painting to the Spanish police as evidence of a possible crime of contraband smuggling. A French judge ordered that the painting be officially seized and released to a team of Spanish police and officials from the Spanish Ministry of Education at the airport of Ajaccio in Corsica. Meanwhile, two of Botín’s companies filed appeals before French courts against the decision to seize the painting and release it to the Spanish authorities. These appeals were unsuccessful. In January 2020, a Court of First Instance in Madrid convicted Botín of contraband smuggling. This ruling was later affirmed in all respects by the Court of Appeal.

The required export license and the confusing ownership over the painting

In two identical rulings, the administrative law chamber of the Spanish Audiencia Nacional, a Spanish Court with special competences, rejected various appeals filed by Botín and by Euroshipping, a company controlled by Botín and incorporated in Panama, against the decisions of the Ministry of Education refusing the export license and declaring that the painting was non-exportable.Footnote ¹ The administrative law chamber of the Spanish Supreme Court later affirmed these rulings in all respects.Footnote ²

Botín had initially petitioned the ministry to disregard his initial application for an export license, probably because he realized that it had been the application that had triggered the ministry’s interest in the painting. The Audiencia Nacional nevertheless agreed with the ministry that such a petition was impossible because administrative decisions are immediately effective once they are issued. Besides, once the owner of a cultural object applies for an export license, an irrevocable sales offer is made to the Spanish government, which may accept it and acquire the good.Footnote ³ Therefore, if the offer was irrevocable, Botin’s request to disregard the application was contrary to the pre-emption rights of the government. Actually, Botín later testified during the criminal trial that he had already offered the painting to the government but that the latter had refused, due to financial difficulties.Footnote ⁴

In his appeal, Botín also claimed that Euroshipping was the actual owner of the painting, which supposedly was another reason why he had requested that his initial application for an export license be disregarded. Although Euroshipping’s incorporation documents did not mention the painting as one of its assets, an “Assets (nonsecurities) lending agreement” of 1999 was presented as evidence that the painting had been transferred to it. Still, the Audiencia Nacional found that the lending agreement showed that the painting was only being held in bailment by Euroshipping, which was therefore not its owner. Anyway, Botín was the majority shareholder of Euroshipping. Moreover, a definitive ruling on property matters could only take place in civil proceedings.

Concerning the obligation to obtain an export license and the ministry’s refusal to grant one, the 1985 Law on Spanish Historical Heritage (LPHE) and Royal Decree 111/1986 provide that an export license is required for the definitive or temporal export of:

• • cultural objects that are part of Spanish historical heritage (that is, patrimonio histórico español [PHE]) and that are 100 years old or more;Footnote ⁵

• • cultural objects that are part of PHE and that have been included in the General Inventory of Cultural Movable Goods (that is, the Inventario General de Bienes Muebles del Patrimonio Histórico Español) or where the process for their inclusion in this inventory has commenced;Footnote ⁶

• • goods that belong to the Patrimonio Documental y Bibliográfico—that is, goods that are found in archives or libraries and that are also considered part of PHE.Footnote ⁷

The LPHE and Royal Decree 111/1986 define “export” simply as taking out of the Spanish territory any object that is part of PHE. The LPHE establishes that PHE consists of movable and immovable objects that are of an artistic, historical, paleontological, archaeological, ethnographic, scientific, or technical interest, including Spanish bibliographical heritage, archaeological sites, and natural parks and gardens.Footnote ⁸ Although this definition leaves unclear what the relationship of PHE to Spain must be, the preamble to the LPHE clarifies that PHE is the “main witness of the historical contribution of Spaniards to universal civilization and of their current creative capacity.”

Article. 5.3 of the LPHE establishes that the export of cultural objects declared goods of cultural interest (that is, bien de interés cultural) and included in the General Registry of Goods of Cultural Interest (that is, the Registro General de Bienes de Interés Cultural) is prohibited in all cases—that is, no license can be granted. It is also prohibited to export goods that have been declared to be non-exportable as a precautionary measure, pending the commencement of the administrative procedure to classify the cultural good in one of the categories of protected cultural objects.Footnote ⁹ Competent for such classification is the autonomous region where the cultural good is located, which is one of the reasons why it was relevant to determine not only whether the painting was in Spain but also which region it was in.Footnote ¹⁰ In this regard, Spain is a heavily decentralized country, where state competences in matters such as education and culture are—sometimes confusingly—allocated between the central government and regional governments.Footnote ¹¹

Council Regulation (EC) 116/2009 on the Export of Cultural Objects also provides that an export license is required for the export of cultural objects that are part of PHE and that are between 50 and 100 years old, provided that their value is higher than a certain amount, which varies depending on the type of cultural object. The export of other cultural objects does not require an export license, but owners may still need to produce a sworn declaration concerning the age of the object.Footnote ¹² The need for an export license or the prohibition of export is indeed a restriction on personal property but one that is in conformity with the Spanish Constitution, which provides that personal property has a social function.Footnote ¹³ These restrictions are also consistent with Article 36 of the Treaty on the Functioning of the European Union, which provides and exception to the free movement of goods for “the protection of national treasures possessing artistic, historic or archaeological value.”Footnote ¹⁴

In accordance with these regulations, the Audiencia Nacional held that an export license was needed and that the ministry had rightly refused to issue one. First, an export license was necessary because the painting was 100 years old and because it was part of PHE due to its artistic and historical “interest,” evidenced by a report of the curator of the Reina Sofía Museum, which was prepared at the request of the Ministry of Education. Second, it was definitely not necessary that the painting had already been declared a good of cultural interest and included in the General Registry or General Inventory as the ministry had also issued a declaration that the painting was non-exportable as a precautionary measure, pending the commencement of the administrative process leading to a possible declaration that the painting was a good of cultural interest.Footnote ¹⁵ The Audiencia Nacional added that the ministry would have been entitled to issue a declaration that the painting was non-exportable in any case, even if Botín had not made the initial application for an export license.

Furthermore, the competence to declare that the painting was a good of cultural interest fell upon the autonomous region where the cultural good was located, but, since the location of the painting was still in dispute and Botín was partly to blame for it, the Audiencia Nacional concluded that the process could not yet have started. Only in the case where the competent autonomous region later decided that the painting could not be classified as a good of cultural interest could Botín have possibly been able to re-apply for an export license.

In the end, the judicial authorities may be the ones who have to assess whether the artistic or historical interest of the exported good is enough to consider it part of the PHE. Any declaration, classification, or inclusion in a registry or inventory of cultural objects, made by Spanish cultural authorities, should not be understood as having a constitutive effect, but only a declaratory effect.Footnote ¹⁶ Therefore, a cultural object may be part of PHE without having been included in any official registry or inventory. This conclusion is not only supported by the broad definition of PHE in the LPHE but also by the fact that cultural objects that have been included in a registry or inventory may also be taken out of them, which evidences that certain cultural objects may possess, in themselves, the quality or interest necessary for their protection while others do not.Footnote ¹⁷ Moreover, whenever the commission of a criminal offense needs a previous administrative declaration, such a requirement is expressly indicated in the Spanish Criminal Code, which does not occur in the case of the crime of trafficking in cultural property.Footnote ¹⁸ In spite of this, in his successive appeals before administrative and criminal courts, Botín contended that a criminal offence could not depend on the subjective appreciation of the “interest” of a work of art. However, all the courts involved found this argument unpersuasive, not only for the abovementioned reasons but also because, from the very beginning, the Spanish Ministry of Education seems to have sufficiently justified the artistic and historical “interest” of the painting. Moreover, Botín’s lawyers never argued that the Picasso lacked such “interest,” and it seems that Botín himself must have also been well aware of it or else he and Christie’s on his behalf would have never even bothered to apply for an export license.

The disputed location of the painting and the extraterritorial application of Spanish law

Proving that the painting was on Spanish territory was essential, both for the administrative review proceedings before the Audiencia Nacional and for the subsequent criminal proceedings for contraband smuggling. In the first case, if the painting had never been in Spain or if it had been taken out of Spain after its purchase but before the laws and regulations that required the export license—that is, the LPHE—had entered into force, then those laws and regulations may not have been applicable and the Spanish cultural authorities may not have had jurisdiction.

In the second case, the crime of contraband smuggling could have only been committed if an export license was indeed obligatory and if the painting had indeed been taken abroad without it. If the painting had truly been outside Spain the whole time, that in itself prevented the characterization of the export as criminal because contraband smuggling requires that the goods are taken illegally out of Spain, which could not have happened if the painting had never been in Spain in the first place. In this regard, after the export permit was first refused, Botín contended that the painting was not in Spain, but this seems unlikely because it would have made no sense to request an export permit for a painting that did not need to be exported.Footnote ¹⁹

In the administrative proceedings, the Audiencia Nacional held that it was hard to believe that Christie’s could have really been unaware of the location of the painting at the time it filed the application for an export license because it is an entity that specializes in the sale of cultural objects. Later on, during the criminal proceedings, several members of Christie’s staff testified that they did not know where the painting was at the time they were hired by Botín to sell it. However, the Criminal Court of First Instance was not persuaded because the director of Christie’s in Spain admitted that she had seen the painting in her office one week after the export permit had been officially requested; because Botín’s chauffeur testified that, at the time the export permit had been requested, he had taken the painting from Valencia to Botín’s residence in Madrid, from there to Christie’s, and then back to Valencia; and because there was also an email that suggested that, around the same time, the painting had been taken to Botín’s country estate near Madrid.

The ambiguity of Botín’s defense concerning the location of the painting may have been a reasonable strategy because—at least in the criminal proceedings—it was for the prosecutor to prove that the painting had exited Spain. On the basis of the principle of presumption of innocence, it was maybe enough for Botín’s lawyers to rely on the absence of sufficient evidence about the location of the painting in Spain, without having to prove where it really was or had been. Given the strength of the evidence concerning the location of the painting in Spain, Botín’s lawyers devised another strategy for the administrative proceedings before the Audiencia Nacional. They argued that, in case the painting had indeed been inside the yacht Adix the whole time, then berthed at the port of Valencia, this meant that the painting was not in Spain because the flag state of the Adix was the United Kingdom, the vessel was therefore British territory and the Spanish authorities had unduly applied Spanish norms extraterritorially.Footnote ²⁰

Neither the Audiencia Nacional nor the Supreme Court were convinced and considered that foreign ships are subject to the regulatory authority of the coastal state where they are berthed. The Audiencia Nacional cited Article 21 of the Convention on the Law of the Sea (UNCLOS), which actually establishes that “[t]he coastal State may adopt laws and regulations … relating to innocent passage through the territorial sea, in respect of … the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.”Footnote ²¹ Laws and regulations for the prevention of contraband smuggling and trafficking in cultural property ought to be included. Similarly, in the criminal proceedings, the Court of First Instance held that Spanish laws and regulations were applicable because the Adix, while at the port, was in Spanish territorial waters, to which Spanish sovereignty is extended.Footnote ²²

Nevertheless, the references made by the Audiencia Nacional and the Court of First Instance to Spain’s prescriptive jurisdiction over its internal or territorial waters may have been mistaken because Spain’s prescriptive jurisdiction was probably based on the fact that the ship was berthed at a Spanish port—not exercising the right of innocent passage through Spain’s territorial sea—so Spain was the “port state,” not the “coastal state.” State port jurisdiction is actually not regulated by UNCLOS because ports are simply part of the territory of the port state, where the latter exercises its sovereignty and the corresponding prescriptive jurisdiction, as it would do in any other part of its territory.Footnote ²³ This mistake seems to have been corrected by the Criminal Court of Appeal when it affirmed the ruling of the Court of First Instance.Footnote ²⁴ Moreover, Spanish norms for the protection of PHE are imperative norms that apply in all Spanish territory.Footnote ²⁵ Finally, the Supreme Court agreed that Botín had not proved that the painting had always been outside Spain and neither had it proved that the presence of the vessel at the port of Valencia met the requirements of the right of innocent passage.

Botín’s lawyers apparently tried to entangle things even more before the Audiencia Nacional, alleging that any questions of property over the painting, including the export license to sell the painting abroad, should have been governed by the law of the state of the flag because Spanish law provides that the law applicable to property rights over ships is the law of the state of the flag.Footnote ²⁶ However, the painting was indeed in the ship but was not a structural element of it, and, moreover, this issue was not one of property rights but, rather, of regulatory jurisdiction. The fact that, in the end, the applicable Spanish regulations and criminal law norms would lead to the transfer of title over the painting to the Spanish state was only a punitive consequence of Botín’s actions, and Spanish property law would still not apply because its proper venue involves disputes between private parties.

Seizure of the painting: proceedings in France

Once the painting had been seized in Corsica and taken to Spain, Euroshipping and Cherokee Bay—a subsidiary of Euroshipping, which also owned the Adix—commenced administrative review proceedings in France against the acts of the French customs police and against the decision of the investigative judge of Bastia in Corsica to seize the painting and hand it over to Spain. However, the Court of Appeal of Bastia found that Euroshipping and Cherokee Bay had failed to provide enough evidence of their title to the painting and therefore lacked any legal standing in the proceedings. The court added that this was anyway the subject of ongoing proceedings in Spain.

However, the French Cour de Cassation later remanded this ruling of the Court of Appeal of Bastia, holding that there was evidence that Botín had purchased the painting in London in 1977 and had indirectly held it ever since, through Euroshipping. The Cour de Cassation held that the ongoing proceedings in Spain, where the ownership rights of Botín over the painting were under discussion, were actually evidence that supported Euroshipping’s claim to the painting and not the opposite. Furthermore, by means of a contract of 27 October 1999, Euroshipping had entrusted the painting and other works of art to Cherokee Bay.Footnote ²⁷

After the case was remanded, Euroshipping and Cherokee Bay argued in another appeal that the EIO issued by the Spanish investigative judge contained several formal irregularities because it did not sufficiently describe the purpose of the seizure, the factual and legal grounds for it, or the Spanish court before which the two companies could appeal the decision, and this violated their defense rights. Moreover, they argued that the delivery of the painting to the Spanish authorities had actually been illegal because the execution of the EIO could only take place once the French ruling ordering the seizure was rendered definitive. This had not happened because the judge of Bastia should have allowed Euroshipping and Cherokee Bay, as owners of the painting, to appeal such a ruling. Nevertheless, the Court of Appeal of Aix-en-Provence ratified the decision of the investigative judge of Bastia.

In a later ruling, the Cour de Cassation confirmed that there were no formal irregularities in the EIO because the name and address of the Spanish court that had ordered the seizure were on it, and the parties could learn from the French authorities itself which remedies against the seizure were available. The requirement that the French prosecutor must agree with the request made by the Spanish authorities had also been complied with because the prosecutor had forwarded the EIO to the investigative judge of Bastia, and this meant that the French prosecutor had considered that the EIO fulfilled all the necessary requirements. However, in light of the right to a fair trial and to an effective remedy, the Cour de Cassation remanded the ruling of the judge of Bastia because that ruling implied that the painting would be transferred to Spain while Euroshipping and Cherokee Bay were still on time to file an appeal against it.Footnote ²⁸

During the criminal proceedings in Spain, the Spanish judge of first instance mentioned in passing that a decision of the Commercial Chamber of the Cour de Cassation had put an end to all the appeals filed by Euroshipping and Cherokee Bay in France against the acts of the French customs police and that another decision of the Conseil Constitutionnel (that is, the administrative law chamber of the Cour de Cassation) indicated that the rights of the aforementioned appellants had not been infringed. However, these French decisions are apparently not available.

Seizure of the painting: proceedings in Spain

Botín also commenced administrative review proceedings before the Tribunal Superior de Justicia de Madrid against the recovery of the painting by the Spanish police and against its deposit at the Reina Sofía Museum.Footnote ²⁹ Botín’s lawyers argued that the Spanish police had been following orders from the Ministry of Education and not from an investigative judge, as required by law. They claimed that the first decision made by the Spanish investigative judge was dated 4 August 2015 but that previously, on 6 May and 31 July, the ministry had already informed the Spanish police that the painting may be inside the Adix, urging the police to act accordingly. Therefore, the acts of the police were null and void as a result of a lack of procedure and arbitrariness (that is, vía de hecho).

The “vía de hecho” encompasses those administrative acts that are not authorized or established by a norm and that harm legitimate rights and interests of citizens.Footnote ³⁰ The Spanish Constitutional Court also refers to the “vía de hecho” as any governmental conduct devoid of a prior norm or administrative decision that serves as the legal basis for the administrative act carried out or where such an act manifestly exceeds the scope of the prior decision.Footnote ³¹ An administrative act that infringes the prohibition of the “vía de hecho” shall be null and void if the act was carried out with total disregard of procedure, where there are very serious procedural defects or where the conduct of the governmental authorities was disproportionate with respect to the norm or the administrative decision that had initially authorized such an act or conduct.Footnote ³²

The Tribunal Superior de Justicia held that the behavior of the Spanish police had not been arbitrary and that they had kept the Spanish investigative judge informed about their ongoing investigation from the very beginning. Furthermore, although the French customs police had reported the finding of the painting to the Spanish police on 30 July and the latter had requested the French police to seize the painting the very next day, the Spanish police had then duly informed the Spanish investigative judge on 3 August and the judge had issued the EIO on 6 August. The Tribunal Superior de Justicia also held that the behavior of the Spanish police had not been disproportionate, bearing in mind Botín’s attempt to illegally export the painting without a proper license. The Tribunal Superior de Justicia noted that the refusal to grant this license was still pending a final decision by the Spanish Supreme Court, but, nevertheless, all previous courts had ratified the acts and decisions of the Spanish authorities, which were already binding, regardless of any pending appeals against them.Footnote ³³

Besides, the Spanish police had only been able to officially commence an investigation into a possible offense of contraband smuggling after Botín refused to inform them about the location of the painting and after the police uselessly searched the Adix. Thus, the Tribunal Superior de Justicia seemed to say that any appearance of hasty and rash conduct on the part of the Spanish police was due to Botín’s willful attempt to dodge the refusal of the export permit or, at least, to his refusal to cooperate with the Spanish authorities. Moreover, the Tribunal Superior de Justicia said that if the proceedings for a declaration that the painting was a good of cultural interest and was therefore specially protected had not yet commenced, this was also due to Botín’s refusal to communicate the location of the painting because his refusal made it impossible to know which autonomous region was competent for such proceedings. However, it could be argued that, since the painting had allegedly been in Spain or had belonged to a Spanish national since 1977, the reason why the painting was not yet a good of cultural interest was the lack of interest shown by the Ministry of Education.

The Tribunal Superior de Justicia also held that the contacts between the ministry and the Spanish police could not be interpreted as an attempt to give orders to the police but, rather, as evidence of the ministry’s concern for the safeguarding of Spanish cultural heritage. Finally, the Tribunal Superior de Justicia insisted that the LPHE presumes that illegally exported goods belong to the state. Therefore, after the painting left the port of Valencia, the police were simply looking for, and trying to seize, a work of art that was already public property.

The criminal proceedings in Madrid and the crime of contraband smuggling

The arguments presented by the defense of Botín revolved around jurisdictional issues, the true need for an export license and whether the painting had actually been exported. However, reference must first be made to the criminal law protection of cultural heritage in Spain. Article 46 of the Spanish Constitution of 1978 establishes that “criminal law shall punish any offences against [cultural] heritage.” Following this mandate, Articles 321–24 of the Criminal Code contain various criminal offenses against PHE.Footnote ³⁴ However, the criminalization of the illegal export of cultural goods is made by way of “blanket acts” (leyes penales en blanco)—that is, legal provisions that refer to another norm for the description of some of the elements of the criminal behavior.Footnote ³⁵

One such “blanket act” is Article 2.2.a of the 1995 Law on Contraband Smuggling, which provides that it is a criminal offence to export or dispatch cultural objects that are part of PHE without the proper license or having unlawfully obtained one, as long as the objects are worth 50,000 euros or more.Footnote ³⁶ Article 75.1 of the LPHE had already established that the export of movable goods that are part of PHE without an administrative license, if one is necessary, constitutes either a criminal offense or an administrative offense, depending on the value of the good, which is to be appraised by the Ministry of Education.Footnote ³⁷ Spanish courts seem to have been sensible to the degree of ambiguity involved in linking criminality to the absence of a license and linking the need for a license to the cultural and historical worthiness of cultural objects, which is to be assessed by experts and, ultimately, by the courts themselves. It has therefore been relatively common to acquit individuals accused of illicit trafficking in cultural property, considering that they might have been unaware of the historical and artistic “interest” of the cultural goods that they had taken out of Spain without an export permit.Footnote ³⁸

In one case, two individuals had exported several paintings, and the Court of Appeal of Madrid convicted one of them because he was aware that the Spanish government had decided to acquire the paintings and that they had been included in the general inventory. However, the other defendant was accorded the benefit of the doubt.Footnote ³⁹ In another case, all the defendants were acquitted because the court considered it valid that at least one of them did not know that the cultural objects they had exported were part of PHE.Footnote ⁴⁰ In 2011, the Law on Contraband Smuggling was amended, and, since then, criminal negligence is enough to commit the crime of illicit trafficking of cultural objects, although the penalty is lower.Footnote ⁴¹

Finally, Article 75.1 of the LPHE also establishes that those who aid and abet in the unlawful export of cultural goods as well as those who facilitate it willfully or negligently are equally liable. This apparently excludes any responsibility of Christie’s officials and employees because they were the ones who actually applied for the export permit. However, their subsequent behavior was relatively ambivalent because they seemed to collaborate with Botín in his attempt to distract the attention of Spanish authorities from his actual intention to take the painting out of Spain. Article 31 bis of the Criminal Code in relation to Article 2.6 of the Law on Contraband Smuggling also provides for the criminal liability of legal entities in those cases where the criminal behavior can be attributed to their legal representatives or decision makers. However, Article 31 quater of the Criminal Code also provides for an exemption of liability of legal entities for the acts committed by those same legal representatives, if the legal entity collaborates in the criminal investigation, which Christie’s seems to have done, testifying during the trial.

The first issue raised by Botín’s defense was the alleged lack of jurisdiction of the Spanish police to seize the painting in France and bring it back to Spain. However, the Criminal Court of First Instance held that the acts of the Spanish police fell within the scope of the 2003 convention between Spain and France on cross-border police and customs cooperation.Footnote ⁴² With respect to the illegality of the export, it has already been mentioned that its artistic interest was sufficiently high and proved and that it was 100 years old, so that an export license was necessary. Nevertheless, maybe considering the apparent arbitrariness involved in the subjective assessment of the historical and artistic relevance of a cultural object, the Court of First Instance mentioned once again that it had been Botín’s refusal to provide information about the painting that ultimately prevented the commencement of the proceedings for a definitive declaration as a good of cultural interest.

Botín’s defense further argued that the painting had never really been exported because goods are only truly exported once they leave the territory of the EU Customs Union.Footnote ⁴³ Therefore, the painting had allegedly not been exported yet when it was found and seized by the French police in Corsica. It would indeed have been exported once it reached Switzerland, which it never did, because Switzerland is not part of the EU Customs Union.Footnote ⁴⁴ The Court of First Instance rejected this argument indicating that Royal Decree 1649/1998 specifically establishes that the illegal export of goods is considered contraband smuggling even if the destination is another EU member state and that terms such as “export” (exportación) or “shipment” (expedición), used by the Spanish Law on Contraband Smuggling, are not meant to be defined by the EU Customs Code.Footnote ⁴⁵ Therefore, if the painting had been found by the police at the port of Valencia, no crime would have probably been committed. A related issue is that when a cultural good is seized at the moment of passing the border there is only an inchoate crime. However, some Spanish scholars think otherwise because they understand that the goal of the norms on contraband smuggling and illegal exports is to protect the borders themselves.Footnote ⁴⁶

The purpose of the export—to auction it in London or simply to keep it in a Swiss vault—was also irrelevant in the eyes of the Court of First Instance because the LPHE does not take into consideration the purported goals of the criminal. Another argument that the defense made reference to was the fact that the Adix had exited Spanish territorial waters several times before arriving in Corsica and that there was no question that Botín had not committed a crime on those occasions. However, the court held that there was no evidence that the painting was on board the Adix on those occasions and that no offence had been committed whenever the painting exited Spain prior to the express prohibition to export before 2006—that is, when the painting reached the age of 100 years. Nor was it necessary, for the commission of the crime, that Botín had officially imported the painting into Spain, which he never did. If he had done so, the export of the painting during the 10 years following the official import would have been much easier because, during that time, the painting could not have been declared a good of cultural interest.Footnote ⁴⁷

The calculation of the criminal sentence

The sentence imposed 18 months in jail, a fine of 52,400,000 euros and the confiscation of the painting.Footnote ⁴⁸ Most unusually, the sentence was recalculated just one week after it was issued, at the request of the prosecutor and the government’s own legal counsel. The sentence then imposed three years in jail and a fine of 91,700,000 euros.Footnote ⁴⁹ Spanish law permits criminal courts to clarify parts of a ruling that are not sufficiently clear and to correct obvious substantive mistakes as well as mathematical errors of their own accord or by a motion of one of the parties.Footnote ⁵⁰ Spanish scholars also understand that the problematic wording of the different norms involved make it difficult to properly calculate a sentence for contraband smuggling.Footnote ⁵¹

In the first ruling, the Court of First Instance did not really justify the calculation made. Actually, Article 3.1 of the Spanish Law on Contraband Smuggling establishes that the sentence for contraband smuggling, including illicit trafficking in cultural property, is one to five years in jail and a fine of as much as six times the value of the smuggled goods. This law divides the five years into two parts: the upper half and the lower half. The specific crime of the illegal export of cultural goods—Article 2.2.a—is punished with the upper half—that is, 2.5 to five years—so the Court of First Instance gave a relatively benign conviction. The three years in jail ordered by the new sentence now make it more difficult for Botín to avoid spending actual time in jail because the suspension of a prison sentence is, in principle, possible if the sentence is not higher than two years.Footnote ⁵² The error professed by the Court of First Instance was significant, but the Court of Appeal concluded that it must have been simply a typing mistake.

On appeal, Botín also claimed that, after the export permit was refused, the value of the painting had fallen from over 26 million euros to over 2 million, which in his view should have an incidence in the calculation of the fine. However, the Court of Appeal refused to consider this issue because the documents appraising the decrease in the value of the painting had not been produced in the first instance proceedings. Finally, Articles 5.1.a and 5.1.c and 5.6 of the Spanish Law on Contraband Smuggling provide for the confiscation of the smuggled goods themselves (that is, the painting) and for the means of transport used for the commission of the crime (that is, the Adix). As previously stated, the painting was either confiscated or simply seized because, in accordance with Article 29.1 of the LPHE, it already belonged to Spain from the moment it had been illegally exported. However, it is hard to understand why the Court of First Instance did not confiscate the Adix. The reason it gave in the second sentence is that the state attorney had not requested that its value be appraised, so as to make sure that its confiscation was not disproportionate.

Illegal trafficking of cultural objects and international judicial cooperation

What were the different options that Spain had to recover the painting once it had been taken abroad? Requests for cooperation in the gathering of evidence located abroad must be recognized and enforced in other EU member states. Confiscation orders must also be recognized but only further to a final conviction.Footnote ⁵³ The problem here was that, although there was an ongoing criminal investigation in Spain, Botín had not been convicted yet, and, in the meantime, the painting was still in France, bound for Switzerland or London. Council Directive (EU) 2014/42 on the Freezing and Confiscation of Instrumentalities and Proceeds of Crime in the European Union makes it possible to confiscate the proceeds of crime “subject to a final conviction for a criminal offence, which may also result from proceedings in absentia.” This directive has been transposed in France and Spain.Footnote ⁵⁴ However, the unlawful export of cultural objects does not seem to fall under the scope of any of the instruments covered by this directive.Footnote ⁵⁵ Given that this instrument also requires a final conviction, some believe that it was a missed opportunity for asset recovery.Footnote ⁵⁶

On the other hand, Council Directive (EU) 2014/42 has only partially replaced Council Framework Decision 2006/783/JHA and Council Framework Decision 2005/214/JHA, which are therefore still in force. The first of these two framework decisions provides for the cross-border execution of confiscation orders “following proceedings in relation to a criminal offence” “without verification of the double criminality of the acts” in case of “illicit trafficking of cultural goods.” The second framework decision provides for the recognition of a “final decision requiring a financial penalty … in respect of a criminal offence,” which may have been used to confiscate the proceeds from the sale of the painting in London. The list of offences covered by both framework decisions includes the “illicit trafficking in cultural goods, including antiques and works of art.”Footnote ⁵⁷ It does not seem far-fetched to interpret this as including not only the sale of a cultural object stolen from its owner and taken “illicitly” abroad but also those cases where the owner himself takes the object “illicitly” abroad—that is, without the required license—and tries to sell it because, in both cases, the victim is the same: national cultural heritage. However, the problem with these two framework decisions is the same as with Council Directive (EU) 2014/42: the criminal proceedings in Spain would first have had to end with a sentence and a confiscation order.

Council Regulation (EU) 2018/1805 covers the “illicit trafficking in cultural goods, including antiques and works of art” and provides for confiscation “without a final conviction, under the law of the issuing State, following proceedings in relation to a criminal offence.” Under this regulation, it would have been enough that the Spanish investigative judge informed his French counterparts that a criminal investigation into a possible crime of trafficking in cultural property was ongoing, as was the case. However, this regulation was only applicable as of 19 December 2020.Footnote ⁵⁸ Botín’s lawyers argued that the proper norm that should have been applied to the recovery of the painting in any case was Spanish Law 1/2017, which transposes Council Directive (EU) 2014/60.Footnote ⁵⁹ The First Instance Criminal Court responded that Law 1/2017 concerns civil law and not the criminal law aspects of illegal exports, which were the ones at stake. Actually, Article 16 of Council Directive (EU) 2014/60 establishes that “[t]his Directive shall be without prejudice to any civil or criminal proceedings that may be brought, under the national laws of the Member States, by the requesting Member State and/or the owner of a cultural object that has been stolen.” Therefore, the recovery and return of cultural objects by means of the directive does seem compatible with criminal proceedings in the country of origin and are probably compatible, too, with other mechanisms of international cooperation in criminal matters, such as the EIO. Besides, the purpose of Law 1/2017 is mostly to assist in the recovery of cultural objects unlawfully taken from an EU member state and later found in Spain.Footnote ⁶⁰

Council Directive (EU) 2014/60 was implemented in France by Décret no. 2016-1573, which amends the French “code du patrimoine.”Footnote ⁶¹ The French Office central de lutte contre le trafic de biens culturels and the Police des Douanes have been active both in the search for cultural objects unlawfully taken out of France and in the collaboration with the authorities of other EU member states. However, it is unclear how many of the successful interventions of French authorities have taken place thanks to the mechanism provided by Council Directive (EU) 2014/60 or by its predecessor, Council Directive (EEC) 93/7, or thanks to other instruments on criminal or customs cooperation or even informal dispute resolution mechanisms such as mediation and out-of-court settlements.Footnote ⁶² Similarly, informal contacts or cooperation without existing international legal instruments also seem to have yielded some of the most important fruits in the recovery of works of art stolen from Spain.Footnote ⁶³ The cooperation of the Spanish police is especially intense with the police forces in Portugal, Italy, and France.Footnote ⁶⁴

Article 5 of the French Décret no. 2016-1573 provides for an “action en restitution,” which can be exercised by the EU member state from which the cultural object has been unlawfully taken. Therefore, Spain would have had to file a civil lawsuit in France against Botín (or, rather, Euroshipping) as “possessor” of the painting, requesting its return to Spain. In this regard, Article 13 of Council Directive (EU) 2014/60 further establishes that “[o]wnership of the cultural object after return shall be governed by the law of the requesting Member State.” Arguably, therefore, if France had returned the painting to Spain, it may have been collaborating in its confiscation because by then the painting already belonged to Spain under the LPHE. Although there is a general principle that states do not enforce foreign punitive or confiscatory rulings, the directive itself may be an exception to this principle.Footnote ⁶⁵

If the painting had reached Geneva, Switzerland is a party to the 1970 UNESCO Convention and the 1995 UNIDROIT Convention.Footnote ⁶⁶ Switzerland has also passed a federal law that grants states from which a cultural object has been unlawfully exported a right of action against whoever is in its possession, if it is found in Switzerland. The Swiss law also provides for the possibility to enter into bilateral agreements with specific countries concerning the return of cultural objects. However, it is unclear, from the text of the statute, whether the aforementioned right of action depends upon the existence of such an agreement. Spain and Switzerland have not entered into any such agreement.Footnote ⁶⁷ Finally, the United Kingdom also transposed Council Directive (EU) 2014/60 in 2015.Footnote ⁶⁸ However, three years later, this country passed a new law that would enter into force once the EU treaties cease to apply on their territory after Brexit. This law effectively revokes the domestic norms that implemented Council Directive (EU) 2014/60 in order to avoid what the explanatory memorandum of the UK Parliament refers to as “a one-sided obligation upon the UK to return cultural objects, whilst unable to enjoy reciprocal rights.”Footnote ⁶⁹ The United Kingdom is also a party to the UNESCO Convention but not to the UNIDROIT Convention.

The next best course of action for Spain was probably the one the investigative judge took. Council Directive (EU) 2014/41 “regarding the European Investigation Order (EIO) in criminal matters” can be “issued for obtaining evidence that is already in the possession of the competent authorities of the executing State.”Footnote ⁷⁰ This legal instrument has been implemented both in Spain and in France and replaces the previous and complex legal framework for obtaining evidence abroad, where mutual legal assistance and mutual recognition coexisted.Footnote ⁷¹ Article 6 of Council Directive (EU) 2014/41 establishes that the EIO must be “necessary and proportionate.” However, the fulfillment of this condition is entirely at the discretion of the issuing authority (that is, the Spanish judge), not the executing authority (that is, the French prosecutor or judge).Footnote ⁷² It can be asked whether the EIO was in fact “necessary and proportionate” in relation to the goals of the directive, if its real purpose was either to confiscate or to recover a cultural object illegally exported, not to obtain evidence. It could also be argued that under the treaty between Spain and France on customs cooperation, the French police were fulfilling an obligation to cooperate in the fight against “illicit trafficking,” which did not arise from EU law but, rather, from this treaty.Footnote ⁷³ In this regard, the Court of Justice for the European Union held in Case C-234/18, AGRO in 2001, that EU law does not govern nor prevent forms of non-conviction-based confiscation established by member states under domestic law.Footnote ⁷⁴