La Corte EDU sulla confisca obbligatoria di beni culturali illecitamente esportati: la vicenda dell’‘Atleta vittorioso'

The paper analyses the recent ECtHR decision in the case of the J. Paul Getty Trust and Others v. Italy, where Italian law providing for mandatory confiscation of unlawfully exported cultural property, even in the absence of a conviction and when affecting individuals or entities that did not take part in the crime, was recognized as legitimate, in principle, under art. 1 of Protocol I ECHR. The essay discusses the nature and function of said confiscation, which the ECtHR considered ‘restorative in nature’, as well as how the issue of proportionality is influenced by the wider margin of discretion States are recognized to enjoy in matters of cultural heritage protection. However, the evaluation about proportionality, or lack thereof, in the application of this kind of confiscation to cultural property clearly and undisputedly in private ownership still appears subject to possible shifts, depending on the concrete circumstances of the case and on proof of good governance by the State.