The "original sin" of restitution: the Fagan Fragment

 

The latest journalistic reports about the Greek manoeuvres to repatriate the Elgin Marbles to Ahens put more and more emphasis on ways to work around the unbreakable Gordian knot of a loan of the Marbles to the Acropolis Museum. The Greeks consider any loan proposal unacceptable, and the British cannot get the Marbles out of the British Museum in any other way than a loan. One of the most inventive solutions, and the one that has the most high-ranking followers in the Greek ministry, is the "deposit" agreement pioneered with the Fagan Fragment once proudly displayed in the Archaeological Museum A. Salinas of Palermo (Sicily) and now in the Acropolis Museum in Athens. 

But what is the Fagam Fragment? 

The Fagan Fragment is a small portion of Slab VI of the ionic frieze of the Parthenon, measuring just 0.35m by 0.31m and 0.10m thick, which takes its name from British Consul to Sicily, painter, and antiquarian Rober Fagan, who owned it until his death in 1816. Though we do not have all the paperwork, it is likely that this fragment was once in the possession of Lord Elgin and that he might have given it to Fagan in thanks for his assistance to the ambassador while on his way back to Britain. Since then, the fragment has been in his collection alongside items from Rome, Pompeii, Selinus and Tyndaris. 

Unfortunately, following a string of financial downturns, Fagan was overcome by depression and, in 1816, took his own life, leaving his wife burdened with debts. Maria Ludovica Fagan started selling pieces of the collection around until she finally managed to sell a big chunk of it (several hundred items, including the Fagan Fragment of the Parthenon) to the Museum of the Royal University of Palermo, whence it finally ended up in 1860 in what was then called the National Museum.  

It is also quite interesting to note that the marble doesn’t show the signs of the crowbar marks that are instead present on the Elgin Marbles, suggesting that the fragment may have been lying on the ground since the time of the explosion in 1687 before being collected and then sold.

What does the agreement look like?

The piece remained in the collection of the Archaeological Museum in Palermo for nearly two hundred years until, in January 2022, we were all surprised to hear that the Fagan Fragment was being "returned" to Greece. 

The agreement, orchestrated by the Regional Cabinet Member Alberto Samona' and the then director of the Museo "Salinas" Caterina Greco, was not just for a loan like many had been effected before, but for a permanent return. Given the bureaucratic complexities (more about this below), in the first phase, the object would be "deposited" by the Sicilian Museum in the Acropolis Museum of Athens for four years, to be renewed for another four after that. Then, at the expiration of the two four-year periods, the deposit would be confirmed sine die, that is without recalling the item back to Palermo. The move made rapidly big titles around the world, with both the Greek and Sicilian sides ready to capitalise on the publicity and to make a public display of mutual affection and friendship in front of the cameras.  

An illegal move

But why a "deposit" and all this machinery of the double four-year period? Simply because in Italian cultural law it is illegal to alienate items of cultural value that are part of the collections of public museums. The time was needed to work around the prohibition, while the use of the term "deposit" was supposed to avoid any legal complication deriving from having a third party controlling an object which was neither owned nor loaned by them. The Greeks have always been quite adamant about avoiding the use of the term loan whenever possible, as clarified by the following declaration by Professor Nikolaos Stampolidis, director of the Acropolis Museum: “I would never sign any contract with the term ‘loan’. A loan means that I understand that the possession of the other is legal, and this is not the case”. So the two museums agree to call it a deposit, establish it to be renewable, and then try to make a case for it to be a deposit without an end date. 

Sure, but can they do it? In theory, no, they cannot. As I was saying before, in Italian law, items of cultural value that are already part of public collections are part of the "demanio indisponibile", i.e. the non-disposable side of public property, and are therefore inalienable. And that's when the eight years come in handy: they needed time to push for the de-classification of the item, an administrative procedure whereby something that belongs to the demanio gets thrown out of it and becomes, therefore, alienable. Which is exactly what they have done, with the consent of the Ministry of Culture and the Advocate Genaral's office. 

All right then? Not one bit. The de-classification procedure is what is called a "declarative" process in Italian administrative law, which means that the authority is merely taking stock of something that has happened and recognizing it so that the effects of this recognition can take place. One example is the declassification of riverbeds of torrents that are no longer active. Riverbeds are part of the inalienable state property, but once the river is dry, they are no longer riverbeds, losing, therefore, the innate quality that had made them part of the demanio by default. Once the administrative authority recognizes that the land that was once a riverbed is no longer a riverbed, that land becomes like any other land and -in the absence of other constraining factors- can be sold by the state.  

Now the intelligent reader will ask: how can the administrative authority "de-classify" an item that was part of the demanio because of its intrinsic cultural qualities without it ever losing these qualities? Bingo. And yet, they have gone ahead and done it. And no one lifted a finger because of ideology and political convenience.  

And now, what?

Now we wait and see. Greek ministers and law professors already hail the "deposit" as the perfect solution to put their grubby hands on the Elgin Marbles. The high-ups in the British Museum (George Osborn and Nicholas Cullinan) are all eager to "find a solution" that immortalises their name and grants them eternal gratefulness from the Greeks. And history, truth, and the interest of the public? Well...