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Beyeler v. Italy. Application No. 33202/96

Published online by Cambridge University Press:  27 February 2017

Beate Rudolf
Beate Rudolf*
Affiliation:
University of Düsseldorf
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Abstract

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Type
International Decisions
Information
American Journal of International Law , Volume 94 , Issue 4 , October 2000 , pp. 736 - 740
Copyright
Copyright © American Society of International Law 2000

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References

1 Law No. 1089June 1, 1939, §30, Gazzetta Ufficiale della Repubblica Italiana, No. 184, Aug. 8, 1939, excaptedin App. No. 33202/96, paras. 66–72, obtainable from <http://www.echr.coe.int/eng/Judgments.htm> [hereinafter Judgment].

2 Section 61 of the 1939 law provides that “transfers, agreements and other legal transactions made in breach of the provisions laid down in this Law or in non-compliance with the terms and conditions prescribed shall automatically be void” and that the Ministry may still exercise its right of preemption under sections 31 and 32. Law No. 1089, supra note 1, quoted in Judgment, para. 69.

3 For the judgment of the Corte costituzionale, June 14, 1995, No. 269, see Foro It. 1996, 1, 807, 809–11. Relevant parts of the decision of the Corte di cassazione, Nov. 11, 1993, are cited in id. at 808.

4 Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms, Mar. 20, 1952, Art. 1, 213 UNTS 262 (paragraph numbers added).

5 Iatridis v. Greece, para. 54 (Mar. 25, 1999), obtainable from <http://www.echr.coe.int/eng/Judgments.htm>.

6 It referred to the case of Gasus Dosier- und Fordertechnik v. Netherlands, 306-B Eur. Ct. H.R. (ser. A) at 46, para. 53 (1995) .Judgment, paras. 100, 105. For earlier cases, see, e.g., Gaygusuz v. Austria, 1996 Eur. Ct. H.R. 1129, 1142, para. 41 (for a claim regarding unemployment insurance); Pressos Compania Naviera S.A. v. Belgium, 332 Eur. Ct. H.R. (ser. A) at 21, para. 30 (1995) (for a tort claim).

7 See, e.g., Malone v. United Kingdom, 82 Eur. Ct. H.R. (ser. A) at 32, para. 67 (1984); Iatridis v. Greece, supra note 5, para. 58.

8 Judgment, para. 107.

9 See Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Nov. 14, 1970, Art. 4, 823 UNTS 231, reprinted in 10 ILM 289 (1971) (defining the cultural heritage of a state).

10 Judgment, para. 113.

11 In the Court’s words, Beyeler “deliberately avoided any risk of a pre-emption order being made by omitting to comply with the requirements of Italian law.” Judgment, para. 116. In addition, the Court stated as regards Beyeler’s original failure to disclose his identity as the end purchaser: “he was thus able to buy the painting at a lower price than he would in all certainty have had to pay if his identity had been disclosed to the vendor.” Id., para. 115.

12 Judgment, para. 106.

13 See supra note 5.

14 Casus Dosier- und Fördertechnik v. Netherlands, supra note 5, para. 53. In his dissenting opinion in Beyeler, Judge Ferrari Bravo criticized the Court’s reference to this case because he considered the factual differences to be too great. See Judgment, Diss. Op. Ferrari Bravo, J.

15 See, e.g., Hentrich v. France, 296–A Eur. Ct. H.R. (ser. A) at 19, para. 39 (1994); James and Others v. United Kingdom, 98 Eur. Ct. H.R. (ser. A) at 32, para. 46 (1986); Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) at 22, para. 48 (1976).