The Plough Legal Solutions

Civil Cases

The first and most important problem that can be seen in the Altink II Affair is the fact that, although the court recognizes the subjective nature of the evidence, the court doesn’t know how to properly evaluate the conclusions and evidence presented by the experts. Even in the Altink I Affair, a better understanding of the expert-testimonies might have led to a different outcome entirely. The problem is that the judges don’t have a proper understanding of what the evidence presented to them exactly means. Due to its subjective nature, there is no objective point of reference for a judge. This leads to bizarre judgments, as we saw in the Court of Appeal, where the findings of the experts were discarded due to the actions of one of the parties. Judging the competence of an expert should be based on the research, not the actions of another person or party.

To help judges better evaluate research and conclusions presented by experts, an objective standard for research needs to be developed. Essentially this comes down to a standardized procedure according to which the experts need to present their conclusions (based on subjective elements). This procedure should include a way to showcase their credentials, but more importantly, showcase the internal logic of their reasoning, to show how they have reached their objective conclusion based on the subjective material.

This standardized procedure would provide a tool for judges to evaluate the conclusions of art experts with, without having to have an in-depth understanding of the used methods and facts. A judge can test the reasoning of an expert, and decide whether the conclusions are sound. As civil procedures are adversarial in nature, both parties can provide contra-expertise to the expert of the other party. With a standardized procedure, the court could decide which expert – or group of experts – to follow for their decision, resulting in the decision-making being based on the merit of an expert, and not on the actions of a party or other irrelevant circumstances.

A second problem that this might help solve, is the long duration of the proceedings revolving around the authenticity of art. If the judges were to have a more reliable and quicker way of evaluating the experts, it would make the process of evaluating easier, resulting in less time having to be be spent on evaluations. But for a truly quick decision process, a good alternative for the courtroom would be to start Alternative Dispute Resolution (ADR) proceedings, such as mediation or arbitration. ADR can expedite proceedings tremendously and, if done properly, can also provide an expert panel of judges. The big caveat is convincing a forger to partake in ADR.

For civil proceedings it is essential that the judges get an objective standard against which they can measure the conclusions of the experts, leading to quicker and fairer decision-making.

Criminal Cases

Regarding criminal cases, a lot can be improved on as well. First of all, improvements on the objective standards for experts would have a positive influence on the criminal proceedings, as testimonies from experts would carry more weight, and could thus be used as evidence for a verdict. But most importantly, the attention for criminal investigation into art fraud cases needs to be increased dramatically. Art forgery is not simply a Robin Hood tale of an estranged artist fooling the establishment. It is a criminal act with big monetary and cultural consequences. The world art market generates approximately 65 billion dollars a year. A conservative estimate is that approximately 40% of the works are forged or (intentionally) misattributed. This results in 26 billion dollars per year essentially being criminal proceeds. Furthermore, these forged works also corrupt our cultural heritage. In case of The Plough, an important movement within Dutch art has been corrupted to such an extent that their cultural heritage is hard to retrace.

This is where law enforcement needs to step up. Although the stakes keep getting higher, the level of law enforcement in the art market decreases. The Netherlands, for example, completely disbanded their Art Fraud and Theft division, while in the UK this division exists of only four detectives. Law enforcement needs to realize that they have a crucial role to play in combating art forgeries. Currently, enforcement is left to art fraud victims instead of actual law enforcement.

If law enforcement starts increasing their criminal investigation into art fraud, the risk for forgers will grow, thus acting as a deterrent.

Conclusion

In summary, major changes will have to be made with regards to both civil and criminal matters, which would lead to a more effective way of combating art forgery. The more efficient the law becomes; the less lucrative forging art will be.