Ev.g.e.n.i.j ..K.o.z.l.o.v (E - E)
Lost Art in Court. Saint Petersburg, Russia, 2013–2014. Summary
Civil Case No. 2-1094/2013.
Plaintiffs: Oleg Zaika, Evgenij Kozlov, Oleg Maslov, and Inal Savchenkov
Trial and procedural documents:
Petersburg artists Oleg Zaika, Evgenij Kozlov, Oleg Maslov, and Inal Savchenkov filed suit against their former associate Sergei Bugaev after they discovered works of theirs at the exhibition ASSA: The Last Generation of the Leningrad Avant-Garde, which opened 15 May 2013 in the Museum of the Russian Academy of Arts in Saint Petersburg.
At issue are twenty-five paintings, five of them produced by Evgenij Kozlov. Along with dozens of other works by the plaintiffs, they had disappeared under a variety of circumstances in the late 1980s and early 1990s.
Sergei Bugaev organized the exhibition. According to Bugaev’s contract with the museum, the works by the four plaintiffs were drawn from his personal collection, although he was not identified as their owner either in the exhibition catalogue or at the exhibition itself.
The lawsuits were filed separately. Zaika, Maslov, and Savchenkov filed suit on 3 June 2013, while Kozlov filed suit on 11 July 2013. In his lawsuit, Kozlov requested that the two cases be combined into a single set of proceedings. The court granted this request at a hearing on 27 August 2013.
At the request of the plaintiffs, on 16 July 2013, artist and art historian Andrei Khlobystin communicated an offer to Sergei Bugaev: the plaintiffs would drop their suit provided Bugaev returned the works to them. He responded by advising the plaintiffs to try and get the paintings back through the courts.
The trial aroused great interest in the media. On the one hand, this was due to the fact that the plaintiffs and the defendant were well known in the Russian art world. In the 1980s, they had been involved in the Leningrad underground art scene as members of the New Artists group, the main group of the period. They have continued to exhibit to this day, but for many years they have worked independently of each other. In other words, the media presented the case primarily as a conflict between former art world colleagues whose relationship had soured over financial interests. Another important factor in attracting media attention was the fact that Sergei Bugaev, who had acted as an official endorser of Vladimir Putin’s presidential campaign in 2012 and still enjoys this status as his authorized representative today, publicly stated that the lawsuit was an attack on him on the part of “orange revolutionaries” (Izvestia, 6 August 2013, http://izvestia.ru/news/554980). In court, however, he refrained from making such statements. Generally, it can be noted that Bugaev’s arguments in court differed from his statements in the press.
On the other hand, the trial was a rare instance of artists using the means provided by Russian law to attempt to return paintings they had lost. Thus, the case could have served as a precedent for collectors: in the late 1980s and early 1990s (that is, the period when the paintings in question were lost), many collectors built up their collections often without any official, documented titles to the works they acquired. In this case, it was precisely the legality of part of Bugaev’s collection that was disputed: the plaintiffs did not regard Bugaev as the rightful owner of their paintings.
During the first trial, the defendant categorically rejected the plaintiffs’ claims. He disputed the authorship of the paintings, thus attempting to deprive the artists of the grounds for their suit. Consequently, the artists had to prove their authorship of each of the twenty-five works and clarify the particulars of their claim.
When the case was underway, artist Vladislav Gutsevich announced that four of the twenty-five paintings were in his possession. Subsequently, these four paintings were not considered as part of the lawsuit.
On 5 November 2013, the Dzerzhinsky District Court in Saint Petersburg ruled in favor of the plaintiffs, i.e., it found that Sergei Bugaev had possessed the paintings illegally. It ordered him to return the twenty-one paintings to the plaintiffs.
The main arguments in favor of the plaintiffs were that the defense counsel’s claims that the plaintiffs had voluntarily transferred the paintings in question to the defendant’s collection for displaying at exhibitions and permanent future use had not been supported by any evidence, and that Bugaev and his counsel had not provided credible proof that the plaintiffs had been duly informed, in 1989, that the paintings in question were at the ASSA Gallery.
Accordingly, the court dismissed Bugaev’s counterclaim, which had been based on the argument that from 1989 to the present time Bugaev had “openly, honestly, and continuously been in possession of the disputed works by the avant-garde artists, which had passed into his possession and been kept in his studio.”
In an appellate hearing on 4 February 2014, the Saint Petersburg City Court decided to overturn the Dzerzhinsky District Court’s decision, rendering a new ruling in favor of defendant Sergei Bugaev, and found, on grounds of acquisitive prescription, that Sergei Bugaev was the rightful owner of the twenty-one paintings by artists Oleg Zaika, Evgenij Kozlov, Oleg Maslov, and Inal Savchenkov.
The appellate ruling contained substantial substantive and procedural violations, prompting the plaintiffs to file a cassation appeal. Their cassation appeal was rejected first by the Saint Petersburg City Court and then by the Supreme Court of the Russian Federation.
At the request of Evgenij Kozlov, lawyer Oleg Anishchik, a specialist on the application of substantive law, commented on the decision in October 2014:
[…] Finally, the arguments [concerning substantive and procedural violations] seem fairly well grounded. The appellate court did not consider each painting individually. It concluded that all [four] artists had handed all the disputed works over to Sergei Bugaev, that is, they had put them at his disposal, and that all [four] artists had been notified of the need to retrieve their works from ASSA Gallery, and all of them had refused to do this. It also ruled that with regard to all the paintings there were signs of open possession [by Bugaev], etc., without indicating which disputed paintings and which artists were covered by the evidence on which the court had based its conclusion. As a result, it effectively ruled on the disputed paintings by Evgenij Kozlov with practically no evidence to confirm all [these claims] in relation to him and his works. […]
To repeat: there are serious problems, of course, with the findings of the court regarding the facts of the case. […] For example, the court finds that the [probationary five-year] period for acquisitive prescription [as stipulated by Article 234 of the Russian Federal Civil Code] ended in 1994. It follows, in particular, that [Bugaev’s] possession of the paintings should have been open not at some time, but specifically from 1989 to 1994. However, as evidence of open possession, the court refers to catalogues of different exhibitions, without identifying the years in which they were held. On the other hand, I likewise see no arguments on the part of the defense to which, regarding similar questions, specific, clear claims on these matters were made. […].
At a press conference on 5 February 2014, which Bugaev called the day after the appellate court made its ruling, he announced his intention to create a museum in Petersburg where the disputed paintings and other paintings from his collection would be exhibited. But in an interview published 10 November 2014, he declared the “death of the museum business” in Russia and his unwillingness to “take part in this farce” (АrtGuide, 10 November 2014 http://www.artguide.com/news/720 >>).
On 24 November 2014, the Moscow house Vladey auctioned part of Bugaev’s New Artists collection, including three works acquired by Bugaev through the courts: two paintings by Inal Savchenkov (Lots 14 and 17) and Evgenij Kozlov’s Portrait of Georgy Gurianov (Lot 19). One of Savchenkov’s paintings (Lot 14) was sold for 12.000 €. see http://vladey.net/auctions/autumn2014.html)
Hannelore Fobo, 26. 11. 2014