Fight against illicit traffic of cultural property in South-East Europe. Gaziantep, Turkey, 19-21 November 2012 Link: http://www.unesco.org/new/en/venice/about-this-office/single-view/news/building_capacities_for_the_fight_against_the_illicit_trafficking_of_cultural_property_ in_south_east_europe/

1. Fight against illicit traffic of cultural
property in South East Europe
Gaziantep, 19-21 November 2012
Best practices on legal protection
of cultural heritage
Marina SCHNEIDER, UNIDROIT Senior Officer

2. “Best practices” – “legal protection”
• Best practices = comes from lessons
learnt, built up from actual experience
►determined subjectively
• Legal protection = rules that should
dictate what should be protected and how
► objective assessment

3. What is best practice of legal protection?
• Definition: procedures that are accepted or prescribed
as being correct or most effective
• Best practice on legal protection depends on what is
necessary in the particular circumstances
• In cultural heritage, it is not possible always to predict
circumstances which may arise in the future
• Best practice is thinking carefully about the subject
matter, the type of protection and the consequences of
protection. In other words, careful planning of a
comprehensive scheme is best practice.
► Comprehensive legal protection is the best approach

4. NATIONAL LEGISLATION
• Protecting its cultural heritage is one of the basic
cultural policy interests of any country. On the
strictly legal plane, legislations have been
adopted at national level.
• This is absolutely necessary but national
legislation is not sufficient to protect cultural
objects properly if these goods are traded
internationally.

5. REGIONAL LEGISLATION
Bilateral treaties
Supranational and multilateral legislation
– Commonwealth Secretariat
– Council of Europe
– European Union

6. Commonwealth Secretariat
Scheme for the Protection of the Material Cultural
Heritage
(Mauritius, November 1993)
Basic thrust of the Scheme similar to that of the UNIDROIT Convention
on Stolen or Illegally Exported Cultural Objects.
An illicitly exported object may be seized by the authorities in the
requested State and returned to the requesting State if, within 12
months, no court proceedings have been instituted to determine
questions of title and compensation.
Alternatively, the requested State may institute proceedings or advise
the requesting State to do so. If the court orders the object to be
returned, the Scheme requires a determination on compensation
payable to the holder. All other questions of title and compensation
are to be determined by proceedings in the requesting State.

7. Council of Europe
Conventions
– European Convention of 20 April 1959 on Mutual Assistance
in Criminal Matters - applied several times in order to return
as objects of criminal offences, cultural objects stolen or illegally
excavated in the requesting foreign country.
– European Convention of 6 May 1969 on the Protection of the
Archaeological Heritage (revised in 1992) - obliges the
Contracting States, inter alia, to take protective measures with
respect to archaeological sites and to consider the establishment
of a national inventory of archaeological objects.
– European Convention of 23 June 1985 on Offences Relating
to Cultural Property - provides a list of offences relating to
cultural objects and obliges the Contracting States to amend
their criminal law accordingly and to return cultural objects
removed subsequent to an offence relating to these objects. Not
in force
– European Convention of 3 October 1985 on the Protection
of the Architectural Heritage in Europe - obliges the State
Parties to undertake the direct or indirect protection of their
architectural heritage.

8. Council of Europe
Decisions of European Court of Human
Rights
• Beyeler v. Italy (2000)
the Court had to decide whether the Italian authorities in charge of the
protection of national treasures violated human rights (right to be heard,
right to hold property and to be compensated if taken) when they qualified
Vincent van Gogh’s painting “Portrait of a Young Peasant“ as an Italian
national treasure to be retained on Italian territory.
• Prince Hans-Adam II of Liechtenstein v. Germany (2001)
Pieter van Laer’s painting “Szene an einem römischen Kalkofen“returned to
the Czech gallery which had lent it for purposes of exhibition in Germany.
The Court had to decide whether Germany violated public international law
by returning the painting to a Czech owner who might have been the wrong
person since the painting was formerly owned by the Princes of
Liechtenstein until it was confiscated after World War II under the incorrect
assumption that the Princes of Liechtenstein were Germans.

9. European Union
• Council Directive 93/7/ECC of 15 March 1993
on the return of cultural objects unlawfully
removed from the territory of a Member
State (and amendments)
• Council Regulation (EEC) No. 3911/92 of 9
December 1992 on the export of cultural
goods (and amendments)

10. European Union
Study on preventing and fighting illicit
trafficking in cultural goods
in the European Union
CECOJI-CNRS – UMR 6224
October 2011
Discrepancies in civil, criminal and specialised
legislation which clearly increase the risk of illicit
trafficking

11. INTERNATIONAL LEGISLATION
UNESCO legal instruments for
the fight against illicit traffic
of cultural goods

12. UNESCO Recommendations
Non binding instruments
• Recommendation on International Principles
Applicable to Archaeological Excavations,
1956
• Recommendation on the Means of
Prohibiting and Preventing the Illicit Export,
Import and Transfer of Ownership of Cultural
Property, 1964
• .....

13. Protocol to the 1954 Hague
Convention
1954 Protocol specifically states that cultural property shall
never be retained as war reparation.
Each State Party is required, among other things:
- to prevent the exportation of cultural property from a
territory occupied by it
- to take into its custody cultural property imported
into its territory
- return, at the close of hostilities to the competent
authorities of the territory previously occupied such
cultural property and pay and indemnity to the holders in
good faith of such property

14. The 1970 UNESCO Convention on the Means of
Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property
• Preventive measures:
Inventories, export certificates, monitoring trade, imposition of penal or
administrative sanctions, educational campaigns, etc.
• Restitution provisions:
States Parties undertake, at the request of the State Party "of origin", to
take appropriate steps to recover and return any such cultural property
imported after the entry into force of this Convention in both States
concerned, provided, however, that the requesting State shall pay just
compensation to an innocent purchaser or to a person who has valid title to
that property. More indirectly and subject to domestic legislation, Article 13
of the Convention also provides provisions on restitution and cooperation.
• International cooperation framework:
The idea of strengthening cooperation among and between States Parties is
present throughout the Convention. In cases where cultural patrimony is in
jeopardy from pillage, Article 9 provides a possibility for more specific
undertakings such as a call for import and export controls.

15. The 1995 UNIDROIT Convention on Stolen or Illegally
Exported Cultural Objects
• UNIDROIT was asked by UNESCO to develop a
complementary instrument to the 1970 Convention.
Goes further to establish rules for restitution and return.
• Restitution is a must.
• Minimal rules for uniform treatment for restitution of
stolen or illegally exported cultural objects and allow
restitution claims to be processed directly through
national courts.
• UNIDROIT Convention covers all stolen cultural objects,
and stipulates that all cultural property must be returned.
• Evidence of due diligence opens up the possibility for
compensation.
• Based on national laws which best protect the cultural
heritage

16. For States to become Parties to the
international conventions would ensure
the most comprehensive legal
protection

17. Domestic measures
States should take measures at various levels (administrative,
legislative, institutional and on international cooperation)
Legislative measures
• States should carry out a reform of the legislation on cultural heritage
protection, management and promotion, in accordance with the
strategy adopted
• Evaluate the preventive effect of penalties on illicit traffic, and
examine, where appropriate, the advisability of revising the relevant
criminal provisions of the law
• Support penalties by taking educational and incentive measures
aimed at preventing and reducing illicit traffic in cultural objects
• Ensure the legislative implementation of the Hague Convention and
its Protocols, the 1970 UNESCO and the 1995 UNIDROIT Conventions

18. Domestic measures
States should carry out a reform of the legislation on cultural heritage
protection, management and promotion, in accordance with the
strategy adopted, by emphasizing the following points:
– Definition of cultural objects
– Ownership and transfer of ownership of public and private cultural objects
– Drawing up of inventories
– Archaeological excavations
– Preventing and combating clandestine excavations
– Preventing and combating thefts
– Control of commerce, including internet commerce
– Export control
– Import control
– Increased customs monitoring measures
– Restitution procedures
– Incentives measures
– Administrative and criminal penalties
– Bi-lateral relations

19. DEFINITION
• Most States have a set of legislative acts which govern
the protection of the cultural heritage. The concept of
cultural object – terminology used is different (cultural
object, antiquities, moveable or immoveable property or
objects of a historic or cultural nature, cultural heritage,
…)
• The legislative technique of legal definition differs
(general definition based on the criterion of cultural,
historic, artistic, traditional or aesthetic value...,
application of a specific date or the criterion of age to
define antiquities to be protected)
 The variety of definitions precludes the
establishment of matches with the definitions used
in international conventions  international
cooperation is more difficult in the fields of
preventing and combating traffic

20. DEFINITION – general protection
THEFT
combination of a large definition with the
principle established in Art. 3 (1) of restitution of
stolen objects is probably the most important
mean adopted to fight illicit traffic in cultural
objects
ILLICIT EXPORT
the definition is subject to conditions: return
is submitted to a violation of some of the
interests listed in the requesting State, or to the
significant cultural importance of the object for it

21. DEFINITION
Special regimes of protection  stricter
definitions
Long time limitations –
- objects belonging to a public collection (art.
3(4) and (7)),
- objects forming an integral part of an
identified monument or archaeological site (art.
3(4), and
- sacred or communally important cultural
objects belonging to and used by a tribal or
indigenous community (art. 3(7))

22. IDENTIFICATION
Inventory of cultural objects may be
- a registration system for purposes of
identifying and managing the cultural
heritage, and
- a legal procedure for the categorisation
and classification of cultural objects to be
protected by law

23. IDENTIFICATION
For the purposes of restitution/ return
Importance of the inventory as a means of
proving ownership of a stolen or illegally
exported cultural objects
Obligation under the 1970 Convention (art. 7)

24. Recommended measures
Best practice = comes from lessons learnt, built up from actual
experience
Article 4(4) of the UNIDROIT Convention
Determination of due diligence
The use of the Convention as a benchmark for due
diligence evaluation
- influence in national legislations
- influence in case law
- influence in the discussions at European level
regarding the possible revision of the 1993 Directive (Work
Plan for Culture 2011-2014 to produce a toolkit on the fight
against illicit trafficking and theft of cultural goods)

25. Concluding remarks
• Importance of having a sound and
comprehensive set of legislative measures
for protection
• Importance of the UNESCO’s Cultural
Heritage Laws Database