History of formation and development of criminal law in the field of protection of objects of archaeological and cultural heritage in ukraine and some foreign countries
The international protection of cultural property: some skeptical observations. Archaeological heritage the council of Europe initiatives. Preservation of historical cemeteries in countries. Formation, development of the criminal legislation of Ukraine.
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HISTORY OF FORMATION AND DEVELOPMENT OF CRIMINAL LAW IN THE FIELD OF PROTECTION OF OBJECTS OF ARCHAEOLOGICAL AND CULTURAL HERITAGE IN UKRAINE AND SOME FOREIGN COUNTRIES
Candidate of Juridical Sciences, assistant professor, Doctoral student of Classical Private University
of Taras Shevchenko National University of Kyiv
Соловйова А.М., Соловйова А. Б. Історія становлення і розвитку кримінального законодавства у сфері охорони об'єктів археологічної та культурної спадщини в Україні і деяких зарубіжних країнах
У статті аналізується становлення та формування законодавства у сфері збереження археологічних і культурних пам'яток. Ефективне правове регулювання археологічної спадщини дозволить зберегти історію для наступних поколінь. Робиться висновок про взаємозалежність історичних процесів і кримінального законодавства у сфері охорони об'єктів археологічної і культурної спадщини в Україні та деяких зарубіжних країнах.
Ключові слова: археологічна спадщина, культурна спадщина, злочин, зарубіжне законодавство, кримінальне право.
Соловьева А.Н., Соловьева А.Б. История становления и развитие уголовного законодательства в сфере охраны объектов археологического и культурного наследия в Украине и некоторых зарубежных странах
В статье анализируется становление и формирование законодательства в сфере сохранения археологических и культурных памятников. Эффективное правовое регулирование археологического наследия позволит сохранить историю для следующих поколений. Делается вывод о взаимозависимости исторических процессов и уголовного законодательства в сфере охраны объектов археологического и культурного наследия в Украине и некоторых зарубежных странах.
Ключевые слова: археологическое наследие, культурное наследие, преступление, зарубежное законодательство, уголовное право.
Soloviova Alina, Soloviova Aliesia. History of formation and develop of criminal law in the field of protection of objects of archaeological and cultural heritage in Ukraine and some foreign countries
The article analyzes the development and formation of legislation in the sphere of preservation of the archaeological and cultural sites. The effective legal regulation of the archaeological heritage will preserve history for future generations. The article concludes the interdependence of historical processes, and criminal law in the field of protection of objects of archaeological and cultural heritage in Ukraine and some foreign countries.
Keywords: Archaeological heritage; Cultural heritage; Crime; Foreign legislation; Criminal law.
Formulation of the problem. International law today appears to focus on the strengthening of protection for movable assets, notably including artistic and archaeological assets, which might be packaged within the overall definition of cultural property.
Furthermore, while the protection of immovable property is now included in the international normative framework, at least with reference to extremely serious phenomena (war crimes and other violent acts arising during armed conflict), the movable property sector - as we see - appears, by comparison, defenceless in terms of criminal law protection. Having thus defined our area of study, further precision still is called for, since the diversity of objects endowed with cultural importance has already led to a diversity of choices in the international instruments devoted to this subject .
Cultural property refers to property that has some special relationship with a particular culture or nation state. Cultural property includes objects found at archeological sites, which provide insight into earlier civilizations, and artworks produced by members of a culture and that are thought to embody or represent that culture in a distinctive way. The contours of the definition are vague and shifting, but the controversies over the use of cultural property are real and raise important problems for domestic and international law .
The aim of the article is investigate history of formation and development of criminal law in the field of protection of objects of archaeological and cultural heritage in Ukraine and some foreign countries.
The main results of the study. Although one can trace international legislation at least as far back as 1464, when Pope Pius II prohibited art exports from the papal state, the contemporary legal framework is largely a product of recent decades.
Second, enforcement of cultural property law relies heavily on non-penal sanctions such as the return, restitution, and forfeiture of stolen goods. Principles of deterrence and retribution are of limited significance. Third, although art moves actively through the underground, its individual uniqueness makes it difficult to conceal and market. Cultural property therefore can never become a means of exchange among gangsters. Indeed, stolen art is often exchanged for ransom, rather than for fair market value or profit. Finally, cultural property law depends on municipal enforcement, especially customs procedures .
The targeting, destruction, and plunder of cultural property during armed conflict - either as incidental to the exigencies of war or as deliberate acts in and of themselves - has an extremely long history.
Cultural assets are then considered in legal doctrine as part of mankind's rights, both in their individual dimension, relative to the law applying to each cultural object and to the rights of peoples' historical and cultural identity. They receive the public attention appropriate to their universality. A special importance is attributed to religious objects, a symbol of the collective identity. Recent conflicts have strongly evidenced the importance of such items, which have been subjected to wide and indiscriminate assaults, sometimes tending even to destroy the identity of a people .
Damage and looting during the Crusades represent some of the earliest accounts of the vulnerability of cultural property during warfare (Boylan 2002, 43), while the destruction of politically potent reminders of the Royalist regime in the French Revolution demonstrates the symbolic value inherent in such objects. During the late 17th and early 18th centuries, Napoleon was renowned for his theft of art and antiquities in conquered lands, returning to France with his “spoils of war.” These examples serve to highlight the contentious role cultural property plays in armed conflict, and that the conquest and of an enemy can rest on more than just military defeat .
In the years before World War II only three international treaties refer to cultural heritage without using the term itself explicitly. All three belong to the category of rules of conduct in wartime. They are the Hague Conventions of 1899 and of 1907 both predecessors of the 1954 Hague Convention and the Montevideo Convention on the Protection of Artistic and Scientific Institutions and Historic Monuments (the so called Roerich Pact named after its initiator ) signed by 21 states of the Americas. Reference to cultural heritage is made in these treaties in enumerating types of buildings dedicated to cultural and scientific purposes and historic monuments which are to be respected and spared by belligerents .
The 1969 European Convention on the Protection of the Archaeological Heritage is mainly concerned with archaeological excavations and the extraction of information from these excavations. It entered into force in 1970. The main thrust is that the parties undertake to prevent illicit excavations, to take the necessary measures to ensure that excavations are authorized and entrusted only to qualified persons, as well as to control and protect the results obtained. The parties accept to take those steps necessary for scientific publication concerning excavation and discoveries, to facilitate the circulation of archaeological objects for scientific, cultural, and educational purposes. The Convention was ratified by twenty-four European countries. Pressure for revision of the Convention came in the late 1970s from the Parliamentary Assembly which was concerned with underwater archaeology and the illegal trade in antiquities .
Beyond the 1907 Convention there was the Hague Convention in 1954 and then the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in Armed Conflict 1999 (“Second Protocol”).
The Second Protocol was adopted in response to the gaps contained within the 1954 Convention. The main crux of the Hague Conventions is to prevent the destruction of cultural property and artifacts during war, including eliminating the use of cultural property as a weapon of war. Beyond the treatment of cultural property in war, the Second Protocol states that Prosecution is warranted when there is a violation of the conventions. Beyond these specific conventions, crimes relating to cultural property can also be found in the ICC Rome Statute (“Statute”) .
The Unidroit Convention presents an international framework to contest private sector transactions in stolen art and cultural property. Among other things, it allows claimants in countries that are party to the Convention to sue in the courts of other signatory countries for the return of stolen or illegally exported cultural property. It is significant that the Unidroit Convention unequivocally requires all objects demonstrated stolen to be returned and limits the possibilities for compensation in the case of return to holders who have been diligent in searching the title .
The emergence of the legislation in the sphere of protection of archaeological and cultural heritage in the different countries was accompanied by different historical processes. The Archaeological Resources Protection Act of 1979170 provides some protection to Native American tribes in their attempts to preserve their cultural treasures. The act requires that a permit to excavate on Indian lands can be secured only by the consent of the Native American tribe.
Although archaeological resources are artifacts that are at least 100 years of age, and thus, would not include religious objects of recent origin, the requirement of a permit from the Native American tribe to excavate upon Indian land has undoubtedly halted much of the taking of Native American artifacts and religious objects from Indian lands .
The National Historic Preservation Act was passed in 1966 to provide for the maintenance and expansion of a National Register of districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, and culture, and to provide matching grants-in-aid to the National Trust for Historic Preservation in the United States for the purpose of preserving historical properties for the public benefit.
Pursuant to the Nation Historic Preservation Act, the head of any federal agency having direct or indirect jurisdiction over a proposed federal, or federally assisted, undertaking in any state must consider the effect of the undertaking on any district, site, building, structure, or object included, or eligible to be included, in the National Register, prior to approval of the expenditure of any federal funds on the undertaking or prior to the issuance of any license .
In China, the Law on Protection of Cultural Relics protects ancient tombs of historical, artistic, and/or scientific value. According to the Law, ancient tombs are generally state property that may be designated as “sites to be protected for their historical and cultural value” (hereinafter “historical and cultural sites”) either at the national or local level, depending on their value. The Law regulates the repair, maintenance, and movement of immovable cultural relics, and restricts construction around historical and cultural sites. For example, within the “protection area” of a historical and cultural site, construction, blasting, drilling, and digging are generally prohibited. If such activities must be carried out “under special circumstances,” preapproval must be obtained from the relevant government authority. The transfer and commercial operation of ancient tombs are also prohibited or restricted .
The first important stages of the whole integrated system of protection of sites of archaeological and cultural heritage should be allocated from XVII-XVIII century, when in the Ukraine started the active selection and a certain systematization of “antiquities”. But the beginning of the history and development of criminal law was «Ugolovnoe Ulozheniye” in 1903, the document of the period when Ukraine was part of the Russian Empire. In particular Art. 550 of this regulation provide liability for damage to the monument, delivered to government approval, as well as the subject of science or art, which belonged to the imperial court or public libraries, museums, public repository.
Article 554 establishes penalty for damage graves or tombstones, if such damage committed without intent to abuse the dead, art. 563 -- for damage by fire, explosion or flooding public library, museum or other public or public storage objects of art or science, and art. 568 -- for the actions under Art. 563 committed through negligence. In addition, article 573 criminalizes even the assignment of the found treasure in a foreign land.
The next stage of the formation of criminal law protection of archaeological and cultural heritage has been the so-called “Soviet” stage. In article 87 of the Criminal Code (hereinafter -- CC) in 1922 of the USSR was established criminal liability for desecration of a monument to the revolution, and in article 102 of the
Criminal Code -- for concealing the collections and monuments and art, which are subject to registration, recording or transfer to the public repository.
The Criminal Code of the Ukrainian SSR in 1960 contained only one legal norm -- “The destruction and the destruction of cultural monuments” (Article 207.) in the section “Crimes against public safety, public order and public health.”
During the term of the Criminal Code of the Ukrainian SSR 1960 wording of this article has been slightly modified. In 1983, article 207 of the Criminal Code of the Ukrainian SSR “The destruction and the destruction of monuments of history and culture” was criminalized the willful destruction, destruction or damage of monuments of history and culture, taken under protection of the state, or territories and objects of natural reserve fund.
Today, the Constitution of Ukraine, which was adopted at the fifth session of the Ukrainian parliament (Verkhovna Rada), on the 28th of June 1996, proclaims the following: “Cultural heritage shall be protected by law” (part 4, article 54); “The State shall ensure the preservation of historical monuments and other objects of cultural value...” (part 5, article 54); “Everyone shall be obliged not to harm nature or cultural heritage, and to compensate for any damage he/she inflicted” (article 66) .
The cultural heritage of Ukraine is an integral part of the world's cultural heritage. The preservation and enhancement of cultural values is among priorities in the government's policy in the sphere of culture (see, for instance, The Conceptual Directions of Policies by Executive Bodies of Power in the Sphere of Culture, presented by the Cabinet of Ministers of Ukraine in June 1997 and approved by the Order of the Cabinet of Ministers of Ukraine No 675 as of 23 June, 1997). In accordance with the Law of Ukraine On the basics of National Security of Ukraine (Article 3), “spiritual, moral and ethic, cultural and historic values are the basis of national security”. In 2008-2009, the following laws were adopted: Law on Joining the International Convention on the Protection of Intangible Cultural Heritage; Law on Approval of the List of Cultural Monuments which cannot be Subject to Privatisation; Law on Amendments to the Law of Ukraine on Museums; Law on Amendments to Some Laws of Ukraine in Connection with the Approval of the Parliament; Law on Amendments to the Law on State Programme for Cultural Heritage Protection .
Today, in Criminal Code of Ukraine such liability is provided for in Article 298. In accordance with article 298 of the Criminal Code of Ukraine, the Illegal conduct of archeological investigations, excavation, other earth or underwater works on the project of archaeological heritage - punishable by a fine up to 100 tax-free minimum incomes, or restraint of liberty for a term up to two years, or imprisonment for the same term, with or without the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years . archaeological historical criminal legislation
Thus, the history of formation and development of the criminal legislation of Ukraine in the sphere of protection of objects of archaeological and cultural heritage originates from the time of stay in Ukraine within the Russian Empire. Criminal law in the field of protection of objects of archaeological and cultural heritage has changed over the centuries, depending on the historical processes that have taken place on the territory of Ukraine.
1. Manacorda Stefano. Criminal Law Protection of Cultural Heritage: An International Perspective / Stefano Manacorda
2. Posner Eric. The international protection of cultural property: some skeptical observations / Eric A. Posner
3. Nafziger James. International Penal Aspects of Protecting Cultural Property / James A. R. Nafziger
4. Milligan Ashlyn. Targeting Cultural Property: The Role of International Law / Ashlyn Milligan
5. Werner Von Truetzschler. The evolution of “cultural heritage” in international law / Von Truetzschler Werner
6. Archaeological heritage the council of europe initiatives and the valletta convention
7. Cultural property protections in international criminal law
8. Protection of Cultural Heritage in Southeast Asia
9. Phelan Marilyn. A Synopsis of the Laws Protecting Our Cultural Heritage/ Marilyn Phelan
10. Preservation of Historical Cemeteries in Selected Countries// Electronic
11. The Constitution of Ukraine // Electronic resource
12. Kyiv Initiative Regional Programme Pilot Project 2: “Rehabilitation of Cultural Heritage in Historic Towns” (PP2) // Electronic resource
13. The Criminal Code of Ukraine // Electronic resource
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