2nd Conference of the European and International Criminal Law Institute:
“ANTIQUITIES AND INTERNATIONAL CRIMINAL LAW. THE JUDICIAL PROTECTION OF CULTURAL HERITAGE WITH INTERNATIONAL DIMENSIONS”
By Evangelia Sclavolia
Translation: Foivi Mouzakiti
In the “Giannis Kranidiotis” Chamber of the Ministry of the Exterior and in the presence of eminent representatives of the political and academic circles, as well as judges, prosecutors, legal experts and young scientists, the Institute of European and International Criminal Law hosted its 2nd Conference, entitled “Antiquities and International Criminal Law: the judicial protection of cultural heritage with international dimensions” on the 17th of December, 2015. The proceedings of the conference revealed burning issues revolving around the criminal protection of antiquities, a theme that poses a few of the most timely and controversial problems, concerning not only our country, but also the international arena. The apt choice of the topic under discussion was dictated by the undeniable fact that, over time, the illegal trafficking of cultural heritage goods has been a vital concern for criminal justice, a conclusion that is constantly reinforced by the available statistics. It is sufficient for someone to take under consideration that, alongside the illegal trafficking of drugs and guns, the illegal trafficking in cultural heritage goods represents one of the largest criminal enterprises, with an annual turnover that exceeds the amount of 3 billion dollars!
The different themes of the Conference were developed extensively by the following speakers: Mr. Christos Mylonopoulos, President of the Institute and Professor of the University of Athens, Mr. Andrea Castaldo, Professor of the University of Salerno, Mr. Ioannis Androulakis, Lecturer of the University of Athens, as well as Mr. Ioannis Morozinis and Georgios Bourmas, both PhDs and Lawyers. The event was chaired by the prosecutor of the Supreme Court, Mrs Ephterpi Koutzamani, who, after welcoming our speakers, continued her contribution by offering enlightening comments on their presentations. The event was greeted by the Minister of Justice, Transparency and Human Rights, Mr. Nikos Paraskevopoulos, whose speech placed emphasis on the importance of combating illegal trafficking in cultural heritage goods both at a national and at an international level.
Professor Christos Mylonopoulos’ presentation was entitled “Cultural nationalism and cultural internationalism”. He analyzed the criminal dimension of the Parthenon Marbles case and he attempted to demonstrate that, even according to the arguments of those opposed to the return of the Parthenon Marbles, their possession by the British Museum is reprehensible. Starting his reasoning from the premise that, according to the criminal rules on antiquities applicable in Greece, but also according to other countries’ respective rules, the protected legal right (with the exception of cultural environment and ownership) is cultural heritage, he noted that the latter consists of the cultural and historical identity of a nation and that the historical identity is already being protected at an international level by the UNESCO Declaration of 2003, whereas the ownership, understood as the State’s right to dispose of its antiquities according to its will, is bent not only by national, but also by international legislation, which limits the State’s sovereign rights in this matter to a drastic extent. According to developments in international law, the possession of the Marbles constitutes a crime by omission, since the integrity of the fragmented monument is not being restored, as dictated by an existing international legal obligation. In addition, it should be examined if the Marbles consist a proceed of crime, under the relevant legislation applicable in the United Kingdom (Proceeds of Crime Act), since they represent a bribe offered to the Ottoman Kaymakam by Elgin. In any event, from the beginning of the 21st century, the incidents of repatriation of antiquities have multiplied.
Subsequently, Andrea Castaldo, professor of Criminal Law of the University of Salerno, presented the Italian legal framework on cultural goods. From the very beginning, he expressed the view that, notwithstanding the enhanced protection afforded to national cultural goods by the Italian legislation, art crime and the proceeds obtained from the illicit trafficking in art continue to increase. This phenomenon called for the strengthening of the criminal legislation, which was realized with the entry into force of Decree No. 42/2004, which incorporates a multitude of criminal law provisions on crimes against cultural goods. Then, he proceeded to an exhaustive presentation of the art crimes unfolded by the aforementioned Decree as well as by the Italian Penal Code. He also emphasized the creation of the Carabinieri Department for the Protection of Cultural Heritage (CCTPC), a specialized police department established pursuant to a relevant recommendation by the UNESCO, which is entrusted with the tasks of protecting antiquities, investigating art crimes, detecting illegally exported Italian works of art and ensuring their return to Italy, raising public awareness and promoting collaboration with international bodies. Special reference was made to the ratification of International Conventions by Italy, Conventions that contribute significantly towards the prevention and the fight against art crime. The first, entitled “Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property” was ratified by Italy in 1978. However, it remains quite unpopular among European states, possibly due to their inability to define the objects that constitute cultural heritage. The second, UNIDROIT Convention, is part of Italy’s national law since 1999 and gives the possibility to the state and to its citizens to request the return of stolen or illegally exported cultural goods. Subsequently, he suggested measures that should be adopted in order to combat this phenomenon, such as encouraging collaboration among states, filling the gaps in criminal legislation and raising the public’s awareness on antiquities.
The Lecturer of the University of Athens, Ioannis Androulakis, examined the criminal law issues arising from the international trafficking of cultural goods and the illegal export and import of such goods and antiquities in particular. After presenting the international legal framework, he placed emphasis on the inadequacies of the existing Conventions, which in turn compel countries to combat the phenomenon by relying mostly on their own, autonomous rules. Taking this statement as a starting point, he continued with an analysis of the separate offences unfolded by Law No. 3028/2002, offences which target the illicit trafficking of cultural goods between states, while at the same time observing that the protection of Greek cultural goods, despite the strictness of the national rules, cannot be considered satisfactory. This fact can be closely linked to the aforementioned diversity of national rules, combined with the lack of consensus on policy development in this area. In support of this argument, he mentioned the precondition of double criminality and the hindrances that it creates for judicial cooperation, the lack of punishment of illegal trafficking of Greek cultural goods to third countries by certain Member States of the EU, as well as the failure of certain states to incorporate the offence of illegal import of cultural goods in their criminal legislation.
Mr. Ioannis Morozinis, PhD and lawyer, analyzed extensively the issue of deceit regarding the disposal of antiquities from an international criminal law perspective. According to his analysis, pursuant to article 13§4 of Law 3658/2008, the international jurisdiction of Greek criminal courts is established pursuant to the principle of global justice for the «crimes unfolded by the criminal provisions of Law 3028/2002». The scope of application of article 55 of Law 3028/2002, which provides for a distinct case of acceptance of proceeds of crime and constitutes the main provision targeting the illicit trafficking of Greek antiquities to foreign countries, indirectly affects the scope of the Greek courts’ international jurisdiction, since article 13§4 of Law 3658/2008 does not cover the cases that are subject to the main offence of article 394 of the Penal Code. The intent of the aggravated acceptance as provided by article 55 in relation to the criminal origin of the antiquity presupposes a certain knowledge of a complex of legal value concepts, which have been formed pursuant to the Greek understanding of antiquities, according to which they consist of ex lege public property, belonging to the Greek public sector. He came to the conclusion, however, that in other countries, especially EU countries, there exists a long tradition according to which cultural goods are being treated as commodities. These different conceptions may lead to an error of fact, if the alien offender does not realize via “a simultaneous assessment in the folk sphere” that the Greek antiquities belong, as a rule, to the Greek public sector and that they are inalienable (res extra commercium). Thus, he concluded that the criteria of good faith, as incorporated in the UNIDROIT Convention, are indicators specifically oriented towards an assessment of the intent of acceptance of antiquities that are the proceeds of a criminal act.
Finally, Mr. Georgios Bourmas, PhD and Lawyer, analyzed the matter of illegal possession of a monument, pursuant to article 59 of Law 3028/2002, as well as the geographical boundaries of national criminal legislation. Considering that the aforementioned provision does not expressly specify the geographical boundaries of its application, he concluded that as far as the article in question is concerned, the general principles of International Criminal Law are applicable (Article 5 et seq. of the Criminal Code). As part of this reasoning and taking into consideration the priority of the territoriality principle (article 5 of the Criminal Code), he proceeded to a detailed analysis of the legal elements of illegal possession of cultural goods as well as of the dogmatic features of the crime. Subsequently, he touched upon several issues of applicability of Greek Criminal Law in similar cases with foreign elements, both in relation to the principal’s act and the aiders’ or abettors’ act, in all stages of their execution, while he examined related issues, using as a solution criterion the specific assumptions of the active personality principle (article 6 of the Criminal Code), of the passive personality principle (article 7 of the Criminal Code), as well as of the principle of global justice (article 8.ia of the Criminal Code).
Following the aforementioned presentations, the speakers engaged with the attendees in a vivid discussion, which revealed not only an imperative need for raising the awareness of the public and that of the competent bodies in tackling the phenomenon, but also a need for courageous legislative initiatives and a more rational protection of cultural goods. At the end of the discussion, the President of the Institute announced that an additional Conference will be held in March of 2016, dedicated to the European Public Prosecutor, as well as an International Conference, which will host distinguished participants from European, American and Asian universities that will elaborate over a wide range of themes. The International Conference is scheduled to take place from the 3rd to the 5th of June of 2016.