1. Introduction
1. The European Convention on
Offences relating to Cultural Property (ETS No. 119, “Delphi Convention”) was
opened for signature by the Council of Europe member States in Delphi
on 23 June 1985, but has never entered into force. Indeed, only
six States have signed it, and none have ratified it.
2. The main aim of the Delphi convention was to combat illicit
trafficking in cultural property through criminal law and to promote
co-operation between States. A further aim was to protect European
cultural heritage and to raise public awareness of the damages caused
by illicit trafficking in cultural property.
3. The illicit trade in cultural goods has become a highly profitable
enterprise, as precious artefacts, antiquities and art are excavated,
looted or stolen in order to be sold to private collectors. Trafficking
in stolen artefacts and antiquities not only robs people of their
unique cultural heritage and cultural identity, but can also facilitate
gross acts of violence and destruction through the financing of
organised crime and terrorist groups. High-profile cultural property
crimes in the Middle East and North Africa, such as the notorious
demolitions and looting at Palmyra, Syria, and archaeological sites
around Mosul, Iraq, among others, resulted in many so-called “Blood
Antiquities” being smuggled abroad and sold through unscrupulous
dealers on foreign markets.
4. In reaction to this, the ministers responsible for cultural
heritage from the 50 States Parties to the European Cultural Convention
(ETS No. 18) at their meeting in Belgium, adopted the “Namur Call”
in
April 2015. With this act, the ministers condemned “the deliberate
destruction of cultural heritage and the illicit trafficking of
cultural property” and decided to “reinforce European co-operation”
to prevent and punish such acts. They also referred to the Parliamentary
Assembly report on “Cultural heritage in crisis and post crisis situations”
which had been prepared by our former
colleague Ms Ismeta Dervoz (Bosnia and Herzegovina, EPP/CD) and
resulted in the adoption of Assembly
Resolution 2057 (2015) and
Recommendation
2071 (2015).
5. In order to ensure a proper follow-up to the relevant Committee
of Ministers decision
on
the review of Council of Europe conventions, the European Committee
on Crime Problems (CDPC) decided that the Council of Europe should
prepare a new criminal law convention to combat the illicit trafficking
of cultural property.
6. It was deemed important that the Council of Europe take the
necessary steps to ensure that this new convention would be ratified
by a greater number of States. It was felt that, in order to achieve
this, a simpler approach, as regards both the definition of cultural
property and the choice of optional offences, should be followed.
2. The international legal context
7. At international level, on
14 November 1970, the United Nations Educational, Scientific and
Cultural Organization (UNESCO) adopted a Convention on the Means
of Prohibiting and Preventing the Illicit Import, Export and Transfer
of Ownership of Cultural Property, which is the most important convention
in this area (127 States Parties). UNIDROIT subsequently adopted
a Convention on Stolen or Illegally Exported Cultural Objects on
24 June 1995. The aim of this convention is to supplement the 1970
UNESCO Convention by focusing more specifically on civil law aspects.
8. The United Nations Office on Drugs and Crime (UNODC), in collaboration
with UNESCO and Interpol, has recently developed the International
Guidelines for Crime Prevention and Criminal Justice Responses with Respect
to Trafficking in Cultural Property and Other Related Offences.
9. Moreover, the United Nations Security Council has adopted
a number of resolutions
in response to several reports revealing
that trafficking in antiquities has become one of the sources of
funding of terrorist organisations, along with oil and kidnapping.
10. At European level, European Union institutions have adopted
two instruments with a view to preventing the illicit movement of
cultural objects: Regulation 116/2009 of 18 December 2008 on the
export of cultural goods, and
Directive
2014/60 of 15 May 2014 on the return of cultural objects
unlawfully removed from the territory of a Member State. These acts
aim at fostering Member States’ reciprocal recognition of domestic provisions
designed to fight the illicit trade in antiquities and the application
of border controls.
3. The
added value of the new Council of Europe convention
11. A revision of the 1985 Convention
was aimed at simplifying and streamlining its language and structure in
order to harmonise the relevant rules of criminal law.
12. The new convention has a broad scope and will go an important
step further: its protections will apply not only to property that
has been designated by a State which has ratified the Council of
Europe treaty, but to all property designated by any State that
is Party to the 1970 UNESCO Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of Ownership
of Cultural Property and the 1972 UNESCO Convention on the Protection
of the World Cultural and Natural Heritage. As a result, the coverage
is therefore much wider. This feature is one of the several ways
the convention aims to contribute to the international legal framework
relating to cultural property while also making sure that its provisions
are fully compatible with relevant existing international and supranational
legally binding standards.
13. As none of these international instruments address criminal
law issues, the convention’s added value is that it enhances law-enforcement
efforts by requiring State Parties to criminalise certain conduct
relating to the trafficking and destruction of cultural property.
As such, the Committee on Offences relating to Cultural Property (PC-IBC)
was tasked with drafting substantive criminal law provisions in
such a way that they can be effectively implemented by States Parties
and enable national criminal law provisions based on the draft convention
to be sufficiently clear and precise.
14. Upon implementation, the convention aims to ensure that there
are no obvious gaps for criminals to exploit in the anti-trafficking
system and that there is a comprehensive and coherent set of rules
and regulations providing a solid legal basis for law-enforcement
actions. The convention obliges States Parties to ensure that their
domestic criminal law provides criminal liability for both natural
and legal persons and that there is a basis to apply effective,
proportionate, and dissuasive criminal sanctions, or, under certain
conditions, non-criminal sanctions (including administrative sanctions).
15. By obliging States to criminalise offences relating to cultural
property, this approach will build on the 1970 and 1972 UNESCO Conventions
and the 1995 UNIDROIT Convention, “closing the circle” by addressing the
gaps which remain in international criminal law.
4. Key
elements of the convention
16. The substantive criminal law
provisions in Articles 3 to 10 cover offences such as theft (and
unlawful appropriation), illicit excavation and retention, import/export,
acquisition, placing on the market, falsification of and tampering
with documents, and destruction of cultural property. Article 11
on aiding or abetting and attempt ensure that auxiliary and preparatory
offences are also covered. Article 15 obliges States to consider
a number of aggravating circumstances, particularly where persons
abuse their professional role or official positions, and where persons
commit the offences with a nexus to organised crime. The convention
thus enhances the capacity of States to investigate, prosecute,
sentence and/or extradite persons suspected or convicted of the offences
covered by the convention.
17. However, though the convention was in many ways inspired by
the offences committed by terrorist organisations, the PC-IBC determined
that there was no need for express provisions directly relating
to terrorist activity. Earlier drafts of the convention contained
a provision asking States to consider aggravating circumstances
when determining sanctions for situations where cultural property
offences were committed in connection with terrorist activity. The
drafters determined that such offences would primarily be prosecuted
as terrorist offences rather than cultural property crimes. However,
I strongly believe that States should, where appropriate, also consider
offences connected with terrorism or terrorism financing as an aggravating circumstance
under Article 15.
18. The convention also facilitates international co-operation
in criminal matters and encourages a number of preventive measures
at both the domestic and international level in order to reduce
the likelihood of offences contained within this convention from
occurring. At the domestic level, it covers an array of recommended measures
for public and private entities and is broadly reflective of national
best practices and pre-existing international treaties. These measures
also serve to protect and aid the law-abiding actors in the art
trade who lose out to black market operators. At the international
level, the convention requests States Parties to co-operate, to
the widest extent possible, to prevent the commission of offences
covered under the convention, including by exchanging relevant information
on cultural property, linking national databases and inventories, and
taking appropriate measures to protect cultural property in times
of instability or conflict.
19. In terms of oversight, the convention provides for a Committee
of the Parties under the convention in order to facilitate the effective
implementation of the convention, play an advisory role, and facilitate
the exchange of information on significant developments relevant
to the provisions of the convention. A proposal to establish a European
Observatory on Offences relating to Cultural Property was discussed
during negotiations in order to facilitate implementation and reduce
the burden placed upon States in matters of enforcement and co-operation.
Given the potential added value of such a permanent institution
to systematically monitor and co-ordinate efforts to fight against
cultural property crimes, I propose that the Assembly support this
proposal.
5. Proposals
for improvements
20. Considering the above, I make
the following proposals to improve the current draft.
5.1. Illegal
importation
21. Article 5 of the draft convention
deals with “Illegal importation” and provides that:
“1. Each Party shall ensure that,
when committed intentionally, the importation of movable cultural property,
the importation of which is prohibited pursuant to its domestic
law on the grounds that it has been:
a. stolen in another State;
b. excavated or retained under circumstances described
in Article 4 of this Convention; or
c. exported in violation of the law of the State that
has classified, defined or specifically designated such cultural
property in accordance with Article 2 of this Convention, constitutes
a criminal offence under its domestic law where the offender knew
that the cultural property had been stolen, excavated or exported in
violation of the law of that other State.”
22. This provision is very cautious, as the obligation therein
is subject to a double condition that the importation is already
prohibited under the domestic law and that the offender knew that
the cultural property had been stolen, excavated or exported in
violation of the law of the State of origin.
23. In addition, Article 5.2 states that:
“2. Any State may, at the time of signature or when depositing
its instrument of ratification, acceptance, approval or accession,
by a declaration addressed to the Secretary General of the Council
of Europe, declare that it reserves the right to provide for non-criminal
sanctions, instead of criminal sanctions for the conduct described
in paragraph 1 of the present Article.”
24. Such a possibility is odd, because it clearly weakens the
whole system which is intended to fight illicit trafficking of cultural
goods which, according to Article 1.a of
the draft convention is an essential scope of this legal instrument.
Therefore, my proposal would be to recommend deleting Article 5.2.
5.2. Other
offences related to trafficking in cultural property
25. In the last round of negotiations
it was decided to delete a provision (the former Article 10) which provided
for the criminalisation of other offences related to trafficking
in cultural property and in particular the storage, conservation,
restoration, transportation and transfer of movable cultural property,
when the offender had knowledge that such property derived from
or was obtained, directly or indirectly, from criminal offences and
the aim was their illegal importation, exportation, or placement
on the market.
26. I understand that there may be objections in criminalising
activities such as “conservation” and “restoration” (which could
possibly be elements in favour of the offender). But for the rest,
I believe that this was a wrong decision because again, the lack
of a harmonised approach and of effective sanctions in this domain
will certainly hamper the effective fight against illegal trafficking
of cultural goods. When conducts such as storage, transportation
and transfer – and I would certainly add concealment – of movable
cultural property are connected to the principal criminal acts and
are instrumental to the introduction of the illegal goods into the market,
it is nothing more than logical to punish them. Indeed, it is necessary
to consider the whole chain and not just the initial and final links.
27. Therefore – though realistically I fear it is late to reopen
this question – I would suggest inviting the Committee of Ministers
to reconsider this issue and reintroduce within the final text of
the convention a provision which (based on the previous text now
deleted) could read as follows:
“Each
Party shall ensure that the following conducts constitute a criminal
offence under its domestic law, when committed intentionally: the
storage, concealment, transportation and transfer of movable cultural property,
knowing that such property derived from or was obtained, directly
or indirectly, from criminal offences, if aimed at their illegal
importation, exportation, or placement on the market, with the purpose of
obtaining an illicit profit.”
5.3. Aggravating
circumstances
28. The Preamble to the draft convention
states that the Parties are “concerned that terrorist groups are involved
in the deliberate destruction of cultural heritage and use the illicit
trade of cultural property as a source of financing”. Indeed, the
drafting of the convention was in large part motivated by the fact
that Daesh in particular has been heavily involved in the illicit
trade in cultural property looted from the areas under its control.
29. I would therefore suggest the following amendment to Article
15.
c:
“the offence was committed in the framework of organised
crime or of a terrorist group;”
30. The main purpose of the proposed amendment would be to ensure
that the connection with a terrorist group is included as a possible
aggravating circumstance in the sentencing of persons convicted
of an offence set out in the draft convention. As to the meaning
of “terrorist group” in this context, it is not necessary to give a
specific definition for the purpose of this convention. The explanatory
report to the convention could indicate that States Parties may
refer to other international instruments which define the concept,
or better establish that it should be aligned to the definition
set out in Article 2.1 of the 2015 Additional Protocol to the Council
of Europe Convention on the Prevention of Terrorism, with reference
also, if necessary, to Article 2.5.c of
the International Convention for the Suppression of the Financing
of Terrorism (CETS No. 217). I also consider that the reference
to “organised crime” is more encompassing than the reference to
“criminal organisation”; additionally in my opinion “organised crime”
should not be qualified as an “organisation” (institution).
5.4. Register
of offences
31. Article 15.d of the draft convention establishes
as a possible aggravating circumstance to be taken into account
in sentencing the fact that the perpetrator has previously been
convicted of the offences referred to in this convention. Article
16 requires Parties to take the necessary measures to provide for
the possibility to take into account final sentences passed by another
Party in relation to the criminal offences referred to in this convention
when determining the sanctions. For either of these things to happen,
however, the court that is sentencing the perpetrator must be aware
of the fact of relevant previous convictions and sentencing that occurred
within the jurisdiction of another Party. Systematically making
such information available via the central mechanism of the Committee
of the Parties would be an efficient and effective means of achieving
this important goal.
32. It is therefore regrettable that the former Article 24.3 concerning
the setting up of a European Observatory for offences related to
cultural property to support the Committee of the Parties in carrying
out its functions has not been retained, as initially proposed by
the PC-IBC expert group. I would therefore suggest that the function
of the Observatory in recording offences related to cultural property
could alternatively be discharged by the Committee of the Parties,
and would therefore suggest amending Article 22.5 as follows:
“The Committee of the Parties shall maintain a register of offences referred
to in this Convention committed within the jurisdiction of parties
to the Convention, to include details of persons convicted of such
offences and of the sentences imposed on them, and may
propose to the Committee of Ministers appropriate ways to engage
relevant expertise in support of the effective implementation of
the Convention.”
33. This amendment, if agreed, would necessitate a consequential
amendment of Article 19, so as to require Parties to provide the
relevant information to the Committee of the Parties.
34. Regarding signature and entry into force, I would propose
amending Article 27 to allow all interested non-member States to
sign and ratify the convention. The current wording limiting non-member
States to those “which have participated in the elaboration of the
Convention” is in my opinion too restrictive.
35. The provision of Article 27.1 should be completed by a new
paragraph as follows:
“This Convention
shall also be open for signature by any other non-member State of
the Council of Europe upon invitation by the Committee of Ministers.
The decision to invite a non-member State to sign the Convention
shall be taken by the majority provided for in Article 20.d of the
Statute of the Council of Europe, and by a unanimous vote of the
representatives of the Contracting States entitled to sit on the Committee
of Ministers.”
36. Finally, as a general comment, I would insist on the need
for the Committee of Ministers to allocate sufficient resources
in the functioning of the Committee of the Parties to allow for
regular meetings (at least once every two years) so as to ensure
efficient implementation of the convention through more regular exchanges
and review of the existing co-operation mechanisms and practice.
6. Conclusions
37. I invite the Assembly to welcome
this timely initiative to adopt a new Convention on Offences related
to Cultural Property and I commend the approach and principles inspiring
the draft convention. The proposals for amendments which are included
in the draft opinion correspond to those that I have sought to justify
in the previous section; they are intended to strengthen its effective
implementation – and therefore its value for all the partners –
by strengthening its follow-up mechanism.