On 14 December 2016 the court in Amsterdam pronounced judgement on the return of various artefacts exhibited by the Allard Pierson Museum. The court ruled that the artefacts must be handed over to Ukraine.
Some years ago (between 6 February and 31 August 2014) there was an exhibition in the Allard Pierson Museum in Amsterdam (“APM”) called “the Crimea-Gold and secrets of the Black Sea”. Five museums in Ukraine lent works of art from the ancient period to the 15th Century (hereinafter called the “Crimean works of art”) to the APD. Four of the five museums were located in Crimea (hereinafter called the “Crimean Museums”). During the exhibition, in March 2014, Crimea joined the Russian Federation. This move was not recognised or accepted by the United Nations, the European Union or the Netherlands.
The dispute
Since 31 March 2014 the Ukrainian Ministry of Culture has sought from the APM an early return of the Crimean artefacts. They do not want them to be returned to the museums in the Crimea from whom they were loaned. The museums in Crimea on the other hand want the loaned artefacts returned to them.
Because of these conflicting claims the APM decided to suspend its obligation to return the objects at the end of the exhibition. It did not want to be found liable to pay damages if it wrongly returned the Crimean artefacts to one party rather than the other. The APM notified the parties that it would hold onto the Crimean artefacts as agent until a judge ruled on the issue.
The proceedings
By a writ of summons dated 19 November 2014 the Crimean museums commenced proceedings against the APM in the court in Amsterdam seeking return of the loaned artefacts. The Ukrainian State intervened in these proceedings and demanded in turn that it receive delivery of the Crimean artefacts. Ukraine stated that it was the owner; the Crimean Museums disputed this and argued that they had a proprietary right of management. The Crimean Museums also stated that the cultural connection between the Crimean artefacts on the one hand and Crimea on the other hand was closer, stronger and older than that between the Crimean artefacts and the Ukrainian State.
Ukraine stated in addition that based on the “UNESCO-treaty 1970” (the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property that was adopted on 14 November 1970 in Paris) it was entitled to claim the artefacts given that they were taken from its territory illegally. It claimed its cultural objects as a treaty state. It was entitled to do so. The Crimean Museums stated that, as the rightful owners of the Crimean artefacts, under Dutch law they had a similar claim under the treaty.
The court was therefore confronted with two diametrically opposed claims. First they ruled on the Ukrainian claim based on the UNESCO treaty of 1970. The court determined that the Crimean artefacts were part of Ukraine’s cultural heritage and therefore that the UNESCO treaty-1970 applied. This meant that by their illegal removal from Ukraine, the Crimean artefacts could be claimed by the Ukrainian State. The court ruled that there was talk of an illegal export, despite the fact that the Crimean artefacts were initially exported legally with an export license. Cultural objects that are first exported legally but are not returned in agreement with the export conditions, must be regarded as exported illegally. So ruled the court, citing literature and the interpretation of related international rules. This meant that Ukraine’s claim was initially accepted in principle.
Then the court ruled on the claim of the Crimean Museums. The court ruled that it - now that the Ukrainian claim was successful – was not permitted to judge the contents of the claims from the Crimean Museums as the determination as to whether the Crimean Museums were entitled to the Crimean artefacts in Ukraine must be determined under Ukrainian law. The court based its decision on article 1012 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) which states that ownership can only be determined after the property has been returned.
The court concluded therefore that the Crimean artefacts must be given to Ukraine by the APM. Furthermore the court gave various other rulings but these are not relevant to this summary.
Commentary from Oostwaard
Fundamental to the proceedings is the right of action which the Ukrainian State has to the return of unlawfully exported cultural goods under the UNESCO-treaty 1970. The court did not deal with the claims of the Crimean Museums on the merits. Whether on appeal the Court of Appeal will reach the same conclusion will depend on how the Court of Appeal characterises the claims of the Crimean Museums. If it rules that the Crimean Museums can also base their claims on the UNESCO-treaty 1970 ( a beneficiary who collects unlawfully exported cultural objects) then a substantive consideration of the claim of the Ukrainian State as opposed to the claim of the Crimean Museums is likely. There will then be a concurrence of one and the same claim by two different parties.
If the Court of Appeal characterises the claims of the Crimean Museums as merely a proprietary claim or a claim based on loan, then it is possible that the judgement of the court will be upheld. There will then be no question of competing claims under the UNESCO-treaty 1970 and the case must be continued in Ukraine.
The court assumed that there were illegally exported cultural objects. It is likely that the Court of Appeal will also rule on this point. The Crimean artefacts were not returned on time as there was a difference of opinion between the Ukrainian State and the Crimean Museums as to who the Crimean artefacts should be given to. The Ukrainian State had therefore more or less blocked the possibility of the Crimean Museums getting the Crimean artefacts back on time. Understandable from the point of view of the Ukrainian State, but are there actually unlawfully exported cultural objects?
Perhaps the case can also be characterised in this way, namely that the Ukrainian State fears that its cultural heritage will not return to its territory, where it can exercise control, although that was the intention at the time of the loan. If strictly speaking there is no talk of illegal export, then the consequence could be that the Court of Appeal will have to judge the competing claims of the parties on substance, whereby inevitably the answer to the question of whether the Ukrainian State can demand the Crimean artefacts from the Crimean Museums carries great weight. In that sense it helps the Ukrainian State that the Crimean artefacts have been removed from Crimean territory. After all, with a favourable judgement it will then be assured of their return. However it will then be necessary for the claims to be considered again on the merits.
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