The dilemma about the Crimean artefacts: the Court of Appeal's judgment

The APM was subsequently facing claims from both the Crimean Museums and the Ukrainian State to return the objects. Pending a final judgment that would clarify to whom the Crimean artefacts were to be issued, the APM decided to hold on to them. In the first instance, by judgment dated 14 December 2016, the Amsterdam District Court assigned the Crimean artefacts to the Ukrainian State. The Court has now instructed the parties to submit more information about the legal aspects of the case.

In its judgment, the Court has already ruled on a number of key issues.

1. Was the APM's decision to hold on to the objects justified?

The Crimean Museums have asserted that the APM should have returned the objects, as set forth in the loan for use agreements. It was so obliged and knew who its "creditor" was, i.e. the Crimean Museums. The Court did not concur. In this complex political and legal case, there is reasonable doubt regarding to whom the Crimean artefacts should be issued. The APM has consulted with the Crimean Museums and the Ukrainian State on various occasions, in order to reach a solution. Under those circumstances, the APM was allowed to suspend its obligation to issue the objects. The APM has no reason to reproach itself in the matter.

2. Do the Crimean Museums have the authority to conduct legal proceedings?

The Ukrainian State held the view that the Crimean Museums did not have the authority to conduct legal proceedings. As a consequence of Crimea's passage into the Russian legal sphere, the Crimean Museums had become phantom parties. The Court has ruled that Crimea's amalgamation into the Russian legal sphere does not deprive the Crimean Museums from the possibility of conducting legal proceedings in the Netherlands.

3. Were the Crimean artefacts exported wrongfully from Crimea?

Should the Crimean artefacts be considered exported wrongfully, as the District Court did, then the Ukrainian State's position in the proceedings would be relatively simple: the Ukrainian State could claim the objects, after which further proceedings would have to be conducted in Ukraine, if necessary, regarding who has what right to the Crimean artefacts. In establishing whether the objects were exported wrongfully, interpretation of the 1970 UNESCO Convention ("the Convention") ‒ which aims to prohibit and prevent the illicit import, export and transfer of ownership of cultural property ‒ is decisive.

Both the Netherlands and Ukraine are signatories to the Convention, which was first implemented in the Netherlands in 2009; currently in Section 6.3, among other clauses, of the Dutch Cultural Heritage Act (Erfgoedwet).

Section 6.3, Dutch Cultural Heritage Act:

"It is prohibited to import into the Netherlands cultural property which:

1. has been removed from the territory of a State Party and is in breach of the provisions adopted by that State Party, in accordance with the objectives of the 1970 UNESCO Convention in respect of the export of cultural property from that State Party or the transfer of ownership of cultural property; or

2. has been unlawfully appropriated in a State Party"

To answer the question whether the Crimean artefacts were exported wrongfully, the Court has examined what "export" means in normal language according to the Convention. It has concluded that "export" means the (illegal) transfer of cultural property from one country to another. Under the Convention, export without a valid export certificate is prohibited and "illicit". The Crimean artefacts arrived in the Netherlands with a valid export certificate, so that they were, in principle, imported lawfully.

However, or so the Court considered, on the basis of the objective of the Convention, the term "wrongful export" may be interpreted in a broader sense, such as where cultural property has been removed from a country in conformity with an export licence but is subsequently not present in the recipient country in line with that licence. In such a case, the objective of the Convention must oppose that property's presence in the recipient country.

The Court has considered as follows.

"4.21 [...] As is evidenced by, among other things, the preamble to the UNESCO Convention, the Convention pertains to the combat of theft, clandestine excavations and illegal export:

"Considering that it is incumbent upon every State to protect the cultural property existing within its territory against the dangers of theft, clandestine excavation, and illicit export, (...)"

However, we are not dealing with a case of theft, clandestine excavations or illegal export (or any other illegal practices of a similar nature). In this case, the Crimean artefacts are present in the Netherlands failing compliance with the provisions laid down in their export licences, not because the APM intends to misappropriate the Crimean artefacts or because of any other illegal practices, but because the Ukrainian State has opposed the return of the Crimean artefacts to the Crimean Museums in accordance with the provisions laid down in their export licences. That's why the APM is lawfully holding on to the Crimean artefacts on the grounds of its right of suspension. That is not an illegal case covered by the objective of the UNESCO Convention, which the interested States, according to Article 2, paragraph 2, of the UNESCO Convention, have undertaken to oppose 'with the means at their disposal'. [...]

4.22 [...]

[...] Even if it is imaginable that, following the objects' lawful export, their presence in the recipient country can be construed as an illegal export on the grounds of a later breach of their export licence, it will at least be requisite that the objective of the UNESCO Convention gives rise to such an interpretation; that, therefore, an illegal activity occurs or has occurred that the interested States wished to combat with the UNESCO Convention. As has been considered above, not only were the Crimean artefacts exported lawfully, but the APM ‒ a museum with an impeccable reputation and, as has been established, having the knowledge and means to properly preserve the objects ‒ is now also holding on to them lawfully. Therefore, no illegal activity whatsoever has been carried out against which the UNESCO Convention aims to act."

On the basis of these considerations, the objects were not exported wrongfully, with the Court drawing another conclusion than the District Court.

4. What is the influence of similar legislation?

The Ukrainian State has invoked three schemes somewhat comparable with the Convention that do consider the act of not returning cultural property after its loan for use period as "wrongful export".

I) The European directive on the return of cultural objects unlawfully removed from the territory of Member State (Directive 2014/60/EU)

II) The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects

III) The Law of Ukraine on Exportation, importation and restitution of cultural values

The European Directive

The Court has commented that, should legislators have wished to follow the European Directive in its definition of wrongfully exported cultural property within the meaning of the Convention, they ought to have stated this clearly (or more clearly), but they haven't. The prohibition laid down in Section 6.3 of the Dutch Cultural Heritage Act may not be interpreted more broadly than its contents. In this respect, the Court has considered that the European Directive grants rights to the Member States. However, Ukraine is not a Member State.

Furthermore, the Court has assessed as follows. "4.28 [...]

An interpretation in conformity with a directive has its limits, which must be found in the general principles of law; in particular, in this case, the principle of protection of legal interests and the prohibition of retroactive effect. Any interpretation resulting in the lawful import of cultural property, such as in this case, being considered, after many months, as a violation of a prohibition ‒ which (under Section 8.1, paragraph 2, of the Dutch Cultural Heritage Act) may lead to administrative sanctions ‒ because of such property 'not having been sent back (...) after the expiry of the term (...)' is incompatible with those principles. [...]"

Finally, the Court has commented that the European Directive (also) purports to combat wrongful activities involving cultural property ‒ which wrongful activities did not take place, as the Court has established. As a consequence, the European Directive is irrelevant.

The UNIDROIT Convention

The Netherlands has not ratified the UNIDROIT Convention. According to the Court, a narrower definition of the term "wrongful export" in Dutch law than in the UNIDROIT Convention is permitted.

The Law of Ukraine on Exportation, importation and restitution of cultural values

Section 6.3 of the Dutch Cultural Heritage Act does not pertain to lawfully exported cultural property not involving any illegal activity. According to the Court, Ukrainian law does not change this.

5. How to be continued?

The Court's establishment that the Crimean artefacts were not exported wrongfully means that the Court must assess the merits of the entitlements to the Crimean artefacts, i.e. the claim of Ukraine as the owner of the Crimean artefacts and that of the Crimean Museums as their manager. To be able to rule on those claims, the Court requires greater clarity, in particular regarding:

- the property right of the Ukrainian State (or of the Autonomous Republic of Crimea) in the Crimean artefacts;

- the right of operational management that the Crimean Museums have invoked, as well as that right's exercisability and/or invocability ; and

- the operating effect of Order No. 292 put forward by the Ukrainian State, which has allegedly deprived the Crimean Museums of the management of the Crimean artefacts.

It is now up to the litigating parties to respond.

Commentary by Oostwaard

Both the District Court's judgment and the Court's interlocutory judgment are truly gems. They definitely further the thinking and discussions about the Convention.

The on-time returning of loaned objects is one of the pillars of the international art loan system. Museums do not want to run the risk of never seeing their works of art again because of an attachment or legal proceedings. In the Netherlands, levying an attachment on cultural property intended for public service is a highly dubious act. Sometimes, the Government issues a statement, in an attempt to offer the lender comfort of return of the property.

A museum that has accepted objects on loan will only very reluctantly decide not to return those objects. Not returning is a ‘deadly sin’ in the museum sector. In other words, there must be serious problems. The political circumstances in Crimea and the position taken by the Ukrainian State forced the APM to decide to await a court opinion regarding to whom it was to issue the Crimean artefacts. It had no choice. However, this has given museums all over the world a wake- up call to perform a legal (or other) risk analysis prior to making loan for use arrangements.

The Court and the District Court ruled differently on the interpretation of the Convention. The District Court concluded that the Convention aims to offer a minimum level of uniform protection. For the District Court, a strict interpretation of the provisions laid down in the Convention was not the right path. "Wrongful export" included not returning cultural property in line with its export license after its loan for use period. The Court, on the other hand, concluded that "wrongful export" means the illegal transfer of cultural property from one country to another, as such a transfer constitutes one of the principal causes of impoverishment of cultural heritage. "Wrongful export" does not include not returning cultural property after its loan for use period.

However, the District Court's and Court's reasoning does subsequently converge, where the Court rules that the objective of the Convention may give rise to a broader interpretation, in that, in case of the removal of cultural property from a country in conformity with an export license, its later presence in the recipient country in violation of that export license must also be considered wrongful export. This requires that the objective of the Convention oppose that property's presence in the recipient country. And so, the Court adds just a bit more nuance than the District Court.