Autor: Augustin Lazăr

Publicat în: Revista Dreptul nr. 1/2021

Rezumat disponibil onlineaici.

1995 UNIDROIT Convention and its correlation with the national criminal case law

Abstract: The 1995 UNIDROIT Convention in Rome established a minimum body of common legal rules for the protection of cultural heritage. The essential rules of the Convention are: 1) the possessor of a cultural object which has been stolen shall return it; 2) access to justice by filing a request with the court or other competent authorities of the Contracting State where the cultural property is located, for its restitution; the possibility for the parties to submit their dispute either to a court or other competent authority or to arbitration (art. 8); 3) the right of the bona fides holder of the stolen cultural property, to be paid, at the time of restitution, a fair compensation; the correlative right of the paying claimant to request reimbursement from another person (art. 4).

In 2001, the Romanian Ministry of Culture (M.C.) notified the Romanian judicial authorities about the existence on the antiques market of some artefacts of exceptional value, coming from the sites of a Romanian archeological reservation, UNESCO monument. A guide to good practice in the application of the Convention was adopted: provisional measures for the conservation of artifacts in the office of a neutral expert, to be examined by experts from the M.C.Holders ought to present through a lawyer a notarial declaration and documents on the purchase expenses, as well as the steps to verify the lawful origin, the circumstances of the acquisition, if they knew or should have reasonably known that the cultural goods were stolen and exported illegally. Having clarified the good faith, the documents and the availability of the owners to return the stolen goods, the lawsuits, with new expenses, were no longer necessary. The M.C. and the holders of good faith have reached amicable agreements, regarding the payment of the fair compensation provided by art. 4: the cost resulting from the documents and the repatriation expenses. By paying the legal compensation to the owner, the M.C. reserved the right to demand in court its reimbursement by the persons in charge of the theft, illegal export, and recycling of stolen artifacts (art. 4 para. 3). At the end of the criminal proceedings, the defendants who were found guilty of theft, illegal export and recycling of stolen artifacts, were obliged by the courts to reimburse the compensation paid to bona fide holders towards the Ministry of Culture, among others.

Conclusions: The UNIDROIT Convention was the modern, key legal instrument of cooperation that allowed the recovery of some unique and extremely important cultural assets in the history of Romania.

Keywords: UNIDROIT; international cooperation; European Public Prosecutor’s Office; money laundering; artifact laundering; private collections; fair compensation; civil damages; special confiscation;