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Summary from the Nordic seminar “Cultural heritage crime: regulations and legal practice in the Nordic countries”

On 12 and 13 December 2017 the Ministry of Culture invited legal and cultural experts from the Nordic countries to a seminar to share experiences and discuss potential for Nordic cooperation across national and professional boundaries to focus efforts and measures to prevent cultural heritage crime, counteract the funding of extremist groups and contribute to better protection of the world’s cultural heritage.

A summary from the seminar is provided below.

On the seminar, its participants and topics

The seminar “Cultural heritage crime: regulations and legal practice in the Nordic countries” is part of following up the Nordic conference on illicit trade in cultural artefacts which was held in Oslo in 2015 in response to an initiative from the Nordic ministers of culture, see the ministerial statement from the meeting of the Nordic ministers of culture in Torshavn in May 2015 on following up UN security council resolution 2199 (Feb. 2015).  The seminar formed part of the sector programme for the Norwegian presidency of the Nordic Council of Ministers in 2017 and was organised by the Norwegian Ministry of Culture in cooperation with the Faculty of Law at the University of Oslo with support from the Nordic Council of Ministers.

Audience during the seminar.
Credit: The Ministry of Culture

About 60 participants from all five Nordic countries attended the seminar, mainly representing authorities in the fields of culture, customs and police, as well as legal and cultural heritage experts. Opening speakers from all the Nordic countries contributed to the programme. Director General Christine Hamnen from the Ministry of Culture welcomed the attendees, followed by State Secretary Marianne Hagen of the Ministry of Foreign Affairs, who opened the seminar on behalf of the Norwegian government.

The programme covered three main themes

  1. The significance of cooperation across national and professional boundaries
  2. Regulations and legal practice in the Nordic countries
  3. The road going forward – approaches, needs and measures to prevent cultural heritage crime in the Nordic countries

Summary presentation

Section Director Håkon Roland, Museum of Cultural History (KHM) in Oslo

Dr Roland opened his talk by speaking about the challenges faced by the Museum in the interface between legislation and legal practice.

As Norway’s major museum of cultural history, KHM is the national institution authorised to make administrative decisions on the export of archaeological and ethnographic artefacts. As a result of its position, the museum handles many of the problems associated with illicit cultural artefacts, particularly in respect of defining responsibilities (controls, police reports, expert advice, notifications, etc.).

- Should the museum report matters to the police, and if so, who follows this up? Who is responsible for the development of consistent practice over time?

Provenance (assessment; criteria) is a fundamental concept in cultural heritage crime.

Who defines “best practice”? Who carries the burden of providing proof?

It is important to have a shared understanding of what this means and what the implications of other key concepts such as “due diligence” and “good faith” are.

- Should all cultural artefacts with inadequate documentation be regarded as “illicit”?

- How should we coordinate knowledge on different national rules, documentation requirements etc.?

- What to do with artefacts where the country of origin is unknown?

- What objects should be refused an export permit due to inadequate provenance documentation; where does one draw the line?

- Who should investigate the provenance and assess legal considerations in respect of artefacts’ movements across national boundaries?

These are complex matters that involve both questions under civil law, national legislation over time and in different periods, international regulations and international affairs. We must acknowledge that there is a link between objects found in Norway and the export and import of illicit artefacts from abroad. These are not two separate worlds, but overlapping areas that need to be seen in conjunction with each other.

Head of the Council of Europe’s Criminal Law and Counter-Terrorism Divisions, Carlo Chiaromonte

Mr Chiaromonte presented the Council of Europe’s Convention on Offences relating to Cultural Property. The objective of the Convention is to complement existing conventions in as far as these have loopholes and fall short of covering criminal offences. Under the new Convention, member states commit to criminalising the entire chain of actions involved in the illicit cultural trade, from looting, smuggling and resale to handling offences and in some cases also the purchase of illegally sold objects.

The objective is to establish a shared framework to facilitate cross-border cooperation. Mr Chiaromonte particularly emphasised the significance of the Convention’s “area of impact” being defined as significant cultural heritage in all member states of UNESCO’s 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property – not merely those states that have acceded to the Council of Europe’s Convention.

This legal change sends a powerful signal that we all have a joint responsibility for safeguarding the world’s cultural heritage. In addition to the criminal sanction provisions, the Convention sets up a number of preventive measures which member states can implement to prevent crimes. The Convention, which also allows for accession by countries outside of Europe, was presented to the Council of Europe’s Council of Ministers for signature in 2017. So far, 10 countries have signed the Convention.

The Director General for Cultural Heritage Jørn Holme, Norway

Mr Holme opened his talk by discussing regulations and legal practice in respect of cultural heritage crime in Norway. He distinguished between cultural heritage crime affecting cultural monuments, differentiating this from cultural crime, which is related to the illicit trade, import and export of cultural property.

Mr Holme referred to the important criminal provisions in section 242 of the Penal Code on aggravated cultural heritage crime(with a maximum penalty of six years), section 352 subsections 2 and 3 on aggravated vandalism (with a maximum penalty of 15 years) and the criminal provisions in section 27 of the Cultural Heritage Act (with a maximum penalty of two years).

In the cultural heritage crime field, the principal problems have been church arson and the demolition of houses that are protected by law or other measures, damage to protected cultural monuments owing to system failures at the procedure/control system level, illegal metal detecting and theft from churches and museums.

The Director for Cultural Heritage briefly presented the Directorate’s new guidelines for the use of metal detectors and gave an overview of several Supreme Court judgements.

In 2017, the Supreme Court handed down a sentence of 14 days’ immediate prison sentence for the misappropriation of 22 metal objects (movable cultural artefacts that are the property of the state found through metal detection over a period of several years) and violation of the obligation to report finds under the Cultural Heritage Act at as well as the illicit importation of a Stone Age axe from Sweden.

The Swedish Stone Age axe.
The Swedish Stone Age axe. Credit: The Ministry of Culture

There is sufficient legal authority in the legislation to achieve vigorous action, but the police and prosecution service lack the relevant expertise. It is therefore important that the Norwegian National Authority for the Investigation and Prosecution of Economic and Environmental Crime (ØKOKRIM) take on a central surveillance role and cooperate with INTERPOL, the units carrying out criminal investigation and the prosecution service (especially on the illicit trade in cultural artefacts).

The theft from the museum in Bergen (in which a large part of the collection of Viking objects was stolen) highlights the need for museums to better secure their artefacts.

Lawyer Måns Pedersen, the Swedish National Heritage Board

In his presentation, Mr Pedersen stressed that effective public administration is contingent on a sound understanding of the law and on a systematic understanding of concepts in cultural heritage crime and the illicit cultural trade.

In the absence of the above, inadequate definitions and understanding may produce ambiguous frameworks and result in existing problems being overlooked. Mr Pedersen explained that the Swedish approach has been to seek to understand the relevant concept judicially and systematically, something which in turn defines the areas of responsibilities that fall under the Swedish National Heritage Board.

Cultural heritage crime is a complex term that encompasses a variety of criminal offences – as well as theft and vandalism. The critical element in this connection is whether the crime relates to a cultural artefact that is protected either legally or formally.

Legal Officer Tawa Adetunji, Ministry of Culture, and Susanne Thuesen Simonsen, Agency for Culture and Palaces, Denmark

Ms Adetunji presented current Danish legislation for the protection of cultural values and cultural heritage. The various regulations are intended to secure cultural values in Denmark and provide for the return of illicitly imported cultural artefacts.

There is now a bill for the protection of cultural heritage in armed conflicts which is due to be put before the Danish Parliament in December 2017.

Section Director Agnes Stefansdottir, Cultural Heritage Agency of Iceland

Ms Stefansdottir presented Icelandic experiences and reported on current challenges in protecting buildings worthy of preservation etc. It emerged that many Icelandic problems also feature in other Nordic countries.

Professor of Law Johan Boucht, University of Oslo

There was considerable interest in Finnish lawyer Professor Johan Boucht’s talk on asset confiscation, which is an important issue in the work to return illicitly exported and imported cultural artefacts.

A frequently debated question is what legal authority is required to return artefacts that lack the required export permits when these are retained by the customs authorities in border controls.

The various confiscation categories are important supplementary sanctions in connection with a range of criminal acts – including in cultural crime. In cases where the perpetrator has sold cultural artefacts acquired illicitly, proceeds may be confiscated; this is also the case if the perpetrator has been able to save money through the criminal act.

Further, equipment used in connection with a criminal act may also be seized, such as metal detectors. In the cultural heritage field, those objects that have been subjected to criminal activity may also be confiscated, assuming that the state is not already the owner of the artefact in question. This alternative is relevant for instance when coins or arms are smuggled into a country.

Once confiscated, a further question is how to dispose of the object in question. In many instances the artefact automatically becomes state property. In other cases, the artefact should be returned to the country where it was stolen or illicitly exported from. One might also consider whether confiscated cultural artefacts could be deployed to promote philanthropic objectives, in line with international discussions on this.

Police Superintendent Kenneth Didriksen, the Norwegian National Authority for Investigation and Prosecution of Economic and Environmental Crime (ØKOKRIM), Norway

Mr Didriksen gave a presentation on the way in which the Norwegian prosecution authorities handle cultural crime and how the police work on art and cultural heritage crime. Given the low number of cases and a shortage of subject-specific expertise, these cases have not been given much attention in Norway.

The police reform, which has now entered into force, has resulted in significant reorganisation. Larger and more autonomously governed police districts are to function as the first line of response in most fields. In a circular, the Director General of Public Prosecution has instructed the police to give matters involving serious cultural heritage crime priority.

Key legal rulings have established increasingly strict penal sanctions. Many of these cases have been handled by ØKOKRIM, the national authority responsible for dealing with cultural crime. ØKOKRIM cooperates extensively with national centres of expertise in the processing of both administrative and penal cases. In ØKOKRIM’s experience, cultural crime is becoming increasingly organised and international.

Good, ongoing contact with the police authorities of other countries is of decisive importance, as is contact with collaborating bodies such as INTERPOL, EUROPOL, etc., in line with the applicable threat scenario at any time.

Both in terms of their cultural history and the type of crimes experienced, there are many similarities among the Nordic countries. It should be considered to which extent one can make better use of these similarities, through collaboration solutions using shared digital platforms. A joint Nordic research project to map the threat scenario should also be discussed.

Director of the Norwegian Customs Intelligence Centre Office Eivind Kloster-Jensen, Directorate of Norwegian Customs, Norway

Mr Kloster-Jensen explained the role of the customs authorities in combating cross-border cultural crime, including among other things legal and technical challenges; how the customs authorities work to uncover and solve crime; the cooperation with the police and the Ministry of Culture in the return of illicit objects that are stopped at border controls.

Dr Sanna Aro-Valjus, Adjunct Professor in Near Eastern Archaeology, University of Helsinki, Finland

Dr Aro-Valjus briefed the meeting on an interdisciplinary cooperation project on cultural objects and manuscripts which was launched in October 2016 and was funded by the University of Helsinki’s Future Fund.

The project grew out of the questions that arose after the Finnish customs authorities in 2015 retained a transport of ceramic tiles to Russia. At the time, it was suspected that they derived from ISIS’s plundering activities in Palmyra, Syria. Closer investigation revealed that the tiles were most likely imitations. Nevertheless, the matter attracted the interest of academic communities and focused attention on whether Finland might be becoming a transit country for illicit trade, due to the country’s limited resources and expertise in this area. Ethical principles featured heavily among the discussions, relating to matters such as publishing research and manuscripts and objects without any clear provenance.

The results of the project were presented at a symposium in Helsinki in June 2017. Much like the other Nordic countries, Finland faces challenges when it comes to assessing and verifying objects that are retained by customs. Further interesting insights from the project relate to the collection of data and analysis of the sales online of illicit cultural artefacts in Arabic media.

Further, Dr Aro-Valjus reported that one had recently initiated a survey directed at Finnish operators/stakeholders online to map out the scope of the trade in foreign antiquities in Finland. Further, work is being done to draw up a code of ethics for academics. Also, Finland is about to adopt a new act relating to cultural heritage.

Return of the illicitly imported Stone Age axe

The seminar was concluded most appropriately with the return of a Stone Age axe to Swedish authorities. The axe had been illegally imported to Norway from Sweden and was one of the objects seized in a matter that was settled in the Supreme Court of Norway in June 2017. Former State Secretary Bård Folke Fredriksen presented the axe to the Swedish ambassador Axel Wernhoff.

Former state secretary Bård Folke Fredriksen and the Swedish ambassador Axel Wernhoff.
Former state secretary Bård Folke Fredriksen hands over the Stone Age axe to the Swedish ambassador Axel Wernhoff. Credit: The Ministry of Culture