Oleksii Plotnikov, PhD, International Judiciary

   Last week, a Dutch court ruled on the so-called Scythian gold case. The number of publications on this topic in the electronic media, posts of specialists in social networks, and, after all, the reaction of officials of the occupying powerdemonstrate the importance and even symbolism of this event. The ARC will try to figure out what happened and why this judgment is important not only for Ukraine and Russia, but also for international law.

   What is known as “Scythian gold” is an exhibition called”Crimea – a Golden Island in the Black Sea”, consisting of items originating from the museums of the Autonomous Republic of Crimea, the city of Sevastopol, as well as Kyiv and Odesa. In addition to the actual gold items representing different civilizations (Scythian, Greek, etc.), the exhibition includes other archaeological treasures found on the territory of the Crimea. At the time of the beginning of the occupation of the peninsula, the exhibition was in the Netherlands. More details about the exhibition itself can be found in the material of the “Washington Post” [1]. On the legal side of the issue and the history of the litigation, we recommend the publication of the Dutch lawyers [2]. Let us only emphasize that this decision is not yet final. It can be challenged in the Supreme Court of the Netherlands, and Russian officials have already stated that they intend to exercise this right [3].

Full version of the judgment is available in Dutch [4], and a summary is published in English [5]. It notes that the Amsterdam District Court decided that the museum collection should return to Ukraine on the basis of the Dutch Heritage Act. The court of second instance found that the law could not be applied to the situation on formal legal grounds, namely because the exhibition was brough tothe Netherlands on the basis of an export certificate, which excluded the application of the Dutch law on  cultural heritage (the issue of the certificates will be discussed below). The Court of Appeal found that Ukraine is the unconditional owner of all items included in the exhibition, which come from museums in Kyiv and Odesa. As for the “Crimean museums”, a Dutch court ruled that under Ukrainian law the owner of the museum funds was the Ukrainian state. Museums own items from their own collections on the basis of operational management rights. Therefore, all items must be returned to the owner – Ukraine.

   The good news is that this decision is satisfactory for Ukraine, because it orders the return of the collection. More controversial news is that the court overruled the position of the first instance court that the items are part of the cultural heritage of Ukraine, and therefore certainly belong to it. It decided the case solely on the basis that the property rights of Ukraine, which in itseyes, looked predominant. In principle, if the Ukrainian legislation had ever been written out somewhat differently, and it was written in 1995, when the law “On museums and museum affairs” was adopted [6] and in 2000, when the Cabinet of Ministers approved the Regulations on the Museum Fund of Ukraine [7], then the Dutch court could well come to other conclusions.

The question of whether an exhibition should be regarded as property or heritage is central in this case, but the contradiction between these concepts goes much deeper. Some objects of the material world have always been endowed with a certain symbolic intangible significance (for example, religious artifacts or regalia of rulers). Gradually, the range of such objects expanded, so that such objects as paintings, manuscripts, archaeological finds and others began to be endowed with a value that significantly exceeds the cost of objects similar in material purpose. Such items are unique and fundamentally irreproducible. Nothing prevents copying, say, the famous Scythian pectoral, so that the copy is exactly equal to the original in terms of metal cost and quality of work. However, the original will still have a much higher monetary value and incomparably greater intangible value. The law applicable to such items must be different from that which governs simple property. This lead to emergence of the concepts of cultural property and cultural heritage.For those wishing to delve into the issues of cultural property and cultural heritage, we recommend the article given in the list of sources [8].

   The first international treaty for the protection of cultural property was the 1954 Hague Convention [9]. Its main achievement is the definition of the term “cultural property”movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above.

   The second step was taken in 1970 with the adoption of the Convention on Measures to Prohibit and Prevent the Illicit Import, Export and Transfer of Ownership of Cultural Property [10]. This document regulates the circulation of cultural property in peacetime. It considers individual objects of cultural property as part of the cultural heritage of the state. Cultural heritage includes, in particular, items found on the national territory. The export of cultural property from the national territory is allowed if there is a special certificate in which the exporting State would specify that the export of the cultural property in question is authorized. The certificate should accompany all items of cultural property exported in accordance with the regulations.

Let’s get back to the case in the Dutch courts. The claim of the plaintiffs (the “administration of the Crimean museums” appointed by the Russian occupying “powers”) was based on the assertion that the exhibition stays in the Netherlands illegally, in violation of the Dutch Law on Cultural Heritage, by which the provisions of the 1970 Convention were implemented into the legislation of the Netherlands. In addition, the plaintiffs stated that the state of Ukraine could not claim the elements of the exhibition removed from Crimea, since they constitute the cultural heritage not of Ukraine, but of Crimea.

Interestingly, the representatives of the occupying “power” did not hesitate to call museum items the property of the Autonomous Republic of Crimea and refer to the Ukrainian legislation. Following this logic Crimean museums continue to exist in the legal field of the Autonomous Republic of Crimea, to operate in accordance with the legislation of Ukraine and to be subordinated to the Ukrainian Ministry of Culture. Thus, the plaintiffs drove themselves into a legal trap, because it turned out that they recognize the supremacy of the government of Ukraine in relation to themselves, so the very fact of going to a Dutch court looked strange in that, according to the plaintiff’s logic, it was the Ukrainian entities against the Ukrainian authority.

   In response to Russian arguments, Ukraine stated that Article 6.7 of the Dutch Cultural Heritage Act applied to the exhibition, whereby in the event that a cultural heritage item is smuggled into the Netherlands, the state that is the owner of such heritage may require the Netherlands to return the heritage. With regard to property rights, Ukraine noted that the plaintiffs have long been acting as Russian legal entities and are not subject to Ukrainian law.

The Court of Appeal analyzed in detail the provisions of the 1970 Convention, including the complaints of the control of the Crimean museums appointed by the occupying power. It dismissed the Russian argument about illegal export, noting that the museum exhibits are legally in the Netherlands based on valid export certificates. Therefore, Article 6.7 of the Dutch Law on Cultural Heritage was not applicable, and objects of cultural property are subject to return to the state that issued these certificates as objects of cultural property, the rights to which were presented by the legal owner, namely the state of Ukraine, whose ownership was confirmed by the export certificate.

The Dutch court further noted that the stay of the exhibition in the Netherlands longer than it was stipulated by the export certificate did not constitute the illegal export of cultural property, as the plaintiffs insisted, since it was not intended to steal this property. On the contrary, the Netherlands acted in accordance with the instructions of the owner, that is Ukraine, which asked not to return the relevant items to Crimea. The Amsterdam Court of Appeal paid considerable attention to the analysis of Ukrainian legislation on museums in order to determine who is considered the owner of the musem funds. The justification for the ownership of Ukraine is quite interesting in itself, but here we will not touch upon it.

The takeaway is the following. The Dutch court ruled that the Crimean gold should be returned to Ukraine. The judgment is based on the right of cultural property of Ukraine, arising from its legislation, and confirmed by export certificates issued in accordance with the 1970 Convention. Court did not implement the law of cultural heritage to the exhibition “Crimea – the Golden Island in the Black Sea”. The Dutch court left out the issue of the occupation of the Crimea and the right of states to cultural heritage. The argument about the rights of the indigenous people, although raised before it, was not reflected in the decision. The court decided a specific case, but it seems to have missed the chance to make a landmark decision for international law in the unprecedented case of property rights to cultural heritage in the event of occupation.

Not being experts in Dutch law, we will refrain from making predictions about the consideration of the case in the cassation court. We only note that this consideration is unlikely to be the end of the saga. The 1970 Convention provides for the possibility of seeking advice from UNESCO. In theory, this mechanism can be used to resolve disputes. True, this is unlikely to interfere with the final return of the collection to Ukraine after the decision of the cassation court in its favor. In any event, no full stop has been put in the case of the “Scythian gold”, rather this is another semicolon.

1. https://www.dsnews.ua/ukr/society/ne-zoloto-ne-skifov-za-kakie-artefakty-na-samom-dele-boretsya-15032019220000с

2. https://project.liga.net/projects/scythian_gold_ua/

3. https://www.bbc.com/russian/news-48988658

4. https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHAMS:2021:3201

5. https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Gerechtshoven/Gerechtshof-Amsterdam/Nieuws/Paginas/Allan-Pierson-Museum-has-to-hand-over-the-Crimean-Treasures-to-the-Ukrainian-State.aspx

6. https://zakon.rada.gov.ua/laws/show/249/95-%D0%B2%D1%80#Text

7. https://zakon.rada.gov.ua/laws/show/1147-2000-%D0%BF#Text

8. http://dspace.onua.edu.ua/bitstream/handle/11300/7457/Koval_The%20Definition%20of%20Cultural%20Property.pdf

9. https://zakon.rada.gov.ua/laws/show/995_157#Text

10. https://zakon.rada.gov.ua/laws/show/995_186#Text