Development of Ukrainian legislation on cultural values ​​in the context of the struggle for the Ukrainian Crimea
Development of Ukrainian legislation on cultural values ​​in the context of the struggle for the Ukrainian Crimea
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Development of Ukrainian legislation on cultural values ​​in the context of the struggle for the Ukrainian Crimea

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The protection of cultural heritage, the creation of certain legal and organizational mechanisms for this often rests on a lack of political will. The general frivolity of cultural issues is also imposed on this area, which requires not only a professional approach and adequate funding, but also often associated with interference with the rights of individuals guaranteed by law, which, one way or another, will always be a socially and politically sensitive issue. . Historical experience shows that the adoption of relevant laws in a stable democratic development of the state is very problematic. Modern model legislation for us of the Old World countries on cultural heritage was largely formed in previous epochs, when these issues were the subject of concern of monarchs, imperial governments or various nationalist regimes,who sometimes did not neglect the means of raising the national spirit and establishing their cultural paradigms.

Similarly, the question of preserving cultural and historical heritage is especially relevant in times of severe trials for the nation in the face of a mortal threat from outside. Every war is fought not only on the battlefield, but also in the diplomatic, economic, ideological, cultural, symbolic and other planes. Of course, the task of the monument protection community is, first of all, that the national heritage, which is the intersection of the past with the future, and therefore belongs collectively “dead, alive and unborn”, does not become a hostage of a certain political moment. At the same time, the very existence of the struggle awakens the ancient national culture, shaking the dust of oblivion from it, forcing the bells of history to resonate with the beating of the people’s heart.

In February 2014, the Revolution of Dignity won in Ukraine and a Russian operation to seize Ukrainian Crimea began. In that atmosphere of anxiety and uncertainty, I remembered the speech of the newly appointed Minister of Culture of Ukraine EM Nishchuk, who spoke on Kyiv’s Maidan in front of the Ukrainian community, which was preparing to repel the uninvited invaders. Mr. Yevhen noted that the importance of his position should not be underestimated, as the Ministry of Culture is key in defending the Ukrainian cultural heritage located in the territory of the Autonomous Republic of Crimea.

As you can see, from the very beginning of the confrontation with Russia, when it was not yet clear that all this would turn into a long-term bloody armed conflict, the new government intended to pay serious attention to the Crimean cultural heritage. This issue was not bypassed in the framework Law of Ukraine “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine” adopted in April 2014. Although the responsibility of the Russian Federation for the protection of cultural heritage in this law was devoted to only one sentence, namely Part 7 of Art. 5, this act can be considered almost the only document of this kind, where there is a systematic approach to the problem. In such subsequent laws, this issue is either completely omitted,as we can see in the Law of Ukraine “On the peculiarities of state policy to ensure the state sovereignty of Ukraine in the temporarily occupied territories of Donetsk and Luhansk regions” of January 18, 2018 (the so-called law on deoccupation), or emerges in passing, as it was when adopted Of the Law of Ukraine “On the adjacent zone”[1] of December 6, 2018, to which at the decisive moment the last Article 6 was actually added “by voice”, the essence of which is that the research of archaeological and historical cultural heritage sites in the surrounding area is conducted in the manner prescribed by the Cabinet Of Ukraine. As expected, the relevant procedure has not yet been approved.

Unfortunately, despite some initial positive signals, the previous government failed to fully realize the potential of the Crimean cultural heritage in the fight against the aggressor, defending national interests on the diplomatic front, awakening the people’s consciousness and telling the world the truth about Ukraine. This is easy to explain in the context that at a time when virtually every day brought more and more threatening but rather mundane military challenges, cultural issues were very quickly returned to their usual “residual principle”. However, even then, a number of important political steps were taken, which initiated the directions of state work, which should be developed now.

Here it is important to mention the fact that Ukraine signed on September 11, 2017 the Council of Europe Convention on Offenses Related to Cultural Property (the so-called Nicosia Convention of 2017). We can be proud that our state was one of the first signatories of this truly groundbreaking document for all international law, but the subsequent accession process was destined to stretch for years. Achieving ratification of the Convention should be the goal and honor of not only the community of professionals, but all people of good will. The fact is that this is the first act of this level, which addresses the problem of encroachment on cultural heritage not only from the cultural but also from the security side, stating in the preamble that the illicit trafficking of cultural property is a source of terrorist financing. Occupied territories, zones of armed conflict and other gray areas,which are becoming more and more in our latest realities, are forcing the international community to take unprecedented measures in terms of protection of cultural values ​​and counteraction to their illegal circulation.

The criminal and monument protection requirements of the member states of the Convention give us hope to move from the deadlock of reforming this very conservative and neglected area of ​​our law, giving, moreover, a clear roadmap, based on the best best practices of developed countries, combined with absolutely revolutionary approaches to which we managed to reach an international compromise in our difficult times. The creation of appropriate legal instruments for prosecuting crimes against cultural heritage should provide an impetus for a revision of the entire system of relevant legislation, which, in turn, will significantly reduce the gap that separates it from the best world standards.

Although the Nicosia Convention is not directly aimed at ensuring the interests of the state in terms of protection of its cultural heritage in the territories occupied by another state, ratification of the agreement will seriously strengthen our position in this area. There will be a serious blow to the myth that Ukraine, unlike Russia, does not pay due attention to the protection of cultural values ​​and our special legislation lags behind Russia’s for a couple of generations. This move by the horse, which Ukraine can make, will accelerate the process of accession by other countries and will play a significant role in the entry into force of the document. Our state will truly be at the forefront of the world struggle for progress and civilization.

Clear criminal law constructions of the Nicosia Convention, being embodied in our legislation, can be used not only to counter offenses in the territories controlled by Ukraine, but also to respond to the actions of the occupiers: illegal archaeological excavations, barbaric “restorations”, removal of cultural property from and their smuggling.

From the very beginning of the occupation, the question arose of finding adequate means of criminal prosecution (both at the domestic and international levels) guilty of destroying tangible and intangible traces and evidence of our history. Unfortunately, it should be noted that the activities of the Ukrainian law enforcement agencies of the ARC “in exile” have not reached a scale adequate to the existing challenges. This is especially evident in the protection of archeological heritage sites, which are currently being destroyed everywhere in Crimea as a result of illegal Russian archeological excavations. All these facts, for the most part, are not provided with timely official criminal law qualifications. We had to hear an absurd explanation for this fact, allegedly due to the general criminal nature of the crimes,all responsibility for their investigation under the classic international “The Hague Law” rests with the occupying power. At the same time, it is clear that the relevant obligations of the occupier to maintain law and order do not affect the legal force of Ukrainian laws in the occupied territory and do not affect the Ukrainian side in the rights to investigate these crimes. Problems of conducting investigative actions in the occupied territory due to the impossibility of official access to law enforcement officers and special services can be compensated by wider use of the latest technical means, especially aerospace photography, closer cooperation of investigators with scientists in studying information from open sources. Some formal complications can be eliminated by amending the criminal procedure legislation.At the same time, it is clear that the relevant obligations of the occupier to maintain law and order do not affect the legal force of Ukrainian laws in the occupied territories and do not affect the Ukrainian side in the rights to investigate these crimes. Problems of conducting investigative actions in the occupied territory due to the impossibility of official access to law enforcement officers and special services can be compensated by wider use of the latest technical means, especially aerospace photography, closer cooperation of investigators with scientists in studying information from open sources. Some formal complications can be eliminated by amending the criminal procedure legislation.

The lack of movement in this direction at a certain stage forced Ukraine to look for other more flexible mechanisms for assessing the relevant actions of the occupiers. Much attention has been paid to Russian archeological excavations in the Crimea and other encroachments on Ukraine’s cultural heritage in the context of Ukraine’s imposition of sanctions against individuals and organizations involved in illegal and anti-Ukrainian activities. So far, two Decrees of the President of Ukraine on this issue have been adopted. The first of them, the Decree of the President of Ukraine № 82/2019 of March 19, 2019 “On the decision of the National Security and Defense Council of Ukraine of March 19, 2019″ On the application, abolition and amendment of personal special economic and other restrictive measures (sanctions) ” “, Was adopted at the end of the term of the fifth President of Ukraine PO Poroshenko. The second document,Decree of the President of Ukraine №184 / 2020 of May 14, 2020 “On the decision of the National Security and Defense Council of Ukraine of May 14, 2020” On the application, abolition and amendment of personal special economic and other restrictive measures (sanctions) “”, c ‘ appeared at the end of the first year of the term of the current President of Ukraine VO Zelensky. At the same time, the comparison of these two documents clearly shows a certain heredity and succession of the relevant policy, improvement of approaches to the formation of sanctions lists. Although there has been a lot of criticism in the public sphere about the ineffectiveness of the toolkit of the Law of Ukraine “On Sanctions”, which provides for the use of financial and economic means against certain individuals and organizations, the political and symbolic significance of sanctions should be emphasized.which can have a serious effect if the state adheres to its positions on relevant issues.

The election of VO Zelensky as President of Ukraine and the complete reformatting of all legislative and executive power in 2019 made us think about what position Ukraine will take in relation to the Crimean issue and, in particular, to the Crimean cultural heritage. On the one hand, the course of reconciliation with the aggressor to some extent presupposes a more lenient position and even a certain previously unacceptable agreement on the wrongs done to Ukraine. On the other hand, the cooling of the situation on the battlefield may well lead to increased opposition by non-military means. Under these conditions, cultural heritage inevitably becomes one of the priority fronts of hybrid warfare. Certain signals of such trends can indeed be noticed. In addition to the new sanctions package, which we mentioned, there are several other important steps that have already been taken under the new government.

In this respect, the most notable recent event has undoubtedly been the ratification of the Second Protocol of 1999 to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. A separate report of the esteemed colleague DO Koval is devoted to the changes in the architecture of our legal reality and our international relations, which are connected with this fact. It remains for me to note that the almost twenty-year-old epic was unexpectedly completed without much formal obstacles and deception by joining this document, which has been blocked even after the war, despite the fact that the Second Protocol does not pose any risks or problems for the Ukrainian side.

The unification of the Ministry of Culture with the Ministry of Sports and the Ministry of Information Policy played a role. The newly created large Ministry was able to find additional resources and redistribute its policy priorities somewhat. Thus, in 2019 it was decided to create a number of central executive bodies at the ministry, two of which were to take care of cultural heritage. The ministry itself had to focus on shaping public policy. This had positive consequences (unfortunately, short-term, given that after the resignation of the government in March this year, the ministries decided to split again). Former Minister of Culture, Youth and Sports VVBorodyansky personally facilitated the adoption of the Law of Ukraine “On Amendments to Certain Laws of Ukraine Concerning the Peculiarities of Appointing Heads of State and Communal Cultural Institutions in the Temporarily Occupied Territories” of January 14, 2020 (Reg. № 2187). We are deeply convinced that this law gives Ukraine a good chance to significantly improve our position in the well-known Ukrainian-Russian litigation over the so-called Scythian gold, which is currently being considered by the Amsterdam Court of Appeal. It was logical to adopt this law much earlier, but only the strengthening of the Ministry of Culture as a result of the merger of the ministries created the conditions for the emergence of appropriate political will and its strengthening by the Ministry of Culture as a player.

It is very unfortunate that the opportunities provided by Law 2187 have not yet been used and we continue to see a situation where the heads of “Crimean museums” appointed before the occupation of Crimea and still unchanged by Ukraine appear in Dutch court as plenipotentiaries of internationally legitimate Ukrainian legal entities. It is to be hoped that this case will be resolved by the new Minister of Culture and Information Policy, OV Tkachenko, who, at the time, headed the relevant parliamentary committee and actively promoted the adoption of the law.

It is characteristic here that the merger of certain committees of the Verkhovna Rada of Ukraine, similar to the unification of ministries, has led to exactly the opposite consequences. The new Committee on Humanitarian and Information Policy, which includes the former Committee on Culture and Spirituality, pays almost no attention to the systemic development of legislation on cultural heritage protection, but this can be explained primarily by the professional competences of the current parliamentary corps.

Among the few bills on cultural heritage that pass through the Committee, it is worth mentioning the draft Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Concerning the Implementation of International Criminal and Humanitarian Law” (registration number 2689). The document largely repeats the draft Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Ensuring Harmonization of Criminal Legislation with Provisions of International Law” (registration number 0892) adopted in the first reading by the previous convocation of the Verkhovna Rada of Ukraine. The difference between Project 2689 is that it takes into account Ukraine’s accession to the Second Protocol to the 1954 Hague Convention.

Sharing the purpose of these important initiatives in general and appreciating the professional level of the author’s team of bills, it is impossible not to point out a number of problematic points. It is significant that the Main Scientific and Expert Department of the Verkhovna Rada of Ukraine prepared negative conclusions on both bills. One can partly agree with the remarks, which rightly point to the impossibility of literally transferring the provisions of international law to the Criminal Code of Ukraine, which uses a slightly different language and constructions, requires more specificity and logic. Similarly, it does not seem justified in the bills to classify all crimes committed in the occupied territories in relation to cultural property (in particular, Russian archeological excavations) as essentially war crimes. As we have already said, we cannot assumeas if Ukraine has no right to investigate crimes of a generally criminal nature committed in the occupied territories, the criminal prosecution of which the occupier is obliged to take care of. This approach is erroneous and harmful. It is also wrong to compensate for the shortcomings of the articles of the Criminal Code of Ukraine on crimes against cultural heritage with new special structures that will apply exclusively to the occupied territories. It is much fairer to pursue a well-balanced policy for the protection of cultural heritage and to resolve certain legal issues and resolve conflicts, based on the unity of Ukraine’s sovereignty over its entire territory.

Thus, the completion of Ukraine’s accession to the Council of Europe Convention on Cultural Property Offenses (Nicosia Convention 2017) is extremely important today, thus creating a basis for a significant update of Ukrainian legislation on liability for encroachment on cultural values, the importance of development and improvement of the entire system of legislation of Ukraine on the protection of cultural heritage. We should not forget about the consistent defense of Ukraine’s national interests in the international arena. In this context, it is extremely important to take a number of steps to strengthen Ukraine’s position on the famous case of “Scythian gold”,The Law of Ukraine “On Amendments to Certain Laws of Ukraine on the Peculiarities of Appointing Heads of State and Communal Cultural Institutions in the Temporarily Occupied Territories” adopted on January 14, 2020 provides great opportunities for this.

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[1] Adjacent zone – a sea belt adjacent to the territorial sea of ​​Ukraine, the outer limit of which is at a distance of not more than twenty-four nautical miles, calculated from the baselines from which the width of the territorial sea of Ukraine is measured.

The project was implemented with the support of the Ukrainian Cultural Foundation

Olexander Malishev

Senior Research Fellow, Department of Historical and Legal Research, VM Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine, Candidate of Law

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