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On July 30, 2019, the VM Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine hosted a scientific and practical round table on the topic: “The case of Scythian gold: current status and prospects.” The event was prompted by the recent interim decision of the Amsterdam Court of Appeal in the case of a collection of Ukrainian cultural property from several Crimean museums, which were taken abroad in 2013 and still not returned to Ukraine, given the annexation of Crimea and subsequent lawsuits. Dutch courts.
The platform for communication was chosen not by chance. In early 2016, the VM Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine prepared a scientific-expert opinion in the case of Scythian gold. This conclusion is probably the largest and most complex in this case, as it was prepared by experts in various fields: constitutionalist Ph.D. OV Batanov, civilist Ph.D. MV Venetska and a specialist in international law for the protection of cultural property Ph.D. OI Melnychuk – a student of Professor D.Sc. VI Akulenko, who in Soviet times began in our country a systematic study of the law of protection of historical and cultural monuments.
The organization of the round table was first joined by the Union of Archaeologists of Ukraine and the Council of Young Scientists of the Department of History, Philosophy and Law of the National Academy of Sciences of Ukraine. Later, the organizers were joined by the Institute of Economic and Legal Research of the National Academy of Sciences of Ukraine, an institution associated with one of the strongest schools of commercial law in Ukraine. The issue of the right of operative management in the case of Scythian gold is again in the focus of the court’s attention, and in order to present it with a consistent and verified position of the Ukrainian side on this issue, a constructive dialogue between civil lawyers and business lawyers is urgently needed.
The round table was attended by many experts from various fields of law, archaeologists, museum workers, public figures, journalists and other stakeholders. In total, more than forty participants were registered. A number of organizations were represented by the first persons. Thus, there were directors of two national museums (National Museum of Ukrainian Folk Decorative Art and National Museum of Art of Bohdan and Varvara Khanenkiv) and directors of two institutes of the NAS of Ukraine, director of the State Research Center “Security Archaeological Service of Ukraine”, members of the Union of Archaeologists of Ukraine. The invited representatives of the Supreme Court, the Ministry of Justice of Ukraine and the Ministry of Culture of Ukraine did not miss the round table. In addition, the event was attended by employees of the VM Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine,Institute of Economic and Legal Research of the National Academy of Sciences of Ukraine, Institute of Archeology of the National Academy of Sciences of Ukraine, Institute of Legislation of the Verkhovna Rada of Ukraine, Taras Shevchenko National University of Kyiv, Crimean Institute for Strategic Studies, Museum of Historical Treasures of Ukraine and Center for Civil Liberties. Also present were representatives of the Serhiy Kozyakov & Partners Law Firm, an organization that represents Ukraine’s interests in the Scythian gold case. Thus, it was possible to gather both a significant part of people directly or indirectly involved in the case, and caring professionals who are willing to share their experience to return to Ukraine its national treasures.
At the beginning of the event the director of the VM Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine, Doctor of Law, Professor, Academician of the National Academy of Sciences of Ukraine, full member of the National Academy of Legal Sciences of Ukraine, Honored Worker of Science and Technology of Ukraine Yu. In his introductory speech, he greeted those present, recalled the main milestones in the development of the case of Scythian gold, pointed out its importance for the Ukrainian state and society. It should be noted that Yuriy Serhiyovych has been closely monitoring the trial in recent years, mentioning the Scythian gold case and the related position of the institute’s scientists on defending the national interests of Ukraine and the need to properly protect the cultural heritage of our people.
After that, the participants were greeted by the Director of the Department of International Disputes of the Ministry of Justice of Ukraine ML Kodunov. Maxim Leonidovich noted that his department handles many important matters for the state, but the case of Scythian gold is special. This is a matter we have no right to lose. After all, sometimes one way or another we have to lose cases for considerable sums of money, but we can never allow the loss of national treasures of the Ukrainian people, which is the fundamental basis of our identity. There were also greetings from the co-organizers of the event – Director of the Institute of Economic and Legal Research of the NAS of Ukraine, Doctor of Law, Corresponding Member of the NAS of Ukraine and NAPRN of Ukraine VA Ustymenko, Chairman of the Council of Young Scientists of the Department of History, Philosophy and Law Malisheva,as well as from the Deputy Head of the Legal Support Department – Head of the Legal Department of the Ministry of Culture of Ukraine Yu. V. Yurchenko.
Although the event was originally conceived as a discussion on the legal aspects of the case, it was very important for the organizers that the participants from among the lawyers get acquainted with its museum and monument context, learn specific information about the composition of the so-called Scythian gold collection. Therefore, at the beginning of the round table a presentation was heard on the topic: “Exhibition” Crimea – a golden island in the Black Sea “: idea, purpose and scientific component”, which at the request of the organizers was kindly prepared by a senior researcher at the Institute of Archeology of NAS of Ukraine. , senior researcher EA Kravchenko. This speech was supplemented by the director of the National Museum of Ukrainian Folk Decorative Art, Honored Worker of Culture of Ukraine LV Strokova,which also invited the audience to get acquainted with the German-language illustrated catalog of the exhibition. In 2004-2016, Lyudmyla Volodymyrivna headed the Museum of Historical Treasures of Ukraine, which is a branch of the National Museum of History of Ukraine, and personally participated in the organization of the exhibition and in the return of the collection, which she continues to this day. From the information provided by the speakers, it is clear that the collection in question has 2111 storage units, of which 565 exhibits of the exhibition are formed. Not all exhibits are made of gold and not all items can be attributed to the Scythians, but this does not deny the fact that the collection is priceless. Thus, some stone exhibits and ceramics are not inferior, or even exceed the value of gold products.
According to EA Kravchenko, the exhibition of the collection, collected from five Ukrainian museums, was the first stage of a large European-Ukrainian project of scientific and cultural cooperation, which included not only exhibitions but also museum and scientific exchanges, archaeological research and more. The first exhibition, held in Germany and the Netherlands, was to acquaint the European public with the ancient history and museum treasures of Ukraine, to prove the uniqueness and originality of our culture, to justify the future financial costs of European taxpayers. This is due to the fact that the exhibition was collected truly valuable and unique things that represented the cultural heritage of Crimea and Ukraine. The speaker noted that the collection consists mostly of archaeological objects,found after the Second World War – during the stay of the Crimea in the USSR.
Then a lengthy report-presentation of the senior researcher of the Department of Historical and Legal Research of the VM Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine, Candidate of Law OO Malyshev “The case of Scythian gold: retrospective and prospects” was heard. The rapporteur analyzed in detail the decision in the case of the District Court of Amsterdam of 14 December 2016 and the latest interim decision of the Court of Appeal of Amsterdam of 16 July 2019, outlined the position and arguments of the parties, tried to determine the logic of the court of first and second instance.
The plaintiffs in court are four Crimean museums, which appear under their still Ukrainian names (Central Museum of Tavrida, Kerch Historical and Cultural Reserve, Bakhchisaray State Historical and Cultural Reserve, National Reserve “Chersonese Tavriya”). In fact, Russian museums have long been registered in the occupied ARC, to which the property of the relevant Ukrainian museums has been transferred, but all arguments of the Ukrainian side regarding the phantom nature and lack of plaintiffs in the case are rejected by Dutch courts.
The main defendant is the University of Amsterdam, which includes the Allard Pearson Museum, which currently houses a collection of Scythian gold. In 2014, the museum refused to return the collection to both Ukraine and the occupied Crimea, fearing that under any circumstances a disgruntled party would challenge his actions in court.
The Russian side, first of all, relies on certain provisions of credit agreements concluded between the Crimean museums and the Allard Pearson Museum. These provisions stipulate that after the end of the exhibition, the exhibits must be returned to these museums. On the other hand, the same agreements state that all collections and objects transferred to the exhibition belong to the state part of the Museum Fund of Ukraine and constitute the national heritage of the Ukrainian people. This discrepancy is easily resolved by the court in favor of Ukraine, because both domestic law and the law of continental Europe is characterized by the idea of the primacy of property law over binding law. Thus, Ukraine’s state ownership of the collection takes precedence over a third party’s contractual obligation to return it to certain museums.
This state property cannot be disputed, and therefore the Russian side is trying to manipulatively play on the difficulties of understanding by the Dutch Themis the specifics of the legal nature of state property under Ukrainian law and the relationship of state property rights with the rights of state legal entities. According to the legislation of Ukraine, museum collections are assigned to museums on the right of operative management, which is derived from the right of state property and, in fact, is a limited right of possession, which in no way can be opposed to the law of the state. Russia, on the other hand, submits this Ukrainian legal model to the courts through concepts and terms specific to the countries of the Roman legal group, where the status of state-owned legal entities is more autonomous than in the post-Soviet space.
However, the court of first instance did not clarify the legal nature of the right of operational management and the relationship between the property rights of the state and its subordinate legal entities. This was made possible by the application of an international public law procedure for the return of illegally exported cultural property, based on the 1970 UNESCO Convention on Measures to Prohibit and Prevent the Illicit Import, Export and Transfer of Ownership of Cultural Property. The court recognized that after the expiration of Ukraine’s permit to export collections abroad, the legal regime of illegally exported cultural property applies to the relevant items. Thus, the relevant collections are subject to return to Ukraine as the country of origin, and the competent Ukrainian court must resolve the existing property dispute regarding the collections.With this decision, the Dutch court effectively absolved itself of responsibility to Russia for the final decision in the case. In addition, this made it possible to place all the costs of storing the collections in Amsterdam not on the losing party, but on Ukraine, as the 1970 UNESCO Convention imposes the corresponding financial obligations on the country of origin.
This logic is completely destroyed by the interim decision of the Court of Appeal of Amsterdam of 16 July 2019, which criticizes the previous decision of the court and recognizes that the UNESCO Convention of 1970 is not applicable. The court does not recognize illegal collections of Scythian gold collections, as the court understands the export only as a process of crossing the border, and the court does not consider the further expiration of the Ukrainian export permit to be a significant legal fact. The court did not attach due importance to the arguments of the Ukrainian side regarding the phantom nature of the plaintiffs in the case and recognized the so-called Crimean museums as due to the claimed parties.
The motivating part of the decision clearly shows that the decision of the court of first instance ruled in favor of Ukraine is considered by the appellate court to be overturned. In addition, this court plans to issue a new decision, for which it lacks additional explanations from the parties regarding the property rights to the relevant collections, the issues of which the court is going to consider in accordance with Ukrainian law. That is, the main achievements of the Ukrainian side in the process are leveled, and the process itself, as the Russian side sought from the beginning, turns into a stream of property disputes. The context of Russia’s occupation of Crimea and the international legal mechanism for the return of cultural property will not play a significant role for the court.
According to OO Malyshev, Ukraine should appeal the interim decision of the Court of Appeal to the Supreme Court of the Netherlands and in the cassation appeal emphasize that in the issue of recognition of cultural values of the legal regime of illegally exported cultural property priority is given to the law of origin (lex originis). This is explicitly stated, for example, in the Basel resolution of the Institute of International Law of September 3, 1991. In addition, such an interpretation is indirectly derived from the 2015 Operational Directives on the Implementation of the 1970 UNESCO Convention, approved at the third meeting of the representatives of the States Parties to the Convention. In addition, the procedure for the return of cultural property belongs to public law. In this area, the principle of “what is expressly permitted” is applied. Instead, the court,proving the “legal export” of the collections, in fact, resorted to the application of the principle of “allowed, not forbidden”, and this is unacceptable.
Many of the questions raised by the speaker were removed by the following speech of the Director of the Department of International Disputes of the Ministry of Justice of Ukraine ML Kodunov. The representative of the ministry noted that Ukraine is still considering the possibility of appealing the interim decision of July 16, but to file a cassation appeal in this case requires the permission of the appellate court, which ruled. An application for such a permit has already been submitted by the Ukrainian side and there is every chance that this permit will be obtained. After all, the review of an interim decision is entirely in the interests of the appellate court itself, which has created a difficult legal situation for itself, related to the need to consider the case under Ukrainian law, which foreign courts usually try to avoid. Maxim Leonidovich reported on some vulnerabilities of the interim decision,which give the Ukrainian side confidence in victory in the Supreme Court of the Netherlands. At the same time, the speaker describes the intermediate decision as unexpected, but in no way fatal. Under any circumstances, there are enough arguments left for Ukraine not to doubt the victory.
In his speech, the Director of the Institute of Economic and Legal Research of the National Academy of Sciences of Ukraine, Corresponding Member of the National Academy of Sciences of Ukraine VA Ustymenko outlined his vision of operational management law in the context of the interim decision of the Amsterdam Court of Appeal. The derivative nature of the relevant right from the right of state property, the specifics of regulating the right of operational management in various areas, in particular in the museum, were fully revealed. It was rightly pointed out that according to the Law of Ukraine “On Museums and Museum Affairs”, collections and objects of the state part of the Museum Fund of Ukraine are not transferred to museums, but are assigned to them on the right of operational management. Volodymyr Anatoliyovych cited cases from domestic judicial practice when the right of operative management, as well as in the case of Scythian gold,tried unsuccessfully to oppose the property rights of the state. According to the speaker, Ukraine should prove its position to the court using the European experience in regulating state property relations.
After that, a senior researcher of the Department of Civil Labor and Business Law of the VM Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine, Candidate of Law, Senior Researcher MV Venetska – a member of the author’s team, which prepared the conclusion of the institute in case of Scythian gold. In this conclusion, Maryna Vitaliyivna expressed doubts that museum collections and objects belong to museums on the right of operational management in the sense that this institute is enshrined in the Commercial Code of Ukraine. After all, the limited turnover of museum collections and objects does not allow to consider them property from the point of view of the Civil Code of Ukraine.
The speech of the scientific consultant of the Department for Ensuring the Activities of the Chairman and Deputy Chairman of the Civil Court of Cassation of the Supreme Court, Candidate of Law SE Morozova largely complemented the previous speakers. The Russian doctrine on the law of operational management and the corresponding positions of Western researchers studying the law of post-Soviet countries were analyzed. The positions of these scholars can be of considerable interest in the context of presenting the Ukrainian position to a Dutch court, and therefore Ukrainian scholars can help the team representing Ukraine to establish contacts with relevant Western scholars.
The speaker also argued that the so-called Crimean museums did not belong as parties in the process. Stella Yevhenivna carried out some preparatory work, received information from both Ukrainian and Russian registers of legal entities, indicated the ways in which Ukraine should work. In the speeches of many participants of the round table there were proposals to take a number of management measures to prevent Russia from acting in the process through the Crimean museums as Ukrainian legal entities. The representative of the Ministry of Culture of Ukraine Yu. V. Yurchenko noted the difficulty of implementing such measures due to the special competitive procedure established in the legislation for appointing heads of cultural institutions and the lack of levers of influence on this process in the Ministry of Culture.
VI Oleshchenko, a senior researcher at the Department of Agrarian, Land Ecological and Space Law of the VM Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine, Candidate of Geographical Sciences, summed up the discussion somewhat. In his short speech, he referred to his experience in the civil service, in particular, to participating in the drafting of the Constitution of the ARC. He commented on the allegedly separate, not provided by the legislation of Ukraine, form of ownership of the Autonomous Republic of Crimea, in respect of which the court again raises questions in the interim decision. He stressed the need for a comprehensive revision of the legislation on the protection of cultural heritage, taking into account the lessons of the case of Scythian gold.
As a result of the discussion, the participants approved the resolution of the round table with an address to the President of Ukraine, the Prime Minister of Ukraine, the Minister of Justice of Ukraine and the Minister of Culture of Ukraine. The resolution contains recommendations both on the further conduct of the case and on taking into account its experience in the state policy on the protection of cultural heritage.
Oleksandr MALYSHEV, Senior Research Fellow, Department of Historical and Legal Research, VM Koretsky Institute of State and Law, National Academy of Sciences of Ukraine, Candidate of Law, Journal of Sights of Ukraine, 2019