15 May 2017

The illicit trade in art and antiquities has been a widespread and profitable criminal business for decades. Today cultural objects continue to be stolen and looted from museums, galleries, public and private collections and religious buildings, whilst important archaeological sites and monuments are illicitly excavated and destroyed. Traffickers often take advantage of the chaos caused by war to perpetrate their crimes.

Traditionally carried out by specialists operating in a restricted network based on trust, organised crime networks have increasingly become involved in trafficking, multiplying the volume and the value of the transactions.

Fighting these crimes is difficult because they often have a transnational dimension involving several national jurisdictions: items are looted in one country, and illicitly traded and transported through others before reaching their final destination.

In recent years armed conflicts in Iraq and Syria have triggered an increase in the number of looted and stolen antiquities, often by no-state armed groups and terrorists. These groups have plundered ancient sites such as Palmyra, Mosul and Nimrud to finance their activities, while at the same time destroying structures and artefacts for propaganda reasons.

Illicit trafficking in cultural objects turns into a vicious circle: the buying of artefacts - often by Western buyers - encourages more theft, pillaging and destruction in conflict zones, and contributes to protract the conflicts.

A new convention focusing on criminal law

Concerned about the situation, the Council of Europe adopted on 3 May 2017 a new international criminal law treaty: the Convention on Offences relating to Cultural Property, aimed at protecting cultural property and preventing and combatting cultural property crimes.

In the text, the 47 Council of Europe member states recall that cultural property constitutes a unique testimony of the history and identity of human societies that needs to be protected in all circumstances.

The treaty provides states with a new tool to combat the illicit trafficking of cultural goods ensuring the ability to investigate, prosecute, sentence and/or extradite persons suspected or convicted of offences listed in the convention.

Adopted in the framework of the Organisation’s action to fight terrorism and organised crime, the convention also aims to foster international co-operation in this field and will beopen for signature to any country in the world. It protects the cultural property of any state, be it party or not to the convention.

The treaty, the only one specifically dealing with the criminalisation of the illicit trafficking and destruction of cultural goods, fills a gap in international law, since none of the existing conventions deal with criminal law issues.

The Convention builds on and complements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the 1972 UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.

Criminal offences

The treaty establishes as criminal offences a number of acts including theft and other forms of unlawful appropriation, and the unlawful excavation, importation and exportation of cultural property when committed intentionally.

States Parties are obliged to criminalise the acquisition and the “placing on the market” of cultural property where offenders, be they professionals, experienced collectors or ordinary citizens, know of the unlawful provenance of the cultural property. In addition, the text invites States Parties to consider criminalising these acts also in the case of persons such as professionals or collectors who should have known of the unlawful provenance of a cultural property but failed to exercise an appropriate level of due care and attention.

The “placing on the market” offence covers both the acts of supplying illicitly traded cultural property as well as publicly offering such cultural property for sale, not only through traditional channels such as flea markets, antique shops and auction houses, but also via online markets and social networks.

The convention also criminalises the falsification of documents and the destruction or damage of cultural property when committed intentionally.

Sanctions

The States Parties must ensure that offences related to cultural property are punishable by effective, proportionate and dissuasive sanctions which take into account the seriousness of the offence, and which may include imprisonment and/or monetary sanctions.

Legal persons can also be held liable and be subject to temporary or permanent disqualification from exercising commercial activity, exclusion from entitlement to public benefits or aid, placing under judicial supervision, or judicial winding up orders.

The treaty considers aggravating circumstances that the offences are committed:

§  by professionals such as restorers, conservators, curators, auctioneers and dealers abusing the trust placed in them;

§  by public officials responsible for the conservation of cultural property, such as the personnel of public museums, monuments and archaeological sites;

§  in the framework of a criminal organisation

§  by a perpetrator who is re-offending.

Preventive measures

The treaty contains a number of measures addressed to States Parties to prevent the commission of the offences listed in the Convention, such as:

§  establishing or developing inventories or databases of its cultural property;

§  introducing import and export control procedures, including a system whereby the importation and exportation of movable cultural property are subject to the issuance of specific certificates;

§  introducing due diligence provisions for art and antiquity dealers, auction houses and others involved in the trade in cultural property, and introducing an obligation to establish records of their transactions accessible to the competent authorities;

§  enabling law enforcement or other national authorities to monitor and report suspicious dealings or sales on the Internet;

§  encouraging internet service providers, internet platforms and web-based sellers to co-operate in preventing the trafficking of cultural property.

Next steps

The treaty will be opened for signature in Nicosia (Cyprus) on 19 May during the 127th Session of the Council of Europe’s Committee of Ministers bringing together the ministers for foreign affairs of the Organisation’s 47 Member States.

The treaty will enter into force once it has been ratified by five states, including three Council of Europe member states.

In order to ensure its effective implementation, the treaty sets up a follow up mechanism, composed of representatives of the States Parties.

Contact:

Spokespersons/Media relations Service

Directorate of Communications

Council of Europe

Tel. +33 (0) 388 41 25 60

[email protected]