Fighting Cultural Property Trafficking: The Italian Criminal Law Framework and its Forthcoming Reform.

AuthorVisconti, Arianna

    Italian cultural heritage law is presently undergoing a(n umpteenth) reform process, specifically focused on criminal law provisions. The legislator has been trying for some time now to address several traditional shortcomings affecting the existing penal framework, while at the same time striving to comply with international obligations. The chosen path will lead to a 'codification'--that is, the transfer into the Italian Penal Code--of the most serious offences against cultural heritage, at present mostly contained in a separate body of legislation, with the intended purpose of improving the visibility and symbolic relevance of these provisions as well as their understanding by citizens, raising public awareness on issues of cultural property trafficking and related offences, and improving the effectiveness of legal protection for cultural heritage. Whether the chosen reform options and legislative technique are capable of granting these expected results will be discussed in the following paragraphs; it appears however necessary to start by briefly introducing the reader to the evolution and current shape of Italian cultural heritage (criminal) law.

    Italy has a long tradition of legal protection of its cultural heritage. Between the sixteenth and nineteenth centuries several Italian States introduced legal provisions giving at least partial protection to their monuments and artworks, aimed at preventing the dispersion of their archaeological and artistic riches. (1) The Papal States were the first and most thorough in this regard, having passed pieces of legislation to this effect as early as in 1462 (2) and 1474, (3) while in 1686 Pope Innocent XI forbade (with the so-called Editto Altieri) any export of artworks or antiquities from the Papal States unless the exporter had received permission from the government. In 1820, after the traumatic experience of the Napoleonic wars and the related massive looting, and at a time when Grand Tour collecting was in full bloom and feeding powerfully on Italian antiquities and artworks, the Papal States adopted what is considered the first comprehensive cultural heritage legislation prior to the Unification, the so-called Cardinal Pacca Edict (known by the name of its proponent), (4) which included a system for inspecting, cataloguing and notifying to the owner or holder any artwork subject to protection measures, controls over the export of antiquities and works of art, a regulation for archaeological excavations, and the State's right of purchase by pre-emption. After the unification of the country and the proclamation of the Kingdom of Italy in 1861, and particularly in the last quarter of the nineteenth century, a long and complex process of co-ordination and rationalisation began. (5) It culminated in the adoption of Law 12 June 1902 n 185 (so-called Legge Nasi) and, subsequently, of Law 20 June 1909 n 364 (so-called Legge Rosadi), the first truly comprehensive Italian law on "movable or immovable things" with an "historical, archaeological, paleoanthropological or artistic interest". (6)

    Law 364/1909 introduced the main principles and rules which were to remain, with changes and adjustments on (mainly) technical details and procedural aspects, the core of Italian law on cultural heritage as it continued to develop over the following decades. (7) It affirmed a general principle of inalienability for cultural property owned by the State, other public bodies or legal persons (8) and a blanket public ownership rule for all archaeological finds. (9) Strict limitations on the export of cultural objects were also included in this legislation, (10) ranging from a complete prohibition on exports of objects of such interest "that their export constitute (11) a severe harm to the history, archaeology or art" of the nation, (11) to the duty to obtain a specific authorisation, and (if granted) to pay an export tax, for objects deemed to be of lesser significance, (12) with the addition of the State's right of compulsory purchase of items presented for export. (13) At the same time, Law 364/1909 provided for a 'contemporary art exception'--which would also remain a cornerstone of subsequent Italian cultural heritage law--establishing that "buildings or artworks by living authors", or no older than "fifty years", were to be excluded from its application. (14) This exception had, and still has, the function of preventing an excessive limitation on artists' creativity and freedom of expression, and of easing the achievement, within roughly one generation from the creation of their works (the current age threshold, increased by Law 12 October 2017 n 153, is of 70 years from the creation of the work, provided its author is deceased), (15) of an adequate consensus on their quality and value, through an unhindered circulation in the broadest possible social, cultural and economic circles. (16)

    As was to be expected, during the authoritarian and nationalistic fascist regime, Italian law became stricter and more complex than before, focused on cultural heritage as the emblem par excellence of Italian identity, (17) making increasing use of criminal provisions for its protection. The Laws 1 June 1939 n 1089, on the protection of "things of artistic or historical interest", and 29 June 1939 n 1497, on the protection of "natural beauties", (18) were adopted under the auspices of the Minister for National Education Giuseppe Bottai and were to remain the backbone of Italian cultural heritage law till the end of the century.

    The next most significant steps in the evolution of Italian legislation were, on the one hand, the introduction, in the new Constitution, (19) of the explicit duty of the Republic to safeguard the "natural landscape and the historical and artistic heritage of the Nation", (20) as well as to promote "the development of culture and of scientific and technical research" (article 9(1)); (21) on the other, in 1999 the Unified Text (UT) on cultural property and landscape assets legislation (Legislative Decree 29 October 1999 n 490) was issued. (22) Given its nature, this legislation did not effect major changes to the existing legal framework, but it was aimed at rationalising a body of laws which had grown rapidly during the previous decades, encompassing--apart from some definitional and procedural changes--also the transposition into the national legal framework of the European secondary legislation enacted in the meantime. (23)

    Finally, at the beginning of the new millennium the currently in force Cultural Heritage Code (CHC), Legislative Decree 22 January 2004 n 42, was adopted. (24) This 'codification' of public law rules concerning the protection and enhancement of the Italian cultural heritage contains many novelties when compared to the previous Unified Text (albeit not on penal matters). It has, in turn, since its adoption, undergone a number of amendments (including those needed to adapt to changing EU law), (25) modifications and updates, but it remains, as of today, the core of Italian specific legislation in this field. Although it does not include all relevant criminal law provisions, its definitions of 'cultural heritage' (patrimonio culturale) and 'cultural property' (beni culturali) (26) influence the interpretation of all relevant Italian legal provisions, both administrative and criminal, so that it might be of use to briefly introduce them here. The former consists (27) of 'cultural property' and 'landscape assets'; cultural property (on which we will focus), in turn:

    consists of immovable and movable things which, pursuant to articles 10 and 11, present artistic, historical, archaeological, ethno-anthropological, archival and bibliographical interest, and of any other thing identified by law or in accordance with the law as testifying to the values of civilisation. (28) The concept of 'cultural quality' embodies the public interest in protecting an object, thereby justifying under Italian law significant limitations on the rights of the owner of the item. To back up these limitations Italian law also makes extensive use of criminal law provisions, as we will discuss. The concept relates to a broad pre-juridical, historical-anthropological parameter: the object's value in terms of a 'testimony of civilisation'. At the same time, however, the main features of 'cultural property' under Italian law are to be identified (29) in its 'typicality' (i.e., a testimony of civilisation becomes 'cultural property' in a legal sense only when this qualification is given to it by or according to the law), in its 'pluralism' (i.e., the law codifies a set of different typologies of 'cultural property') (30) and in its 'materiality' (as the law always refers to movable or immovable 'things' and explicitly states (31) that expressions of intangible cultural heritage protected under the 2003 UNESCO Convention (32) are subject to CHC provisions only when embodied into material testimonies).

    The CHC thus provides a set of rales for the formal identification of cultural property: article 10 CHC, referred to by article 2(2), lists and defines 'cultural property' subject to all rales established for the 'protection' of the heritage under Part II, Title I, CHC, while article 11, also referred to by article 2(2), identifies further specific typologies of objects to be considered 'cultural property' only for more limited purposes of preservation and safekeeping. (33) According to their ownership status, criteria and procedures for the identification of 'fully-fledged' cultural property differ. (34) In brief, movable or immovable objects which, not constituting contemporary art, (35) "possess artistic, historical, archaeological or ethno-anthropological interest", and which belong "to the State, the Regions, as well as any other public body and institution, and to private nonprofit associations, including...

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