Thursday, February 29, 2024

Recommendation to Dutch Supreme Court: Return Crimean treasures to Ukraine

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DIPLOMAT MAGAZINE “For diplomats, by diplomats” Reaching out the world from the European Union First diplomatic publication based in The Netherlands. Founded by members of the diplomatic corps on June 19th, 2013. "Diplomat Magazine is inspiring diplomats, civil servants and academics to contribute to a free flow of ideas through an extremely rich diplomatic life, full of exclusive events and cultural exchanges, as well as by exposing profound ideas and political debates in our printed and online editions." Dr. Mayelinne De Lara, Publisher

By Paul Russell

The dispute about the Crimean treasures is coming to a conclusion after nine years. As the advocate general has given his opinion, it is now up to the Supreme Court to give the final ruling in the Netherlands in this matter. Often the Supreme Court follows the opinion of the advocate general. What does this opinion entail?

Nine years ago, in March 2014, Russia occupied Crimea. At the same time, the exhibition “Crimea – Gold and Secrets of the Black Sea” was held at the Allard Pierson Museum in Amsterdam, which mostly featured archaeological objects that had been loaned from museums in Crimea, among others. These museums demanded the loans back. However, the State of Ukraine claimed that it was the owner of the artefacts and therefore they would have to be returned to it. This marked the beginning of a legal, political and publicity battle that has still not been settled.

However, now the end of the legal dispute in the Netherlands is in sight. After the Amsterdam Court of Appeals’ ruling, the case was submitted to the highest court in the Netherlands, the Supreme Court of the Netherlands. Recently, advocate general P. Vlas issued his opinion to the Supreme Court. He recommends upholding the judgment of the Amsterdam Court of Appeal to give the Crimean treasures to the State of Ukraine. What are the arguments backing that opinion? And how do they relate to the objections of the museums in Crimea?

State of affairs: to Ukraine

Currently, there is a ruling by the Amsterdam Court of Appeal that the Crimean treasures must be given to Ukraine. This is because this state has suspended the operational right,  the right to management, of the museums in Crimea by an “order”, a decision of the Ukrainian government. This stipulates that the Crimean treasures as part of Ukraine’s cultural heritage are to be managed by the National Museum of Ukraine in Kyiv and no longer by the Crimean museums.

Appeal in cassation

The museums in Crimea disagreed with this ruling and turned to the highest court in the Netherlands, the Supreme Court. It can set aside a Court of Appeal’s ruling if it believes that Dutch law has not been properly applied. This sets out two significant boundaries: the Supreme Court cannot rule whether or not the facts in a case have been properly established, and, more importantly in this case, cannot rule on the application of foreign law, in this case the law of Ukraine.

The question of whether the law was applied properly often involves whether the facts stated sufficiently support the court’s judgement. Here, too, the Supreme Court is basically reserved: only when the Court of Appeal’s judgment is incomprehensible can it be set aside.

The Crimean museums argued that the Court of Appeal had wrongly set aside a right in rem such as the operational right to management based on a temporary measure, a right in rem that is even protected by the European Convention on Human Rights. Also, under the rules governing private international law the order would not be a rule overriding the rights of museums. Moreover, the Court of Appeal would have wrongly given more weight to the interests of the state of Ukraine than those of the Crimean museums.

Ukraine took no chances and filed an incidental cassation petition, in case the Crimean museums’ application would be granted. In this petition, the State argued that the Amsterdam Court of Appeal had wrongly quashed the judgment of the Amsterdam District Court. The Court had ruled that under the Heritage Act, the artefacts had to be given to Ukraine. The Allard Pierson Museum’s failure to return them in a timely manner constituted illegal export. What is the advocate general’s opinion on this?

Opinion of the advocate general: to Ukraine

Advocate general Vlas goes through all parts of the grounds for cassation in his opinion and always comes to an almost monotonous conclusion, namely that the Court of Appeals’ judgment was not incomprehensible. Therefore, the Court of Appeal was able to rule that Ukraine’s order depriving the Crimean museums of the management of Crimean treasures outweighs any rights of those museums. Thus, the opinion is to uphold the Court of Appeals’ ruling and give the Crimean treasures to Ukraine.

Illegal import?

But then he makes a striking choice: Since there are no grounds for cassation, Ukraine’s petition is no longer relevant. However, Vlas still deals with this petition and concludes that the State of Ukraine is right. The Amsterdam Court of Appeals’ had wrongly ruled that the prohibition on illegal import of cultural goods from the Heritage Act did not apply in this case, contrary to the Amsterdam District Court’s earlier opinion. An object can also qualify as illegally imported within the meaning of the Heritage Act if it was legally imported but not returned. This is most consistent with the purpose of the Heritage Act and the underlying UNESCO Convention, namely the protection of a country’s cultural heritage.

No lawyer is no problem?

The Russian invasion in Ukraine also plays a role in this case. Not in the consideration about who is entitled to the Crimean treasures, but in the question of whether the Crimean museums have been able to adequately defend themselves in this case. In fact, as a result of the sanctions against Russia, the museums’ cassation lawyers have withdrawn, leaving the museums without legal representation. However, that is mandatory in cassation cases.

Vlas sees no problem in the absence of a lawyer for the museums, since the museums have been able to explain their position sufficiently. It is true that they have not been able to respond in the substance to Ukraine’s incidental cassation petition, but that petition is not at issue anyway because the condition for it – that the museum’s cassation petition be granted – is not at issue.

However, the museums do have the problem that, without a lawyer, they cannot respond to the advocate general’s opinion in substance through a so-called “Borgers letter”. However, there has already been an opportunity for a hearing, so that the proceedings can continue, according to the advocate general, even if the museums fail to get another lawyer.

What happens next?

The litigants now have the opportunity to respond to the advocate general’s conclusion and the Supreme Court will issue its ruling. The latter has announced in a press release that it expects to rule on the case on 15 September 2023. Then it will become definitely clear to whom the objects will be returned.

About the author

Paul Russell

Senior Partner. Paul Russell is a highly experienced, creative and tenacious litigator 20 301 55 55

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