Paul is a highly experienced, creative and tenacious litigator
paul.russell@russell.nl +31 20 301 55 55Why is the District Court of the opinion that the artefacts held by the Allard Pierson museum must be handed over to Ukraine? Does this mean the Crimea museums will definitely not get the works of art?
For the exhibition “The Crimea: Gold and Secrets of the Black Sea” in the Allard Pierson Museum in Amsterdam a large number of the objects was lent by Ukraine museums, including four Crimea museums. During this exhibition, Russia annexed Crimea.
Both the Crimea museums and the State of Ukraine reclaimed the lent objects of art. Therefore, the Allard Pierson museum kept them until the judge would decide on who was the rightful owner.
The Amsterdam District Court has just rendered a decision in this complicated dispute. The gold of the Crimea must be handed over to Ukraine. However, this does not mean that Ukraine is the owner. Why has the District Court taken this decision?
The museums in Crimea state that the objects should go back to them as the loan agreement stipulated that they would be returned to them. Besides, the exhibits of three museums supposedly belong to the Autonomous Republic of Crimea which has joined Russia, and not to the State of Ukraine. Regarding the other objects, the museums allege that their rights as the custodian would outweigh the rights of Ukraine that is just the “bare owner”.
Ukraine argues that the objects are the property of the State Museum Fund of Ukraine, which is included in the loan agreement with the Allard Pierson Museum. The museums are merely the administrator of the objects and when Crimea left the Ukraine this authority was taken away.
In addition, the works of art are Ukrainian cultural heritage. This means that it can be reclaimed by Ukraine pursuant to the UNESCO Convention regarding the illegal import, export or trafficking of cultural property (1970), which is included in the Dutch Cultural Heritage Act. As the works of art were not returned in time, they have been “illegally exported”, even if the original export had been legal. Since then, the export permit provided by Ukraine has expired.
The judge attaches particular weight to the Dutch Cultural Heritage Act, which governs the return of the illegally exported works of art in accordance with the stipulations of the UNESCO Convention.
Crimea cannot claim the art treasures on grounds of the UNESCO Convention. The Autonomous Republic of Crimea is not a sovereign state and can therefore not invoke the Convention which only applies to States. Besides, the annexation of Crimea by Russia was not recognized by the UN, EU and/or The Netherlands.
Ukraine, however, can invoke the UNESCO Convention. The art treasures were part of the cultural heritage of Ukraine when they were given on loan. Therefore, the art treasures will have to be returned to Ukraine.
The Amsterdam District Court does not take a decision on the question of who is the owner of the works of art. Whether the State of Ukraine will have to return the art treasures to the Crimea museums, will have to be fought out before a Ukrainian court and pursuant to Ukrainian law. According to the Amsterdam District Court, this is not the task of the Dutch judge. As expected, the judgement is therefore just a provisional decision.
The State of Ukraine has to reimburse the costs of more than EUR 100,000 the Allard Pierson Museum incurred for temporarily holding the art treasures. In this case, Ukraine is not allowed to invoke immunity from jurisdiction.
In addition, the Allard Pierson can dissolve the loan agreement with the Crimea museums. Nobody (neither the Crimea museums nor the Allard Pierson Museum) could predict the annexation of Crimea when the loan agreement was concluded. By dissolving the agreement, the obligations of the Allard Pierson to the Crimea Museums will lapse.
The Allard Pierson Museum may wait for three more months until it is clear that no appeal will be lodged. Otherwise the museum could be put in the impossible situation that it would have to return the works of art to the museums of Crimea in the appeal case, whereas it no longer holds them as they had been given to Ukraine. The Crimea museums have announced already that they will lodge an appeal. To be continued….
Are you planning to lend art to a museum and do you need a sound loan agreement? Would you like to learn more about the effect of international conventions for your rights as the owner of works of art? Or do you have any other questions about art and law? Please contact:
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