Law and the Arts 2

DIFFERENT MODEL OF CONFLICT RESOLUTION

2

About criminal, civil and administrative proceedings, we can use this model that is included in the

ADR (alternative dispute resolution). The term includes all dispute resolution processes and

techniques that act as a means for disagreeing parties to come to an agreement short of litigation,

with or without the help of a third party, which, if involved, does anyway not act as the deciding

authority (difference from arbitration).

The Judicial adversarial model, involves, for example:

International Criminal Court;

• National courts enforcing internal laws implementing international Conventions;

• Civil litigation in front of national courts according to 1995 UNIDROIT Convention;

•

Anyway, the negotiation has become an increasingly interesting way to (try and) settle

international (and in some cases national) disputes on return, restitution or repatriation of cultural

objects. Also, to seek ways of facilitating bilateral negotiations for the restitution or return of

cultural property to its countries of origin and to promote multilateral and bilateral co-operation in

Intergovernmental Committee for

this respect, in 1978 by the UNESCO was founded the

Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of 45

Illicit Appropriation, called ICPRCP. It also tries to establish a mediation or conciliation between

the parties:

The ICPRP can act for a mediation or a conciliation and here the definitions that were given in

2010 in Paris:

- Mediation: «A process whereby, with the prior consent of the parties concerned, an outside

party intervenes to bring them together and to assist them in reaching an amicable solution of

their dispute with respect to the restitution or return of cultural property». The mediator (or

mediators) is an independent expert chosen by the parties;

- Conciliation: «a process whereby, subject to their prior consent, the parties concerned submit

their dispute with respect to restitution or return of cultural property to a constituted organ for

investigation and for efforts to effect an amicable settlement of their dispute». The conciliation

commission is composed of 3 or 5 independent experts, one/two of which appointed by each

party, and a further one (the President) of a different nationality and chosen in agreement;

The differences between the two practices are that: 46

In a ADR the possible antagonists can be:

- State vs State;

- State vs Museum (public or private); 47

- Local authority vs local authority;

- Individual vs legal entity (State or museum);

- State/Museum vs indigenous community (ex On 9 May 2011 the Natural History Museum of

Rouen handed back a mummified Maori head, ’toi moko’, to New Zealand authorities and a

delegation of Maori elders performing a religious ceremony to honour the dead man. (The

Museum’s decision was then contested by the French Government, which won the litigation in

front of the Administrative Tribunal: the repatriation museum was there fore cancelled));

How to solve a litigation about exportation? Different ways:

1. Simple restitution/return;

2. Restitution for consideration;

3. Conditional restitution/return;

4. Restitution accompanied by cooperation measures;

5. Formal recognition of the importance to cultural identity

6. Loans;

7. Donations;

8. Setting up special ownership regimes;

9. Making of replicas;

10. Withdrawal of the claim in exchange for financial compensation;

11. Transfer of ownership to a third party, such as a museum;

12. Purchase of the cultural object;

13. Granting of archaeological licenses only in exchange for restitution of certain objects; 48

49

50

PLICO 13

4. CRIMINAL LAW PROTECTION OF CULTURAL HERITAGE

4.1 BASICS OF ITALIAN AND COMPARATIVE CRIMINAL LAW

Talking about criminal law, we have, first of all, to define the word punishment: it is the specific

kind of sanction that is what sets criminal law apart from other branches of law, and identifies

criminal law provisions.

PUNISHMENT

In a precept of criminal law we can distinguish to parts: the precept itself, so the rule which

embodies the prohibition/command about how to behave, and the punishment, the legal

consequence.

Also, about the punishment, its specificity is that it encroaches on fundamental human rights such

as :

- Personal Liberty (art 13 Italian Constitution: “personal liberty is inviolable”), that is defined in the

Italian Constitution in art 5.1 («Everyone has the right to liberty and security of person. No one

shall be deprived of his liberty save in the following cases and in accordance with a procedure

prescribed by law: (a) the lawful detention of a person after conviction by a competent court;

[…].») and in the EU charter of fundamental rights in art 6 («Everyone has the right to liberty and

security of person.» );

- Human Dignity, defined in Art. 3.1 It.Const. «All citizens have equal social dignity and are equal

before the law, without distinction of sex, race, language, religion, political opinion, personal

and social conditions.» Is also named in the EU charter of fundamental rights in Art. 1 («Human

dignity is inviolable. It must be respected and protected.») and in the Universal declaration of

Human rights (Art. 1 «All human beings are born free and equal in dignity and rights. They are

endowed with reason and conscience and should act towards one another in a spirit of

brotherhood.» )

So:

There are different kind of punishments for…: 51

At this point a question arises: why can not we say that criminal punishment always implies

encroachment on personal liberty? Because, even when the punishment is a pecuniary one, if the

offender doesn’t pay, the sanction it will get converted either into controlled liberty or into social

utility works (upon request) according to a daily conversion rate (currently established at 250€ per

diem). Also If the convicted offender does not follow the orders which go with controlled liberty

and social utility works, such portions of the conversion sanctions which have not yet been

executed will get in turn converted into a matching time of imprisonment or detention. So in any

case there is the possibility to lose liberty.

Anyway is important to not forget that some national criminal law systems also provide for a

different, and in several cases overlapping, set of measures which directly or indirectly also

encroach on personal liberty.

Being more specific about punishment, where a criminal act is committed there are to ways to

follow, and there is the option to follow both of them or to chose one:

- Security measures: these are defined by Art. 202 It.PC as «Security measures may only be

applied to socially dangerous persons who have committed an act designated by law as an 52

offence. The penal law shall define the cases in which security measures may be applied to

socially dangerous persons on account of an act not designated by law as an offence.» And the

meaning is that the criminal as a danger to society and the criminal law system as a way to

neutralise socially dangerous people and avoid other similar acts. So the sense of their

existence is to keep dangerous offenders (or would-be offenders) from committing further

crimes;

- Punishment: why does sometimes the law maker prefer punishments instead of security

measures? There are some theories about:

Retribution: (offence for the society VS offence for the offender) it is:

• A. A non-utilitarian, moralistic approach;

B. The balancing of ‘scales’ after the offender has served their punishment is its

core concept;

C. It implies that the whole society shares a single view about moral wrongs which

is then reflected in criminal law;

D. It tends to give a predominant weight to moral considerations when evaluating

what is sufficient ground for legal punishment;

At the same time it is based on:

A. A principle of proportionality;

B. The awareness of the intrinsic expressive force of criminal punishment;

Deterrence: (benefits VS costs) “prevention trough motivation” is a general way to

• understand it. It is:

A. A pragmatic (utilitarian) approach;

B. What weights more as a preventive factor is not the severity of punishment, but

its certainty and its celerity;

C. Proportionality and respect for the individual’s rights and dignity are not intrinsic

limits to the deterrence principle;

D. The actual deterrent effect of a punishment should be empirically verifiable;

E. It doesn’t take into account other ways to prevent crime through motivation;

At the same it is based in:

A. A stronger link to harm principle and in general a more ‘secular’ approach;

B. No justification for punishment of insane or otherwise not ‘persuadable’ (e.g.

children) people;

Incapacitation: “prevention through isolation”. This theory was born by Cesare Lombroso

• in “Uomo delinquente” and it is:

A. A pragmatic (utilitarian) approach;

B. Incapacitation is not aimed at the general population, but instead at individual

offenders;

C. Proportionality and respect for the individual’s rights and dignity are not intrinsic

limits to incapacitation;

D. Incapacitation-focused policies tend to produce a great increase in

incarceration rates and public expenditure over prisons;

Rehabilitation (in to the society): “prevention through behavioural changes”. It is:

• A. A pragmatic (utilitarian) approach;

B. Rehabilitation is not aimed at the general population, but instead at individual

offenders;

C. Proportionality and respect for the individual’s rights and dignity might be

considered necessary for rehabilitation, but are not logically intrinsic limits to it ;

D. The rehabilitation approach implies attention for further aspects other than the

individual ones;

E. This approach is strictly related to parole and other diversion provisions;

In the Italian system Art. 27.3 It.Const establishes the theory od rehabilitation with reintegration:

«Punishments [...] shall aim at re-educating the convicted.» And obviously is important to 53

remember that different criminal law specific frameworks give different weight to each theory of

punishment, often combining more than one, but in different balances.

There is also a new approach to the criminal offence: the restorative justice approach. As

definition we can say that a restorative justice process is any process in which the victim and the

offender and, where appropriate, any other individuals or community members affected by a

crime participate together actively in the resolution of matters arising from the crime, generally

with the help of a facilitator. So: FACILITORS

So, the main features of this program are:

• A flexible response to the circumstances of the crime, the offender a