Kradzież i przywłaszczenie zabytku
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Date
1987
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Publisher
Wydział Prawa i Administracji UAM
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The theft and appropriation of Monuments
Abstract
The growing threat to monuments and other objects of culture call for undertaking
multidirectional actions and diversified measures. One of them is penal law
protection of objects of culture. It is carried out by two groups of norms. To the
first one belong the norms — contained in the Act of February 15, 1962 on Protection
of Objects of Culture and Museums — protecting only the monuments. The
second group consists of the norms of the Penal Code of 1969 and the Petty Offences
Code of 1971, both of them dealing also — though not exclusively — with the
protection of monuments. The norms belonging to the first group provide for less
severe sanctions than the sanctions for other, similar or even lesser offences. Therefore,
of crucial importance to the protection of monuments are the codes' provisions,
especially those sanctioning the theft or appropriation of private property, which is called in the Penal Code „the property of another person, and the fraudulent
seizure of public property.
Polish law differentiates the penal protection of property depending on its value
and its owner. As a rule, greater protection is granted to public property, i.e.
to national property, cooperative property or the property of other organizations
of the working people. Equally intensifield protection is granted to non-public property,
i.e. to personal or individual property, if it has been entrusted to a state
or public institution for storage, transportation, sale or for other similar purpose.
As far as the protection of monuments is concerned, such a regulation is incorect.
The degree of protection of the relics of the past, many of which are numbered
among the national objects of culture, should not depend on who is the owner of
a monument. Similarly, neither the sole pecuniary value of monument, nor the
fact that a relic has been entrusted to a national or public institution, e.g. to
a museum, should be decisive for the severity of penal sanction. Private collections
or single monuments deserve the same protection. If the legislation is to differentiate
the severity of penal sanction for such offences as the theft of a relic,
its appropriation, destruction or damage to a relic, the severity of sanction should
rather depend on the monument's importance for the cultural heritage and
development due to its histororical, scientific or artistic properties. The monuments
of importance from the above point of view and the monuments of considerable pecuniary
value should be subject to an increased protection; besides, the type of an
offence should in such cases be a qualified one.
The present legislation concerning the penal law protection of monuments, especially
as far as the offences against property are concerned, evokes reservations
also because of numerous doubts arising in the course of practical application of
the provisions in force. The difficulties appear e.g. with respect to archaeological
monuments: according to Polish law archaeological discoveries and excavations become
State property, yet the very notion of archeology and its time range are not
uniformly defined. Besides, since the legal situation as to property rights to monuments
at municipal, war or religious cemeteries is complicated, it is also difficult
to determine the legal qualification of offences against those relics. However, the
greatest difficulties emerge with respect to the recent spread of thefts of sacral
monuments belonging to Roman-Catholic Church and to other religious unions.
The final part of the article contains the proposals „de lege ferenda" aiming
at regulating penal legislation in the discussed sphere and making it a more efficient
tool, adequate to the requirements of the present time.
Description
Sponsor
Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
Keywords
Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 49, 1987, z. 3, s. 75-102