Abstract
In recent years the international community has shown interest in intervening to combat the flourishing illegal art market, so much so that it has acted several times with hard and soft law instruments, albeit with unsatisfactory results. This is also due to the fact that the fight against illegal trafficking has hitherto been considered as a sub-sector of the war on organised crime, taking the tools of intervention from this. An illegal trade, however, such as the trade in cultural goods, which has absolutely peculiar characteristics compared to other illicit markets, does not lend itself to such a crime-fighting technique, becoming useful ground to reflect upon for an autonomous rewriting of the discipline of combating illicit trafficking. Considering illegal markets not as battlegrounds for criminal associations, but as physiological centres of exchange driven by the logic of profit, can make it possible to outline holistic law enforcement regulations that are more effective and more respectful of individual rights.
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Notes
- 1.
This is the idea of the pioneer of the modern criminological study of organised crime: Cressey (1969).
- 2.
- 3.
Varese (2017), p. 27.
- 4.
- 5.
- 6.
Recently, Mann (2020) has insisted on this function of the concept of war on organised crime as a necessary condition for the development of an extensive architecture of law, policing, surveillance and intelligence.
- 7.
According to Campbell (2013), p. 114.
- 8.
In this regard see Campbell (2013), passim, who however identifies four different phases, differentiating a first intermediation phase and a second intermediation phase. Since the intermediaries can be multiple, we have opted here for a general second phase including all possible intermediate steps of cleaning up the good between the moment of apprehension and the final purchase by the collector/museum. For the necessary bibliography, please refer to the cited contribution.
- 9.
I am referring to a 2008 study based on 2400 interviews with archaeologists around the globe, cited in Passas and Bowman Prouls (2011), p. 61.
- 10.
In relation to one of the most important transit markets, the UK, see Mackenzie (2011), p. 69 ff. and the bibliography cited therein.
- 11.
Just as, according to some literature, corporate structures drive the white collar worker to commit the crime through the provision of the context, the means and the incentive to commit the crime, leading the perpetrator to feel no remorse for that illicit action, perceived as routine and natural, in the same way, the cultural goods market represents the perfect context for annihilating the counter-push to crime of the criminal law, since it is characterised by huge profits, the absence of a victim, and therefore the lack of confrontation with the victim or a real scene of the crime, and a very high possibility of ‘getting away with it’. In addition, this market is dominated by a small circle of professionals, closed to external control as they are protected by their technical knowledge, thus allowing the reiteration of practices, if not illegal, certainly irregular, within the ambiguity of which criminal practice can proliferate. On this feature of white collar crimes, see, among others, Gobert and Punch (2007), pp. 98 ff.
- 12.
See v. Chappell and Polk (2011), pp. 99 ff.
- 13.
- 14.
Sargent et al. (2020), pp. 25–26. In the same report, a possible greater involvement of ISIS emerges at a later stage, with the followers themselves engaged in the excavation activity, but this does not change the final judgement of the authors, who conclude by recognising the illegal trade in question as peculiar in nature compared to other trades, precisely because of the absence of a ramified criminal organisation as a rule.
- 15.
Looking only at the European continental context, the following can be mentioned here: the European cultural convention, signed in Paris in 1954; the European convention on the protection of archeological heritage (London, 1969) and the new version of this treaty signed in La Valletta in 1992; the Convention for the protection of the architectural heritage in Europe (Granada, 1985) and the Council of Europe framework convention on the value of cultural heritage for society (Faro, 2011).
- 16.
As scholars have already pointed out, international criminal law—thanks above all to the work of the international criminal courts—played a crucial role in fostering protection of the cultural heritage. Recently see, also regarding the different approaches that animate international criminal law, Frulli (2020), pp. 100 ff.
- 17.
Convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property (Paris, 1970).
- 18.
- 19.
On the different impact of criminal law in the two different areas of cultural heritage protection: Manacorda (2011).
- 20.
Resolution adopted by the General Assembly on 18 December 2014.
- 21.
- 22.
In relation to this topic, see the essay by Visconti in this volume.
- 23.
- 24.
The Conference of the Parties on two occasions called for the need to extend UNTOC to the trafficking of cultural property: Resolution 5/7 of October 2010 and Resolution 10/7 of October 2020.
- 25.
The criminal offence of trafficking usually contains an extensive list of alternative punishable conducts with the intention of striking at all the different conducts that make up the illegal cycle, from production to use of the object.
- 26.
The Italian legal system has a provision capable of punishing all criminal associations composed by more than three persons and aimed at committing an indeterminate number of crimes (art. 416 Criminal Code). The applicability of this offence is not limited to a specific category of crimes, since the association may be aimed at committing any kind of crime. In addition to this ‘general’ provision, the Italian legal system also includes another “general” offence that, however, only applies when the association uses a mafia method, as defined in Article 416 bis of the Criminal Code.
- 27.
I will try to outline a problem that stems directly from the proliferation of the association offences in the trafficking sector. The increase in the number of associative offences carries a considerable risk of violating ne bis in idem. In fact, as practice has shown, in the presence of a single criminal organisation operating in several illicit markets, the defendants may be charged with the different associative rules. To give an example, if a criminal group sells both drugs and smuggled cigarettes, the members of the group will be charged with both the offence of association dedicated to drug trafficking and the offence of association for the purpose of smuggling cigarettes, with an obvious double charge in respect of the same action (the criminal association).
- 28.
There are many differences between the rules governing this special trial and prison regime and the ordinary ones. On the criminal trial side, for example, the office in charge of preliminary investigations will be different (with longer deadlines for carrying out investigations), but there are also differences with regard to the regulations on wiretapping, the presumption of adequacy of pre-trial detention in prison and the evidence procedure. On the other hand, with regard to prison treatment, it is a matter of subjecting the convicted person to the so-called “hard prison regime”, where obtaining rewards and benefits is precluded.
It is evident that this regime, which waives some fundamental guarantees, can only be justified in the presence of major public order interests, as in the case of mafia association and terrorism, but is difficult to justify in other contexts. Its continued expansion, therefore, is a source of concern for the jurist.
- 29.
To date, jurisprudence and doctrine consider it a one-subject criminal offence.
- 30.
For a first commentary on the law, see Demuro (2022).
- 31.
I.e. the criminal offence of trafficking of hazardous waste.
- 32.
- 33.
And like every financial transaction, the trafficking is demand-driven and profit-driven.
- 34.
See Beckert and Dewey (2017).
- 35.
Ivi, p. 3.
- 36.
Ibid.
- 37.
- 38.
This is particularly opposed in civil law jurisdictions, due to the alleged conflict of such hypotheses with the principle of materiality. Above all, see Lagodny (1996), pp. 322 ff.
The idea of the possession offence as a conductless offence is very common also in the common law jurisdictions. See, among others, Dubber (2005), pp. 103 ff., that use the expression “attendant circumstance offence”.
- 39.
- 40.
Harm principle is here understood as that criterion which requires that every offence must violate at least a legally protected interest. On this European-rooted principle, in comparison with the Anglo-Saxon systems, see Eser (1966).
- 41.
I explored the issue of the criminalisation of possession of cultural goods in relation to the Italian legal system in a recent article, Omodei (2022).
- 42.
Given the dependence of anti-trafficking legislation on general cultural heritage regulations, it is impossible to go into more detail here. The differences in terms of circulation are in fact still considerable even between neighbouring legal systems. For example, the Italian and German legal systems start from extremely divergent points on the circulation of cultural goods. While in fact German law enshrines, in Article 20 of the Kulturgutschutzgesetz of 2016, the freedom of movement of cultural property (Kulturgutverkehrsfreiheit) unless otherwise provided for, the Italian system starts from the opposite assumption: it does not provide for a general freedom of movement but specifies in Art. 53 et seq. of the Code of Cultural Heritage and Landscape (D. Lgs. n. 42/2004) a long series of limitations for the circulation of cultural objects.
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Omodei, R.E. (2023). The Criminal Policy on Trafficking in Cultural Goods. In: Militello, V., Spena, A. (eds) The Challenges of Illegal Trafficking in the Mediterranean Area. Legal Studies in International, European and Comparative Criminal Law, vol 9. Springer, Cham. https://doi.org/10.1007/978-3-031-45399-1_13
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