European Convention on Offences Relating to Cultural Property

 

Part V

Proceedings

Section I

Sanctioning

Article 12

The Parties acknowledge the gravity of any act or omission that affects
cultural property they shall accordingly take the necessary measures for
adequate sanctioning.

Section II

Jurisdiction

Article 13

1. Each Party shall take the necessary measures in order to establish
its competence to prosecute any offence relating to cultural property:

a. committed on its territory, including its internal and territorial
waters, or in its airspace;

b. committed on board a ship or an aircraft registered in it;

c. committed outside its territory by one of its nationals;

d. committed outside its territory by a person having his/her habitual
residence on its territory;

e. committed outside its territory when the cultural property against
which that offence was directed belongs to the said Party or one of
its nationals;
f. committed outside its territory when it was directed against
cultural property originally found within its territory.

2. In the cases referred to in paragraph 1, sub-paragraphs d and f, a
Party shall not be competent to institute proceedings in respect of an
offence relating to cultural property committed outside its territory
unless the suspected person is on its territory.

Section III

Plurality of proceedings

Article 14

1. Any Party which, before the institution or in the course of
proceedings for an offence relating to cultural property, is aware of
proceedings pending in another Party against the same person in respect
of the same offence shall consider whether it can either waive or suspend
its own proceedings.

2. If such Party considers it opportune in the circumstances not to
waive or suspend its own proceedings it shall so notify the other Party
in good time and in any event before judgment is given on the substance
of the case.

Article 15

1. In the eventuality referred to in Article 14, paragraph 2, the
Parties concerned shall through consultation endeavour as far as possible
to determine, after evaluation of the circumstances of each case notably
with a view to facilitating the restitution of the cultural property,
which of them alone shall continue to conduct proceedings. During this
consultation the Parties concerned shall stay judgment on the substance
without however being obliged to extend that stay beyond a period of 30
days as from the despatch of the notification provided for in Article 14,
paragraph 2.

2. The provisions of paragraph 1 shall not be binding:

a. on a Party which despatches the notification provided for in
Article 14, paragraph 2, if the main trial has been declared open
there in the presence of the accused before despatch of the
notification;

b. on a Party to which the notification is addressed, if the main
trial has been declared open there in the presence of the accused
before receipt of the notification.

Article 16

In the interests of arriving at the truth, the restitution of the
cultural property and the application of an adequate sanction, the
Parties concerned shall examine whether it is expedient that one of them
alone shall conduct proceedings and, if so, endeavour to determine which
one, when:

a. several offences relating to cultural property which are materially
distinct are ascribed either to a single person or to several
persons having acted in unison;

b. a single offence relating to cultural property is ascribed to
several persons having acted in unison.

Section IV

ne bis in idem

Article 17

1. A person in respect of whom a final and enforceable judgment has been
rendered may for the same act neither be prosecuted nor sentenced nor
subjected to enforcement of a sanction in another Party:

a. if he was acquitted;

b. if the sanction imposed:

i. has been completely enforced or is being enforced, or

ii. has been wholly, or with respect to the part not enforced,
the subject of a pardon or an amnesty, or

iii. can no longer be enforced owing to the expiry of a limitation
period;

c. if the court found the offender guilty without imposing a sanction.

2. Nevertheless, a Party shall not, unless it has itself requested the
proceedings, be obliged to recognise the ne bis in idem rule if the act
which gave rise to judgment was directed against either a person or an
institution or any thing having public status in that Party, or if the
subject of the judgment had itself a public status in that Party.

3. Furthermore, a Party in whose territory the act was committed or
considered to have been committed under the law of that Party shall not
be obliged to recognise the ne bis in idem rule unless that Party has
itself requested the proceedings.

Article 18

If new proceedings are instituted against a person who has been sentenced
in another Party for the same act, then any period of deprivation of
liberty imposed in the execution of that sentence shall be deducted from
any sanction which may be imposed.

Article 19

This Section shall not prevent the application of wider domestic
provisions relating to the ne bis in idem rule attached to judicial
decisions.

 

Author: international

Mentioned in these Entries

European Convention on Offences Relating to Cultural Property.