Some Rules of the National Legislature with Export Artworks from Russia
In Russia law, a works of art are treated as being personal moveable property and the ones are objects of civil rights and may be freely alienated or be transferred from one person to another by way of universal legal succession (inheritance) or by other means unless they have been withdrawn from turnover or are limited in turnover (point 1 Article 129 Civil Code). The matters of the ownership of the copyright in artworks are regulated by the Part IV of the Civil Code.
The existing procedure of export or import of cultural valuables was established by the Russian Federation Law, "On Export and Import of Cultural Valuables" № 4804-1 dated 15 April 1993. According to the above Law, cultural values include the following items:
- historical valuables associated with, but not limited to, historical events in the life of the nation, society and state development, history of science and technics, life and activities of outstanding personalities (state, politics and public figures, thinkers, scholars, literature or arts figures);
- items and their fragments obtained from archeological excavations;
- arts valuables including fully handwork paintings and drawings, original works of sculpture, original artistic compositions and designs, cult items with artistic finish (icons etc.), engravings, prints, lithographies, works of decorative and applied arts, and works of traditional folk arts;
- elements or fragments of architectural, historical or arts monuments, and works of monument art;
- old age folios and publications presenting certain interest (either historical, artistic, scientific or literary);
- rare manuscripts and document relics;
- archives (including photography, phonography, cinematography and video);
unique or rare musical instruments;
- postage stamps or other philatelic materials;
- old age coins, orders, medals, stamps and other numismatic items;
- rare flora/fauna collections and specimens, items presenting interest for such science branches as mineralogy, anatomy and paleontology;
- other movable items, including copies representing historical, artistic, scientific or other cultural value, historical and cultural monuments preserved by the state.
Under the Article 161 of the Civil Code there must be concluded in simple written form, except for transactions requiring notarial certification: transactions of juridical persons between themselves and with citizens; transactions of citizens between themselves for an amount exceeding not less than ten times the minimum amount of payment of labor, and in the instances provided for by a law, irrespective of the amount of the transaction.
Thus, according to the Article 45 of the above Law № 4804-1 transactions with moveable cultural valuables must be concluded in written form. The failure to comply with written form shall entail the invalidity of the transaction. Therefore customer officers can require the documentary of the artwork possession which move by any person for any purpose whatsoever across customs border of the Russian Federation even though the artwork is a gift.
Moreover, on 27th April 2001the Regulation on the conduct of examination and monitoring of the export of cultural property was enacted. According with this Regulation, artworks must be examined to be exported from Russia either. Examination of cultural values held on the basis of the application of the owner (or his authorized person) to the Federal Service for Supervision of Compliance with Legislation for Protection of Cultural Heritage.
The application must contain data of the owner of cultural property, grounds for acquisition of right of the property ownership which is declared for export or temporary export from the territory of the Russian and description cultural property. If in the process of reviewing the application will be revealed the evidence of illegal possession of cultural property, the officials must inform law enforcement authorities about.
The application includes:
- list with a description of cultural property in the amount of more than two (in triplicate);
- three photographs of each cultural value no smaller than 8 x 12 inches. When exporting and export from the territory of the Russian archival documents, books, philatelic, numismatic, Bonistics and Faleristics submission of photographs is not required;
- documents’ copies and their originals that confirming a juridical person’ right of cultural property ownership which will be exported from the territory of the Russia;
- documents verifying the value of cultural property;
- copy of an identity document of Russian Federation citizen that is valid outside Russian Federation, or an identity document of a foreigner who has been on the territory of Russian Federation; for a juridical person - a copy of the certificate of the State registration;
- in the case of temporary export of cultural property from Russia - the documents provided for in article 30 of the Law «On export and import of cultural property.
“The conclusion is made in writing. It is made by a full analysis of cultural values in determining their authenticity, authorship, the name, place and time of creation, material and technology performance, with fixing the size (weight), the distinctive features of the state of preservation. Taken into account and the documents submitted by the applicant.
In the expert report shall also contain proposals for the assessment of cultural values. In doing so, the experts required to assume the market value of items. If the applicant does not agree with the conclusions of experts, cultural values are submitted to the State Expert Commission of Ministry of Culture of Russia or Central expert committee screening the Federal Archival Service of Russia. Members of the commission shall render its decision on the consent /disagreement with expert opinion.
If the results of examination officials conclude the need for a particular cultural value to public security mailing lists or registries, materials expertise are transferred to the appropriate public authorities, regardless of consent of the applicant. If an item is included in the protection list, register, then copies of expert opinions submitted by the applicant together with the materials stored in the Ministry of Culture of Russia, its territorial authorities or the Federal Archival Service of Russia”.
If the applicant is allowed to export the cultural property, he is got the certificate to the right of the cultural property export. In the case when the applicant is refused to export cultural property he may appeal that decision to the higher administrative authority or to the court.
Thus without documentary it could be became extremely difficult to resolve any subsequent disputes as to true cultural property ownership. Documentation is the real answer to problems in connection with artworks export.
Evgeny A. Nagornyy
Attorney at law