PRAWNOKARNE ASPEKTY OCHRONY DÓBR KULTURY REFLEKSJE NA TLE ZMIANY STANU PRAWNEGO
PENAL LAW ASPECTS OF THE PROTECTION OF CULTURAL PROPERTY. REFLECTIONS AGAINST THE BACKGROUND OF AN ALTERED LEGAL STATE
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Despite the fact that the legal aspects of the protection of historical monuments comprise a separate and interesting domain, they remain on the peripheries of Polish legal sciences. The presented sketch deals with assorted problems of the protection of historical monuments perceived from the perspective of penal law. Apparently, the implementation of the statute of 23 July 2003 on the protection of, and care for historical monuments constitutes a convenient pretext for a survey of penal law institutions. The “new” statute appears to be better than its predecessor, i. e. the statute on the protection of cultural property; the same holds true for its penal elements, and the clarity of legal language deserves particular attention. The copious article 3 of the statute, which contains as many as 15 legal definitions, should considerably facilitate the application of the regulations of this normative act which, after al,l is a basic source of the rights and duties of the owners of historical monuments. An indubitable novelty is article 108 of the statute which re-introduces the misdemeanour of destroying or damaging a historical monument. It should be kept in mind that up to now the conservation services applied a legal foundation composed of article 288 paragraph 1 of the penal code, in connection with article 294 paragraph 3 of the penal code. The mentioned foundation of the charge produced numerous problems associated with its interpretation. After all, not every historical monument constitutes property of particular significance for culture. Moreover, penal cases concerning historical monuments are rather rarely encountered. The described construction was successfully applied in cases of the devastation of archaeological sites in the voivodeship of Warmia- Mazuria. A penal-legal analysis of the protection of cultural property should draw attention to the statutory symptoms of misdemeanours which occur in great numbers in the penal regulations of the statute. Taking into consideration the subjective criteria, the misdeeds are divided into two groups : the first encompasses regulations concerning everyone, and thus each person may become a subject of the misdemeanour, while the second deals only with the owners of historical objects. Essential significance is ascribed to the norms expressed in article 109 of the statute penalising the behaviour of the owner who has ignored securing the object. Finally, it is also worth indicating the executive regulations which define the manner of protecting the historical object. The sociological premise of the effectiveness of the regulations is the legal awareness of the addressees of the norms. Unfortunately, the level of the legal culture of Polish society is far from desired. This question remains particularly topical within the realm of the protection of national heritage.
- mgr, absolwent Wydziału Prawa i Administracji UMK w Toruniu, obecnie jest doktorantem w Zakładzie Kryminologii na Wydziale Prawa i Administracji Uniwersytetu Warmińsko-Mazurskiego w Olsztynie oraz prawnikiem reprezentującym interesy Wojewódzkiego Urzędu Ochrony Zabytków w Olsztynie.
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