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1

Kilka refleksji na marginesie dotychczasowych prac i dyskusji nad projektami nowej polskiej ustawy o ochronie dóbr kultury

100%

Arszyński M.

Ochrona Zabytków

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2000

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issue 1

5-11

EN

The establishment of a suitable law on the protection of cultural property is a difficult and laborious undertaking. It is not surprising, therefore, that heretofore work on its successive projects and accompanying debates did not end with full success. Nonetheless, their results proved to be of use, since they mobilised the concentration of the conservation milieu, stimulated the activity of the authorities, and, predominantly, made it possible to formulate numerous problems calling for legal regulation. Upon this basis, the author considers a number of motifs which, in his opinion, are of particular importance for further w ork and discussions on the law. Some of his reflections concern the legislation technique alone, e. g. the division of issues requiring legal regulation into those qualified for statuary solutions and those which can be resolved by means of acts of a lower rank. Moreover, the au th o r postulates a combination of the crucial points of the statute with the resolutions of the Constitution of the Republic of Poland. Further themes of the reflections refer to fundamental conceptual and terminological questions, whose definition will exert a decisive impact on the manner in which the law in question is to function. Within this range, the author places in the foreground a conceptual and terminological distinction of two autonomous albeit closely overlapping spheres, chosen from all the ventures serving the preservation of cultural heritage. They include legal-administrative efforts, which can be implemented solely by state bodies upon the basis of rights due exclusively to them, and a sphere of all other activities, whose realisation does n o t call for such privileges, but only for suitable p ro fessional qualifications. Furthermore, the author draws attention to the fact that heretofore studies and discussions ignored a number of essential details. By way of example, they did not introduce an extremely important entry p ro claiming that the protection of cultural heritage is of great significance for public interest. The article ends with a call for the continuation and expansion of w orks and debates on the future shape of the statute.

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PRAWNOKARNE ASPEKTY OCHRONY DÓBR KULTURY REFLEKSJE NA TLE ZMIANY STANU PRAWNEGO

100%

Chlebowicz P.

Ochrona Zabytków

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2003

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issue 3-4

122-126

EN

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.

3

Nad Ustawą o ochronie dóbr kultury - nie wykorzystane możliwości

100%

Eksner J.

Ochrona Zabytków

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1978

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issue 4

221-223

EN

As it is well-known, Poland can boast o f unique in the world initiatives on preservation, revaluation and protection o f cultural values. Despite o f that, the number o f historic buildings in the country is getting lower and lower, while the number o f monuments completly ruined and devastated or just neglected is increasing. Main causes o f failures in counteracting the devastation o f historic buildings are insufficient repressive measures on the one hand and shortcomings o f the law binding in the field o f the protection o f monuments on the other. The amendment o f the Decree of February 15, 1968 ,,On the Protection o f Works o f Art and on Museums” (Dz. U. No 10, item 48) has thus become a must and should be aimed at raising the rank o f decisions taken by conservators and securing their full execution. The Decree o f June 17, 1966 on executive procedures in the administration (Dz. U. No 24, item 151) secures the execution, i.e. carrying out o f the order or ban expressed in the conservator’s decision. So, the conservator is not powerless against checks on part o f users from either a private or socialized sector; he may simply enforce their submission. However, none o f conservators has as yet made in fact use o f that weapon and thus in practice the law binds on paper only. As for penalty repression applied in cases of devastation, destroying and lawless demolition o f old buildings, then we must consider it as unsatisfactory or totally non-existent. The conservator o f historic monuments should more thoroughly examine every singular instance o f a historic monument being devastated, with a view to advise o f it the public prosecutor’s office. The system of the protection o f works o f art against devastation and their irreversible loss is composed o f a few elements at least. In the first place we should mention economic and financial resources allocated for that purpose, proper personnel o f highly qualified conservators in the number meeting actual needs, providing them with adequately equipped workshops, further promotion o f the front o f social support for the idea o f the protection o f historic monuments, and finally, the law binding in this field. The law plays a significant, albeit not all important role in the system. A successful functioning o f the entire system depends on a faultless operation o f individual elements, mutually dovetailed and harmonously interlinked. There is no need o f exchanging any o f the elements and replacing it with a nee one, because as yet it has not been installed and one cannot say how it will be operating in future. And so, instead of amending let us all try fully observe the rules.

4

Zakaz wywozu dóbr kultury i jego praktyczne konsekwencje

75%

Zeidler K.

Ochrona Zabytków

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2002

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issue 3-4

410-412

EN

Among assorted legal institutions foreseen in the statute of 15 February 1962 on the protection of cultural property an extremely prominent role is played by a prohibition relating to the export of cultural goods. This is by no means a new regulation, since it had been enforced already upon the basis of a decree from 1946 on the registration and prohibition of the export of works of art and objects of artistic, historical or cultural value. The protected cultural property encompasses portable or stationary objects, old or contemporary, and of significance for cultural heritage and development owing to their historical, scientific or artistic value. The prohibition was established by the legislator primarily owing to the immense devastation of Polish cultural legacy during the second world war. Doubts concerning the retention of the prohibition in its present-day form are voiced mainly in view of the regulation of this problem by the law of the European Communities. On the other hand, it remains indubitable that owing to obligatory international agreements prohibition of this sort must pertain to cultural goods obtained by means of crime (theft, fencing). This issue is regulated by two international conventions: the convention signed on in Paris on 17 November 1970, and dealing with measures intent on banning and preventing the illegal export, import and transference of the ownership of cultural goods, and the convention on co-operation and mutual assistance in intercepting and returning cultural property illegally transported across state frontiers, signed in Plovdiv on 22 April 1986. The legal situation of the import of cultural property is different, since such transportation is supported by the legislator. At present, the Parliament of the Republic of Poland is examining two competing projects of statutes (on the protection of national legacy and on the protection of historical monuments), both regulating the titular subject.

5

Zespół Ekspertów – 10 lat w służbie ochrony zabytków

75%

Nekanda-Trepka E.

Ochrona Zabytków

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2012

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issue 1-2

95-100

EN

The Team of Experts was formed on the rising tide of the changes that occurred in our country and in the system of monument protection after 1989. An independent office of the General Conservator of Monuments which, apart from the Centre for Documentation of Monuments, needed a team of experts and specialists who could advise on adjudicating cases of the second instance. In the autumn of 1992, a decision was made that the Team of Experts on Architecture, Urban Planning, and Cultural Landscape would be created from the 1st of January 1993 as a department of the Centre for Documentation of Monuments. I was entrusted with the task of creating it in September 1992. An action programme was created at the time, along with an interdisciplinary team made up of a former member of the Team of Experts of the Interdepartmental Committee and new employees connected with Warsaw’s universities. In November 1993, we managed to create a list of experts, a group of several hundred people the help of whom could be used by both the monument protection services and the Team. We cooperated closely with the Regional Centres that we asked to prepare opinions on the cases from their areas. The Team of Experts mainly received cases investigated by the General Conservator of Monuments. In accordance with the 1962 Act on the protection of cultural property, we tried to protect all the monuments whose owners applied for removing from the register. Applications for removal were the inspiration to look for new solutions to save the monuments: the faience factory in Włocławek (the reason for organising an international conference on the revitalisation of monuments of technology), factories in Żyrardów and Sosnowiec, and the “Guido” coal mine in Zabrze. The Team maintained numerous international relations, the employees took part in courses, conferences, trade shows, and study tours, and our experience was desirable in the East (Kamyanets-Podilsky 1994). Our report concerning the church in Tum near Łęczyca presented to the main conservation committee enabled the use of financial resources, saving the church. We also began working on a new standard of urban documentation. However, field works and works on the conservation guide were discontinued after some changes have been introduced in the ministry. By the decision of the Minister of Culture and Art, the Centre for the Protection of Public Art Collections was transformed into the Centre for the Protection and Conservation of Monuments, and the Team of Experts along with the specialists was moved to that centre. In the autumn of 1998, the CPCM returned to its previous name and scope of activity, and the Team of Experts returned to the CDM. Unfortunately, the entire structure of the monument protection services has already disintegrated. The reconstruction of the Team in its previous make-up was impossible, and expectations towards the Team were limited. In 2000, after a new group of experts has been appointed and introduced under the supervision of the General Conservator of Monuments, a return to a strong monument protection service was no longer possible. This is why in 2001, I left the Team and took up the post of the Warsaw Conservator of Monuments.

6

Zabytki w kompetencji samorządów?

75%

Makowiecki R.

Ochrona Zabytków

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2001

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issue 2

175-177

EN

In the face of the progressing transference of rights and duties to self-governments we may expect that soon they latter will be burdened with greater privileges are regards undertakings connected with the protection of historical monuments. The author underlines that this process calls for flexibility: it is impossible to ascribe identical tasks to all self-governments. The range of the rights and duties of particular self-governments should stem from their staff and financial potential as well as the degree of familiarity with cultural property in a given area. With few exceptions (the largest cities) the preparation of self-governments for a proper realisation of tasks must take years, and a one-time introduction of a uniform system of obligations on a national scale would be highly unsuitable. It is important that the right to decide about historical monuments be given to qualified persons and not to offices.

7

Zniszczenie stanowiska archeologicznego w świetle obowiązującego prawa oraz działań prokuratury i sądu

63%

Wysocki J., Górny P.

Ochrona Zabytków

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2002

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issue 2

217-223

EN

The destruction of an archaeological site is a crime defined in article 288 § 1 of the penal code in connection with article 294 § 2 of the penal code. Albeit both regulations do not make direct mention of an archaeological site or monument, the formulation about “property of particular significance for culture” is interpreted by the prosecutor’s office and courts as a registered historical monument. Experiences of the conservation services in the voivodeship of Varmia and Mazuria show that despite the conviction universally shared by conservators about the ineffectual persecution of felons guilty of incurring damage to archeological sites, successes in this field are possible. In the mentioned voivodeship eight such cases were tried in the years 2000-2002, and all ended with sentences. Nonetheless, the process of attaining success involves many factors which, as long as they are skillfully exploited, may comprise excellent weapons in the battle waged against dishonest investors or persons digging for the purpose of obtaining metal monuments. One of the fundamental premises is the active p a rticipation of conservation services, the provision of information about the committed felony and witnesses testimony or participation as an auxiliary prosecutor during the court trial; determination and consistency are also of great importance. It is insufficient to merely inform about a crime nor is it possible to resign from the possibility of filing a complaint or an appeal in a situation when the prosecutor’s office or court discontinue legal proceedings or adjudicate the slight social harm of the deed and the perpetrator remains unpunished. As a rule, such situations are linked with a misunderstanding of the specificity of archaeological heritage on the part of the administration of justice. Another prominent factor of decisive importance in cases of this kind involves registering historical monuments. Apparently, only registered archaeological sites can be recognised as property of particular importance for culture. The conclusions stemming from cases concerning the destruction of archaeological sites are as follows: 1. effective activity starts not in court or the prosecutor’s office but already at the stage of ordinary administrative work — decisions to register historical monuments, properly conducted coordination of investments, etc.; 2. the specificity of archaeological heritage is, as a rule, unknown to prosecutors and judges, and thus eventual success depends predominantly upon the active participation of the conservation services at all stages of procedure in the prosecutor’s office and court; 3. the more frequently are such cases reported to the organs of persecution, the more often will they have their finale in court and the easier will it be to penalise the perpetrators.

8

Ochrona dziedzictwa przyrody na przykładzie zbiorów paleontologicznych z doliny Świśliny

63%

Rdzanek K.

Ochrona Zabytków

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2002

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issue 2

224-237

EN

The palaeonthological collections (220 tons) from the valley of the Świślina, amassed by the author, became a testing field for the state of the protection of natural monuments in Poland at the turn of the century. Legally, such monuments are considered cultural property. Recently, we have witnessed the emergence of new trends in their protection. On the one hand, interest in economic and tourist values has been shown by county self-governments, while on the other hand local communities have disclosed great concern for natural heritage and its exploitation for the promotion of the region. Events on the Świślina have rendered aware the newly established county authorities that their tasks involve care for the cultural and economic development of all communes comprising the county, and that shifting monuments from those communes to the seat of the county authorities results in alienation from the natural environment and the loss of tourist attraction. At the same time, it became apparent that self-government authorities are unprepared to embark upon conservation efforts, and th a t the transference of such tasks to the self-government requires extremely thorough deliberations and supervision, since it could lead to the devastation of the monuments.

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8 Ochrona Zabytków

1 Arszyński M.

1 Chlebowicz P.

1 Eksner J.

1 Górny P.

1 Makowiecki R.

1 Nekanda-Trepka E.

1 Rdzanek K.

1 Wysocki J.

1 Zeidler K.

1 2012

1 2003

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1 1978

Kilka refleksji na marginesie dotychczasowych prac i dyskusji nad projektami nowej polskiej ustawy o ochronie dóbr kultury

PRAWNOKARNE ASPEKTY OCHRONY DÓBR KULTURY REFLEKSJE NA TLE ZMIANY STANU PRAWNEGO

Nad Ustawą o ochronie dóbr kultury - nie wykorzystane możliwości

Zakaz wywozu dóbr kultury i jego praktyczne konsekwencje

Zespół Ekspertów – 10 lat w służbie ochrony zabytków

Zabytki w kompetencji samorządów?

Zniszczenie stanowiska archeologicznego w świetle obowiązującego prawa oraz działań prokuratury i sądu

Ochrona dziedzictwa przyrody na przykładzie zbiorów paleontologicznych z doliny Świśliny