Zprávy památkové péče 2020, 80(2):216-224 | DOI: 10.56112/zpp.2020.2.08

European Court of Human Rights and protection of cultural heritage five years later

Jan Malíř

Ústav státu a práva AV ČR, v. v. i.

The article provides an overview of the case-law concerning cultural heritage protection which the European Court of Human Rights (ECtHR) rendered under the European Convention on Human Rights and Fundamental Freedoms (ECHR) over the last 5 years. The ECtHR continues to be confronted with cultural heritage protection especially based on applications that challenge the compatibility of measures taken by Signatory States in order to protect cultural heritage with individual right to property, as enshrined in Article 1 Protocol 1. In this respect, the ECtHR goes on to qualify cultural heritage protection - considered to constitute a public interest - as a legitimate aim capable of justifying interferences with the individual right to property. Moreover, the ECtHR rules that Signatory States have a very wide margin of appreciation when it comes to regulating possessions of cultural and historical value. As a result, with the goal of protecting cultural heritage, Signatory States can undertake a wide range of measures, even though these measures interfere with the right to property. Yet, compatibility of any measure which a Signatory State undertakes in order to protect cultural heritage also depends on whether a fair balance is struck in each case between the demands of the general interests of the community on one hand and the requirement of protecting the individual's right to property on the other. In practice, the scrutiny of the existence of a fair balance - assimilated with applying a test of proportionality by the ECtHR - attracts the most attention. While in Torno vs. Italy (presumption of the ownership of the State with respect to archaeological finds discovered since 1909 and the reversed burden of proof on the part of an individual who claimed ownership of the finds), or Kristiana vs. Lithuania (obligation to demolish former military premises in the area listed in UNESCO World Heritage without any compensation from the state), the ECtHR concluded that such a fair balance was struck. In Petar Matas vs. Croatia (preventive protection of cultural heritage pending the assessment of its historical and artistic values by public authorities), the ECtHR held that a fair balance had not been achieved due to acts of public authorities which actually violated the principle of good administration. Upon closer look, scrutinizing the existence of a fair balance is often a delicate exercise which is not free of subjective elements. In addition, in the case of cultural heritage elements which are unique, judicially discoverable and manageable standards are not easily available for this exercise. Importantly enough, the ECtHR recently had an opportunity to explore the place of cultural heritage protection in the context of other rights and freedoms enshrined in the ECtHR.
In Margulev v. Russia, the ECtHR expressly held that cultural heritage protection issues are clearly of importance to the general public, who has a vested interest in preserving cultural heritage. Imparting information and ideas on cultural heritage and its protection thus falls within the scope of freedom of expression as guaranteed by Article 10 of the ECHR. Furthermore, public authorities are obliged to exhibit a high degree of tolerance to criticism over the decisions they take in this area. On the other hand, in the Syllogos Ton Athinaion vs. United Kingdom case, and especially in the Ahunbay and Others vs. Turkey case, the ECtHR openly declined to recognize that the ECHR, in particular Article 8 thereof, enshrines the individual right to access to cultural heritage or to its protection. While such a conclusion may correspond to the view that cultural heritage protection is a public interest which is collective in nature, the conclusion still somewhat contrasts with the ECtHR's pro-active approach exhibited in other comparable areas such as the protection of environment. Moreover, in the light of global and regional treaties on cultural heritage protection, notably the Faro Convention, and also numerous acts of international organizations, one may ask whether there is indeed no consensus or tendency between Signatory States of the ECHR to award cultural rights in this area more individual character.

Keywords: ECHR, ECtHR, protection of cultural heritage, right to property, right of access to cultural heritage, freedom of expression

Published: June 1, 2020  Show citation