Victims of Heritage Crimes: Aspects of Legal and Socio-Economic Justice

1 Introduction

Cultural heritage crime is sometimes perceived as a victimless crime (e.g. Lostal, 2021a; Manacorda & Visconti, 2013; Muneesami). While there might be no immediately seen victim, scientific literature (Brooks, 2002, 2004; Frey, 1997; Licciardi & Amirtahmasebi, 2012; Throsby, 1995, etc.), international heritage protection documents (from Hague Convention 1954 to Faro Convention 2005), and previous research of the authors prove existence of extensive range of interests associated with the integrity and development of cultural heritage sites^[1] (ibid.; as well as Kairiss & Olevska, 2020, 2021a,b, 2022). Damage and destruction of heritage objects inevitably harm these interests, thus victimizing respective parties. However, challenges arising out of this statement are multifaceted.

Primarily, socio-economic value of heritage sites is often not obvious (e.g. Holtorf, 2011) both for the society and the law enforcement. The easiest way to show the value of heritage sites is in monetary terms. For instance, the economic and social values of Colosseum have been estimated at EUR 76.8B (Deloitte Finance, 2022), which is 2.36 times as much as whole Latvia’s GDP (Country Economy, 2022). For sure, there are thousands of sites less popular than Colosseum with different level of potential (e.g. Kairiss & Olevska, 2021a); however, the scientific literature and empirical analysis show undeniable social value and economic benefit of investing in historic environment^[2] (e.g. Dümcke & Gnedovsky, 2013; Klamer, 2014). Therefore, type and extent of harm caused by damage or destruction of historic sites is frequently underestimated.

Respectively, the suffered parties might not consider themselves as crime victims, thus restricting themselves from their rights to remedy. Besides unclear (not obvious) value of historic sites, this might be fostered by discouraging attitude of law enforcement officers, lengthy proceedings, poor awareness of suffered parties’ rights – to name just a few. Countries having guides to encourage owners, managers, guardians of a heritage site, or community group to make a victim impact statement (as it is, for instance, Historic England, 2018c, p. 8) in case of a heritage crime is not so frequent phenomenon.

Besides, the types and number of victims under traditional criminal law are constrained. While, e.g. Latvia, criminalizes damage and destruction of heritage sites as a crime against public order, thus underlaying collective interest in their protection, individual victims suffering direct harm are the only ones considered as victims within the domestic criminal proceedings. At the same time, lack of case law, complexity in proving the scope, and nature of caused harm as well as restrictive attitude of judicial system towards large numbers of claims from comparatively remote plaintiffs make it practically impossible for the other (including, collective) parties suffered as a result of a heritage crime to access justice and protect their rights outside criminal law system (e.g. within the civil proceedings).

The aforementioned issues at least partially stem from the insufficient priority given to the heritage crimes in many countries (e.g. Latvia (Kairiss & Olevska, 2020); United Kingdom (Assessment, 2017; Poyser & Poyser, 2017); the Netherlands (Monument Supervision, 2022), etc.).

The current research is thought to add to the discussion on the type and scope of harm caused by damage and destruction of heritage sites to the victims and the most appropriate remedies the suffered parties can be entitled to within the different regulatory and judicial frameworks.

From the theoretical perspective, the manuscript appeals to the theories of rights (e.g. Mackay, 1996) and restorative justice (e.g. Zehr & Mika, 1997; Zehr, 2002) from the legal domain and concepts of value (e.g. Throsby, 2007) and public goods (e.g. Samuelson, 1954; Weisbrod, 1964) from the economic domain. The article is a consolidation of the previous multi-year research of the authors identifying the economic and non-economic interests of cultural heritage stakeholders, types of suffered harm, and legal constraints in recognizing these suffered parties as victims in criminal processes (Kairiss & Olevska, 2020, 2021a,b, 2022). The results of the research are based on the analysis of the international and Latvian case law, extensive review of scientific literature, and comparative analysis of the legal framework (Criminal Codes of 29 European countries were analysed in terms of criminalisation of damage to/destruction of heritage objects^[3]) and practice (approach of 12 European countries in terms of existing system of assessment of damage done to heritage objects^[4]).

2 Self-Identification and Recognition as a Victim of Heritage Crime

Heritage sites can be a subject of crime as any other immovable property; however, the caused harm is often greater, because of the additional socio-economic values carried by these sites (Historic England, 2016, p. 4). Many European countries acknowledge this by criminalizing damage/destruction of heritage objects as aggravated (or specially separated out form of) property damage^[5]. Others, however, consider compromising integrity of cultural heritage sites as a crime against public interest, order, health, morality, or external environment^[6].

Differences in legal approaches impact the determination of victims within the criminal proceedings. While Latvia positions damage/destruction of immovable cultural objects under the crimes against public order, the only designated victim of these crimes is generally the state represented by National Heritage Board.^[7] The authors have not established that owners have ever been addressed as potential victims by the police or tried themselves to claim suffered harm within the criminal proceedings in case of illegal intervention into their owned archaeological sites in Latvia.^[8] The same concerns more remote parties, including scientists, NGOs, and/or local community. Even if a person or group feels harmed by the illegal activity, lack of information, failure to understand long-term consequences of the crime, inability to submit collective claim within the criminal proceedings,^[9] little chance to receive monetary compensation, or obtain moral satisfaction,^[10] restraints in who can be designated a victim,^[11] deterrence of law enforcement agencies to actively search for victims and pro-actively inform them about their rights as well as other constraints, discourage these parties from trying to get redress for the suffered harm. This assumption has been checked through the survey performed by the authors among the members of the Latvian Society of Archaeologists^[12] (the LSA) (hereinafter – the Survey). According to the Survey results, 80% of respondents consider themselves as suffered parties in case of damage to or destruction of an archaeological heritage object. The answers (multiple choice of predefined answers and/or own answer was possible) show that the archaeologists feel suffered predominantly as heritage lovers (85%), members of the society (80%), representatives of a scientific community (70%), representatives of the LSA or other NGO (70%) as well as professionals who are deprived of/restricted to the possibility of researching the archaeological object (60%). When asked in which of those statuses the respondents think it would be correct to officially recognize them as victims of heritage crime, the top answers included the “members of the society” (70%), “professionals who are deprived of/restricted to the possibility of researching the archaeological object” (55%), and “heritage lovers” and “members of the scientific community” (both – 45%). These answers directly correspond to the following types of harm: (a) emotional distress, decrease in cultural-historical value, disruption of culture suffered by archaeologists predominantly socially (as members of the society and the scientific community, as well as heritage lovers) and (b) restriction of research/earning opportunities suffered by them predominantly economically (as professionals). While archaeologists mention different damage/destruction cases as those that echoed the most on them, several answers mentioned that all the respective cases of damage and destruction of archaeological objects should be considered as causing suffering to the archaeologists, since e.g. “any excavated, looted, or vandalized archaeological object is partially or completely ‘taken away’ from us as professionals.”

Besides, when asked why the LSA had never claimed to be recognized as a victim in archaeological heritage crimes, the head of the LSA mentioned (referring to the LSA as a part of the scientific community and the only NGO unifying archaeologists of Latvia) the following constraints (interview with M. Kalniņš):

1. absence of relevant experience (involvement in criminal proceedings, etc.);

2. lack of information about the rights of the LSA as a victim in criminal proceedings;

3. legal/judicial obstacles to be recognized as a victim;

4. the complexity of assessing the damage/loss caused to the LSA;

5. non-provision of information from the persons directing the criminal proceedings about the possibilities of the LSA to apply as a victim in the relevant criminal proceedings.

Despite the above, the issue of pro-active screening for victims by the law enforcement is, inter alia, a question of available resources. It is considered therefore that criminal process cannot be viewed as a mechanism for redress for all the suffered parties (interview with G. Kūtris). However, for instance in UK, an owner, manager, or guardian of a heritage asset or community group should be encouraged to make victim impact statements (Historic England, 2018c, p. 5) to give themselves a voice in the criminal justice process by helping others to understand how the crime has affected them (Joint Agency Guide to the Victim Personal Statement, 2018, p. 3).

3 Types of Victims in Heritage Crimes

While research on victimological issues of heritage crimes is lacking (Poyser, Poyser, & Doak, 2022), along with the development of the more stakeholders’ inclusive concept of cultural heritage (Olivier, 2019) and closer attention to the interests of the parties concerned (Kairiss, 2020; Kairiss & Olevska, 2020), the types of heritage crime victims become more visible.

Obviously, the party suffered in heritage crime traditionally does not fit into the image of an “ideal victim” (Christie, 1986, pp. 18–19). This victim is not the little old lady hit by a big offender for money to buy drugs on her way home in the middle of the day after having cared for her sick sister (ibid.). This might also add to the lack of universal readiness to be given the complete and legitimate status of being a victim. However, undeniably victim of a heritage crime meets five criteria of a meaningful concept of a victimisation (Strobl, 2004, p. 300):

1. Damage or destruction of a heritage object (“the event”) is unambiguously identifiable;

2. The event forms harmful impact on the integrity of the object;

3. The event is not caused or controlled by the victim;

4. The event in the majority of cases can be attributed to a certain offender;

5. Damage and destruction of a heritage object is universally criminalized (e.g. Wangkeo, 2003, pp. 196–197).

There has been a number of attempts to classify victims of cultural heritage crimes by policy guidelines, scientific literature, and international legal practice. Thus, for instance, a Guide for Law Enforcement Officers drafted by Hertfordshire Constabulary (UK) lists the owners, local communities, the nation, and those who care for the sites as victims of heritage crimes. A guide to prosecutional and alternative interventions adds future generations to the range of victims (Historic England, 2018b).

One of the most recent heritage crime victims’ typologies (Poyser et al., 2022, p. 11), based on extensive interviewing of heritage crime officers, heritage practitioners, and victims throughout England and Wales, distinguish personal (immediate and remotely located), professional or practicing, community or communal, and future (future generations) victims. The ICC, in Al Mahdi case, for the first time, faced with the necessity to define groups of victims of the direct attacks against religious and historic buildings, defined (Al Mahdi Judgment, para. 80; Reparations order, para. 54):

direct victims:

1. guardian families who were responsible for the maintenance of the sites and

2. the faithful inhabitants of Timbuktu.

indirect victims:

1. people throughout Mali and

2. the international community.

Despite the above recognition of broad range of victims of heritage crimes, national criminal law systems are generally not that victim-embracing. For instance, Latvian Criminal Procedure Law accepts only individual persons as victims of crime to be under certain procedure recognized by the person directing the proceedings and requests each victim’s separate acceptance to the particular status^[13]. The law places emphasis that a victim in criminal proceedings may not be a person to whom moral injury was caused as a representative of a specific group or part of society.^[14]

4 Victims’ Rights in Criminal Process

The role of crime victims in the criminal process has evolved substantially during the last decades. Thus, there has been observed an increase in scale and size of NGOs representing victims’ rights, increased focus of mass media, and, in some countries (at least in the USA), even the practice of naming many “tough on crime” legislative measures after specific victims (Ginsberg, 2014, p. 923). This trend is generally called victim-centred approach (or “victim-centred justice”), which means a model of criminal justice that accords due consideration to victims ensuring their proper integration into international and national criminal justice processes as well as respecting and enforcing their rights to truth, justice, and a remedy are respected and enforced (McDonald, 2006, p. 241).

This increasing role of crime victims in criminal proceedings along the way was supported at the international level, initially by the soft-law mechanisms (e.g. UN GA Resolution 40/34^[15] or 1985 CoE Recommendation R (85)^[16]), later by hard-law instruments (e.g. Council Framework decision 2001/220/JHA, and then the so-called Victims’ Rights Directive (Directive 2012/29/EU)).

The growing acknowledgement that victim-centred approach is crucial for the success of international justice can also be observed in the latest international case law and discussions (coalition for the ICC 2014; Katanga Reparations Order [esp., para.160]; Ntaganda Reparations Order [esp. para 218]).^[17] The ICC defines a victim broadly as “someone who experienced personal harm, individually or collectively with others, directly or indirectly, in a variety of different ways such as physical or mental injury, emotional suffering, or economic loss.” (Lubanga Judgment, para.14(ii)). It has also recently acknowledged that repairing the harm caused to the victims is of primary importance, regardless of the mode and extent of liability of the convicted person (Ntaganda Reparations Order, para. 218; Lostal, 2021b).

Despite the victim-embracing approach of the ICC, domestic criminal law is generally not that flexible and inclusive. For instance, there is no pro-active work on the suffered parties by the police or prosecution in Latvia (interview with G. Kūtris, I. Kronberga), while the State represented by the heritage authority is the only recognized victim in cases of damage/destruction of archaeological sites regardless of the ownership, function, or socio-economic impact of the site.^[18] Thus, while on the one hand there is a growing socio-economic significance and increased investment in protection and development of heritage objects^[19] (reflected both in legal acts and policy documentation), on the other hand there is a lack of support for the suffered parties.

5 Rights of Suffered Parties for an Effective Remedy

Despite traditionally acknowledged retributive character of the criminal process, it is also acknowledged that “lack of reparation for victims and impunity for perpetrators are two sides of the same coin” (Van Boven, 1999, p. 16).

The basic right of a victim of crime for an effective remedy is reflected in different international documents^[20]. This right is considered to have both procedural (the right to be recognized as a victim and access justice) and substantial (the right to have the committed wrong remedied) dimension (Van Boven, 2009).

6 Heritage Crime Victims and Reparative Framework

Stakeholders may simultaneously have economic and non-economic (scientific, symbolic, cultural, etc.) interests in a particular cultural heritage object; however, which interests are determinative (therefore primarily harmed and in need of restoration in case of illegal intervention) depend on the type of stakeholders (it should be taken into the account though that one and the same person might be related to different types of stakeholders in the same time). Based on the current and previous research, as well as scientific literature^[32] and case law, the authors have developed correlation framework between the types of parties victimized by damage to/destruction of heritage site, the nature of harm suffered by every victimized individual or group as well as the most appropriate type of remedy corresponding to the harmed interest (Figure 1).

It should be noted that the composition of the framework is based on the fundamental policy of the cultural heritage law (e.g. to protect the heritage [both physically and granting access thereto for persons other than the immediate owner] for the enjoyment of present and later generations [O’Keefe & Prott, 2011]), not the particular national criminal law (so it is jurisdiction-irrelevant). Therefore, not all the mentioned parties may (and arguably should) be considered eligible victims under the national criminal law rules. For instance, Latvian case law shows that only the state has been considered a victim in cases of damage caused to the archaeological sites by illegal human intervention^[33] (Kairiss & Olevska, 2021b). Nevertheless, in the opinion of the authors, all the mentioned parties are entitled to have voice in the legal proceedings (be them criminal or civil) related to the damage/destruction of the heritage object and receive appropriate reparation of the harm caused by illegal intervention into the integrity of the object concerned. Further research is needed to analyse the possibility of certain individual and/or collective victims to access justice and remedy their harmed interests within the civil (or other) procedure.

Figure 1

Suffered interest, type of suffered party, and reparations

The above framework graphically places individuals and groups victimized by damage to/destruction of the cultural heritage objects into four quadrants. Quadrants are characterized by the type of harm (material or non-material) and relation of this harm to the interest of the suffered parties (kind of harm: direct or indirect).

Each quadrant lists categories and sub-categories of suffered parties united by certain interest. The framework covers broad range of suffered parties which, however, is not deemed to be exhaustive (depending on the type of damaged object and extent of damage, other not-mentioned parties may suffer; simultaneously, not all the mentioned parties may suffer as a result of particular offence, i.e. if damaged object is not of a religious nature, religious community most probably will not be victimized).

The nature of the determinative harmed interest follows every category of suffered parties. Each quadrant is rounded out by the modality of the most appropriate reparation, i.e. provides for the most effective, adequate, and proper remedy for the particular type and kind of harmed interest.

7 Conclusion and Recommendations

The research has shown that the scope and extent of harm caused by damage/destruction of heritage sites is inexplicit and, in many cases, hard to define for both – the society and the criminal justice system. There is an obvious need for objective and definite criteria for evaluation of types and extent of harm suffered by all the victimized parties.

Shortage of societal understanding of the social and economic values of the heritage site and their impact on the close and remote parties result in the fact that many individuals do not recognize themselves as legitimate victims of heritage crimes and do not protect/struggle for their rights. Besides, constraints existing in recognition of victims in national criminal proceedings and absence of pro-active informing to the suffered parties about their rights limit the victims’ right to access justice and obtain remedy through criminal process, while their opportunities to go through civil procedure are questionable and need further detailed research.

The research has pointed to the ineffectiveness of standard retributive approach in restoration of justice in heritage crimes. Applicability of the restorative justice elements within the national criminal proceeding should be evaluated and introduced in order to repair the harm caused to the victims to the possible extent. It should be noted, that introduction of different types of reparations within the criminal proceedings should be evaluated along with the punitive measures provided for the offender. It should be acknowledged that reparations do not enrich the victim, but should repair the harm caused adequately and in a meaningful way.