BAKHCHYSARAI HISTORICAL, CULTURAL AND ARCHAEOLOGICAL MUSEUM-PRESERVE AND OTHERS v. THE NETHERLANDS AND UKRAINE

Published on 6 January 2025   FOURTH SECTION Application no. 36432/23 BAKHCHYSARAI HISTORICAL, CULTURAL AND ARCHAEOLOGICAL MUSEUM-PRESERVE and Others against the Netherlands and Ukraine lodged on 5 October 2023 communicated on 3 December 2024 SUBJECT MATTER OF THE CASE In February 2014 four museums located in Crimea (“the applicant institutions”) loaned museum artefacts reflecting the history of Crimea – including Scythian and Sarmatian jewellery and sculptures – to the Allard Pierson Museum (“APM”) in Amsterdam, the Netherlands, for exhibition based on a contract governed by Ukrainian law. The contract stipulated that APM had to return the artefacts after the exhibition. In March 2014, following Russia’s assertion of its jurisdiction over Crimea, Ukraine requested APM to return the artefacts to Kyiv. Faced with a change of circumstances and conflicting demands, with both the State of Ukraine and the applicant institutions laying claims to the artefacts, APM unilaterally suspended the contract. The applicant institutions then brought proceedings against APM before the Amsterdam Regional Court, demanding the restitution of the artefacts. Ukraine intervened in these proceedings. On 14 December 2016 and 26 October 2021 respectively, the Amsterdam Regional Court and the Amsterdam Court of Appeal held that APM had to return the artefacts to the State of Ukraine. On 9 June 2023 the Supreme Court dismissed the applicant institutions’ appeal on points of law, holding – as regards their complaint under Article 1 of Protocol No. 1 to the Convention – that the Court of Appeal had effectively ruled that the interference with their property rights (1) had a legal basis which was not unforeseeable, imprecise, inaccessible or arbitrary; (2) served the legitimate aim of protecting Ukraine’s cultural heritage; and (3) comprised a fair balance between the competing interests. It appears from news reports that the artefacts were returned to the State of Ukraine on or around 26 November 2023. The applicant institutions complain that the Netherlands and Ukraine violated Article 1 of Protocol No. 1 to the Convention. They also complain that Ukraine violated Articles 13 and 18 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention. QUESTIONS TO THE PARTIES A.  Questions to both respondent Governments and the applicant institutions 1.  Do the applicant institutions have locus standi to lodge an individual application under Article 34 of the Convention. In particular, do the applicant institutions enjoy sufficient institutional and operational independence from Russia to be regarded as a “non-governmental organisation” within the meaning of that provision (see Liseytseva and Maslov v. Russia, nos. 39483/05 and 40527/10, §§ 184-192, 9 October 2014; Ljubljanska Banka d.d. v. Croatia, no. 29003/07, §§ 50-53 and 55, 12 May 2015; and Slovenia v. Croatia (dec.) [GC], no. 54155/16, §§ 61-63, 18 November 2020)?   2.  Has there been an interference by the Netherlands or Ukraine, or both, with the applicant institutions’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?   3.  If so, was the interference in accordance with the law? Was the legal provision which served as a basis for the interference of a sufficient quality, i.e. was it accessible, precise and foreseeable (see Beyeler v. Italy [GC], no. 33202/96, §§ 108-110, ECHR 2000‑I, and The J. Paul Getty Trust and Others v. Italy, no. 35271/19, §§ 293-298, 2 May 2024)?   4.  Did the interference pursue a legitimate aim? In particular, did the museum artefacts form part of the national cultural heritage of Ukraine (see Beyeler, §§ 111-113, and The J. Paul Getty Trust and Others, §§ 335-342, both cited above)?   5.  Did the interference impose an excessive individual burden on the applicant institutions (see Beyeler, § 114, and The J. Paul Getty Trust and Others, §§ 374-378, both cited above)? In particular, was there a reasonable relationship of proportionality between the means employed and the aim pursued (see G.I.E.M. S.r.l. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 300, 28 June 2018)? B. Questions to the Government of Ukraine and the applicant institutions 1.  Did the applicant institutions have at their disposal an effective domestic legal remedy in Ukraine, as required by Article 13 of the Convention? In particular, did they have standing to institute proceedings before the Ukrainian courts?   The Government are requested to provide references to domestic legislation and case-law in support of their position.   2.  Have the applicant institutions complied with the time-limit laid down in Article 35 § 1 of the Convention?   3.  Was the interference (if any) by Ukraine, purportedly pursuant to Article 1 of Protocol No. 1 to the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 287-317, 28 November 2017, and Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 164-165, 15 November 2018)?   APPENDIX Application no. 36432/23 No. Applicant’s Name Year of registration State of registration Place of residence 1. BAKHCHYSARAI HISTORICAL, CULTURAL AND ARCHAEOLOGICAL MUSEUM-PRESERVE 2014 Russia Bakhchisaray 2. CENTRAL MUSEUM OF TAURIDA 2014 Russia   Simferopol 3. EASTERN-CRIMEAN HISTORICAL AND CULTURAL MUSEUM-PRESERVE 2014 Russia Kerch 4. STATE HISTORICAL AND ARCHAEOLOGICAL MUSEUM- PRESERVE TAURIC CHERSONESE 2014 Russia Sevastopol