Analysis of Judgment No. 36928 of 2023: The Protection of Cultural Heritage and Attempted Theft

Judgment No. 36928 of May 16, 2023, issued by the Court of Cassation, represents a significant step forward in the protection of cultural heritage in Italy, clarifying the distinctions between attempted theft offenses and misdemeanors related to unauthorized archaeological research. The case in question concerns V. S., accused of attempting to remove cultural property from an archaeological site without the necessary administrative concession.

The Legal Context

The Court ruled that the conduct of anyone who enters an archaeological park to appropriate cultural property, without a valid concession, constitutes the crime of attempted theft. This is in contrast to the misdemeanor provided for by Article 175 of Legislative Decree of November 22, 2004, No. 42, which penalizes mere unauthorized archaeological research. It is crucial to understand that the distinction between the two offenses is not merely semantic but has significant legal consequences.

Attempted removal of cultural property from an archaeological site - Attempted theft - Existence - Offense of archaeological research without concession - Exclusion - Reasons. The conduct of anyone who enters an archaeological park without an administrative concession, with the aim of appropriating cultural property found at the site, constitutes the crime of attempted theft, and not the misdemeanor referred to in Article 175 of Legislative Decree of November 22, 2004, No. 42. (In its reasoning, the Court clarified that the attempted or completed removal of cultural property discovered as a result of illicit archaeological exploration activities does not fall within the scope of application of Article 175 of Legislative Decree No. 42 of 2004, which penalizes mere unauthorized research, whether conducted without a concession or in violation of the requirements imposed by the public administration).

Implications of the Judgment

The decision of the Court of Cassation has important implications for the protection of cultural heritage. It clarifies that the intent to remove cultural property, even if not yet physically removed, is in itself sufficient to constitute the crime of attempted theft. This aspect is crucial, given that Italian and European legislation dedicated to the protection of cultural heritage are very strict.

• The Italian Criminal Code provides for severe penalties for theft, particularly when it concerns property of significant cultural value.
• European regulations, such as the Faro Convention, encourage the protection of cultural heritage and cooperation between Member States to prevent illicit trafficking.
• The recent judgment underscores the importance of administrative concessions, which are fundamental to ensuring the integrity of archaeological sites.

Conclusions

In conclusion, judgment No. 36928 of 2023 represents an important clarification for legal practitioners and all those involved with cultural heritage. The distinction between attempted theft and violation of regulations on unauthorized archaeological research is fundamental for the correct legal classification of offenses against cultural heritage. It is essential that all parties involved, from legal professionals to archaeologists, are aware of the responsibilities and legal implications associated with these activities.