The Federal Assembly of the Swiss Confederation, Pursuant to
Articles 69, para. 2 and 95, para. 1, of the Swiss Federal
Constitution1
, in execution
of the UNESCO Convention from November 14, 1970
2 on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of Ownership of
Cultural Property (UNESCO Convention 1970), after having examined the
Message of the Federal Council dated November 21, 2001
3,
decides:SECTION 1: GENERAL PROVISIONS
Article 1 Scope and Purpose
1. This Act regulates the import of cultural property into
Switzerland, its transit and export as well as its repatriation from
Switzerland.
2. With this Act, the Confederation desires to make a contribution to
the maintenance of the cultural heritage of mankind and prevent theft,
looting, and illicit import and export of cultural property.
Article 2 Terms
1. Cultural property is defined as significant property from
a religious or universal standpoint for archeology, pre-history, history,
literature, arts or sciences belonging to the categories under Article 1
of the UNESCO Convention of 1970.
2. Cultural heritage is considered the entirety of cultural
property belonging to one of the categories under Article 4 of the UNESCO
Convention 1970.
3. Contracting states are considered states having ratified
the UNESCO Convention of 1970.
4. Specialized body refers to the administrative body
responsible for executing the tasks outlined in Article 18.
5. Illicit import refers to an import in violation of an
agreement in terms of Article 7 or a measure in terms of Article 8, para.
1, letter a.
SECTION 2 REGISTRIES OF CULTURAL
PROPERTY
Article 3 Federal Registry
1. Cultural property of the Confederation of significant importance
for the cultural heritage is registered in the Federal Registry.
2. The registration has the following effect:
a. cultural property may neither be acquired by adverse
possession nor acquired in good faith;
b. the claim for return is not subject to a statute of
limitation;
c. the definitive export of the cultural property from
Switzerland is prohibited.
3. The registration of cultural property in the Federal Registry may
be removed, to the extent that:
a. the cultural property no longer has a significant
importance to the cultural heritage;
b. consolidation speaks in favor of an
ensemble;
c. the Confederation loses its title to the cultural property
or waives the same.
4. The specialized body operates the Federal Registry in the form of
an electronic database and publishes the same.
Article 4 Cantonal Registries
1. To simplify checks at the borders, the Cantons, which regulate the
export of cultural property within their territories, may connect to the
federal database:
a. registries of their cultural property;
b. registries of privately-owned cultural property, to the
extent approval to this end is granted by the private
party.
2. The Cantons may declare that cultural property in their registries
may neither be acquired through adverse possession nor in good faith and
that the claim of return is not subject to a statute of limitations.
SECTION 3: IMPORT AND EXPORT
Article 5 Export Permit for Cultural Property
Registered in the Federal Registry
1. Whoever desires to export cultural property registered in the
Federal Registry from Switzerland requires authorization of the
specialized body.
2. Authorization shall be granted if:
a. the cultural property is exported on a temporary basis;
and
b. the export occurs for reasons of research, conservation,
exhibition, or similar reasons.
Article 6 Swiss Repatriation Claims
1. The Federal Council will claim the right of repatriation
vis-à-vis all other contracting states should cultural property
registered in the Federal Registry be illicitly exported from Switzerland.
Any compensation and costs will be carried by the Confederation.
2. The Federal Council will claim the right of repatriation at the
request of a Canton vis-à-vis all other contracting states should
cultural property registered in a cantonal registry be illicitly exported
from Switzerland. Any compensation and costs will be carried by the
requesting Canton.
Article 7 Agreements
1. For the protection of cultural and foreign affairs interests and to
secure cultural heritage, the Federal Council may conclude international
treaties with contracting states on the import and repatriation of
cultural property (Agreements).
2. The following conditions must be fulfilled:
a. the scope of the agreement must be cultural property of
significant importance to the cultural heritage of the contracting state
in question;
b. the cultural property must be subject to export provisions
in the state in question for the purpose of protecting cultural heritage;
and the contracting state must grant reciprocal rights.
Article 8 Limited Measures
1. To protect a state's cultural heritage jeopardized by
exceptional events, the Federal Council may:
a. enable the import, transit, and export of cultural
property, tie it to conditions, limitations, or
prohibitions;
b. participate in common international actions in terms of
Article 9, UNESCO Convention of 1970.
2. The measures must be limited in time.
Article 9 Repatriation Claims based on Agreements
1. Whoever possesses cultural property illicitly imported into
Switzerland, can be sued for repatriation by the country from which the
cultural property was illicitly exported. In particular, the country
filing suit must show that the cultural property is of significant
importance to its cultural heritage and was imported illicitly.
2. The court can suspend the execution of repatriation until such time
as the cultural property is no longer in jeopardy during repatriation.
3. The country filing suit carries the costs for measures necessary
for securing, maintaining, and repatriating the cultural property.
4. Claims for repatriation by a state are subject to a statute of
limitation of one year after its authorities gain knowledge of where and
with whom the cultural property is located, at the latest, however, 30
years after the cultural property is illicitly exported.
5. Whoever acquires cultural property in good faith and must return
the same, has a claim for compensation at the time of repatriation,
oriented to the purchase price as well as necessary and useful expenses
for protecting and maintaining the cultural property.
6. The state filing suit must pay the compensation. The person
required to return the cultural property retains a right of retention of
the same until compensation is paid.
SECTION 4: RETURN GUARANTEE
Article 10 Request
Should cultural property of one contracting state be on temporary loan
for an exhibition in a museum or another cultural institute in
Switzerland, the institution loaning the cultural property may request
that the specialized body issue a return guarantee to the loaning
institution for the period of the exhibition as stipulated in the loan
agreement.
Article 11 Publication and Procedures for
Objections
1. The request is published in the Federal Bulletin. The publication
contains a precise description of the cultural property and its
origin.
2. If the request clearly fails to fulfill the conditions for issuing
a return guarantee, the request will be denied and not published.
3. Parties pursuant to provisions of the Federal Act on Administration
Procedure from December 20, 19684
, may file an objection in writing to the specialized body
within 30 days. The deadline commences with publication.
4. Failure to file an objection precludes the parties from further
action.
Article 12 Issuance
1. The specialized body decides on the request for issuing a return
guarantee.
2. The return guarantee may be issued in the event that:
a. no person claims ownership to the cultural property
through an objection;
b. the import of the cultural property is not
illicit;
c. the loan agreement stipulates that the cultural property
will be returned to the contracting state of origin following the
conclusion of the exhibition.
3. The Federal Council may establish additional requirements.
Article 13 Effect
The return guarantee means that neither private parties nor
authorities may make legal claims to the cultural property as long as the
cultural property is located in Switzerland.
SECTION 5: FINANCIAL ASSISTANCE TO THE
BENEFIT OF MAINTAINING CULTURAL HERITAGE
Article 14
1. The Confederation may grant financial assistance:
a. to museums or similar institutions in Switzerland for the
temporary fiduciary custody and conservatory care of cultural property
that is part of the cultural heritage of another state and is in jeopardy
in that state due to exceptional events;
b. for projects to maintain the cultural heritage of other
contracting states;
c. under exceptional circumstances to ease the restitution of
the cultural heritage of contracting states.
2. Financial assistance pursuant to paragraph 1, letter a, may only be
paid out when the fiduciary custody:
a. occurs in agreement with the authorities of the other
state; or
b. occurs under the auspices of UNESCO or another
international organization for the protection of cultural
property.
SECTION 6: CONVEYANCE OF CULTURAL
PROPERTY
Article 15 Conveyance to Federal Institutions
1. Federal institutions are prohibited from acquiring or exhibiting
cultural property that:
a. was stolen, lost against the will of the owner or
illegally excavated;
b. are part of the cultural heritage of a state and have been
illicitly exported from the same.
2. Federal institutions offered such property must immediately report
it to the specialized body.
Article 16 Duty of Diligence
1. In the art trade and auctioning business, cultural property may
only be transferred when the person transferring the property may assume,
under the circumstances, that the cultural property:
a. was not stolen, not lost against the will of the owner,
and not illegally excavated;
2. Persons active in the art trade and auctioning business are
obligated:
a. to establish the identity of the supplier or seller and
require a written declaration from the same of his or her right to dispose
of the cultural property;
b. to inform their customers about existing import and export
regulations of the contracting states;
c. to maintain written records on the acquisition of cultural
property by specifically recording the origin of the cultural property, to
the extent known, and the name and address of the supplier or seller, a
description as well as the sales price of the cultural
property;
d. to provide to the specialized body all necessary
information on fulfilling this duty of diligence.
3. The records and receipts must be stored for 30 years. Article 962,
para. 2, Swiss Law of Obligations5
, applies accordingly.
Article 17 Inspection
1. To inspect adherence to duty of diligence, the specialized body has
access to business rooms and storage areas of persons active in the art
trade and auctioning business.
2. When the body has reasonable suspicion that criminal activity is
present under this Act, the specialized body will file a complaint with
the competent criminal prosecution authorities.
SECTION 7: AUTHORITIES
Article 18 Specialized Body
The Confederation appoints a specialized body for the execution of
this Act, specifically assuming the following tasks:
a. advising and supporting the Federal Authorities on issues of the
transfer of cultural property and coordinating the corresponding work;
b. advising the cantonal authorities on issues of the transfer of
cultural property and working together with them;
c. representing Switzerland vis-à-vis foreign authorities on
issues of the transfer of cultural property;
d. working together with authorities from other states to secure their
cultural heritage;
e. providing information on issues of the transfer of cultural
property to persons active in the art trade and auctioning business as
well as other interested circles;
f. maintaining a listing of information centers on reported stolen
cultural property;
g. administering the Federal Registry in the form of an electronic
database and publishing it (Art. 3);
h. issuing return guarantees (Art. 10–13);
i. inspecting compliance to the duty of diligence of persons active in
the art trade and auctioning business (Art. 16 and 17).
Article 19 Customs
1. Customs authorities inspect the transfer of cultural property at
the border.
2. They are authorized to withhold suspicious cultural property during
import, transit, and export, and report it to criminal prosecution
authorities.
3. Arrival of cultural property at customs storage facilities is
considered import in terms of this Act.
Article 20 Criminal Prosecution Authorities
1. The competent criminal prosecution authorities will order the
seizure of the cultural property when suspicion exists that the cultural
property was stolen, lost against the will of the owner or illicitly
imported into Switzerland.
2. Each seizure must be reported immediately to the specialized
body.
SECTION 8: OFFICIAL AND LEGAL
ASSISTANCE
Article 21 Official Assistance in Switzerland
The competent authorities from the Confederation, Cantons, and
Municipalities provide all the data required for the execution of this Act
to each other as well as the appropriate oversight authorities.
Article 22 International Official and Legal
Assistance
1. The Federal Authorities responsible for the execution of this Act
may cooperate with competent foreign authorities and international
organizations and bodies and coordinate inquiries to the extent that:
a. it is required for the execution of this Act;
and
b. the foreign authorities, international organizations or
bodies are bound by official secrecy or are subject to a corresponding
duty to observe secrecy.
2. They may request delivery of required data from foreign
authorities. In order to receive the data, they may provide them data
specifically on:
a. the quality, quantity, destination and location of use,
purpose of use as well as the recipients of cultural
property;
b. the persons participating in the delivery or procurement
of cultural property;
c. the financial arrangement of the
transactions.
3. The Federal Authorities may provide the data pursuant to paragraph
2 on their own initiative or at the request of the foreign state, to the
extent that the state in question:
a. retains reciprocal rights;
b. guarantees that data will only be processed for purposes
pursuant to this Act; and
c. guarantees that the data may only be used in criminal
proceedings, if legal assistance in criminal proceedings would not be
precluded by the type of crime; in this case, the competent federal
administrative authorities consult the Federal Office of Justice in
advance on the possibility of legal assistance in criminal
proceedings.
Article 23 Relationship to the Legal Assistance
Act
Legal assistance may be provided to the competent foreign authorities
for violations of this Act. Such violations are not considered as
currency, trade, or economic crimes in terms of Article 3, para. 3, Legal
Assistance Act from March 20, 19816
; the procedural provisions of this Act apply
accordingly.
SECTION 9: CRIMINAL SANCTIONS
Article 24 Misdemeanor
1. To the extent that the offence is not threatened with a higher
sanction under another provision, punishment of imprisonment up to one
year or a fine up to 100,000 Swiss Francs will be imposed on whoever
intentionally:
a. imports, sells, distributes, procures, acquires, or
exports cultural property stolen or otherwise lost against the will of the
owner;
b. appropriates excavation finds in terms of Article 724,
Swiss Civil Code;7
c. illicitly imports cultural properly or incorrectly
declares the same during import or transit;
d. illicitly exports cultural goods listed in the Federal
Registry or incorrectly declares the same during export;
2. If the offender acts negligently, the sanction is a fee of up to
20,000 Swiss Francs.
3. If the offender acts on a professional basis, the sanction is jail
for up to two years or a fine of up to 200,000 Swiss Francs.
Article 25 Violations
1. To the extent that the offense is not threatened with a higher
sanction under another provision, a person may be fined up to 20,000 Swiss
Francs, who within the art trade or auctioning business:
a. disregards the duty of diligence (Art. 16);
b. frustrates inspections (Art. 17).
2. Attempts and aiding and abetting are punishable acts.
3. Punishment may be dispensed for lesser violations.
Article 26 Violation in Businesses
Articles 6 and 7 of the Federal Act on the Administrative Penal Code
from March 22, 19748
apply to violations in businesses.
Article 27 Criminal Prosecution
The Cantons are responsible for prosecuting and assessing criminal
activities pursuant to this Act.
Article 28 Seizure of Cultural Property and
Assets
Cultural property and assets seized under Articles 58 and 59 of the
Swiss Penal Code9
are assigned to the Confederation. The Federal Council controls their
application. It considers the purposes of this Act to this end.
Article 29 Disclosure Requirement
The customs authorities and the competent criminal prosecution
authorities are required to disclose violations of this Act to the
specialized body.
SECTION 10: APPEAL AND DATA PROTECTION
Article 30
1. The general provisions of the Federal Act on the Organization of the
Federal Judiciary govern the complaint procedures against decrees pursuant
this to Act.
2. Legislation on the protection of data governs the processing of
personal data.
SECTION 11: FINAL PROVISIONS
Article 31 Implementation
The Federal Council shall enact the provisions for implementation.
Article 32 Amendments to Applicable Law
The following legislation is amended as follows:
1. Swiss Civil Code10
1112 2. Swiss Law of Obligations13
1415 3. Federal Act on Private International Law from December 18,
198716
Art. 98a
The court at the domicile or registered office of the defendant or at
the property location where the cultural property is located has
jurisdiction for claims to return cultural property pursuant to Article 9,
Cultural Property Transfer Act from June 20, 20031717
.
3. Federal Act on the Protection of Nature and Home Country from
July 1, 196618
19Article 33 Non-retroactivity
This Act is not applicable retroactively. In particular, it is not
applicable to acquisition activities that took place prior to this Act
entering into force
Article 34 Referendum and Effective Date
20
