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THE BASILICA OF NUESTRA SENORA DE LA MERCED CASE: CASE NOTE OF SIDERIDES, MARCELO AND OTHERS CONCERNING DAMAGE TO CULTURAL HERITAGE IN ARGENTINA.

The Jesuit Block and Estancias of Cordoba, Argentina, was built in the mid-eighteenth century by the Jesuit society of the former province of Paraguay, now at the centre of the Argentine Republic. It is considered to be a fair example of the Jesuit community of the time, representing its religious, political, economic, legal and cultural system. (1) An important part of the Jesuit Block is the Basilica of Nuestra Senora de la Merced, a temple of remarkable cultural value. The Basilica was declared a National Historic Monument in 1941 by Presidential Decree (2) and, together with the Jesuit Block, was inscribed on UNESCO's World Heritage list in 2000. (3)

In November 2011, Mr Marcelo Siderides, the priest in charge of the Basilica, engaged a group of architects, members of the 'Marina Waisman' Architecture Institute of the Catholic University of Cordoba. The aim of the project was to install a central air-conditioning system, which required the removal of the historic floorings of the temple and the excavation of trenches of approximately one metre wide and more than 60 centimetres deep along the entire building. While digging the trenches, the workers disturbed the graves of the historic benefactors of the temple. (4) Witnesses claimed that these remains were removed and disposed of in a field nearby. The Federal Prosecutor filed a criminal complaint against Mr Siderides and the architects involved. Although the First Instance Court (District Court) found that the project had not been approved by the competent Argentine authorities, the contrary was demonstrated before the Court of Appeals. Thus, Mr Siderides and the architects involved were acquitted. Both decisions are summarised in the present case note.

FIRST INSTANCE CRIMINAL PROCEEDINGS

The First Instance Federal Judge observed that the criminal complaint against Mr Siderides was based on his:
   character as the priest in charge of the Merced church [...] being,
   thus, responsible for hiring suitable professionals, owner of the
   project and in charge of protecting the integrity of the Basilica
   as a piece of our Cultural Heritage from any serious consequence
   that could arise from the restoration works (5)


The Judge observed that, according to the prosecutor, the integrity of the Basilica was seriously affected by the trenches dug in its interior, the destruction of the floorings that were "historic, authentic and a part of the temple as a whole and, thus, they were Cultural and Historical Heritage ... [and] a part of a UNESCO World Heritage Site." (6) During a preliminary hearing, the priest, Mr Siderides, claimed that he had not destroyed any part of the Basilica and that, at all times, he had been acting in accordance with the instructions of public and private entities, including those of the Argentine Commission on Museums, Monuments and Historical Sites (Comision Nacional de Museos y de Monumentos y Lugares Historicos', hereinafter the 'Argentine Cultural Heritage Commission'). (7) The defendant also argued that he genuinely believed that he had succeeded in protecting the heritage of the Basilica, and he saw no way in which he could have prejudiced it. (8)

The Judge also considered that the renovations, particularly those that affected the resting place of the benefactors of the Basilica, had been carried out:
   through the illegitimate execution of excavations [...] with
   elements like pikes and shovels, showing no method or technique
   appropriate to archaeological sciences, and without resorting to
   photographic support, or sketches. (9)


Against this backdrop, the Judge concluded that, pursuant to Article 184(5) of Law No. 25.743, (10) Mr Siderides and the architects were prima facie responsible for the crime of causing damage to monuments of historical nature. (11) The defence appealed against this decision.

REVERSAL BY THE COURT OF APPEALS

Chamber A of the Federal Court of Appeals, sitting in Cordoba, delivered its decision on the appeal in June 2017. (12) In it, the three judges unanimously reversed the decision of the Judge in the lower court to indict Mr Siderides (auto de procesamiento) and ordered the acquittal of both Mr Siderides and the architects. (13) The judges weighed the facts--particularly the trenches and the destruction of the original flooring--pointing out that the works were coordinated in accordance with a co-operation agreement between the competent parochial authority and the Catholic University of Cordoba. In the judgment, it is pointed out that there was a remodelling project approved by the Argentine Cultural Heritage Commission, (14) although it was claimed by the prosecution that the approved project did not include the removal of the original floorings and that it was supposed to be executed in stages, under the supervision of the Argentine Cultural Heritage Commission. (15) Further, the prosecutor argued that one of the architects had exercised her profession illegally, given that she was not a member of the Cordoba Architects Professional Association. (16) Mr Siderides and the architects, on the other hand, claimed that they had always acted under the instructions of the competent authorities, and that the Argentine Cultural Heritage Commission was, at all times, aware of the works.

It was proved during the proceedings that, in a report issued by the Argentine Cultural Heritage Commission, dated 1st December 2011, it requested the Priest:
   ... to inform the community about the ongoing works and to continue
   them under strict supervision of the Catholic University of Cordoba
   while simultaneously submitting reports before this Commission.
   (17)


Mr Siderides argued that, in the exchange of notes with the Commission, he had insisted that the cultural heritage was to be strictly protected. (18) Further, he stressed that the First Instance Judge conceptually erred about the alleged damage, claiming that:
   ... not every alteration of an object constitutes damage, even more
   when the object is being repaired or rebuilt, meaning that the
   judge made a mistake when he failed to consider that the object ...
   had to be restored and rescued, ... [and] that the situation of the
   building actually improved drastically... (19)


The defendant Siderides also pointed out that the works were publicly funded by the Government of the Province of Cordoba. (20) Finally, he concluded that no one in the Basilica nor the competent authorities was aware of the fact that several of its benefactors were buried beneath the floor. (21)

In her judgment, Judge Graciela Montesi considered that the defence had successfully demonstrated the following: on 16th December 2010 Mr Siderides and the architects had informed the Argentine Cultural Heritage Commission about the project. (22) Point 7 of the report sent to the Commission specified that it was necessary to "[r]emov[e] the existing floorings for the installation of an air-conditioning system"; (23) the project was submitted again after the preliminary stage was completed on 13th April 2011; (24) and that, later, on 19th May 2011, the Argentine Cultural Heritage Commission issued a decision, where it concluded that it was in general agreement, making a reservation for further studies (25) and, furthermore, in a report dated 1st September 2011, the President of the Commission stated that:
   We are glad to inform you that the Plenary Board of this Commission
   ... decided to express its conformity with the samples of granitic
   mosaics to be placed on the lower floor... (26)


On 22nd November 2011, the architect in charge of the project informed Mr Siderides that "in the context of the works authorised by the Commission", human remains had been found (27) and, one month later, requested the suspension of the works and the intervention of specialised professionals. (28) Accordingly, the company in charge of the works expressed concern about the discovery of these human remains and announced the suspension of the works. In consequence, in January 2012, the President of the Commission formally announced the suspension of the works. (29)

After considering the evidence which had been referred to, Judge Montesi concluded as follows:
   there is no doubt in my mind that ... the Basilica of Nuestra
   Senora de la Merced objectively suffered a damage, which involves a
   building that was declared a National Historical Monument and a
   World Heritage Site, ... there is also no doubt that, pursuant to
   the applicable law, it is clear that in this kind of goods,
   infrastructure works cannot be carried out when damage may be
   caused to the heritage. Hence, it is obvious that ... a wider
   obligation of executing works with care and method exists. (30)


Relying on the views of the Argentine criminal law scholars Baigun and Zaffaroni, (31) the Judge observed that in this kind of crime:
   [w]hat suffers is the thing itself, and not a right or power over
   it ... What we may find in this type of crime is the degradation or
   damage of the things themselves. (32)


Against this backdrop, the Judge indicated that, in light of the facts of the case, it could be considered that criminal law was prima facie applicable. (33) Judge Montesi went on to point out, however, that the particular criminal offence under the Argentine Criminal Code requires the prosecution to prove that the defendant intended to cause damage to the cultural piece. (34) In her words:
   In order to affirm the existence of the alluded criminal type ...
   it is necessary to complete the objective framework, adding to it
   the presence of the element referred to the subjectivity of the
   author, as an internal element of the human being. That is,
   objective action is preceded by a certain mood or intention as a
   form of guilt, a structural element of every crime....

   For the objective behaviour of "damaging" to be typical, it demands
   a particular state of mind to cause the damage, only compatible
   with the direct intent of the author and consisting of carrying out
   the conduct with representation of the typical result and
   willingness to specify that result. (35)


Argentine scholars have consistently considered that this type of crime, in conformity with Argentine criminal law, cannot exist without that specific intent. (36) In this context, the Judge pondered heavily the exchange of reports and notes between the defendants and the competent authorities, concluding that:
   I am in a position to affirm that the reports, particularly those
   from the National Commission of Museums, Monuments and Historical
   Places ... under the presidency of Juan Martin Repetto, prove the
   position assumed by the defence, [when they affirmed] that the
   proposal of the works ... in the Basilica of Nuestra Senora de la
   Merced ... was brought to the attention of the aforementioned
   organism from the beginning. (37)


Moreover, the Judge considered that the defendants acted transparently, and informed the competent authorities about the works at all relevant times. (38) Further, she highlighted that the President of the Argentine Cultural Heritage Commission, Mr Repetto, accused the defendants of having abused the good faith of the Commission. Without submitting any evidence to the Court, Mr Repetto claimed that they were expecting an integral report before the works started. (39) Hence, she concluded that the requirements for the crime were not present and, thus, the decision (auto de procesamiento) was to be overturned. (40)

REMARKS

The case of the Basilica of Nuestra Senora de la Merced took a U-turn before the Court of Appeals, where Mr Siderides and the architects involved in the renovation of the Basilica could demonstrate that they had in fact been authorised by the competent Argentine authorities. Now, if a proper authorisation had been given by the Argentine Cultural Heritage Commission, that necessarily means that the Commission failed to fulfil its duties as established by law. Against this backdrop, it is relevant to note the legal duties of the Argentine Cultural Heritage Commission in conformity with Law No. 12.665:

Art. 1 ter. The powers of the commission are:

a) To exercise the immediate superintendence over monuments, places and national historical heritage and other protected goods under the terms of this law, in concurrence with the respective local authorities, in the case of monuments, places and property of the provincial or municipal domain;

...

j) Keep a public record of the protected heritage according to their class;

...

1) Intervene with a prior and binding nature, approve or reject, and supervise any material intervention on the protected heritage;

The Argentine Cultural Heritage Commission is legally bound to have and maintain its own record of the protected cultural heritage in Argentina. Further, it has the obligation to "intervene with a prior and binding nature, approve or reject, and supervise any material intervention on the protected heritage". In other words, the Commission should have been aware of the resting place of the benefactors of the Basilica and that the project would seriously damage the original floorings. (41)

In this context, Argentine prosecutors and judicial authorities could--and should--continue their investigation on the case. In this context, Article 248 of the Argentine Criminal Code provides that:
   ARTICLE 248. A public official/civil servant who has made decisions
   or given orders which are contrary to national or provincial
   constitutions or laws or who has implemented/executed such
   decisions or orders or who has failed to execute those laws which
   it was incumbent upon him to execute may be imprisoned for a term
   of one month to two years, and will be subject to a
   disqualification from functions for double that time. (42)


In view of the fact that it was demonstrated that the works had been authorised by the Argentine Cultural Heritage Commission, it would seem clear that the public officials of the Commission failed to supervise the record of the church and, in general, to act as superintendent of the damaged church. Consequently, a thorough investigation on this regard is advisable.

Sebastian Green Martinez, Faculty Member, University of Buenos Aires (on leave); Associate, Uria Menendez, Madrid Office. All the instruments cited in the present article were consulted in their original language. Translations are my own. The usual disclaimers apply.

(1) UNESCO--World Heritage Site, Nuestra Senora de la Merced. Available online at <https://whc. unesco.org/en/list/995/>.

(2) National Decree No. 90.732/41.

(3) UNESCO--World Heritage Site, Nuestra Senora de la Merced. Available online at <https://whc. unesco.org/en/list/995/>.

(4) Argentine Federal Criminal Court No. 1 with seat in Cordoba, Siderides, Marcelo and others concerning a breach of Article 184.5, Law 25.743, Docket No. 29556/14, Indictment, Aug. 10, 2016 (hereinafter, the 'Merced Church Indictment Decision') pp. 2-3.

(5) Merced Church Indictment Decision, pp. 2-3.

(6) Ibid., p. 3.

(7) Ibid, p. 4.

(8) Ibid, p. 5.

(9) Ibid., [section] 4.

(10) The relevant articles provide as follows: Art. 183: "Shall be punished by a term of imprisonment of fifteen days to a year, a person who destroys, disables, causes to disappear or in any way damages a chattel or immovable property [...]. Art. 184: The penalty shall be three (3) months to four (4) years of imprisonment, if the offence is committed in any of the following circumstances: [...] 5. It is executed in archives, registers, libraries, museums [...]; or in tombs, commemorative signs, monuments, statues, paintings or other objects of art placed in buildings or public places; [...]."

(11) Merced Church Indictment Decision, [section] 4 (auto de procesamiento).

(12) Federal Court of Appeals with seat in Cordoba, Siderides, Marcelo and others concerning a breach of Article 184.5, Law 25.743, Docket No. 29556/14, Judgment on Appeal, 10 Aug. 2016 (hereinafter, the 'Merced Church Court of Appeals Decision').

(13) Ibid., dispositif, [paragraph] [paragraph] 1-2.

(14) Report of the Argentine Cultural Heritage Commission, dated 5 Jan. 2011, cited in ibid., p. 4.

(15) Ibid., [section] 2, p. 4. The architects submitted a report providing the judge with details concerning the alleged intervention and direction of the Argentine Cultural Heritage Commission.

(16) The judgment refers to the Colegio de Arquitectos de Cordoba.

(17) Ibid., [section] 6, p. 8.

(18) Ibid., [section] 6, p. 10.

(19) Ibid., [section]6, p. 11.

(20) Ibid, [section] 6, p. 13.

(21) Ibid., [section] 6, pp. 13-14.

(22) Merced Church Court of Appeals Decision (individual opinion by Judge Montesi), [section] 5, p. 17.

(23) Ibid., [section]5, p. 18.

(24) Ibid.

(25) Ibid.

(26) Ibid., [section] 5, p. 20.

(27) Ibid., [section] 5, p. 23. It is worth mentioning that after the trenches had been dug, persons interested in the Basilica--particularly members of the association 'Friends of the Alta Gracia Museum' started sending e-mails to the Commission, indicating that certain bricks found on containers outside the church looked Jesuitical and, hence, were evidence of earlier occupation of the site.

(28) Ibid., [section] 5, p. 24.

(29) Ibid., [section] 5, pp. 24-25.

(30) Ibid, [section] 7, pp. 34-35.

(31) David Baigun and Eugenio Raul Zaffaroni, Codigo Penal y Normas Complementarias, Analisis Doctrinal y Jurisprudencial (V.7, Hammurabi, 2009) at p. 847.

(32) Merced Church Court of Appeals Decision (individual opinion by Judge Montesi), [section] 9, pp. 37.

(33) Ibid., [section] 9, pp. 36.

(34) Damaging or affecting cultural heritage is an aggravating factor under Arts 183 and 184 of the Argentine Criminal Code: damage to or destruction of property is normally punishable by a prison term of between fifteen days and one year (Art. 183) but where the property in question is an item of cultural heritage, the penalty is between three months and four years' imprisonment (Art. 184(5): see above, note 11.

(35) Merced Church Court of Appeals Decision (individual judgment by Judge Montesi), [section] 9, p. 38.

(36) Baigun and Zaffaroni, above note 31 at p. 847, cited in Merced Church Court of Appeals Decision (individual judgment of Judge Montesi), [section] 9, p. 38.

(37) Ibid., [section] 11, p. 41.

(38) Ibid., [section] 11, p. 42.

(39) Ibid, [section] 13, p. 46.

(40) Ibid., [section] 17, p. 50. Judges Velez and Avalos concurred with the judgment of Judge Montesi and, thus, the decision (auto de procesamiento) was unanimously overturned.

(41) Recent studies demonstrated that the damaged floorings were around 230 years old. See M. Antunez, 'Revelaron la antiguedad de los pisos destruidos', Diario Sumario, 22 Oct. 2017, available at: <https://www.diariosumario.com.ar/sociedad/2017/10/22/revelaron-antigedad-pisosdestruidos-10264.html>.

(42) ARTICULO 248. "Sera reprimido con prision de un mes a dos anos e inhabilitacion especial por doble tiempo, el funcionario publico que dictare resoluciones u ordenes contrarias a las constituciones o leyes nacionales o provinciales o ejecutare las ordenes o resoluciones de esta clase existentes o no ejecutare las leyes cuyo cumplimiento le incumbiere."
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Author:Martinez, Sebastian Green
Publication:Art Antiquity & Law
Geographic Code:3ARGE
Date:Jul 1, 2019
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