Treasure and Finds in Spain: An Overview of the Current Regulation with Practical Examples.
The regulation of treasures and finds in Spain is derived from two different legal sources. On the one hand, the civil tradition on the right of private property, and on the other hand, the influence of a new approach for the concept of cultural heritage and its public protective regulation. The Spanish legal system has its roots in the Roman Law tradition. Therefore, ownership is one of the most fundamental rights that the whole legal structure seeks to protect and guarantee against the interference of others. Moreover, it should be noted that title is an expansive right which extends to everything that may fit under the umbrella of the owner's rights. For this reason, title to land extends to what is beneath the surface and what is above it, though this general rule has several exceptions.
These exceptions are justified by the existence of other matters of public interest that deserve protection over and above the private interest of the property owner. In these cases, there is a general need to prioritise certain principles that are in conflict with a personal utility. Since this balance between co-existing interests alters the natural expectations over ownership, generally conceived as an absolute right, any limitations on the right are laid down in constitutional texts. The system works as a structure that protects the rights of owners but allows exceptions in cases where the public interest is deemed superior and overlaps with the private sphere.
The Spanish Civil Code ('SCC'), enacted in 1889 and still in force today, already included some examples of limitations over private ownership; for instance, the regulation of mines and waters, where the owner's rights over the land will not extend beneath the surface (the owner of a piece of land will not become the owner of the hydraulic streams discovered there). Since then, many other special laws have been enacted to protect different situations connected with several matters of public interest. It is also necessary to bear in mind the impact of the 1978 Spanish Constitution and the way in which its new principles impact on issues regulated under previous legislation which has not been revoked. When considering these frequent legislative changes two main principles should guide the interpretation of provisions: first, looking for their co-existence when possible, and second, adapting their meaning to contemporary times. Precisely, regarding the matter at stake in this paper, the 1978 Spanish Constitution introduced several references to the cultural heritage and the way in which the public authorities are required to protect it and guarantee access to culture for all. This has had far-reaching consequences related to superior cultural interests over property that finally gave rise to our current Law of Spanish Historical Heritage (Ley 16/85, de 25 de junio, del Patrimonio Historico Espanol), published in 1985.
This general overview of the matter reveals that this is a complex subject where both private interests and public goals come together. We need, therefore, to define the scope of the diiferent regulations combined over this issue to understand their purposes and the articulation between them.
II. THE CIVIL CONCEPT OF OWNERSHIP
II.1 General Approach to the Matter
As indicated above, the civil notion of ownership of land represents a broad right that extends as far as the sky above and to that which is below the surface of the land. Article 348 of the SCC states:
Ownership is the right to enjoy and dispose of an object, without limitations other than those set forth in the laws.
The Roman legal tradition envisaged ownership as a very important and extensive right.
That being said, we should also note the commitment of the legal system to make rights co-exist in a fluid and harmonious way, and to protect certain public interests that are of concern to society as a whole. The balance between the res publica and the private sphere has always been difficult and demanding, but the outcome of such a tension is usually the search for the general benefit. The SCC already included some specific examples in this regard. It is clear that, despite the broadness of ownership, it should never be placed ahead of the public interest when there are other rights at stake that may require further attention because they affect many more people. This is particularly so in relation to the area of 'treasures and finds' and the aim of this article is to evaluate the way in which the civil system tackles this matter and to assess the impact of the cultural heritage legislation.
II.2 Concept of Treasure within the Civil Code.
The SCC (1) regulates this subject in the following articles, within the chapter related to ownership:
Hidden treasure shall pertain to the owner of the land in which it is found. Notwithstanding the foregoing, if the discovery were to be made by chance in another's property, or in State property, half shall correspond to the discoverer. If the objects discovered were to be of interest to science or art, the State may acquire them for their fair value, which shall be distributed pursuant to the above provisions.
For the purposes provided in the law, treasure shall be deemed to mean the hidden and ignored deposit of money, jewellery or other precious objects, whose legitimate owner is unknown.
We can draw three fundamental ideas from these provisions: first, the extent of ownership over the land (above, on and under), second, the need for considering the special value of the find for the arts and sciences, and third, the exact definition of 'treasure' for the Civil Code.
The extensive scope of ownership has been outlined above. In this regard, the normal consequence of a find will be that the owner of the land on or beneath which it is found will have title. To fully appreciate this notion, it is worth emphasising that ownership is the most extensive right that one can have over a good. It is expansive and flexible so that it will include the things that come to light in the future, such as the fruits or any other kind of profit. Therefore, finds placed beneath the surface will naturally belong to the owner of the land. Any seizure of these new elements would require either justified grounds of public utility alleged by the competent Authority, or some compensation that grants a fair reward for the loss of these assets.
Nonetheless, it is important to note that the SCC already included an exception to this general rule when dealing with objects of artistic or scientific interest. In these cases, article 351 establishes a special competency for the State to claim that find. The justification for such a rule resides in the superior interest that the asset embodies for the science and culture of the country. The wording of the SCC had in mind the concurrence of several interests over the artefact found, some of them derived from the ownership of the land and others related to the values assigned to the object itself, a situation that the law resolves by giving priority to the State position and making it possible to deprive the owner of title to the find. Thus, it is clear that even at the time when the Civil Code was enacted, there was a distinctive treatment for unique objects of art relevance. There was already a general concern about keeping and preserving them for the sake of the national wealth and richness, although the concept of 'cultural heritage' was at that time rather different from what we consider today. We will pursue this discussion below.
Finally, it is worth highlighting the very limited scope of action that remains for treasures and finds. As article 352 states, in order to be considered as 'treasure', objects found beneath the surface of the land must be previously unknown and should consist of money, jewellery or other precious objects. The mention of jewels and valuable elements reminds us of the old, romantic notion of treasures that everybody has, and this is precisely the purpose of the provision. In all likelihood, any other finds, apart from money or jewellery, will be objects of archaeological interest, which connects with the situation explained above about artistic or scientific artefacts. The scheme provides little room for the landowner who finds something in his/her land, and who will become the owner only when the two requirements are met: first, the deposit of object is unknown, and second, the materials are money or jewellery. Only in these situations will the holder of the piece of land become the owner of the treasure.
This procedure of acquiring ownership is based on the right of the owner to take everything the land produces itself. Therefore, as the treasure was hidden within the land, and no one known claims its return, the holder is entitled to acquire ownership over the finds. This mechanism of property right is called 'accession' and explains why, if the object found presents any interest for the arts and sciences, the State must compensate the landowner for its deprivation in some way, since, theoretically, he/she should have retained it as a part of the fruits he/she was entitled to.
However, the structure outlined above is subject to many exceptions that the legislation on cultural heritage has introduced to protect assets of historical and artistic interest. The current scope of the SCC provisions is undoubtedly limited, and the whole system of treasures and finds regulation rests now on the special laws of cultural heritage, though these rules are based on the essential characteristics of the law relating to ownership as laid down in the Civil Code, as will be seen below.
III. CULTURAL HERITAGE LEGISLATION IN SPAIN
III.1 General Approach to the Regulation of Spanish Historical Heritage Law
The current regulation of cultural heritage is directly linked to the constitutional approach of culture as a social factor. It is necessary to recall that the Spanish Constitution, enacted in 1978, includes several references to culture and establishes a public duty to look after its performance and fulfilment. Also, the purpose of the constitutional text is to avoid past mistakes regarding the breaking up and loss of cultural assets. As a consequence, the Law of Spanish Historical Heritage of 1985 sets out a system to regulate the exit of antiquities and goods of cultural and historical interest for the country. In general terms, the whole regulation tries to protect cultural heritage as an element of national interest for the Spanish sovereignty, because it is linked to the history of the country, aids social cohesion and contributes to the identity of society. This layout of goals results in a bundle of obligations for the public powers, including the task of keeping cultural goods within the territory and preventing any destructive, damaging or misappropriating activities. This aim also extends to objects which have yet to be discovered. Therefore, the 1985 Law provides that finds which are made in the course of an archaeological excavation or any other kind of unexpected discovery will belong to the State, as will be explained below.
Before entering into the details of the regulation, we must address the State-Regions competence distribution system to understand how the different levels of public Administration are involved in this matter and how they co-operate with the police and other units responsible for reporting finds of cultural goods.
III.2 The Historical Heritage Regulation within the Regions Competence Distribution System and the Constitutional Scheme
The political and administrative structure of Spain consists of a total of seventeen Regions (called 'Comunidades Autonomas') whose scope of competence, and their relation to the State, is established by the constitutional text. It is a complex system that seeks to grant autonomy and self-government to the different Regions, notwithstanding the need for consistent public policies issued from the State for the whole territory. This results in a structure of competences to be distributed among the different administrative and political establishments into which the national territory is divided. In order to understand the mechanism, it is useful to clarify two main concepts: one is the difference between regulatory powers and executive powers, and the other is the difference between exclusive attribution and shared powers.
The way in which the Spanish Constitution distributes powers between the Regions and the State is based on these two ideas. Given the degree of autonomy and self-government sought by the Constitution in its territorial scheme, Regions are granted legislative powers, and so is the State. This is also the case with the powers to perform the duties and realm of power they must pursue as public authorities, granted both to the Regions and to the State. To clarify the scope of public activity that each of them should/must take, the Constitution makes a distribution between the State and the Regions according to the nature of the matter at stake. For each subject, the constitutional text clarifies whether the State has exclusive power to legislate, so that the execution can be shared or delegated after that, or an exclusive power to legislate and perform, in which case Regions will not have any scope of action. On the other hand, as for the Regions, they are either competent only to perform (execute) those functions that the State regulated previously or a shared power in which both the State and the Regions are called to legislate and fulfil the related public obligations.
Having taken into account that the nature of the constitutional text is that it is not intended to go into great detail since it is a master rule that will guide and help to solve any matter of the nation, the system counts on the Autonomy Statutes to resolve issues concerning distribution of powers. The Constitution provides that Regions can assume powers when permitted by the constitutional provisions in their Autonomy Statutes. The Statute is the highest normative text that governs the Regions' scope of power and, therefore, determines their sphere of action. In respect of powers which are not expressly assumed, the State will fill the gap. As a consequence, to understand what a Region can or cannot do when it comes to legislative and executive powers, we need to bear in mind both the Constitution and its Statute.
This 'game of rules' becomes meaningful when considering cultural protection because culture is one of the matters in respect of which powers are shared between both the State and the Regions according to the Spanish Constitution. Shared powers present an extra difficulty when seeking to determine where the boundaries lie, since it is clear that the existence of shared powers should not lead to a lack of consistency in the legal system, that is, powers cannot overlap and result in a contradictory regulation at the state level and the regional level. The Constitutional Court approaches the doubts and the issues when over-exceeding the scope of action in the performance of legislative competences either by the State or the Regions. The more powers are shared, the greater the risk of overlap and invasion of others' powers. In fact, the Court has already ruled in a case where the reach of the regional competences when addressing the protection of cultural heritage was at stake because they collided with the state prerogatives. This was an old case, in 1991, that established a precedent about how the constitutional distribution of powers on the cultural heritage sphere between the State and the Regions should be.
The judgment of the Constitutional Court 17/1991 of 31st January 1991, confirmed that the State holds an exclusive power to protect cultural heritage against plundering and any other activities that may put it at risk, and to manage export and import requests by granting licences when it deems it appropriate. Also, the provisions of the 1985 Law will apply in those areas where the Regions have not yet exercised their powers in relation to cultural heritage or enacted the regional law to specify the terms of its performance. All seventeen Regions have declared that they have legislative and executive powers over their cultural heritage in their Statutes. These declaratory provisions are usually dependent on the drafting of a regional law to acquire meaning, since the state law will fill the gap in the meantime. Nowadays, notwithstanding the delays experienced by some Regions in drafting detailed regulations, all of them have enacted their own law on cultural heritage. Nevertheless, it is worth recalling that the 1985 state Law was widely applied in many Regions until the time they enacted their own laws. As a consequence, the current scope of action of the national law refers only to the exclusive powers belonging to the State that we have outlined above.
III.2.1 An Overview of the Regional Scope of Activity
The complex State-Region distribution of powers we have just described is relevant in the area of finds and treasures. Article 44.1 of the 1985 Law provides:
All objects and material remains possessing the values of the Spanish Historical Heritage that are discovered as a result of excavations, earth moving or works of any type or by chance are considered of the public domain. The discoverer shall notify the appropriate Administration of the discovery within a maximum period of thirty days and immediately in the case of casual finds. Under no circumstances shall the provisions of article 351 of the Civil Code be applicable to such finds.
This provision includes a range of legal elements that require explanation and to which we will pay due attention below. For now, what matters with regard to the territorial system outlined above is how the different Administration levels co-ordinate their powers on the subject. This is a clear example of a cultural issue in which both the state sphere of action and the regional one coincide. As a result, we see a general statement of public domain entitlement over finds and discoveries, which is linked to the state power of cultural heritage protection; but, on the other hand, we also see a reference to the appropriate administrative body, that will enforce that form of protection. These points will be explained below.
Focusing on the content of the first sentence of article 44.1, it is necessary to bear in mind that any find or treasure will belong by law to the public domain. It is an ex lege attribution of property that extends to everything to be discovered beneath the surface by reason of its cultural value. The importance of these finds, given the historical, cultural or artistic elements embodied in the objects, merits public action to avoid their loss or damage and to discourage any appropriation aim that may incite the activity of treasure hunters. The main idea underlying the whole system is based on the need to keep treasure within the country and to promote the preservation and enlargement of the national cultural heritage.
The next sentence of article 44 refers to the obligation to notify the discovery to the appropriate Administration. It is in this regard that the State-Region system explained above gains meaning because that 'appropriate Administration' will be the one in charge of the cultural heritage in each of the Regions that make up the territorial structure of Spain. Therefore, the State Administration will be notified only when the finds are linked to a state-owned cultural asset and, even in these cases, the provision will apply only after the regional Administration in whose territorial district the treasure was found, has determined that the find belongs to the State and not to the Region.
To summarise, the State and the Regions are called on to co-operate in the protection of the cultural heritage. In most cases, the regional Administration will be the one which is competent to exercise the public powers related to the protection of cultural goods, and they will even determine the procedures to be followed in any particular case. But the state law will determine any issues which arise from the exclusive state power to protect the heritage from loss or damage; as a result, the Regions cannot rule against these essential provisions such as, in the case at stake, declaring that all finds and discoveries belong to the public domain. However, Regions can, and they certainly do, clarify the requirements to perform that public duty of protection whatever the situation is. They usually do so by determining the precise details of a general provision included in the state law. In this particular case, we can see that the 1985 Law requires finders to notify the Administration "immediately in the case of chance finds". The term 'immediately' is an uncertain legal concept that requires precision in order to be applied. In this regard, most regional laws have elaborated on this matter so it is clear to everyone how 'immediately' should be understood in legal terms, something that provides legal certainty for everyone involved in a find or discovery since there is criminal accountability linked to these activities when the procedures are not followed.
We will explain further these ideas in the following part.
IV. CURRENT TREATMENT FOR TREASURES AND FINDS
IV.1 Archaeological Heritage as Part of the Cultural Heritage
As a starting point, it is necessary to recall that, from the perspective of legislative technique, both the state Law of 1985 and the seventeen regional laws place the provisions devoted to finds and discoveries within the chapter dealing with the archaeological heritage. This is important because it shows the presumption of the law that any finds that might occur constitute objects of archaeological interest. Some regional laws elaborate on this particular approach and also include references to the palaeontological, geological and even the natural heritage. In general terms, any element found that may be subjected to an archaeological study is considered to belong to the archaeological heritage, which is just a specific label for a set of goods that form part of the cultural heritage. What the regulation seeks to emphasise is the fact that these discoveries constitute items of cultural value that, otherwise, would have remained unknown for a long time. If the pieces discovered embody the features to be classified as part of the Spanish Historical Heritage, the law would apply to them. If not, the find will be governed by the terms of a different regulation, such as the civil system we have seen above.
That said, it is essential to understand that the protective system enacted in Spain will prevent any appropriation and private enjoyment of the finds. As can be seen in article 44.1:
All objects and material remains possessing the values of the Spanish Historical Heritage that are discovered as a result of excavations, earth moving or works of any type or by chance are considered of the public domain.
This provision makes clear that no finder will acquire title to any find which forms part of the cultural heritage, whatever its nature, characteristics and value, though he may be entitled to a reward in certain cases.
While the legal system allows individuals to retain title of goods forming part of the cultural heritage, for the purposes of the law, this is possible only in relation to objects and assets whose existence has been known for some time; but not with new elements, which will automatically fall within the public domain. This is an extraordinary exception in the legal system to the usual rules of acquisition of ownership based on the civil law tradition, as noted above. The reason for this exception to the normal rules is the need to protect some superior values, in relation to which the public powers have responsibility. This is the case when it comes to objects of a cultural nature, whose preservation and general enjoyment overrides the individual interest of the finder in acquiring title to them.
Therefore, when a find occurs, since the finder cannot retain the item which has been found, he/she must observe certain requirements. These obligations on the part of the finder aim to make it possible for the Administration to comply with the public power of preservation of the cultural heritage, and to put the objects in the best place to fulfil the constitutional obligation of granting universal access to the national culture. As an extraordinary measure to encourage finders to comply with these provisions, the law provides for a reward, that will be payable in certain circumstances, as we shall see below. It is clear that the law wants to restrict any illicit activity that makes a profit from these goods and to dissuade finders from trading with the items they find.
In the following sections, we will address the regulation of finds in the whole territory, paying special attention to the reward mechanism.
IV.2 Concept of Cultural Find within the Spanish Legal System. What Is Allowed and What Is Not
According to the system of distribution of powers between the State and the Regions outlined above, it is necessary to take into account not only the state law of 1985 but also all seventeen regional laws on cultural heritage to get an overview of the concept of a find within the Spanish legal system.
Taking into consideration article 44.1 of the 1985 Law mentioned above, it is clear that a distinction must be drawn between the finds that occur in the course of archaeological activity and those which occur fortuitously. The nature of the discovery will determine the procedure to be followed to notify the find to the Administration. Both types of find, however, require that there is a moving of earth, digging or excavation activities, with the result that the pieces found were intended to be beyond human reach. This is precisely the reason why they can be declared to belong to the public domain since no one before could have become their owner. There is a subtle reference to the human intervention that leads to the discovery, whether through an excavation, construction works or other activities, to emphasise the need for an external factor that makes the find possible since otherwise, the piece would have remained unknown. Some regional laws though, elaborate on this idea to clarify some points that may be obscure. For example, the law of La Rioja explains in article 61, devoted to chance finds, that the artefacts may have come to the surface as a result of natural phenomena that make them appear (as does the law of Cantabria).
It should also be noted that the finds must have been fortuitous and not intentional, and should have been found in places where their existence was not expected. Therefore, a person who sets out to try to find hidden cultural artefacts with the intention of claiming the reward that the law grants to the finder (on the terms that will be outlined below) will not be eligible for such a reward. The purpose of such a provision is to discourage treasure-hunters from digging and moving earth when looking for valuable pieces since these activities might seriously damage the context of the find and result in a loss of information for further research in the place. Therefore, to qualify for the reward, the discovery must be made by chance.
This latter point relates to the different regulation laid down by the law in respect of finds which are made in the course of an archaeological excavation. The reason for this is that any archaeological activity must be previously authorised, according to the criteria that the Administration outlines to grant permission to the applicant, and the technological and professional requirements to lead and submit a project of this nature. In this context, where there is supervision by the public powers along with an exclusive licence to initiate digging and earthmoving, none of the possible finds could be considered as accidental. Quite the contrary, there is a wilful activity focused on finding new pieces in a research, academic and/or professional environment that will never merit a reward. In fact, the reward seeks to encourage the general population to report any valuable find and hand it to the appropriate authority instead of keeping it for private enjoyment.
With a general reading of the provisions devoted to the question of finds, it is clear that the law refers to movable objects that convey and embody the values of the Spanish cultural heritage. All the regional laws which have been enacted in this area mention also their own cultural heritage, notwithstanding that the definition of 'cultural heritage' may differ as to the specific terms used in the wording of the different laws (the 1985 state Law and the seventeen regional laws), but necessarily must refer to the same concept. Taking this into account, we shall recall that pursuant to article 1.2 of the 1985 Law:
The Spanish Historical Heritage is made up of movable and immovable objects of artistic, historical, paleontologica], archaeological, ethnographic, scientific or technical interest. It also comprises documentary and bibliographic heritage, archaeological sites and areas as well as natural sites, gardens and parks having artistic, historical or anthropological value.
Some regional laws on cultural heritage, especially the more recent ones, go further in the details, features and characteristics of the objects meeting these criteria for clarity and enumeration purposes; however, the essence of these legal statements remains the same in all these texts. As long as the find could be classified as belonging to the cultural heritage, whether fitting within the regional law of the relevant district or within the state definition mentioned above, it is a potential case to apply the discoveries regulation.
IV. 2.1 The Need for a 'Chance' Find
According to the wording of the different laws, the find must have been made by chance in order for the finder to be entitled to the reward. To decide what is 'by chance' and what is not, it is useful to consider the judgments which have been handed down in this regard since the resolution of actual factual situations gives us a clearer picture of the precise scope of the term 'chance find' in this context.
From a general perspective, a discovery made by chance means that it has occurred with no intention on the part of the finder, in a situation where the set of circumstances cause the objects to appear. It is convenient to highlight the requirement that there should have been no active search to find archaeological goods because this would be criminal conduct prosecuted by the law. For this reason, the law refers expressly to those finds which take place in the course of works, earthmoving or other similar activities, with no aim of looking for cultural pieces. Indeed, courts have dealt with cases like this on several occasions, and when it is clear that the find was not made by chance, the finder loses the right to the reward immediately, without prejudice to the criminal liability that may exist.
As an example, we can cite one of the first judgments delivered on this matter, on 10th April 1991, by the Supreme Court, (2) according to which finders lost the right to the reward because they had found a Celtic-Iberian set of jewels thanks to the use of metal detectors in an area well known for its archaeological richness. The use of such machines shows an intention of getting objects from beneath the surface, which excludes the possibility of qualifying any find as 'chance'. It should be noted that, following several judgments on this issue, some subsequent regional laws have imposed an express prohibition on the use of metal detectors and other machines with a similar purpose. The 1985 Law does not make any specific reference in this regard, though this can be inferred if attention is paid to the protective aim of these legal provisions.
IV.2.2 Movable and Immovable Property
It is necessary to bear in mind that the law distinguishes between movables and immovables. In this regard, the legal provisions mentioned above seem to refer only to the accidental find of movable assets with cultural value. This interpretation aligns with the goal of trying to avoid appropriation behaviours that may take place when dealing with small items which are easy to hide. Immovable assets are deemed to be more challenging to trade and to make a private profit from them without arousing suspicion. At the same time, the absence of any reward in respect of finds of immovable goods is based on the need to limit public expenditure. The compensation granted for an immovable property would probably be higher because the amount is calculated on the appraisal price given to the object.
However, it can be seen that the regulation in this regard lacks consistency. The academic community has discussed the scope of these provisions in respect of immovable property. Difficulties stem from the fact that the wording of the 1985 Law is not very clear on this point, to which we must add all the seventeen regional legal texts. There are several arguments that may tip the scale in favour of one interpretation or the other. (3) The issue of whether immovable property fits within the terms of article 44 of the 1985 Law was much discussed in the early years of the law. However, current regulation enacted by all seventeen regions has not assisted in clarifying the situation for the national territory, since it is necessary to pay attention to every single regional law to know which rule applies.
A closer look at the regional laws allows us to reach the following conclusions:
* Some regional regulations expressly exclude immovable property from the scope of the reward. Therefore, someone who discovers immovable assets will not be entitled to compensation. This is the case in Galicia, La Rioja, Extremadura.
* There are other regional regulations that expressly refer to movable goods which, by inference, excludes the right to a reward for immovable property: Cantabria, Aragon, Madrid, Castile and Leon.
* Some other regional laws refer to the 1985 state Law on this point: Catalonia.
* A few regional laws replicate the wording of the 1985 law in this regard: Basque Country, Navarra, Balearic Islands, Castile-La Mancha.
* Some others do not address this issue in their text: Asturias, Valencia, Andalucia, Canary Island and Region of Murcia.
Taking all these references into account, we can say that in some cases the finder will be granted a reward if the find is classified as immovable property and in other cases, he/she will not. Nevertheless, for those Regions where the law does not expressly exclude compensation in these cases, we need to analyse the applicable provisions and the jurisdiction involved to ascertain what to do when the find is immovable in nature. This will be the case for those regional laws that are either silent in this regard or include the same wording as the 1985 Law. We refer particularly to article 44.5, according to which:
The find of parts of the architectural structure of a building included in the Register of property of cultural interest shall be excepted from the provisions of this article. However, the find must be notified to the appropriate Administration in a maximum period of thrirty days.
This provision refers to immovable property that has already been included in the Register of Property of Cultural Interest, which means that they are previously known. The situation envisages cases where a new part of an old or ancient building is discovered as a result of activities of excavation or earthmoving, where the rest of the structure is already known and previously registered. The other regional laws that include a similar provision mention their own regional register, but the meaning of the text is the same. Such a rule seeks to extend the scope of protection of an object which is already known to all the newly discovered parts of it. In this context, it lacks one of the requirements necessary in the law to grant a reward, which is that the find should take place in a location where its existence would not have been presumed. The explanation is quite similar to the one that applies in relation to archaeological excavations, where the place of search becomes a potential source of cultural artefacts.
But one may wonder what happens when the immovable property is not included in the register, and is not located in one of the Regions that exclude the reward. The courts have addressed this issue on several occasions. Seeking consistency in the legal system, they have argued that, given the aim of encouraging citizen participation to preserve cultural heritage and avoiding illicit practices, it would not make sense that the law rewards the person who finds a movable cultural asset but not the person who discovers a cultural asset which is immovable in nature. On this basis, we can cite a couple of judgments that explain the extension of the 1985 Law provisions in this regard.
The Supreme Court judgment of 17th January 1992, in a case where a shepherd discovered by chance a Roman mosaic, which was finally found to form part of a set of mosaics, ruled that these finds were immovable objects and the finder was entitled to the corresponding reward, calculated on the valuation of the whole set, even though he had found only one of the pieces. More clearly, the judgment of the Supreme Court of 2nd July 2001, in a case where a person had found by chance some cave paintings, which are categorised as immovable property since they cannot be removed from the walls, explains in detail that the right to a reward also applies to immovable discoveries. The arguments were diverse, from the one that appeals to the inner legal consistency of the system, according to which if the law had wanted to exclude immovable objects, it would have specified accordingly instead of taking it for granted, to those that support the teleological interpretation of the provision, whose aim is to foster cultural heritage protection, as we have mentioned.
Arrangment of mosaics from the fourth-centwy-AD Roman Village of Carranque, Toledo (from <cultura.castillalamancha.es>)
We should finally note that, even when a discovery of immovable property does not trigger the reward mechanism, finders are still obliged to notify the authorities of the find, failing which, criminal liability may arise, as will be seen below.
IV.3 Duties of the Finder
Any person who makes a find, either in the course of an archaeological excavation or by chance, must comply with a number of obligations; if he/she fails to do so, criminal liability may arise. The two primary duties in this regard are the communication of the find to the appropriate Administration and the obligation to keep the pieces under surveillance, in accordance with the rules of the civil deposit regulation.
IV.3.1 Notification of the Find
Both in the case of an archaeological excavation or if the find happens by chance, the finder must notify the appropriate Administration. The essential difference between one situation and the other relates to the time within which notification must be made. We may recall that the 1985 Law specifies that it should be made "within a maximum period of 30 days and immediately in the case of chance finds". This provision should be understood as follows: when the find occurs during an archaeological project, the 1985 Law provides 30 days for notifying, and if it happens by chance, the notification must be 'immediate'. In this latter case, it is hard to determine what 'immediately' means in legal terms. To clarify this, we can take into account the regional provisions, which seek to give further details regarding the notification procedure. Indeed, it has now become a customary rule that notification of a chance find should be done within the 48 hours following the fact. This guideline stems from the patterns adopted by a large number of regional laws, as is the case in Asturias, Cantabria, Navarra, La Rioja, Catalonia, Balearic Islands, Valencia, Region of Murcia, Castile-La Mancha, Extremadura. Some other regional laws have adopted the same wording as the 1985 Law and require a notification to be made 'immediately', as in Galicia, Basque Country, Andalucia, Castile and Leon, Canary Islands and Aragon. There are, however, a few rare provisions in this regard. Madrid's law says that notification must be submitted within the three calendar days following the discovery and Extremadura also adds that, when the find concerns a cultural heritage item which is immovable in nature, which will exclude a reward, there is a notification time of fifteen days.
The lack of an explanation for what is meant by the term 'immediately' in the state legislation and the extensive resort to a 48-hour period by the major part of the regional laws leads to a customary standardisation of the notification process within the 48 hours following the fact.
In addition, it is necessary to indicate that the 48-hour rule has also been established by some regional laws for discoveries made in the course of an archaeological excavation, which introduces a particular exception to the 30-day period mentioned in the 1985 law. This is the case in Asturias, Navarra, Catalonia, Balearic Islands, Region of Murcia. A few others keep the 30-day rule as a standard, such as Valencia or Aragon. However, given the exceptional character of this longer period of notification, it would be expected to make it shorter, even in Regions where the one-month limit applies.
IV.3.2 Deposit and Other Duties
The different laws addressing this matter clearly establish the obligation for the finder to preserve the find. Taking into account the trend of the provisions of referring to movable goods--what can be considered the general understanding of the texts--they impose on the finder the set of obligations relating to 'deposit', as he/she becomes a depositary of the objects found. In consequence, he/she must preserve the piece, should not make a profit from it should not trade with it and must keep it as found while the Administration decides what to do. It is also possible to deliver the object to a museum or any other similar institution to avoid civil accountability linked to the deposit regulation.
On this point, it is important to bear in mind that the purpose of the law is to ensure the preservation of the cultural heritage as a whole, not only by preserving the particular object which has been discovered but also the context in which it was found. The regulation is quite sensitive regarding this aim, and for this reason, it discourages finders from digging further in the location or taking any additional steps that may damage the place with a loss of archaeological information due to neglect or carelessness. In cases where the find requires further activity for extraction, the appropriate procedure is to notify the Administration and to entrust them with the task of taking on the situation.
Once the Administration has been notified, the authorities will decide what to do with the find, what its final destination should be, where to preserve it, what public collection it should join or if it is necessary to take further action in the place given the circumstances.
IV.3.3 Reward and Exceptions
As a starting point to address this matter, we must recall that the different laws expressly exclude article 351 of the Spanish Civil Code. The reward provided for in the law works in this context as a special set of rules which differ from the civil law tradition based on the right of accession. The reason is clear: while the Civil Code provides for a mechanism in which there is ownership acquisition, in the cultural heritage regulation, there is no such thing. The law talks about a 'reward' and not about 'compensation' because there is not a deprivation of ownership by the public powers that merits compensation, but an ex lege statement of the public domain over the finds. Therefore, the reward responds to the will of the public powers of thanking the finder for the fact, and it also serves as an encouraging measure to foster diligent behaviour in the field and to refrain from illicit practices.
Given the purpose of the reward, and the obligations that must be complied with in order for it to be granted, the law provides that if the finder does not comply with the above-mentioned duties of notification, care and preservation, he/she will lose the right to the reward.
As for the amount of the reward, both the state Law and the seventeen regional laws follow the same rule. Article 44.3 of the 1985 Law states:
The discoverer and owner of the place on which the object was found shall be entitled, by way of a reward, to half the value attributed to it in the legal valuation and this shall be shared between them in equal proportions. If there are two or more discoverers or owners, the same proportions shall be maintained.
We can easily infer from the wording of this article that the essence of this provision is based on the civil system established for treasures in the Civil Code, as we have seen in the first part of this article. To a certain extent, the cultural law seeks to take into account both the finder and the owner of the land where the find occurred, even though neither of them will have acquired title over the object. The reward mechanism is based on the civil provision regarding shares of parts involved in a treasure discovery, and it is for this reason that the 1985 Law provision maintains the distribution of the appraisal value of the find between the finder and the owner.
It should also be noted that the value of the reward is reduced to half the value, instead of the whole amount as happens under article 351 SCC. In this regard, the courts have had the opportunity of addressing this matter to clarify that half of the value will be shared between the finder and the landowner, but if there is only the finder, the reward is one quarter of the value. Each of these proportions (two quarters) will be distributed among the people involved when there is more than one finder or more than one owner of the land. To ascertain this value, the Administration will start an appraisal procedure and determine the amount of the reward that is applicable to the finder, or to the finder and the landowner. Since the appraisal is an administrative finding, the person entitled to the reward can appeal if he/she does not agree with the final amount through a litigation procedure; however, this is quite rare. Nevertheless, given that the reward constitutes a public expense, the law tries to limit the cases when it applies. This explains the legislative policy of some regional laws which exclude the reward for immovable finds and also why the 1985 Law and some other regional provisions disallow it when the discovered parts belong to architectural structures already listed in the register of cultural interest goods.
We may also address in this section the legal provisions dealing with finds which occur in the course of construction works. While it is not strictly speaking a reward, it is necessary to see how the law tackles this situation in which a find can cause building works to come to a standstill, with resultant losses for the developer. This is a matter intimately linked to town planning legislation and, in fact, some special laws on the subject deal with this point. However, from the cultural heritage regulation perspective, it is necessary to have regard to the relevant regional law since the state Law does not address the issue.
For example, the law of the Basque Country states that when the find occurs during construction works, the Administration may agree to the halting of the work for fifteen days without any compensation to the builder. If it more time is required, the rules on Administration liability would apply. In similar terms, the law of Castile-La Mancha provides for the suspension of the works for two months. Some regional laws, as in Cantabria, La Rioja, Madrid or the Canary Islands, mention the possibility of halting the works as a precautionary action for the time necessary to ensure the preservation of the find and its surroundings, and they do not include any reference to compensation.
IV.4 Appropriate Administration and Scope of Action for Security Forces
One key point when a find takes place is the notification to the appropriate Administration. This is the general term that the law uses, though it must be understood with a broader interpretation. In this regard, it is important to know that different levels of Administration structure may have jurisdiction over the discovery. For this reason, some regional laws expressly mention both the Administration of the Autonomous Community or the Local Administration in whose territory the find occurred. In cultural heritage matters, there is an exercise of public competences, what leads to the intervention of the public structures involved in its preservation, registration and care duties at all the different levels, from the State to the Region and the City. Nevertheless, the public powers also rely on the collaboration of the security forces, particularly the Police and the Civil Guard. The Civil Guard is a paramilitary body entrusted with duties of surveillance, public services, security warrant and others that, to some extent, are complementary to police tasks.
The 1985 Law has established that the security forces are called upon to collaborate in the fulfilment of the public powers relating to the cultural heritage in their sphere of action. Following a modification of the legal text introduced in 1994, both in the Police and in the Civil Guard, special departments devoted to the preservation of cultural heritage and prosecution of related crimes were created. They are the Spanish Historical Heritage Squad, within the Central Unit of the National Police; and the Spanish Historical Heritage Group, in the judicial police central unit of the Civil Guard. These units contribute to the performance of protection and safekeeping obligations in their district and can receive notifications of finds and take the first steps before communicating with the relevant Administration. Indeed, finds are usually reported to the Civil Guard or the Police before an Administration, and it is broadly known that these security forces have powers concerning the protection of cultural heritage. As for the procedure, the legal provisions we have addressed above apply here, so these special units know the time required and the notification and non-intervention duties of the finder, so they are capable of taking on the situation and even assessing the compliance with the obligations provided for in the law.
IV.5 Some Special Situations: Underwater Treasures
Some special situations may raise doubts as to the applicable regulation, where these concern subaquatic cultural discoveries. The Spanish legal tradition in this area has largely retained a distinction between these finds and the ones that take place on land. It is necessary to bear in mind that this field includes a list of actions and activities related to the maritime profession, that could blur the concept of treasure within this context. We refer to notions such as salvage, shipwreck, collision and some others that address this particular realm of work. Therefore, it is to be expected that one will encounter differences when dealing with underwater finds, since they may fit within the definition of salvage or any other rescue activities usually carried out by ships and vessels in their maritime development. Also, it is easy to advise that, while finds on land must be made by chance, that circumstance will be hard to achieve in underwater discoveries since they seem to require a conscious activity focused on the purpose. The difference in the situation between one and other treasures might present difficulties to resolve a case when a find of underwater objects finally occurs.
An old law of 1962 specifically devoted to maritime aids, rescues, towlines, findings and extractions included a special regulation for things found under the sea. However, this law has been derogated from by the current Law on Maritime Navigation, of 24th July 2014, whose article 358.3 states:
Any operation whatsoever related to the underwater cultural heritage shall not be considered salvage, as shall be governed by its specific legislation and the international treaties in force to which Spain is a party.
This provision dispels any remaining doubt as to whether this subject should be resolved by a special rule or according to the general regulation on cultural heritage.
As a result, we have to consider the general provisions of the laws, as underwater finds fall within the scope of these rules. Indeed, in the section of the 1985 Law devoted to archaeological heritage, where it also locates article 44, we find article 41.1 which states:
For the purposes of this law, earth moving on the surface, under ground or under water that is carried out for the purpose of discovering and investigating all types of historical or paleontological remains and the geological components related to them are considered archaeological excavations.
Most of the regional laws do not include any mention of underwater finds; however, we see some references for clarification purposes. For instance, Navarra's law specifies that when a find is made in water, the object should not be removed from its original location. The laws of Catalonia, Balearic Islands, Valencia and Region of Murcia contain a similar provision. For its part, Galicia expressly excludes the possibility of a reward in respect of underwater finds.
IV.6 Criminal Liability
We can finally refer to the impact on this matter of criminal regulation. To address this point, it is essential to bear in mind that a high proportion of finds occur in the course of construction works. As we have indicated above, this issue is intimately linked to town planning practice. At the same time, the criminal legislator has become increasingly sensitive to the need for prosecuting other activities when they are related to cultural heritage. This is the case with land development since builders are tempted to hide any discovery and breach the cultural protection law as the declaration of such finds may lead to standstills, delays and loss of money. This criminal practice might extrapolate to a lower level when the finder is an individual, and he/she calculates that it may be more profitable to sell the find instead of reporting it to the Administration for a reward of a half or a quarter of its value.
The impact of these two types of conduct is obviously different. In the latter case, the law has decided to elaborate primarily on the liability to be prosecuted by the Administration itself, and both the state Law and the regional laws include penalties to punish such conduct, usually in the form of fines of either up to four times the value of the object or else according to a scale of rates. Also, we must recall that failure on the part of the finder to comply with the notification duties results in a loss of the right to a reward. But in some cases, the damage can escalate and may even constitute systematic conduct with dramatic consequences. In this case, the legislator qualifies the behaviour as criminal. The latest modification of the Spanish Criminal Code in 2015 has included some special provisions which are specifically directed at cultural goods. There is a chapter in the code related to crimes committed in the course of land development and urbanism with references to cultural assets, and there is also a section devoted to crimes affecting the historical heritage. In relation to finds, article 323.1 of the Spanish Criminal Code states:
A sentence of imprisonment of six months to three years or a fine of twelve to twenty-four months shall be imposed on whoever causes damage to assets of historical, artistic, scientific, cultural or monumental value, as well as to archaeological sites, ground or underwater. The same sentence shall apply to the looting of these latter.
It is easy to see that there is looting when the finder tries to hide a find and make a profit from its sale. In this context, the seriousness of the conduct, the impact of the damage, the value of the object, etc. will be taken into account when deciding whether to initiate a procedure before the Administration or trigger a criminal prosecution.
In every situation, it is essential to highlight that the criminal law has evolved to include an increasing number of references to the cultural heritage and the whole legal system underlines its importance for society. These subtle changes in the wording of the law cause growing awareness as to the preservation of the heritage and seek to deter types of damaging behaviour that was, in previous times, more frequent than today.
V. SOME RECENT CASES
To illustrate the regulation of finds under Spanish law, as outlined in this paper, in addition to the examples cited above relating to particular legal issues, such as immovable and movable property, we can add some other recent cases related to the appraisal of the finds, one of the hardest points to address in this matter, and the consideration of the find as 'chance'.
The judgment of the Supreme Court of 24th April 2012 settled a case where a couple had found by chance a set of bones and pottery pieces, and had notified the Administration of this. When the authorities examined the site, they identified a necropolis, now known as the necropolis of Monte Bajo, in Cadiz. The Court addressed the discussion over the inclusion of immovable property in the scope of the reward mechanism again. The key issue was whether the reward would be calculated as extending to the whole area that happened to be a necropolis, or only in respect of the few pieces which were initially found by the couple. The Supreme Court's judgment states that the appraisal of the Administration would have to take into consideration the complete discovery as a whole, since, if the couple had not made the initial find, the entire necropolis would never have come to light to enrich the national cultural heritage.
The Treasure of Tomares is a case that raised many other questions. In 2016, the employees of a construction enterprise working in a park found a set of Roman amphoras full of coins. The problem here was how to demonstrate who made the discovery given the lack of evidence of the exact moment of the fact, since, as the enterprise counts on many employees, many of them claimed to be the finder to claim a part of the reward. This led to a lengthy procedure started in 2016 in which, apparently, some of the real protagonists were excluded by the courts. We see that there will be significant evidential difficulties where the facts are unclear. It is also worth noting how frequently disputes in this area come before the courts, either where the finders disagree with the appraisal value of the object(s) found, or when they have any other evidential problems that leads them to take the matter to court, with all the resultant costs that this involves. (4)
The Tomares case also raises some other problems. The value finally attributed to the treasure by the Andalusian Administration was 468,230, [euro] of which almost 125,000 [euro] will go to the finders. Some scholars question the appropriateness of following art market criteria to appraise these objects, given the fact that they are indeed out of the market and will never be on sale. Critics have put forward other criteria which should be taken into account in order to reach a final valuation, apart from the figures usually seen in auction houses and antique dealers. As an example of these difficulties, one should mention the case of the Noheda Mosaic, found in a private plot several years ago. This mosaic ended up being the biggest and most complete of the Ancient Roman pieces ever seen, with a surface of almost 300 sq metres. There is still an ongoing trial on the matter because of the disagreement between the landowner and the Administration as to the appraisal value and also as to the circumstances of the find--the public entity claims that the finder deliberately missed the legal deadlines for notification of the find and so he lost the right to a reward. But one of the critical points is the price assigned to the mosaic. There was a significant divergence as to the criteria adopted to reach a final valuation. According to two different representatives of the Administration, the value varies from 3 to 6 million euros; but in the view of a market expert, the price is close to 50 million [euro], taking into consideration the hammer price of some other mosaics sold at public auction. Nevertheless, some academic voices have expressed the view that since these objects are not on the open market, these figures should not be used as a reference for the valuation appraisal.
Even so, one of the most common problems in this matter is the assessment of the circumstances of the find. As it has to be made by chance in order to give rise to the entitlement to a reward, there are significant difficulties in defining the context and the situation where it takes place. Indeed, one of the common assertions made by the notified Administration is that this requirement has not been fulfilled. The judgments show an extensive list of cases where it has been found that the finds did not happen by chance, but because there was an intentional search by the finder. As an example, we mention the Supreme Court judgment 916/2018, of 4th June 2018 (5) according to which the finder was not entitled to a reward since he was a treasure hunter who regularly undertook search expeditions as an amateur. The typical behaviour of this person excluded the 'by chance' factor, even though in this particular instance he had found a piece of a tombstone without any intention of finding it but 'fortuitously'. However, the Court makes a clear distinction between a find which is made entirely without intention, such as the one that occurs during construction or agricultural works, and the one that takes place when someone conducts an actual search, with or without the help of any machinery. Therefore, this judgment underlines the proper definition of a chance find, according to which the fortuitous discovery of any object by a person who conducts any form of search activity will exclude the entitlement to a reward.
Another case in Jaen sheds light in this regard. It concerns the discovery of part of a Renacentist arc that, after several remodellings, had been covered over by a modern wall of a house. The family that bought the property in 2016 wanted to make some changes in the layout of the building, and when removing part of the plaster cast of the wall, they found the arc. In this case, the Administration paid the reward (half of the appraisal price, since the finders and the owners were the same) with no further problems. But this case also provides us with some indication as to what the public entities usually understand by a chance find and the absolute lack of intentional search required to qualify the discovery as actually being 'by chance'.
This set of examples, along with the regulation in force, demonstrate that the scope of action for the finders to be granted a reward for their finds narrows dramatically. Our cultural heritage regulation combines these measures with administrative penalties to discourage smugglers and looters. Nevertheless, the usual shortage of public resources facilitates unlawful conduct such as hiding the treasures which have been found or tricking the system to continue with practices as metal-detecting despite this being forbidden. In any case, it is worth recalling that our legislation prioritises the public values that our cultural heritage embodies and seeks to raise awareness of its importance and the need to care for it. We all share a responsibility to look after our historical legacy for future generations and the sake of all humankind.
Gallego Anabitarte, Alfredo (2003): 'Arqueologia y derecho. Hallazgos, jurisprudencia, legislacion, carta arqueologica y planeamiento', in Revista de Derecho Urbanistico y Medio Ambiente, year 37, no 200, pp. 41-134.
Fernandez Domingo, Jesus Ignacio (2010): Los tesoros del mar y su regimen juridico; Argentina, Colombia, Mexico, Spain; Zavalia, Ternis, UBIJUS, Reus.
Moreu Ballonga, Jose Luis (1993): 'Hallazgos de interes historico, artistico y/o arqueologico' in Revista de Administracion Publica, 132, Sept.-Dec. 1993, pp. 171-208. Roma Valdes, Antonio (2001): 'La ley y la realidad en la proteccion de patrimonio historico espanol', in Compte Rendu 48, Commission Internacional de Numismatique, pp. 69-79.
Villarreal Suarez de Cepeda, Paloma (2017): 'Tiras y aflojas con el premio por hallazgo casual de restos arqueologicos' in Revista Digital CEF-Udima. Available at: <https:// acef.cef.es/hallazgo-casual-restos-arqueologicos.html>.
LIST OF REGIONAL LAWS
Andalucia: Law 14/2007 of 26th November 2007, on the Historical Heritage of Andalucia
Aragon: Law 3/1999 of 10th March 1999, on the Aragonese Cultural Heritage
Asturias: Law 1/2001 of 6th March 2001, on the Cultural Heritage
Balearic Islands: Law 12/1998 of 21st December 1998, on the Historical Heritage of the Balearic Islands
Basque Country: Law 7/1990 of 3rd July 1990, on the Basque Cultural Heritage
Canary Island: Law 4/1999 of 15th March 1999, on the Canarian Historical Heritage
Cantabria: Law 11/1998 of 13th October 1998, on the Cultural Heritage of Cantabria
Castile and Leon: Law 12/2002 of 11th July 2002, on the Cultural Heritage of Castile and Leon
Castile-La Marcha: Law 4/2013 of 16th May 2013, on the Cultural Heritage of Castile-La Mancha
Catalonia: Law 9/1993 of 30th September 1993, on the Catalonian Cultural Heritage
Galicia: Law 5/2016 of 4th May 2016, on the Cultural Heritage of Galicia
Extremadura: Law 2/1999 of 29th March 1999, on the Historical and Cultural Heritage of Extremadura
La Rioja: Law 7/2004 of 18th October 2004, on the Cultural, Historical and Artistic Heritage of La Rioja
Madrid: Law 3/2013 of 18th June 2013, on the Historical Heritage of the Community of Madrid
Murcia: Law 4/2007 of 16th March 2007, on the Cultural Heritage of the Autonomous Community of the Region of Murcia
Navarra: Regional Law 14/2005 of 22nd November 2005, on the Cultural Heritage of Navarra
Valencia: Law 4/1998 of 11th June 1998, on the Valencian Cultural Heritage
Marta Suarez-Mansilla, PhD researcher at the UNED, Attorney at Law (<www.artworldlaw.com>).
(1) Translation taken from the Spanish Ministry of Justice: <http://derechocivil-ugr.es/attachments/article/45/spanish-civil-code.pdf>.
(2) Gallego Anabitarte, 'Arqueologia y derecho. Hallazgos, jurisprudencia, legislacion, carta arqueologica y planeamiento', in Revista de Derecho Urbanistico y Medio Ambiente, 2003, year 37, no. 200, p. 66.
(3) See in this regard Moreu Ballonga, 'Hallazgos de interes historico, artistico y/o arqueologico' in Revista de Administracion Publica, no. 132, Sept.-Dec. 1993, pp. 203-206.
(4) For further information see: <https://www.elmundo.es/espana/2019/06/30/5dl7a46ffdddff63a98b45ee.html>.
(5) Full text available at: <https://supremo.vlex.es/vid/729022929>.
Caption: A part of the Treasure of Tomares, found in Cadiz (from <commons.wikimedia.org>)
Caption: Image of Miguel Angel Valero cleaning some of the Noheda mosaics (from R.G.--El Pais)
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|Publication:||Art Antiquity & Law|
|Date:||Dec 1, 2019|
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