Instrumenti za zaštita na kulturnoto nasledstvo:
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| Format: | Book |
| Language: | Macedonian |
| Published: |
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2008
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| Item Description: | In kyrill. Schr., mazedon. - Zsfassung in engl. Sprache u.d.T.: Instruments for protection of the cultural heritage |
| Physical Description: | 382 S. Ill. |
| ISBN: | 9789989965371 |
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СОДРЖИНА
стр.
Предгово
ρ
. 11
Глава
I
-
ТЕРМИНОЛОШКА
ИДЕНТИФИКАЦИЈА
НА ДОБРАТА
ОД
КУЛТУРНО
И ИСТОРИСКО
ЗНАЧЕЊЕ
.13
1.ОПШТИЗАБЕЛЕШКИ
.13
2.
УСТАВНА
ТЕРМИНОЛОГИИ
.15
а) Отит историски осврт
.15
б)
Развој
на
уставната
терминологией во
Македонија
.16
в) Актуелна
уставна
терминологија.
23
3. 3
АКОНСКА ТЕРМИНОЛОГИИ
.26
а)
Талкање
по соодветна законска
терминологија
.26
б)
Фаворизирана
законска
терминологија
.31
в) Актуелна законска
терминологија
.36
4.
ТЕРМИНОЛОШКИ СТАНДАРДИ ВО
МЕЃУНАРОДНОТО
И
СПОРЕДБЕНОТО СПОМЕНИЧКО ПРАВО
.40
а)
Меѓународни терминолошки
стандарди
.40
б) Терминолошки стандарди во споредбеното споменичко
законодавство
.42
Глава
II
-
ПРАВНА
ИДЕНТИФИКАЦИИ НА
ЗАШТИТЕНИТЕ
ДОБРА
(ДЕФИНИЦИИ)
.47
1.
ПОИМ НА ЗАШТИТЕНИ ДОБРА
.:.47
2.
КЛУЧНИ ГЕНЕРИЧКИ ПОЙМИ
.50
а)Културно наследство
.50
б)
Културно
добро.
.54
3.
ИЗВЕДЕНИ
ГЕНЕРИЧКИ ПОЙМИ
.57
а) Недвижно
културно
наследство
.57
б) Движно
културно
наследство
.60
Jovan Ristov Instruments
for protection of the cultural heritage
350
INSTRUMENTS FOR PROTECTION OF THE CULTURAL HERITAGE
RESUME
FOREWORD
The book deals with a small, but exceptionally important segment from the law on monu¬
ments i.e. the law on protection of cultural heritage. Several topics from the category instru¬
ments of protection depict the relationship of the state towards the national cultural heritage.
Each of them is elaborated from historical, theoretical, normative and property law aspect.
This enables not only to broaden the knowledge of the legal norms for the key instruments
of protection of the cultural heritage, but also to alleviate the approach towards this expert
matter and encouragement of its correct understanding in the cases where there is an evident
lack of appropriate domestic professional literature and in the cases where a real problem in
the implementation of the national protection policy exists.
I
-
TERMINOLOGICAL IDENTIFICATION OF THE PROPERTY WITH CULTURAL
AND HISTORICAL SIGNIFICANCE
1
.General remarks
The official terms for the property of cultural and historical significance, used in the legal
regulations, refer to the legally protected property and the outreach of that protection. They
represent an indicator of the correlation towards that distinctive category of legal values. The
key elements of each national model for protection can be recognized at a very first glance.
In fact, the sense of the terminological identification itself lays in the necessity to highlight
the characteristics regarding the legal regime under which this property had been or should
had been registered. Hence, in each legislative system, there is an intention of providing an
adequate recognition of its legal status. In this sense, as an instrument of general identifica¬
tion, the acceptance of a specific legal terminology, the so-called terminology on monuments
is accepted and encouraged.
The choice of the official terminology for identification of the property subject to protection
is a matter of convention. That is evident. However, in practice, if bigger attention was dedi¬
cated to that issue and if the basic terminological rule (saying that each chosen term should
contribute to a more clear determination of the contents) the terminology issue would have
been significantly surpassed.
The terminological identification issue deserves attention due to the necessity of providing a
proper level of terminological standardization. Nevertheless, regarding the identification of
the protected property, the problem of terminological confusion still exists. The real dimen¬
sion
ofthat
problem becomes more evident thorough analysis of the official terminology in
the national regulations of each country, and even more if compared with the international
or the terminological standards in other countries.
2.
Constitutional terminology
(a) General historical overview. The approach of each country towards its own cultural heri¬
tage is recognized through the way and the manner of treatment in the frame of the highest
legal act
ofthat
country. In that sense, if the constitution of a country contains provisions for
the cultural heritage or the differently named property of cultural and historical significance,
it can be considered that they are granted an enhanced legal protection. This idea was firstly
implemented in Germany, incorporated in the Constitution of Weimar of
1919,
and than,
gradually, in the course of me 20th century it was accepted in other countries of the world:
Austria
(1920),
Honduras
(1936),
Cuba
(1940),
Bolivia
(1945),
Panama
(1946),
Bavaria
(1946),
Czechoslovakia
(1948),
Argentina
(1949),
Salvador
(1950),
Cyprus
(I960),
Turkey
Summary
(1961),
Greece
(1968),
Bulgaria
(1971),
Albania
(1976)
etc. Today, almost with no excep¬
tion, all the actual constitutions in the world contain corresponding provisions. However,
the basic problem is that they are very different, not only regarding the official constitutional
terminology but also regarding the constitutional protection models.
(b) Development of the constitutional terminology in Macedonia. In Macedonia the prop¬
erty of cultural and historical significance was raised to the rank of constitutional category
only in
1963,
incorporated in the Second Constitution. There were no provisions for this
category of property in the First Constitution of
1946.
The same referred both to the federal
and to the constitutions of the other units in the former Yugoslav federation. At that stage
of development
(1963-1974),
each of the Yugoslav republics had its own constitutional ter¬
minology, as well as its own constitutional concept of protection, different from the Federal
Constitution of
1963.
The Macedonian Constitution differentiated the following constitu¬
tional categories:
(1)
monuments of culture;
(2)
buildings of historical significance and
(3)
other values of the national history and culture.
The problem with the terminological and conceptual discrepancy in the former federation
was partially mitigated in
1974
with the so-called third generation of constitutions. Namely,
in the federal and in the separate republic and provincial constitutions of
1974,
including
the Constitution of S.R. Macedonia, similar solutions were incorporated referring to:
(1)
the objects of special cultural significance;
(2)
the tangible and intangible objects of spe¬
cial cultural and historical significance and
(3)
the monuments of culture. However, despite
this approach, in
tue
constitutions of some of the former Yugoslav republics, some new
constitutional terms were adopted: national values (SR Croatia), cultural-historical heritage
(SR Bosnia and Herzegovina), cultural and historical heritage (SR Serbia, SR Montenegro).
Back than, only the Macedonian Constitution did not have any deviations from the harmo¬
nized constitutional solutions incorporated in the Constitution of SFRY of
1974.
Additionally, with the constitutional amendments of
1989
in SR Macedonia, a constitu¬
tional basis for extension of the span of the protection was created. It was done with the
constitutional formulation
-
tangible and other objects of cultural and historical significance
and value. Practically, for the first time, the intangible objects of cultural and historical
significance became subject of protection. As to the tangible property, besides the objects of
special significance, all the other objects became the subject of protection. In the same time,
in the course of the procedure for adoption of the constitutional amendments to the Constitu¬
tion of SFRY, efforts were made for adoption of the term cultural property.
(c) Actual constitutional terminology. With the actual constitution
-
the Constitution of the
Republic of Macedonia of
1991,
the former constitutional term monument of culture was
abandoned, and the terms tangible and other objects of cultural and historical significance
were replaced with the term objects and buildings of special cultural and historical signifi¬
cance. Besides, as a new constitutional term, the expression historical and artistic treasure
was adopted. With this constitutional terminology, the issue of the key generic term for the
subject of protection remains open. On the other hand, the actual constitutional terminology
indicates the main characteristics of the new constitutional protection model, including the
categorization of the property according to their significance, the degree of protection, i.e.
the differentiation of the special protection (as a higher degree) in spite of the guaranteed
protection (as a lower degree) and the unequal treatment of the intangible property against
the tangible property. Due to all these, the actual constitutional terminology needs additional
consideration.
3.
Legal terminology
(a) Searching for an adequate legal terminology. For quite a long time, more precisely for
six decades counting from
1945,
in the Macedonian legislation, as a key generic term for
the subject of protection, the used legal term was monument of culture. It was taken from
the federal basic laws
(1945,1946,1959
and
1965)
and as such remained in all the previous
Macedonian basic laws
(1948, 1960,1965
and
1973).
Parallel to that, in certain periods of
development, other synonyms were used in the related fields of the legislation. In the same
tíme,
the problem with the legal terminology in Macedonia and in the entire former state
became more evident after the adoption of the constitutions of
1974.
In almost three decades, counting from
1975,
in the Macedonian legislation attempts were
made for abandoning of the term monument of culture and for adoption of another, more
appropriate term that would have the meaning of key generic term for the subject of pro-
351
Jovan Ristov Instruments
for protection
of the cultural heritage
352
tection. In that sense, in the intention to mitigate the problem with the big terminological
and conceptual differences amongst the Yugoslav republics and provinces, SR Macedonia
had accepted the Common action for protection of the natural and built heritage in SFRY,
implemented in the period between
1976
and
1986
in the framework of which, among other,
were offered and harmonized solutions regarding the terminology for identification of the
property that is subject to protection. That action did not give results because of the rejec¬
tion of SR Slovenia to be a signatory of the Agreement for common grounds for protection
of the natural and cultural property of Yugoslavia. In the meantime, until the split of the
former SFRY, in SR Macedonia were introduced three legal projects for this topic: the first
one, of
1985,
referring to the natural and cultural treasure; the second one, of
1988,
for the
cultural treasure (including the intangible property); and the third one, of
1990,
referring to
the cultural heritage.
(b) Preferred legal terminology. Upon the independence of the Republic of Macedonia, in the
period between
1991
and
2003,
in the frame of the legislation of the subject matter in case,
the preferred key generic term was cultural treasure. In the same time, in a most drastic form,
the preference for that legal term was expressed with the adoption of the Law on Culture of
1998.
Moreover, precisely in that system law, this term was understood as utterly Utopian
concept of protection comprising the complete tangible and intangible creation works as
subject of protection, regardless the values and the significance of the property. This concept
was abandoned in
2003
with the Law on Changes and Amendments to the Law on Culture,
when cultural heritage became the term adopted for the property subject of protection.
(c) Present legal terminology. With the new basic law
-
the Law on Protection of Cultural
Heritage of
2004,
the problem of terminological nature was significantly surpassed. Namely,
besides the key generic term
-
cultural heritage, the present legal terminology comprises the
deducted terms, and especially: immovable cultural heritage, movable cultural heritage, in¬
tangible cultural heritage, national cultural heritage, dispersed cultural heritage, endangered
cultural heritage, significant cultural heritage, cultural heritage of special significance (great,
exceptional) etc. Besides, the present legal terminology also comprises the official terms:
property under temporary protection, reserved archaeological zones, national treasure, antiq¬
uities, collection items, collections, archaeological finds, chance discoveries, contact zones
and a number of other terms, including the official terms for identification of the
15
types of
cultural heritage. In the same time, with minor exceptions, the new legal terminology for the
subject of protection has been harmonized with the international terminological standards.
4.
Terminological standards in the frames of the international and the comparable law on
monuments
(a) International terminological standards. The official terms used in the international agree¬
ments and in the acts of the international governmental and non-governmental organizations
are considered as international terminological standards. In that sense, the terminological
analysis of more than
450
relevant international acts for this category of property indicates
that the problem with the terminological standardization is still present at international level
but, in the same time, a great number of standardized international terms have already been
established. So, an insight in the resolutions and in the other acts of the UN General Assem¬
bly indicates that the terms cultural values, cultural property, cultural and artistic property,
works of art etc. are considered as terminological standards. In the UNESCO acts and in the
international agreements dominates the usage of the terms: cultural heritage and cultural
property, and in a certain context also the usage of the terms: universal heritage, world
heritage, intangible cultural heritage, archaeological heritage, motion pictures, cinemato¬
graphic heritage etc. In the system of the Council of Europe prevails the usage of the terms:
cultural heritage, cultural property, architectonic heritage, archaeological heritage, cultural
lands-cape etc. In the acts of the European Union: cultural property, national treasures and
cultural heritage, while the standard term in the UNIDROIT acts is cultural property. In the
international acts, relevant for the countries from the other continents, cultural heritage,
archaeological heritage, histo-rical heritage, artistic heritage etc. are used. In the ICOMOS
acts, among other, the term monumental heritage is used. However, key problem in the listed
international terms is that they do not always have the same legal meaning everywhere.
(b) Terminological standards in the comparable legislation on monuments. In the national
legislation of the contemporary states there is a real variety of terms, both regarding the
key generic term and regarding the identification of certain categories, groups or types of
Summary
property. Typical examples in that regard are the French, the Italian, the Bolivian, the
Nica-
353
raguan, the Mexican, the Japanese, the Philippines, the South Korean, the Mongolian, the
Indian, the Jordanian, the Syrian, the Lebanese, the Kuwaiti, the Egyptian, the Sudanese, the
Tunisian, the Nigerian and the legislations of Sri Lanka, New Zealand and of great number
of other countries included in the analysis.
II
-
LEGAL IDENTIFICATION OF THE PROTECTED PROPERTY (DEFINITIONS)
1.
Notion of protected property
The term protected property is a generic term with legal and technical meaning. In fact, it
represents a concept as a result of theoretical globalization made with the intention to cre¬
ate a recognizable model for global detection of the relation towards certain categories of
property. In the Law on Monuments the term protected property comprises the property of
cultural, historical, artistic, scientific, technical and related significance, recognized by the
legislation under a specific legal regime set up for their protection and usage. In the Mace¬
donian Law on Monuments the term protected property means every property with protec¬
tion established under the Law on Protection of Cultural Heritage. It means that this term
is composed of the narrower terms: cultural heritage, property under temporary protection,
reserved archaeological zone and national treasure. This term does not contain the property
protected in some other way and according to some other law. In technical sense this term
means saved property, no matter whether it is legally protected according to the basic law.
2.
Key generic terms
(a) Cultural heritage. Two definitions are relevant in the Macedonian legal system. They
are: the legal definition of
2004,
included in the Law on Protection of Cultural Monuments
and the International definition of
1972,
included in the ratified Convention on Protection of
the World Cultural and Natural Heritage. Soon after the ratification of the Framework Con¬
vention of the Council of Europe on the Significance of the Cultural heritage for Society
of
2005
(Faro, Portugal), its definition was supposed to be relevant. According to the legal
definition the term cultural heritage includes tangible and intangible property as expression
and testimony of the human creation in the past and present or as joint works of man and na¬
ture, owing to their archaeological, ethnological, historical, artistic, architectonic, planning,
ambience, technical, sociological and other scientific or cultural values, characteristics, con¬
tents or functions, or cultural and historical significance due to their protection and usage
placed under legal regime according to the basic law and other relevant laws. According to
its elements, this definition is fully compatible with the relevant international definitions. Its
legal meaning is explained by the additional definitions for the types of cultural heritage, as
well as for the categories of cultural heritage, discussed in this book.
(b) Cultural property. The legal meaning of the term cultural property is well defined in the
Law on Property of
2001
and other property laws. According to that definition, this term in¬
dicates "a property that has a general cultural significance or is of public interest and as such
is placed under special legal regime because of its protection and usage (monument of cul¬
ture, museum material, library goods, archives material, natural rarity or similar)". Besides
that, in the Macedonian legislation are valid the international definitions from the ratified
conventions: Convention on Protection of Cultural Property in the Event of Armed Conflict
of
1954,
including its Second Protocol of
1999,
the Convention on the Means of Prohibiting
and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of
1970
and the Convention on Stolen or Illegally Exported Cultural Objects of
1995.
3.
Deducted generic terms
(a) Immovable cultural heritage. The legal meaning of this term is determined by the special
definitions on the included types of property: monuments, monument ensembles and cul¬
tural landscapes. Each of these terms is defined in accordance with the standard international
definitions, including the movable as part of immovable heritage, the monument centers and
shelters for the movable property in case of armed conflict. Our analysis encompasses the
definition of the ratified Convention on the Architectural Heritage of Europe
Jovan Ristov Instruments
for protection
of the cultural heritage
354
(b) Movable cultural heritage. Both the content and the legal meaning of this term are deter¬
mined in detail by the special definitions for the
9
types of property: archaeological items,
ethnological items, historical objects, art objects, technical objects, archives materials, li¬
brary goods, phonogram archives goods and film archives goods, i.e. audiovisual goods
(term adopted and defined with the changes of the basic law of
2007).
Each of these defini¬
tions contains elements necessary for their distinction. The legal copy, depending on the type
it belongs to, is taken as a content of the noted term. Our analysis also contains a detailed
overview of the key elements of each term in the context of the relevant international defini¬
tions.
(c) Immaterial (intangible) cultural heritage. The legal identification of this term is repre¬
sented by the legal definitions on types of property included (folklore goods, language and
toponyms) and the international definition enclosed in the Convention for the Safeguarding
of the Intangible Cultural Heritage (ratified in
2006).
Besides that, our overview contains
also the legal attempts for the definition of this term in the Macedonian legislation and in the
related international acts, as well as an analysis of the harmonization of the legal definitions
with the international definition.
(d) National cultural heritage. There is no special definition for this term, there are just
elements based on which its legal meaning could be determined. In that sense, as national
cultural heritage is considered the property created or found on the national territory by the
citizens of the respective country or by foreign residents if those property has any signifi¬
cance for the state, as well as the one legally obtained in accordance with the authorities of
the country of origin. These elements, i.e. criteria are contained in the UNESCO Convention
of
1970.
This term comprises the property from all categories of meaning (local, national,
and supranational). The sense of its existence lies in the need of underlining the cultural and
national identification of people living in a modern state.
(e) World cultural heritage. This term includes solely the immovable property with excep¬
tional universal value from historical, artistic or scientific point of view, granting it the inter¬
nationally recognized status of the highest rank. The term itself is adopted in the Convention
on the Protection of the World Cultural and Natural Heritage. Such a status can be granted
only to the immovable property that fulfills certain conditions regarding its authenticity,
universal value and protection at national level. The universal value is evaluated according
to one or several value criteria. The status world cultural heritage can be obtained via pro¬
scribed procedure by inscription in the List of World Heritage.
(f) Common cultural heritage. In a broader sense, this term includes the overall cultural
heritage of mankind and, in a narrower sense, the cultural heritage on a certain continent or a
wider region. In our overview this term is explained in the context of the cultural heritage on
the European continent. More precisely, it is the common heritage of Europe, i.e. European
cultural heritage, which means the heritage on European soil and not the one that is a prod¬
uct of the European culture and influence on the other continents. In this context the official
definition for this term contained in the Framework Convention of the Council of Europe for
the Significance of the Cultural Heritage for Society of
2005
is given.
(g) Endangered cultural heritage. This term includes property with a status of cultural heri¬
tage and which is facing the danger of damage, destruction or more serious disruption of
its integrity. The Macedonian basic law of
2004
uses the term endangered cultural heritage
taken from the UNESCO Convention of
1972.
However, unlike the Convention, the term
endangered cultural heritage is defined in a broader sense comprising the tangible and the
intangible property of all categories. In other words, this term comprises not only the world
endangered heritage, but the intangible cultural heritage in need of urgent protection, as well
as all other immovable, movable and intangible property having the status of cultural heri¬
tage endangered by a direct or indirect serious danger. The Macedonian definition comprises
the relevant criteria for the both danger degrees.
(h) Underwater cultural heritage. The legal meaning of this term is given according to the
Convention on Protection of Underwater Cultural Heritage of
2001,
which is not yet ratified.
Our overview gives the definitions of the terms elements of archeological heritage, archaeo¬
logical site, archaeological find and archaeological structures, enclosed in the Regulation on
the Archaeological Research of
2005
Summary
III
-
CLASSIFICATION OF THE CULTURAL HERITAGE
1.
General remarks
The classification of the cultural heritage represents an instrument of identification that en¬
ables a better determination of the contents which are subject of protection. It means the
division and distribution of the cultural heritage according to the predetermined hierarchical
degrees of division according to certain criteria. The meaning of the term classification is
different from the relevant term and instrument
-
categorization of cultural heritage. Ba¬
sically, each classification, including the classification of cultural heritage, is a matter of
convention. Being from the very beginning correct it has to be performed according to the
same criteria. Speaking generally, the ideal classification in the field of protection of cultural
heritage is not possible, as well as in any other field.
2.
Beginning and development of the idea of classification of the protected property in
Macedonia
(a) Initial elements of classification of the monuments of culture. The initiation of the idea
of classification of the protected property in Macedonia was connected with the need of
closer determination of the content of the term monument of culture, accepted by the first
federal basic law of
1945.
Namely, the legal definition
ofthat
term differentiated three types
of monuments of culture: cultural-historical monuments, ethnological monuments and art
monuments. The content of those terms was explained in the Regulation for Protection of
the Monuments of Culture and of Natural Rarity of SFRY of
1945,
valid also within the
territory of Macedonia. With that Regulation, the monuments of culture had been classified
in
34
groups, comprising all the subgroups and types of tangible property of cultural and
historical significance. However, the implementation of those regulations was short-lived:
they were in force until the very end of
1946,
when they were not confirmed as such.
(b) Normative treatment of the classification of the monuments of culture, The issue of the
official classification of the protected property had not been treated with special attention
in the Macedonian legislation until
2004.
In fact, it was taken as "expert field" and as such
it was a matter of practice and individual approach. Until
2004,
in all basic laws the legal
ground for adoption of by-laws on that matter has not been given. The laws made a distinc¬
tion between movable and immovable monuments of culture, and in some of them there
was a division of individual and group monuments of culture. The further division at lower
hierarchical levels of dissection was not considered legally relevant. The exception was the
legal division of lower hierarchical level as, for instance, the division of the museum mate¬
rial, accepted by the Regulation of
1980,
as well as the Classification scheme of the archives
material and the corresponding classifications in the field of librarianship.
(c) Attempts for acceptance of a common classification of the cultural property. The first
more serious attempt for a normative treatment of the problem of classification of protected
property in the former state was made in the frames of the Common action for protection
of natural and built heritage of SFRY. Within that action the harmonized approaches of the
former Yugoslav republics and provinces were offered, in terms of the basic classification
of the protected property. The common classification refers to the built heritage, i.e. the
immovable cultural property, including the division of monumental areas and individual
cultural property, containing a certain number of groups of property. The issue of the mov¬
able cultural property should have been additionally regulated by the signing of a special
self-governing agreement signed by the competent official bodies. In the same time, the
common classification meant creation of a comparative classification vocabulary. The issue
of classification remains still open, because of the failure of the'Common action.
(d) Inventory classifications of the immovable monuments of culture. In
1977
and
1987
two
official statistical researches had been conveyed- inventory of the immovable monuments
of culture- reviewing the state of the art of the immovable cultural heritage in SFRY. Such
a statistical research had been conveyed in the Republic of Macedonia in
1997.
The goal of
the first inventory was the registered property (unprotected and protected), while the goal of
the second and the third one was only the protected property. For each of them, as a meth¬
odology system, special methodological materials were prepared
-
classifications of the im¬
movable monuments of culture. The structure of each of these inventory classifications was
different. Besides, the three inventory classifications were not unified with the basic division
Jovan Ristov Instruments
for protection
of the cultural heritage
356
of types of property included in the Convention for Protection of the Architectural Heritage
of Europe,
1985,
as well as in the UNESCO Convention of
1972.
However, those inventory classifications had played a significant role in the development of
the idea for strengthening of the protection instruments. In fact, their implementation con¬
tributed to the increasing of the necessity of building a proper classification system for the
national cultural heritage. In that sense, the inventory classifications are the predecessors of
the later national classification of the cultural heritage.
3.
National classification of the cultural heritage
(a) Basic characteristics of the classification. According to its basic features, the National
classification of cultural heritage represents a standard of a typological classification for
identification of the cultural heritage for official use according to categories, types, groups,
subgroups and sort, with codes and standard names. Its aim is providing a unique approach
for identification of the cultural heritage and creation of an information system for the na¬
tional cultural heritage with a qualitative comparability and usefulness of data. It represents
a combined model of classification based on certain criteria. The Law on Protection of Cul¬
tural Heritage foresees its existence and was adopted as a separate by-law by the Govern¬
ment of the Republic of Macedonia in
2006.
So, for the first time in Macedonian legislation,
the classification of the cultural heritage had been upraised to the rank of a legal category
and as such to the rank of an exceptional instrument for the identification of the subject of
protection.
(b) Structure of the classification. The structure of the National classification of the cultural
heritage includes six hierarchical levels of distinction: category, kind, group, type and sub¬
type. In the same time, the first five levels are officially accepted as mandatory, while the last
level (subtype) is taken optionally. In that sense, the National classification encompasses:
3
categories,
15
kinds,
118
groups,
512
subgroups,
2526
types and
2068
subtypes, with
corresponding codes and official names. Category
1-
Immovable cultural heritage, encom¬
passes:
3
kinds,
8
groups,
37
subgroups,
249
types of property, while Category
2-
Movable
cultural heritage encompasses:
9
kinds,
89
groups,
384
subgroups,
1879
types and
1746
subtypes, and Category
3 -
Immaterial (intangible) cultural heritage encompasses:
3
kinds,
21
groups,
91
subgroups,
398
types and
322
subtypes of property. Having such a structure,
the Macedonian national classification of cultural heritage represents a rare example of of¬
ficial classification which enables maximum preciseness in the identification of the property
that is subject of protection.
(c) Creation of the Classification. The act was prepared by the Cultural heritage protection
office in a coordinated action initiated at the end of
2004
with participation of more than
30
eminent scientists and professionals from different fields. Its adoption was preceded by
many scientific debates and opinions from many competent institutions all over the country.
The classification of the folklore goods and the language as kinds of immaterial cultural
heritage invocated the greatest debates. Regarding the language, the political influence of
the Government had the crucial role.
(d) Implementation and impact of the Classification. The implementation of the national
classification of the cultural heritage is solely under the competence of the Cultural heri¬
tage protection office (CHPO). Namely, the only body authorized to make classification
is CHPO. The data for the classification are the mandatory content of: the inventories, the
surveys for the valorization and revalorization, the acts of protection, the national registry
of cultural heritage and other official documents. Besides, the National classification is ef¬
fectuated as a methodological base for the appropriate computing programs in the field of
cultural heritage protection.
4.
Comparable models of classification
In the field of the comparable law on monuments there is great number of models of clas¬
sification.
However, according to the subject of protection, the existent national models of classifica¬
tion could be grouped in two separate units: the first one- classical models of classification
and the second one
-
new models of classification. The first group encompasses the models
of classification that include only the material property, while the second one encompasses
the material and immaterial property. In the group of classical models of classification
3
Summary
subgroups of models can be distinguished and in the group of new models of classification-
357
2
subgroups of models.
In the first subgroup of classical models are the classifications that encompass only the
material manmade property, as are the Kuwaiti and Jordanian model. The second subgroup
is comprised of the classical models of classification that encompass both the manmade
property and the common works of man and nature, as are the examples of the Serbian, Slo¬
venian and Bulgarian model. In the third subgroup are the classical models of classification
that encompass not only the manmade property and the common works of man and nature,
but also the ones that are created by the nature only, without any influence of men, as are the
Senegalese, New Zealand's, South Korean and similar models.
Among the new models of classification, the first subgroup is comprised of classifications
not based on a strict division of material and immaterial property. Typical examples are the
South Korean and Japanese models of classification. The second subgroup is comprised
of classifications based on the strict division of the property according to categories, i.e.
division of immovable, movable and intangible property, as is the Croatian model. In this
subgroup is the Macedonian model of classification which, unlike the others, is the most
developed one according to its structure and outreach.
IV
-
PROTECTIVE INVENTORIES OF THE CULTURAL HERITAGE
1.
General review of the protective inventories
(a) The notion of the protective inventory. The expression protective inventory is a generic
notion which comprises each official inventorying in the field of protection of cultural heri¬
tage established for the identification, monitoring and other activities of the protected cul¬
tural property, as well as the property with historical and cultural value that deserves legal
protection. This type of inventorying represents the integral part of the protection system
and, in the same time, a systematic activity performed officially by the authorized persons
and according the established methodology. The protective inventories may have different
forms and content according to the type of the property and the purpose due to which it has
been established. It could represent a field or office research, or each of these activities. Ac¬
cording to its characteristics it differs from the registry book
-
the so called registry of cul¬
tural property. Its subject matter could be only the unprotected property or both, protected
and unprotected property, depending on the purpose of the inventorying.
(b) Purpose and meaning of the protective inventories. These inventories were introduced
and maintained for the sake of better identification of the unprotected property monitoring
the state of the art of the protected property, better planning and programming of the protec¬
tion measures, more appropriate treatment in the frames of the process of landscape and
urban planning, crime prevention or prevention of every kind of unlawful actions, better
education, strengthening of the protection awareness etc. In that sense, its meaning is mani¬
fested through its functionality. Namely, it represents the peculiar form of documentation,
database and source of relevant information.
(c) Legal characteristics of the protective inventory. The protective inventorying is manda¬
tory
-
which is its basic characteristic
-
which means it has to be kept according to the legal
regulations. As a rule, it has declarative effect, but some of them have constitutive effect and
induce material and legal consequences (ex. museum inventory book). Nevertheless, any
protective inventory has not, and could not have influence on the property or any other legal
property status of the inventoried goods. The protective inventory is kept according to the
principle of transparency, but in some cases the access of the public could be restricted.
(d) Law on Copyright and Related Rights in the protective inventory. In the Macedonian
legal system the protective inventory has the status of database and as such represents au¬
thorship of the collection category. The regulations from the Law on Copyright and Related
Rights are fully applicable for the protective inventory. It means that besides the regulations
for copyright as database, the regulations for the so called related rights are applicable, such
as the
'sui
generis' protection right, (specific protection rights connected with the removal
and/or re-usage of the whole or the important parts of the database).
Jovan Ristov Instruments
for protection
of the cultural heritage
358 2.
Normative basis for the protective inventories
(a) General historic review of the protective inventories legal regulations. In the sources of
the monument legal system there are different data about the roots of the cultural heritage
inventory normative regulations. The first legal act fully relating to this issue could be the
Decision for the inventory of the historic monuments of Rome of
1162.
From the.historic
point of view the Swedish runologic inventory of
1600
could have certain significance, as
well as other neighboring inventories of
XVII
century. In France, the Decree for inventory
of antiquities of
1793
ought to be pointed out, as well as the King's decree of
1830,
by which
the start of the general inventory of the monuments was announced. In Vatican the edict of
1802
could be highlighted and the well known Lex
Pacca
of
1820.
The special inventorying
orders were given in Serbia
(1832)
and in Prussia
(1845),
and in the second half of the
XIX
century in all laws dealing with this matter the provisions regarding the protective inventory
were incorporated. During XX century the issue of the protective inventory has been treated
on high level in great number of the states in the whole world. In most of them the special
bodies for recording of the national, central, general inventories were established (Italy,
France, Spain, Greece, Lithuania, Croatia, Japan etc.). Today, the protective inventory has a
recognizable legal identity and represents a special monument-legal institute incorporated in
the legal system of the contemporary states.
(b) National regulations for the protective inventory. Nowadays, the protective inventory
issue is regulated by several legal and. sub legal acts. In the same time, the key normative
solutions are incorporated in the Law on Protection of Cultural Heritage of
2004.
Besides,
the appropriate provisions are incorporated in the laws of the neighboring fields relating to
the museums, libraries, archives and film archives. On the basis of the relevant laws several
acts and other sub legal acts were adopted and the inventory system of the cultural heritage
in Macedonia has been established.
(c) International regulations for the protective inventory. The place, the role and the mean¬
ing of the protective inventory are particularly stressed in the UNESCO and Council of
Europe acts. Our analyses encompasses all relevant international acts (conventions, recom¬
mendations, declarations, resolutions etc.) that comprise provisions for protective inventory,
including the ICOMOS acts.
3.
European standards for the protective inventory
(a) General remarks. The expression European standards denotes the standards for the pro¬
tective inventory of cultural heritage initiated, prepared, profiled and accepted by the com¬
petent institutions and bodies of the Council of Europe notwithstanding of the participation,
collaboration, or the contribution of the other international governmental or
non
govern¬
mental organizations of the related area. The four standards created for the facilitation and
promotion of the harmonization of the collecting, processing and usage of the cultural heri¬
tage data refer to the structure of the data and to their content as basis for the production and
adaptation of the national standards for the cultural heritage inventorying.
(b) Inventory model
-
(ICHE). The first inventory model of the Council of Europe is the
Inventory of the Cultural Heritage in Europe (ICHE) of
1965.
Our overview gives its basic
characteristics.
(c) Basic data index for the historic monuments and architectural heritage buildings. This
European standard has been accepted by the Recommendation No.
Ρ
(95) 3
of the Council
of Europe Ministerial Committee of
1995,
according to the Granada Convention of
1985,
as a result of a coordinated action from
1989.
It comprises
7
main categories
ofinformation
and the first
4
being obligatory (title and sign, location, type of function, dating, persons and
organizations related to object history, building materials and technique, physical state of
protection/legal status and remarks).
(d) Basic data standard for the archeological sites and monuments. This European standard
is known under the name
-
International standard. It has been accepted by the Council of
Europe in
1999
in the frames of the European Archeology Plan. Its legal basis is the Eu¬
ropean Convention on the Protection of the Archaeological Heritage (revised) of
1992.
It
was created to help the inventory of archaeological heritage process comprising of
7
main
categories of information, the first
4
being obligatory (title and signs, location, type, dating,
physical condition, naming/protection status, and short archaeological description).
(e) Basic data standard for identification of cultural objects
-
Object ID. This standard has
Summary
been adopted by the Council of Europe in
1997.
It comprises minimum information about
359
the object description for its identification. Two basic categories of data were included: basic
data and additional data.
4.
Types of protective inventories
(a) Core inventory. This type of inventory is maintained in the form of general inventory
for all kinds of protected and unprotected tangible and intangible property of cultural and
historical significance. The general inventory is kept according to the type of the cultural
heritage for the area of the municipality under the authority of the public institution for pro¬
tection. Having in mind the specific conditions, as rational solution three national standards
for the content of the basic inventory were offered: immovable, movable and intangible
property.
(b) Basic inventory. This type of inventory is maintained in the form of basic inventory for
all kinds of protected and unprotected property in the field of protection where several sub¬
jects are in charge of maintenance of the basic inventory. In this sense the basic inventory
is maintained for the monuments (for immovable property), museums (for archaeological,
ethnologic, historical, technical and art objects), libraries (library goods), film archives i.e.
protection of audio visual goods (for film archives goods and audio visual goods). This
inventory is under the auspices of the national institutions for protection. The content of the
basic inventory is identical with the suggested national standards for the core inventory.
(c) Central inventory. This kind of inventory is maintained along with the core and the basic
inventory and comprises all types of protected and unprotected material and immaterial
property. It has a form of special central inventory with the identical content of general and
basic inventories. It is under the competence of the Cultural Heritage Protection Office.
(d) National inventory of the protected property in the event of armed conflict. This repre¬
sents a special kind of inventory anticipated with the basic law and provided by the special
book of rules of
2005.
The subject of inventory is the protected property with the immunity
of protection prescribed by the Hague Convention of
1954
and its Second Protocol of
1999.
Keeping of this inventory is under the auspices of the Cultural Heritage Protection Office.
The content and the way of keeping this inventory are regulated by the above mentioned
book of rules.
(e) National inventory of protected property under prohibited export or which export would
provoke significant impoverishment of the national cultural heritage. In the basic law of
2004
two separate inventories concerning the export of cultural heritage are incorporated:
List of protected property under prohibited export and National inventory of protected prop¬
erty under prohibited export or which export would provoke significant impoverishment of
the national cultural heritage. In this book these two inventories are put together because
of their similarity. The Convention of
1970
is their international legal basis. The content
and the way of keeping of these two inventories are regulated by the Book of rules for the
inventories of cultural heritage.
(f) National inventory of the dispersed cultural heritage. This special inventory is anticipated
by the basic law and the general book of rules for the protective inventory. Its keeping is un¬
der the competence of the Cultural Heritage Protection Office. The subject of this inventory
is the movable property originating from Macedonia, but transferred abroad on any ground
regardless the way of exportation
ifit
had some value in terms of restitution. The inventory
contains specific kind of data, incorporated in the book.
(g) National inventory of cultural heritage that deserves nomination to have the status of
world heritage. This type of inventory is known as Tentative list of cultural property which
could be included in the World Heritage List. The Convention of
1972
necessitates keeping
this kind of inventory. In this book are encompassed all relevant aspects considering this
special inventory and is under the competence of the Cultural Heritage Protection Office,
(h) National representative list of immaterial cultural heritage. This represents a new type
of special recording, analogue to the Convention for the protection of the world cultural and
natural heritage. It is under the competence of the Cultural Heritage Protection Office.
(i) Card file for demands and offers for exchange and relinquishment of movable cultural
heritage. This kind of card file is under the competence of the public bodies in charge of the
movable cultural heritage. It was foreseen by the basic law of
2004
and its content has been
additionally accepted by the protective inventorying in the general book of rales,
(j) Inventory of collectors and protected private collections. The keeping of this kind
ofin-
Jovan Ristov Instruments
for protection of the cultural heritage
360
ventory is foreseen with the basic law of
2004
and it is under the competence of the Cultural
Heritage Protection Office. The content of this inventory, as for
áll
above mentioned ones,
even before the publishing of the manuscript, was introduced by the author in the general
regulation of the protective inventories.
(k) Museum card file. It represents a basic and additional museum card file anticipated by
the Law on Museums of
2004
and elaborated in the frames of the especial rule book of
2006.
Those are the following museum books: entry book, inventory book, exit book, exhibition
book, card file of museum items and catalogue of museum items (types of basic museum
registry) and book for keeping of the museum items and items that are not property of the
museum, book of audio visual collections, press clipping, book of direct protection and
preparatory procedures, book of educational, promotional and other manifestations, book
of expert and scientific work and book of publishing activities (types of additional museum
registry).
(k) Library inventory. Keeping of the library inventories is regulated by the Law on Libraries
of
2004
and elaborated in separate rule-book which has not been passed yet. It has the same
concept as the museum card file. It is comprised of basic and additional library inventories.
The basic library inventories are: entry book, inventory book, exit book and the basic cata¬
logue of the library collections; the additional library inventories are comprised of
9
separate
library books.
(1)
Archives inventory. Nine types of registries of archive materials and documentary mate¬
rial are anticipated by the Law on Archives Material of
1990
(changes and amendments of
1995)
and by-law acts: enactments and directions.
(m) Other kinds of protective inventories. There is a possibility and need of acceptance of
other types of protective inventories like: archeological cadastral book, registry of icons,
stolen property record, seizure property registry etc.
5.
Related inventories in the frames of the cultural heritage protection system
(a) Origin of property inventory .This type of related inventory has been anticipated by the
basic law of
2004
and its international basis is the Convention on the Means of Prohibiting
and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of
1970.
Every trader with antiquities and other collection items is obliged to keep this inven¬
tory.
(b) Other related inventories. Several other related types of inventories of cultural heritage,
especially church and proprietary inventories are comprised.
V VALORIZATION, CATEGORIZATION AND REVALORIZATION OF THE CULTUR¬
AL HERITAGE
1.
Valorization
(a) Concept and goal of the valorization. According to the official definition from the Law
on Protection of the Cultural Heritage the term valorization includes a professional and
scientific assessment of the values and characteristics of the property in accordance with the
established criteria for their placement under protection and registration compatible with
corresponding regime of protection. So, it is an activity that precedes the procedure of estab¬
lishment of protection. Its goal is an element of the definition itself meaning that the valori¬
zation is performed for establishment of legal protection of the actual property.
(b) Legal ground for the valorization and its development. The basic issues related to the
valorization are determined by the Law on Protection of Cultural Heritage, and by the Regu¬
lation for Valorization, Categorization and Revalorization of Cultural Heritage of
2005.
Re¬
garding the subject matter an important step forward has been taken and the valorization had
been profiled as a separate monument-legal institute. Prior to that, in the past six decades,
from
1945
onward, the issue of valorization has been treated as an integrated part of the legal
institute
-
identification of a monument of culture, i.e. it has not been separated from the
procedure for establishment of protection itself. Previously, concrete steps for special profil¬
ing of the valorization were made in the framework of the Common action for protection of
the natural and built heritage in SFRY and in the Macedonian legal projects from the subject
-------------------_'_
Summary
matter of
1985, 1988
and
1990.
However, in the final normative form that issue had been
361
accomplished with the new basic law of
2004
and the regulation of
2005.
(c) Types of valorization. According to the modality of performance and the scale of the
undertaken actions, two types of valorization can be distinguished: preliminary valorization
and regular (standard) valorization. The first type of valorization (preliminary valorization)
refers to the modalities of establishment of protection that have time limited legal action, as
are the temporary protection and the determination of a reserved archaeological zone. The
regular valorization refers to the establishment of protection by proclamation. In that sense,
the two types of valorization are the activities that precede the procedure for adoption of the
corresponding act of protection.
(d) Subject of the valorization. Only an unprotected property of cultural and historical sig¬
nificance can be a subject of valorization. This property is officially called
-
property for
which there is a ground it represents a cultural heritage, and whose protection is established
by the adoption of a single act of protection. In that sense, a procedure for valorization can
be initiated only for a material or immaterial property that can be identified as an indepen¬
dent object of protection.
(e) Basic principles of the valorization. In our overview the following basic elements of the
valorization are identified and explained: the principle of obligation of the valorization, the
principle of legitimacy of the valorization, the interdisciplinary principle, the principle of
competence, the principle of individualization of the subject of protection, the principle of
individualization of the criteria of protection, the principle of irrelevance of the ownership
of the property, the principle of objectivity of the valorization, the principle of professional
and scientific foundation of the valorization, the principle of documentation, the principle of
comparability and the principle of rationality.
(f) Criteria for valorization. The Macedonian legal system identifies and accepts four basic
criteria for valorization: values, characteristics, functions and significance. They are com¬
prised in the legal definition of the term cultural heritage and are thoroughly elaborated in
the Regulation of
2005.
The criterion of value comprises the following subtypes of values:
archaeological, epigraphic, historic, memorial, artistic, ethnologic, architectonic, built, ur¬
ban, ambience, landscape, esthetic, sociological, documentary and other scientific or cultur¬
al values; (regarding the immovable property) i.e. archaeological, epigraphic, anthropologi¬
cal, numismatic, heraldic, phaleristic, historical, memorial, artistic, ethnological, technical,
archival, philatelist, cartographic, bibliographic, librarian,
bibliophilie,
cinematographic,
film archival, musicological, phonographic, phonogramic, museological, collection's, docu¬
mentary and other scientific or cultural values (regarding the movable property), as well as
ethnological, folkloristic, ethno-musicological, ethnocoreological, philological, linguistic,
phonetic, phonologic, morphologic, lexicological, semantic, etymological, dialectologi-
cal,
onomastic,
toponym and other scientific or cultural values (regarding the immaterial
property). The criterion characteristic comprises: authenticity, rarity, uniqueness, diversity,
integrity, the preservation state and the age. The criterion function comprises: educational,
scientific, cultural, communication, information, economic and other utilitarian functions.
The criterion significance comprises: cultural, historical, cultural-historical, artistic, scien¬
tific, technical and social significance.
(g) Procedure of valorization. The procedure of valorization begins by the establishment of
an expert team for valorization. The team undertakes several activities: identification, docu¬
mentation, targeted research, comparative analyses, determination of borders and contact
zones, categorization, determination of the regime of protection etc. Two types of papers
are the final products: Survey for valorization and Proposal for adoption of an act of protec¬
tion.
(h) Surveys for valorization. These surveys represent a type of standard documentation in
the field of protection of cultural heritage. They are the professional base for preparation of
the proposals for adoption of the acts of protection. According to the Regulation there are
11
types of surveys for valorization: temporary protection of immovable property, temporary
protection of movable property, reserved archaeological zone, monuments, monument en¬
semble, cultural landscape, collection, individual movable property, folklore good, language
or dialect and toponym(s). The content of all of these surveys is standardized and proscribed
in detail by the Regulation.
(i) Revision of the surveys for valorization. This control instrument is reserved only for
the surveys that foresee proclamation of a certain property as cultural property of special
significance. The revision determines whether these surveys are prepared according to the
Jovan Ristov Instruments
for protection of the cultural heritage
362
proscribed contents and methodology and the measure to which the stated facts, assessments
and proposals from the surveys are founded. The revision is performed by special commis¬
sions formed by the Minister of Culture.
The assessments and the remarks from the revision are mandatory for the author of the sur¬
vey for valorization.
2.
Categorization
(a) Notion and goal of the categorization. According to the legal definition, the term catego¬
rization includes determination of the degree of significance of the cultural heritage of public
interest for proscribing corresponding regime of protection, determination of the priorities
of protection, delimitation of the inherences and implementation of the ratified international
conventions. The goal of the categorization is identification of the public interest for the
property depending on its significance and the accomplishment of the other defined goals.
Primarily, it represents the creation of a qualified base for recognition of corresponding re¬
gime of protection, as well as a selection of the priorities for protection. Besides, its goal is
to delimitate the inherences among the responsible subjects, and proper application of the in¬
ternational agreements that foresee selection of the property according to their significance.
(b) Creation and development of the idea for categorization of the cultural heritage. The idea
for categorization of the property category in Macedonia was risen in
1948,
but back than
it was not accepted in the corresponding regulations. At international level, the idea was
accepted in
1962
at the First Conference of the Member States of the Hague Convention
of
1954
when the categorization of the cultural property in
3
categories (A, B, and C) was
recommended in the frames of the adopted Resolution. In the former joint state, in many of
the former republics, for the needs of the defense sector, a selection of the monuments of
culture of greatest significance was made. An attempt for acceptance of the categorization
in the former SFRY was made in the framework of the Common action for protection of the
natural and the built heritage. In this period
(1976-1990)
in the basic laws of some of the
former Yugoslav republics, the categorization of the cultural heritage/the cultural property
was accepted and was elaborated in detail. In Macedonia, attempts for legal regulation of
that issue were made in three turns
(1985, 1988
and
1990).
(c) Legal ground for the categorization. The basic issues in relation with the categoriza¬
tion of the cultural heritage are regulated with the basic law of
2004
and the Regulation of
2005.
Corresponding provisions concerning this issue are also comprised in several separate
laws from the relevant fields. Besides, there is legal ground for the categorization in several
international agreements, especially in the Hague Convention of
1954
and its Second pro¬
tocol of
1999,
as well as in the UNESCO conventions of
1972
and
2003
(the World and the
Immaterial Cultural Heritage). The acts of proclamation, foreseen with the basic law and
implemented in practice, are also relevant for the categorization.
(d) Categories of cultural heritage. The Macedonian model of categorization implies
2
cat¬
egories: cultural heritage of special significance as a higher category with
2
subcategories
-
cultural heritage of exceptional significance and cultural heritage of great significance, and
the lower category
-
significant cultural heritage. This way of categorization represents a
compromise in order to harmonize the constitutional and the international model of catego¬
rization. Cultural heritage of special significance is that part of the national cultural heritage
with exceptional and other special values and characteristics. In its frames, cultural heritage
of exceptional significance is the property of great significance for the national history, cul¬
ture, art, science or technological development. On the contrary, significant cultural heritage
is the property that does not belong to the higher category but still represents a permanent
value as part of the national cultural heritage.
(e) Criteria for categorization. The basic criteria for categorization are contained in the basic
law and are elaborated in the Regulation. So, regarding the cultural heritage of exceptional
significance five criteria are determined: uniqueness, exceptionality, impressiveness, influ¬
ence and interconnection, and regarding the significant cultural heritage only three criteria:
recording, recurrence and interconnection. Each of these criteria has recognizable character¬
istics explained in the text.
(f) Subject of categorization. Subject of categorization can be the unprotected property that
is in process of valorization, for which is foreseen adoption of an act for proclamation, and
protected property that is in process of revalorization and for which there is a need of deter¬
mination or revision of the category. In the stated cases, the categorization becomes valid in
Summary
the corresponding proposal for adoption of an act for proclamation or an act for change,
(g) Comparable models of categorization. In the comparative law on monuments there are
three groups of models of categorization. The first group is comprised by the countries that
implement partial categorization, whose typical representative is France. The second group
includes the countries that implement conditional categorization, i.e. categorization depend¬
ing on the type of the property (Japan, South Korea etc.). In the third group are the countries
whose models of categorization do not imply conditionality of the classification, i.e. where
subject of categorization are all types of property (Slovenia, Montenegro, Croatia, Bulgaria,
Lithuania, Macedonia)
3.
Revalorization
(a) Concept and goal of the revalorization. According to the official definition the term
revalorization implies professional and scientific
réévaluation
of the values and the charac¬
teristics of the cultural heritage for confirmation, expansion, enhancement or diminishing
the act of the protection, including its exemption or ceasing. The goal of the revalorization
is a key element of the legal definition itself.
(b) Legal ground of the revalorization. The basic issues concerning the revalorization, like in
the previous two categories, are regulated with the Law on Protection of Cultural Heritage
and the Regulation.
(c) Types of revalorization and their subject. According to the basic law of
2004
there are
two types of revalorization: regular and exceptional. Regular revalorization is a standard
procedure conveyed upon necessity, based on confirmed criteria by the competent legal sub¬
ject. Its subject is the protected property having the status of cultural heritage for which can
be performed re-categorization and/or for which there is a need of another type of change.
Exceptional revalorization is the one related with the interim regime, also called mandatory
revalorization, having as subject the protected property for which, according to the former
regulations, a decision for determining of the characteristic monument of culture was ad¬
opted and according to the new basic law it should receive the proper categorization and
regime of protection.
(d) Principles, criteria, subjects and procedure of revalorization. Valid for these issues is the
one listed for the valorization, with proper adjustment. So, the revalorization is performed
according to the same principles and criteria, from the same legal subjects and in similar
procedure.
(e) Survey for revalorization and its revision. This type of survey represents standard docu¬
mentation prepared for each protected property that is subject of revalorization. Accord¬
ing to the Regulation there are eight types of surveys: monuments, monument ensembles,
cultural landscapes, collections, individual movable property, intangible (immaterial) prop¬
erty, property under temporary protection and reserved archaeological zones. The content of
these surveys is standardized and proscribed in detail with the Regulation. The same rules
as for the revision of the surveys for valorization apply.
VI
-
ESTABLISHMENT, CHANGE AND CEASE OF THE PROTECTION OF THE CUL¬
TURAL HERITAGE
1.
Establishment of the protection
(a) General remarks. The term establishment of protection is a generic term that includes
the official modalities (legal techniques) for obtaining the status of protected property and
initiating of the validity of the regulations and the acts of protection of cultural heritage for
specific property. Today, the law on monuments includes three basic models of protection:
model of abstract protection, known under the term protection ex
lege
(protection based on
law, protection under the force of law), model of concrete protection, that implies adoption
of a corresponding act of protection and model of combined protection, that implies ele¬
ments of the first two models. Currently, in the Macedonian law on monuments, the model
of combined protection, that implies the following legal techniques for establishment of
protection: protection ex
lege,
temporary protection, proclamation of cultural heritage, de¬
termining of an archaeological zone and determining of national treasure is valid.
(b) Protection ex
lege.
This modality of protection implies existence of a law that predeter-
Jovan Ristov
Instruments for protection of the cultural heritage
364
mines which property and according to which criteria is considered to have the status of pro¬
tected property. It excludes the necessity of adoption of individual acts of protection. It can
refer to all types of property or just to some of them. In the same time, this type of protection
can be applied as a pure model or in combination with elements from the model of concrete
protection. In Macedonia, in this modality are protected: monument centers, shelters and
buildings of museums, libraries and archives, the legal deposit, the archive materials and
the movable property in the museums, the libraries and the film archives, inscribed in their
inventory books. The listed types of property, with the exception of the legal deposit, have
the status of cultural heritage ex
lege
from the category
-
significant cultural heritage, while
the legal deposit has the status of cultural heritage of great significance ex
lege.
(c)
Temporary protection. This is a new legal institute in the Macedonian law on monuments
established by the basic law of
2004.
According to this law there are two types of temporary
protection: temporary protection ex
lege
and concrete temporary protection. In the first case,
an abstract temporary protection (temporary protection ex
lege),
the following property: ar¬
chaeological finds, the movable property purchased by the competent public institutions for
protection and the property in procedure for establishment of protection enjoys this status.
In the second case, the concrete temporary protection is established with an individual ad¬
ministrative act
-
decision for establishment of protection, adopted by the Cultural Heritage
Protection Office. Such a decision is adopted only for unprotected material property. In our
overview we have enumerated the key differences between these two modalities of place¬
ment under temporary protection. The legal action of the decision for temporary protection
is limited to two years for the archaeological sites, one year for the other immovable prop¬
erty and six moths for the movable property.
(d) Proclamation of cultural heritage. This is a new modality of establishment of protec¬
tion accepted by the basic law of
2004.
Before that, the Macedonian law on monuments
implemented the institute establishment of characteristic of a monument of culture. Today
the status cultural heritage, except for the cases of protection ex leg, can be obtained with
proclamation, i.e. with adoption of an act of proclamation depending on the category. So,
the status significant cultural heritage is obtained by adoption of a decision for proclama¬
tion by the Cultural Heritage Protection Office. On the contrary, the status cultural heritage
of special significance, as a rule, is obtained with a decision for proclamation adopted by
the Government. As an exception, certain ensembles and landscapes, as well as immate¬
rial property, can be placed under protection with a law for proclamation. In this case the
procedure for proclamation is initiated with the submission of a proposal by the competent
institution that had elaborated the survey. In this section of the book all the relevant aspects
related to proclamation are elaborated.
(d) Determination of a reserved archaeological zone. This is a new legal institute accepted
with the basic law of
2004.
It is valid only for the archaeological heritage. Reserved archaeo¬
logical zone is the spatially limited area that contains any trace of human existence from
the past epochs, including places where there are no visible remains on land or under water
and whose excavation and research, due to the protection of such material remnants are left
for the future generations. In order to receive the status of reserved archaeological zone an
area has to fulfill the proscribed conditions, i.e. criteria. The reserving is performed with a
decision for determining a reserved archaeological zone adopted by the Government. This
decision implies a moratorium of the archaeological research and other specific preventive
measures of protection. The legal action of the decision can last at least
15
years. The final
term for reservation is determined with the decision itself and can be valid up to
100
years.
(e) Determination of national treasure. This is a new modality for establishment of protec¬
tion, accepted with the changes and amendments of the basic law in
2007,
in the framework
of the process of harmonization of the legislation with the one of the European Union. It is
an exceptional modality of placement under protection of antiquities and other collection
items that have not been protected and are subject of a request for export or taking abroad
or illegally taken out of the national territory and are subject of restitution. In those cases
if there is a justified need, the Cultural Heritage Protection Office can adopt a decision for
determination of national treasure with the legal status of an act for proclamation of a sig¬
nificant cultural heritage. The status national treasure is obtained not only with the adoption
of a decision for determination of national treasure, but also in regular way. So, as national
treasure is considered all the movable property that fulfills the criteria of age in sense of the
directives and regulations of the European Union and the basic law, if protected as cultural
heritage of special significance or is proclaimed as significant cultural heritage, enlisted in
Summary
the inventories as a part of a public collection managed by a museum, library or film archive
365
or the state archives or represents a part of equipment of protected religious structures or
protected sacral collection.
2.
Proclamation of an endangered cultural heritage
The status of endangered cultural heritage is obtained with proclamation, performed by the
administrative procedure, with adoption of a decision by the Cultural Heritage Protection
Office. This decision is adopted in the cases when at least one of the legal criteria of direct
or indirect danger is fulfilled. This type of proclamation does not represent a modality for
establishment of protection but is an instrument of a priority and urgent action on the pro¬
tected property.
3.
Change of the protection
This generic term includes the redefining of the values, the significance, the borders, the
zones or the regime of protection, as well as any other change that can be reflected as expan¬
sion, enhancement, reduction or exemption of the action of protection for certain property.
It includes the legally relevant changes that occur after the establishment of protection on a
certain property. The changes can be understood in a narrower sense
(stricto sensu)
or in a
wider sense
(lato sensu). In
narrower sense changes of protection are the changes that reflect
the content of the act of protection made with adoption of an act for change by the body that
had adopted the act of protection. In a wider sense, as a change is considered the change of
the type of the act of protection, the transformation of the abstract into a concrete protection,
the change related to the mandatory revalorization, the change of the legal ground at the ab¬
stract protection etc. At this point, the listed situations are analyzed and explained in detail.
4.
Cease of the protection
This generic term includes the loss of the status of protected property and cease of the valid¬
ity of the regulations and the acts of protection of cultural heritage for a certain property.
Such a legal situation happens with the adoption of an act for cease of the protection. Such
an act can be adopted by the organ that had adopted the act of protection if some of the
proscribed legal criteria are fulfilled: the property is a subject to restitution, legal export,
international exchange or similar, is irredeemably destroyed or it had lost the significance
that was the reason for establishment of protection in the first place. On the other hand, as
a cease of the protection are considered the cases in which an act for cease is not adopted
by the power of the act of protection ceases ex
lege,
upon the expiration of the determined
deadline.
5.
Comparative models for protection, change and cease of protection
In our overview the models of Slovenia, Croatia, Serbia, Bulgaria, France and Japan were
taken as being more characteristic. The comparison with those models enables the offering
of a more clear picture of the degree of acceptability of the Macedonian model of protec¬
tion.
VII
-
REGISTRATION AND OTHER INSTRUMENTS OF PROTECTION OF THE CUL¬
TURAL HERITAGE
1-
Registration of the cultural heritage
(a) Concept, goal and importance of the registration. In the law on monuments the word
registration has two legal meanings: the first one, a modality for establishment of protection,
and the second one a professional and administrative operation, i.e. a phase of work that
follows the establishment of the protection, and it comprises the enlisting in an appropriate
register as a public book. In the Macedonian law on monuments, the registration did not
have and still does not have a meaning of a legal technique for establishment of protection.
It had and it has just a declarative action and incorporates inscribing legally relevant data
on the protected property for its better identification for official and other needs. As a public
Jovan Ristov Instruments
for protection
of the cultural heritage
366
authorization the registration can be performed in a centralized manner (at one place) or in
a dispersed manner (at several places) by many competent subjects. With the basic law of
2004
the model of dispersed registration in Macedonia was abandoned. The sense and the
significance of the registration lays in the need of providing bigger legal security in the
foundation and in the existence of the monument-legal relations.
(b) Legal ground for the registration and its development. Today the basic issues regarding
the registration of cultural heritage are regulated with the basic law of
2004
and the Cultural
heritage national registry regulation of
2005.
Before that, in all the former basic laws this
subject matter was only partially regulated, and in the period between
1966
and 1973 a spe¬
cial Monuments of culture registration regulation of
1966
was also implemented.
(c) Cultural heritage national registry. This term implies a special public book, i.e. a legal
entirety in which are registered data related with the establishment, the application and the
cease of the protection of the property of cultural and historical significance. The National
registry is administered by the Cultural Heritage Protection Office, based on the acts of
protection, change and cease of the protection, and in certain cases, based on an act of
registration (decision) adopted upon a notification for the property that enjoys protection ex
lege.
The National registry is comprised of a Main book consisted of four parts (immovable,
movable, immaterial and cultural heritage of special significance), and
3
additional regis¬
tries (property under temporary protection, reserved archaeological zones and endangered
cultural heritage). The content and the modality of administering of the National registry are
regulated with a Regulation.
(d) Comparative models of registration. In our overview are given the Croatian, the Serbian,
the Montenegrin, the Bulgarian, the Lithuanian, the Spanish, the Mexican and the
Nicara¬
guán
model of registration.
2.
International registries of cultural heritage
(a) International registry of cultural property under special protection.
(b) International list of cultural property under enhanced protection.
(c) List of the World Cultural Heritage
(d) List of the World endangered heritage.
(e) Representative list of the immaterial cultural heritage of mankind.
(f) List of the immaterial cultural heritage for which urgent protection is necessary (Emer¬
gency list)
Each of these international registries is given according to the appropriate international acts
from which they derive with detailed explanation regarding their properties (status, criteria,
inherence, procedure etc.).
3.
Nomination for obtaining an international status
The issue of nomination for obtaining an international status in the Macedonian legislation
for the first time was regulated by the Law on Protection of Cultural Heritage of
2004.
Ac¬
cording to this law, the Government adopts a decision for nomination, upon the proposal
from the Ministry of Culture and the opinion from the National Council for Cultural Heri¬
tage. Subject of nomination can be only a protected property with the status of cultural heri¬
tage of special significance, in the cases when it fulfills the proscribed conditions and criteria
according to the relevant international agreement. The act of nomination is a legal base for
submission of an official request for inscription in the relevant international registry.
4.
Marking of the protected property
(a) General remarks. The marking of the protected property is a type of instrument for iden¬
tification and protection whose goal is to inform the public that certain property is protected
by law. As an instrument of protection the marking was first accepted at international level
in the second half of the 19th century. Today it is accepted in almost all national protection
systems. Basically, there are four forms of marking: marking with textual symbols, marking
with national sign of protection, marking with international signs and placement of other
symbols. This subject matter in the Macedonian legislation for the first time was regulated
with the basic law of
1973.
Today, it is regulated with the Law on Protection of Cultural
Summary
Heritage and the Regulation for usage of symbols for the cultural heritage according to an
367
international agreement. Besides, the normative conception includes adoption of a special
Regulation for the national symbol of protection. Appropriate provisions for protection of
the international symbols are contained in the Criminal Code.
(b) National symbol of protection. The marking of the protected immovable property with a
national symbol of protection is a novelty in the Macedonian law on monuments. However,
so far, the relevant legal solutions are not implemented because the appearance of the na¬
tional symbol of protection is not determined yet.
(c) International identification symbol in case of an armed conflict. It is a symbol determined
with the Hague convention of
1954
and the Regulation for implementation of the Conven¬
tion. Our overview contains a survey of the development of the idea for marking of the
cultural property with an international symbol in case of an armed conflict.
(d) Symbol for World heritage. The basic rules for the usage of this symbol, adopted by the
Committee for World Heritage of UNESCO, are given here. Also, it includes the provisions
of the Regulation.
(e) Other symbols for the protected property. The legal instrument marking also includes the
possibility of placement of other symbols for the protected property. These issues are the
topics of this section.
5.
National strategy for protection and usage of the cultural heritage
(a) Basic characteristics of the strategy. The National strategy is one of the key protection
instruments foreseen with the basic law of
2004.
As an act it is adopted by the Government
for a period of
15
years, upon a proposal by the National Council for Cultural Heritage.
(b) Strategic goals and principles.
(c) Main strategic attributes.
Regarding the fact that the National strategy for protection and usage of the cultural heritage
has not been adopted or prepared yet, in our overview we offer a model for the structure
of this document regarding the key issues: strategic goals, strategic principles and the main
strategic attributes. This model can serve as basis in the future process of elaboration of the
National strategy for protection, especially regarding the standardization of its content. |
| any_adam_object | 1 |
| author | Ristov, Jovan 1949- |
| author_GND | (DE-588)14280021X |
| author_facet | Ristov, Jovan 1949- |
| author_role | aut |
| author_sort | Ristov, Jovan 1949- |
| author_variant | j r jr |
| building | Verbundindex |
| bvnumber | BV036773815 |
| ctrlnum | (OCoLC)705966562 (DE-599)BVBBV036773815 |
| format | Book |
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| institution | BVB |
| isbn | 9789989965371 |
| language | Macedonian |
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| physical | 382 S. Ill. |
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| spelling | Ristov, Jovan 1949- Verfasser (DE-588)14280021X aut Instrumenti za zaštita na kulturnoto nasledstvo Jovan Ristov Skopje Print Point 2008 382 S. Ill. txt rdacontent n rdamedia nc rdacarrier In kyrill. Schr., mazedon. - Zsfassung in engl. Sprache u.d.T.: Instruments for protection of the cultural heritage Denkmalschutz (DE-588)4011457-0 gnd rswk-swf Kulturdenkmal (DE-588)4165967-3 gnd rswk-swf Klassifikation (DE-588)4030958-7 gnd rswk-swf Kulturerbe (DE-588)4033560-4 gnd rswk-swf Nordmazedonien (DE-588)1181214262 gnd rswk-swf Nordmazedonien (DE-588)1181214262 g Kulturerbe (DE-588)4033560-4 s Kulturdenkmal (DE-588)4165967-3 s Klassifikation (DE-588)4030958-7 s Denkmalschutz (DE-588)4011457-0 s DE-604 Digitalisierung BSB Muenchen application/pdf http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&local_base=BVB01&doc_number=020690613&sequence=000002&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA Inhaltsverzeichnis Digitalisierung BSB Muenchen application/pdf http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&local_base=BVB01&doc_number=020690613&sequence=000004&line_number=0002&func_code=DB_RECORDS&service_type=MEDIA Abstract |
| spellingShingle | Ristov, Jovan 1949- Instrumenti za zaštita na kulturnoto nasledstvo Denkmalschutz (DE-588)4011457-0 gnd Kulturdenkmal (DE-588)4165967-3 gnd Klassifikation (DE-588)4030958-7 gnd Kulturerbe (DE-588)4033560-4 gnd |
| subject_GND | (DE-588)4011457-0 (DE-588)4165967-3 (DE-588)4030958-7 (DE-588)4033560-4 (DE-588)1181214262 |
| title | Instrumenti za zaštita na kulturnoto nasledstvo |
| title_auth | Instrumenti za zaštita na kulturnoto nasledstvo |
| title_exact_search | Instrumenti za zaštita na kulturnoto nasledstvo |
| title_full | Instrumenti za zaštita na kulturnoto nasledstvo Jovan Ristov |
| title_fullStr | Instrumenti za zaštita na kulturnoto nasledstvo Jovan Ristov |
| title_full_unstemmed | Instrumenti za zaštita na kulturnoto nasledstvo Jovan Ristov |
| title_short | Instrumenti za zaštita na kulturnoto nasledstvo |
| title_sort | instrumenti za zastita na kulturnoto nasledstvo |
| topic | Denkmalschutz (DE-588)4011457-0 gnd Kulturdenkmal (DE-588)4165967-3 gnd Klassifikation (DE-588)4030958-7 gnd Kulturerbe (DE-588)4033560-4 gnd |
| topic_facet | Denkmalschutz Kulturdenkmal Klassifikation Kulturerbe Nordmazedonien |
| url | http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&local_base=BVB01&doc_number=020690613&sequence=000002&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&local_base=BVB01&doc_number=020690613&sequence=000004&line_number=0002&func_code=DB_RECORDS&service_type=MEDIA |
| work_keys_str_mv | AT ristovjovan instrumentizazastitanakulturnotonasledstvo |