German Supreme Court ruling favorable to Ancient Coin Collectors

While U.S. Courts have consistently avoided hearing arguments about the validity of imposing trade restrictions on ancient coins, a German High Court has faced the issue head on and ruled definitively in a case involving coins.  For a certified translation click HERE.

On October 31, 2008 a German auctioneer, Stefan Sonntag, presented an export declaration for 32 coins and medals to the Port Customs Office of the Main Customs Office.  The objects were declared to be between 1,500 to 2,400 years old.  The Main Customs Office rejected the export declaration and demanded an Export Permit, citing EEC law involving export of cultural property.  Sonntag then filed a complaint with the Fiscal Court, which ultimately dismissed the complaint affirming the actions of the Customs agency.


Sonntag then appealed the case to the Bundesfinanzhof (Federal Finance Court) one of the Federal Supreme Courts of Germany.  It is the final court of appeals for cases of tax and customs law.  Sonntag argued that ancient coins are "...generally not archaeological objects, but are present in great numbers in trade as bulk commodities and listed in numerous catalogues with price information; they are certainly not national cultural property — and are not the interest of archeological work and research — that the Union alone can take on the responsibility to protect."  The argument went on to point out that the contested Customs interpretation "...would inconpatibly bring the coin trade with third party customers to a standstill when it comes to free movement of goods."

The Main Customs Office responded with a request for rejection of the Appeal based on their interpretation that all cultural property requires and export permit and the basis for that interpretation cannot be challenged.

The decision of the Bundesfinanzhof on March 1, 2013 was that the appeal of the Plaintiff (Sonntag) is justified and that the Customs and Fiscal Court interpretations were "based on an incorrect notion of 'archaeological object' or 'archaeological discovery'."  Of considerable interest to American collectors and dealers was the court's comments about what does constitute an archaeological object.  "The Plaintiff rightly asserts that coins coming from Antiquity generally have no archeological value and thus are not archaeological objects, especially when they are available in large numbers and they—which the Badische Landesmuseum [State Museum] also mentions in its opinion referred to by the Main Customs Office in the hearing—can no longer be assigned to a specific place of discovery."

In essence, the court ruled that each case must be evaluated by Customs on its own merits, not on a general assertion that coins are, as a class, subject to export permit controls.  This evaluation should take into account "whether the same or similar objects are largely the object of trade in which archaeological institutions and collections are not involved, but rather collectors are involved who are not interested in such coins as an 'archaeological' interest but as a desire to collect and acquire said objects for aesthetic value or for other interests."

The ACCG test case is at the opposite end of this issue, but the arguments are similar.  The ACCG argues that coins cannot be judged illicit simply because they lack provenance.  It is the responsibility of the Customs Agency to determine whether the specific objects being imported are illicit and that determination must be based on facts, not suppositions.  It is anticipated that the ACCG case, which has been referred for forfeiture action and will be contested when that action is served, will bring these issues to bear in a court that cannot deny jurisdiction.

Finally, it should be said that many critics of the ACCG, private collectors and the numismatic trade have the mistaken belief that the "hobby" (more of an avocation for most) is opposed to import controls because collectors want access to "black market" coins.  That is an unfortunate characterization that is entirely false, but it does resonate with some mindsets.  The ACCG has consistently, since its inception nine years ago, asked all members, dealers and government officials to follow the applicable laws wherever they live or visit.  The point of the ACCG test case is to create case law that will spell out exactly what was intended by Congress in the Convention on Cultural Property Implementation Act.

A Kinder and Gentler Paul Barford?

http://paul-barford.blogspot.com/2013/04/face-to-face.html

Kudos to Cambridge archaeologist Helen Geake for apparently striking a chord of reason in the most unsuspected of places.  Cultural property issues are always open to debate and philosophical adversaries are not always evil, as Mr. Barford discovered in another "face-to-face" with one well known ancient coin dealer at a Warsaw coin show last year.  We can all hope that the old saying about leopards and spots is faulted.

Archaeologists entertain the views of private collectors

The Council for British Archaeology has published a paper on their digital journal web site that outlines the thoughts and concerns of private collectors.  Issue No. 33 of Internet Archaeology includes a commentary by yours truly that discusses "Ideology, governance and consequences from a collector's point of view."  The paper is a condensed version of the longer Ancient Coin Collectors Guild paper presented at the CBA conference in Newcastle, England in 2010.  In sharp contrast to their sister organization in the United States (the American Institute of Archaeology), the CBA has traditionally worked with collectors and other elements of the public to seek common ground for the protection of mutual interests.   In reaching out to American collectors of ancient artefacts, the CBA has taken the lead in an area of critical importance to the preservation and study of objects from the past.

From small acorns…. Ancient Coin Collectors on the steps of the Supreme Court

Some 50,000 Americans who call themselves Ancient Coin Collectors are hopeful that February 12, 2013 will be remembered by numismatic historians as an auspicious day. Washington bureaucracy broke with law and tradition in 2007 by imposing draconian import restrictions on ordinary coins that are freely and routinely exchanged and collected worldwide, say coin collecting advocates in filed court documents.  Under these restrictions, American collectors are now subjected to requirements that they claim are impossible to meet and are extralegal on several counts.  “Congress limited restrictions to culturally significant artifacts found in a specific country, but now Americans importing common coins made in a specific country are forced to prove the negative—that their coins have not illegally exited a specified country subsequent to the signing of a bi-lateral agreement between that nation and the United States,” explains Counsel of Record Peter K. Tompa.

Since coins have flowed endlessly across national boundaries, without documentation, for more than two thousand years, collectors argue that it is impossible to say with certainty where any given specimen has been during that time.  Literally millions of very common and low value ancient coins lack specific pedigrees of ownership or "provenance" and consequently cannot satisfy the burden of proving a negative.   Are these coins all, by default, illicit because it is impossible to say where they were found in modern times?  “Not at all,” say collectors who point to a 600-year-old legitimate market that has witnessed a constant and massive flow of ancient coins from every conceivable source country.   Many feel that a presumption of guilt has trumped the venerable presumption of innocence that Americans hold dear.  Law enforcement agencies in some third-world countries, and even more prosperous nations, are sometimes unable or unwilling to enforce their own nationalistic cultural property laws.  As a result, some objects of ‘national patrimony’ eventually find their way to foreign markets.    Under U.S. law, foreign nations may in exceptional cases appeal to the U.S. State Department for emergency assistance through import restrictions.  However, a collector group’s lawsuit complains of bureaucratic overkill, where the State Department has reacted capriciously by creating what amounts to broad barriers to trade in all undocumented objects, both licit and illicit, significant and insignificant, that they arbitrarily designate as cultural property at risk.  That, collectors feel, is extralegal and ignores the plain language of the law.

 By importing a group of unprovenanced Cypriot and Chinese coins from a British dealer in 2009, the non-profit Ancient Coin Collectors Guild (ACCG) set in motion a test case before the U.S. District Court at Baltimore, Maryland to challenge the State Department’s interpretation of law and their actions. After lengthy hearings and deliberation, a trial court dismissed the case claiming that the issue was not one for the courts to decide. Disagreeing with this view, the ACCG appealed that decision to the 4th Circuit Court of Appeals where ultimately the lower court ruling was affirmed.  The essence of the ACCG argument is that the governing law does not give unbridled authority and discretion to the President’s representative in the State Department, particularly when another agency, U.S. Customs, is ultimately responsible for the final regulations. They argue that the court should say what the law is and judge whether its provisions were followed in the process of imposing the restrictions being challenged.  After almost four years of litigation, no lower court has been willing to take that stand. 

Meanwhile, the case has grown from a rather provincial test of bureaucratic agency decision-making to something of far greater consequence.  Does the Executive Branch inherit absolute discretion when Congress gives it oversight authority?  Even when there are limits and conditions established in the governing legislation?  This question has now been posed by Ancient Coin Collectors to the United States Supreme Court in a Petition for a Writ of Certiorari.  The potential ramifications are significant and extend well beyond the world of coin collecting.  A decision on this question could well set the bar for presidential discretion for years to come.   From small acorns do mighty oaks grow.

More from Barford about ACCG

In a recent blog post, Polish Archaeologist Paul Barford has offered yet another in a heartwarming string of compliments directed at the Ancient Coin Collectors Guild.  Noting that the ACCG did not comment at the Cambodia MOU hearing, Barford says: "What a difference not having the ACCG going on at the CPAC makes, after the closing of the public consultation period, there was a grand total of 37 results for "DOS-2012-0063"... This does not exactly suggest that as a nation the citizens of the USA are all that concerned...".

It may well be true in the U.S. that ancient coin collectors are more concerned than the general public about cultural property law violations, both by looters and by government administrators.  Collectors are typically passionate about their interests and the ACCG is no exception.  How many private citizens of ANY country woud dedicate as much time and energy to the preservation of longstanding rights and freedoms?  Mr. Barford has undoubtedly seen his share of repression and the fact that he would publicly recognize the sincerity of ACCG and its members in their uphill battle against bureaucratic tyranny is most gracious.

What Mr. Barford may not fully understand is that the ACCG does not oppose the Convention on Cultural Property Implementation Act and never has.  What the guild opposes is the blatant disregard for provisions of that law by administrators who are charged with its implementation.  Consequently, the guild does not typically comment on MOU requests that lie outside of its area of specific knowledge and concern.

A rational voice in a sea of hyperbole?

On the Trafficking Cullture website, one reads that, "Trafficking Culture aims to produce an evidence-based picture of the contemporary global trade in looted cultural objects."  I instinctively thought of the myriad sensationalized media articles and unfounded blog posts that outrageously portray private collectors in league with elements of organized crime, and worse yet terrorists.  However, the next sentence did slow me down some.  "This research programme is based at the University of Glasgow and is funded by the European Research Council."  My personal experience with archaeologists from this part of the world has been encouraging and so I tried to keep an open mind.  I had been directed to the site through a link to a paper written by Jessica Dietzler, the recipient of a University of Glasgow scholarship for the study of Illicit Antiquities and Global Criminal Markets.  I was quite surprised to find that Ms. Dietzler is a graduate of the University of Wisconsin - Milwaukee in Anthropology and Art History.  Being a UW Art Historian myself, I mused that this could not be all bad.

The paper, titled "On ‘Organized Crime’ in the illicit antiquities trade: moving beyond the definitional debate",  is actually critical of the stereotypes that have predominated thus far and concludes that "... researchers should focus not on the question of whether organized criminals—particularly in a traditionally conceived, mafia-type stereotypical sense—are involved in the illicit antiquities trade, but instead on the structure and progression of antiquities trafficking itself that embody both organized and criminal dynamics."  This seems to me a worthy and rational mode of investigation.  My own personal view, and that espoused by the Ancient Coin Collectors Guild, has always been that everyone in the cultural property arena must follow the laws that govern them.  An honest assessment of criminal activity that leads to enforcement of law and prosecution of true violations of law, rather than general castigation of innocent citizens, can only be viewed as a positive event by all concerned.

I look forward to reading more about the progress of Ms. Dietzler in her research and sincerely hope that the outcome leads to a more rational debate in years to come.

Happy Holidays

I have many friends in the Ancient Coin Collecting community and the range of their religious beliefs is impressive, to say the least.  Fortunately, at this time of year most religions see fit to recognize a holiday or "holy day" for one reason or another, not necessarily being the same.  This tradition dates back to the days of the Romans and Mithraism.  Today is as much a secular as a religious celebration.  Regardless of one's personal view and beliefs, I think it is universally recognized as a time of year for holding hands and dedicating ourselves to a better world.  I would like to wish every one of my friends, regardless of religious persuasion, a very peaceful and happy holiday season and a most prosperous New Year.

1/19/2013 FOLLOW UP:

Here's an alternative point of view to my holiday wishes above:

Fox news reports that an Egyptian court has condemned a widowed mother and her seven children to 15 years in prison for converting back to Christianity (her native religion) some eight or so years ago.

"Nadia Mohamed Ali, who was raised a Christian, converted to Islam when she married Mohamed Abdel-Wahhab Mustafa, a Muslim, 23 years ago. He later died, and his widow planned to convert her family back to Christianity in order to obtain an inheritance from her family. She sought the help of others in the registration office to process new identity cards between 2004 and 2006. When the conversion came to light under the new regime, Nadia, her children and even the clerks who processed the identity cards were all sentenced to prison."  Read more:

http://www.foxnews.com/world/2013/01/16/egyptian-court-sentences-entire-family-to-15-years-for-converting-to/#ixzz2IRRjkZ2f
 
 The basis for this prosecution stems from the recent shift in Egypt to a national constitution based on Sharia Law.  This prosecution and persecution is something we might expect to read about in a study of the Roman Empire or a treatise on religious fanatacism—certainly not a report on the national policy of a supposedly modern nation.  In response to this blatant assault on human rights, the U.S. State Department should be slamming the door on aid to Egypt.  Unfortunately, the more likely scenario is that they will increase their support of the Egyptian government by endorsing the current Egyptian government's claims that Christian (Coptic) art, and art of Pre-Islamic antiquity, is their national patrimony—even as they advocate destroying it in the name of purification.   If actions of the past are any indication of those to come, the State Department will do everything in its power to increase the flow of U.S. financial support to Egypt, and decrease the flow of cultural property from Egypt to the U.S.  Meanwhile, Americans of all faiths express outrage and life goes on (for some).  Now tell me, who is "Stealing the Past"?