Page 30 - Studia Universitatis Hereditati, vol. 5(1) (2017)
P. 30
dia universitatis her editati, letnik 5 (2017), številk a 1 30cultural heritage. The articles were selected ac1, monuments must be accessible to the public
cording to broader terms, such as the ownership in proportion to the capacities of the owner or
hereditatiof cultural heritage, mandatory maintenance,landowner. Otherwise, the possibility of exercis
accessibility, terms of use, possibility of fruition, ing the pre-emption right and, exceptionally, ex
enrichment, management, financing and means propriation is envisaged, in both cases by the au
for the implementation of measures for the pro thority that proclaimed the monument,
tection, maintenance and enrichment of cultural
heritage. Based on the general guidelines, speci Based on Article 62 of the ZVKD-1, the
fied in the Constitution of the Republic of Slo state, the province or the municipality, have and
venia (Articles 5 and 73), the principles related can exercise pre-emptive right on monuments.
to the accessibility, use, fruition and enrichment
of immobile cultural heritage are defined in the The state has a pre-emptive right on monu
Cultural Heritage Protection Act (Slov. “Zakon ments of national importance and on immova
o varstvu kulturne dediščine” – ZVKD-1 with ble property in the influential area of a real mon
amendments1). In Croatia, basic regulations re ument of national importance, if so determined
garding the accessibility and use of cultural her in the proclamation act.
itage is specified in the Act on the protection and
preservation of cultural goods (Zakon o zaštiti i The province or municipality that has de
očuvanju kulturnih dobara). In Italy, the area is clared the monument has a pre-emptive right
regulated by the “Cultural Heritage and Land on monuments of local importance; on real es
scape Code” (Codice dei beni culturali e del tate in influential areas of a monument of local
paesaggio2). We aim to point towards certain de importance, if so determined in the decree; in
ficiencies in the legislature, due to which several case of unused pre-emptive right of the state, as
consequences occur – perhaps most notably, that well as on a monument of national importance
the ZVKD-1 does not imply any mechanisms for and on real estate in the influential area of a real
securing public budget funds for the financing monument of national importance (if so deter
of investments into the cultural heritage. mined in the decree) located within the territory
of that province or municipality.
Legislature
Slovenia A pre-emptive beneficiary may transfer
Based on the guidelines of the Constitution of pre-emptive rights to a third party if it improves
the Republic of Slovenia (Articles 5 and 73), the conservation and public availability thereby en
provisions regarding the accessibility, use, frui suring such use, which is consistent with the so
tion and enrichment of immovable cultural her cial significance of the monument.
itage are defined in the Cultural Heritage Pro
tection Act (ZVKD-1 and amendments). The pre-emptive right is excluded if the
owner sells a thing from the first or second par
Ownership agraph of this article to his/her spouse, relative
In practice it has been shown that ownership or relative in a linear, adoptive or adoptive par
of immovable cultural heritage is decisive in se enthood, adopted or adopted person or a public
curing accessibility and possibilities of fruition, body whose founder is a state, province or mu
since in accordance with Article 54 of ZVKD- nicipality.
1 Cf. Jelka Pirkovič and Borut Šantej, Pravno varstvo nepremične According to Article 63 of the ZVKD-1,
kulturne dediščine v Sloveniji (Ljubljana: ZVKDS, 2012). property rights on real estate can be withdrawn
against compensation or compensation in kind;
2 Cf. Maria Alessandra Sandulli, ed., Codice dei beni culturali e del expropriation is permissible if a monument or
paesaggio (Milano: Giuffre Editore, 2012). its protected values are endangered and if their
preservation cannot be achieved otherwise. In
terference with the right to property ownership
must be proportionate to the public benefits
that result in expropriation. The expropriation
cording to broader terms, such as the ownership in proportion to the capacities of the owner or
hereditatiof cultural heritage, mandatory maintenance,landowner. Otherwise, the possibility of exercis
accessibility, terms of use, possibility of fruition, ing the pre-emption right and, exceptionally, ex
enrichment, management, financing and means propriation is envisaged, in both cases by the au
for the implementation of measures for the pro thority that proclaimed the monument,
tection, maintenance and enrichment of cultural
heritage. Based on the general guidelines, speci Based on Article 62 of the ZVKD-1, the
fied in the Constitution of the Republic of Slo state, the province or the municipality, have and
venia (Articles 5 and 73), the principles related can exercise pre-emptive right on monuments.
to the accessibility, use, fruition and enrichment
of immobile cultural heritage are defined in the The state has a pre-emptive right on monu
Cultural Heritage Protection Act (Slov. “Zakon ments of national importance and on immova
o varstvu kulturne dediščine” – ZVKD-1 with ble property in the influential area of a real mon
amendments1). In Croatia, basic regulations re ument of national importance, if so determined
garding the accessibility and use of cultural her in the proclamation act.
itage is specified in the Act on the protection and
preservation of cultural goods (Zakon o zaštiti i The province or municipality that has de
očuvanju kulturnih dobara). In Italy, the area is clared the monument has a pre-emptive right
regulated by the “Cultural Heritage and Land on monuments of local importance; on real es
scape Code” (Codice dei beni culturali e del tate in influential areas of a monument of local
paesaggio2). We aim to point towards certain de importance, if so determined in the decree; in
ficiencies in the legislature, due to which several case of unused pre-emptive right of the state, as
consequences occur – perhaps most notably, that well as on a monument of national importance
the ZVKD-1 does not imply any mechanisms for and on real estate in the influential area of a real
securing public budget funds for the financing monument of national importance (if so deter
of investments into the cultural heritage. mined in the decree) located within the territory
of that province or municipality.
Legislature
Slovenia A pre-emptive beneficiary may transfer
Based on the guidelines of the Constitution of pre-emptive rights to a third party if it improves
the Republic of Slovenia (Articles 5 and 73), the conservation and public availability thereby en
provisions regarding the accessibility, use, frui suring such use, which is consistent with the so
tion and enrichment of immovable cultural her cial significance of the monument.
itage are defined in the Cultural Heritage Pro
tection Act (ZVKD-1 and amendments). The pre-emptive right is excluded if the
owner sells a thing from the first or second par
Ownership agraph of this article to his/her spouse, relative
In practice it has been shown that ownership or relative in a linear, adoptive or adoptive par
of immovable cultural heritage is decisive in se enthood, adopted or adopted person or a public
curing accessibility and possibilities of fruition, body whose founder is a state, province or mu
since in accordance with Article 54 of ZVKD- nicipality.
1 Cf. Jelka Pirkovič and Borut Šantej, Pravno varstvo nepremične According to Article 63 of the ZVKD-1,
kulturne dediščine v Sloveniji (Ljubljana: ZVKDS, 2012). property rights on real estate can be withdrawn
against compensation or compensation in kind;
2 Cf. Maria Alessandra Sandulli, ed., Codice dei beni culturali e del expropriation is permissible if a monument or
paesaggio (Milano: Giuffre Editore, 2012). its protected values are endangered and if their
preservation cannot be achieved otherwise. In
terference with the right to property ownership
must be proportionate to the public benefits
that result in expropriation. The expropriation
