Forensic expert determination of the value of works of art in Russian legal proceedings

Sheremeteva Natalya Vladimirovna Senior Lecturer, Department of Civil Law Disciplines, Vladivostok State University; Master's student, School of Arts and Humanities, Far Eastern Federal University; assistant judge, Arbitration Court of Primorsky Krai. 690105, Russia, Primorsky Krai, Vladivostok, Russian str., 57zh, sq. 274 nata-sheremet@mail.ru Other publications by this author

The relevance of the research of the chosen topic is explained by several reasons. Firstly, the activities of counterfeiters threaten national and international security, as art objects are in demand on the national and global art markets. Secondly, the art market has a rich history and still continues to develop dynamically. According to the annual report on the state of the global art market in 2020, even despite the COVID-19 pandemic, the turnover of such items as paintings, graphics, sculptures, photographs amounted to more than 50 billion US dollars^[1].

The development of the art market is ensured by the emergence of new collectors, increased activity of museums, art exhibitions, increased investment in expensive works of fine art by wealthy individuals, banks and corporations. The centuries-old history of the civil turnover of works of art does not mean that all issues related to the determination of the valuation of a work of art, with its attribution and authentication have been resolved at present. In almost all types of legal proceedings, problems arise during the examination of a work of art due to doubts about its authenticity.

When it comes to civil turnover, the value of cultural property is determined by the will of the parties. The cost is determined taking into account many objective and subjective factors, which include information about the sale of cultural property in a particular region. The need for forensic research appears in the event of a dispute between the buyer and the seller, or when the customs authorities begin to doubt the reality of the value of the cultural object specified in the declaration.

The sources of legal regulation of forensic expert evaluation of works of art are procedural codes regulating arbitration, civil, administrative and criminal proceedings, as well as the Law on State Forensic Expert Activity. For example, in civil proceedings, in accordance with Article 79 of the Civil Procedure Code of the Russian Federation (CPC RF), the court may appoint an examination of objects of culture, art, craft, if an expert opinion is necessary to resolve the dispute^[2].

Researchers of forensic expert activity state the absence of a unified approach in legal proceedings to the expert determination of the value of cultural values. If the court requires a specialist's opinion to make a decision, a judicial commodity expert examination, a judicial valuation expert examination or a judicial cost expert examination is appointed. In some cases, the assigned study of the object is called a forensic commodity valuation examination^[3].

In the scientific literature, suggestions are made about the name of the examination, which is carried out to determine the value of an art object. In one of the works, the term "judicial economic and cost expertise" is proposed^[4].

This issue is relevant for all types of legal proceedings, because at present the question of the value of cultural values, objects of painting, graphics, applied art is solved by appointing a judicial art history, judicial historical and cultural or judicial historical and art history expertise, while the experts are persons who are not experts in the field of determining the price of the studied they can only give a conclusion whether the object is of cultural value, and name an approximate price.

The variety of forensic examinations is due not to the fact that different methods are used in determining the cost, but to the fact that examinations are conducted in state expert institutions for which the types of forensic expert activities are determined by the Ministry of Justice of the Russian Federation (Ministry of Justice of the Russian Federation). For the most part, forensic examination institutions are entrusted with commodity expertise aimed at determining the value of certain types of goods, therefore, the Ministry of Justice of the Russian Federation focuses more on the development of methods for conducting expert studies of mass consumption and cultural goods, for example, for resolving cases of customs and tax offenses^[5].

In the institutions of forensic examination there are also specialists who can examine unique objects of culture and art, but not from the point of view of value. These specialists have expert knowledge regarding the properties of cultural objects, i.e. they can establish what material the object is made of (materials science examination), determine the authenticity of the documents attached to the object (documentary examination), detect traces on the object and explain the nature of their origin (tracological examination). To establish and study the properties of individual objects of culture or fine art, experts have special tools and regularly pass qualification exams to confirm their skills and abilities.

After the reform of the institute of property in Russia and the state system, non-governmental expert institutions began to appear. Private practicing experts carry out evaluation activities, having received a certificate of appraisers in accordance with the law. In accordance with Article 21 of the Law "On Appraisal Activities in the Russian Federation", appraisers must receive special education in special professional educational programs^[6].

Due to the increased need in the 1990s for the evaluation of works of art, antiques, jewelry, educational institutions began to conduct courses for the training of expert appraisers. For the most part, these are short courses lasting 2-3 weeks, and only a few educational institutions work on programs that are designed to be implemented for 1-2 years.

Private practicing appraisers were financially interested in conducting expert studies of cultural values, works of fine art, but had only the skills of appraisal activity and admission to its implementation. E.R. Rossinskaya in her monograph states that appraisers began to refer to their research activities as "forensic appraisal expertise", within which conclusions were given about the value not only cultural values, but also works and services carried out by construction organizations and other enterprises^[7].

In practice, courts and law enforcement agencies began to entrust private experts with expertise related to the evaluation of various items, works and services. To do this, it is enough for an expert to be a member of a self-regulatory evaluation organization and have access to the implementation of evaluation activities. For courts and law enforcement agencies, it is important that an expert meets the requirements of procedural legislation under which proceedings are conducted, which is based on article 41 of the Law "On State Forensic Expert Activity in the Russian Federation". This article states that an expert examination may be entrusted by a court to non-state expert institutions if the expert meets the requirements of procedural legislation, and if the expert study of the object is not attributed by the Government of the Russian Federation to the activities of exclusively state forensic expert organizations^[8].

Thus, the Fifth Arbitration Court of Appeal considered an appeal against the decision of the Arbitration Court of the Kamchatka Territory from a Limited Liability Company (plaintiff) to a joint-stock company (defendant). One of the grounds for the appeal was doubts about the validity of the expert opinion given by a non-governmental forensic expert institution and the competence of the expert institution and the expert, therefore one of the requirements was to satisfy the request for a second forensic evaluation.

Part 2 of Article 87 of the Arbitration Procedural Code of the Russian Federation (APC RF) refers to the appointment of a second forensic examination if there are doubts about the validity of the expert's conclusion ^[9].

The court, having examined the expert opinion, came to the conclusion that the expert opinion unambiguously does not lead to a difference in the interpretation of the circumstances under investigation. The defendant, who petitioned for a re-examination, did not provide evidence of the existence of the need for a re-forensic evaluation, therefore, the court finds no grounds for satisfying the petition. The competence of the expert institution and the expert is proved by the following circumstances:

- the forensic examination conducted by an expert institution, in its content and procedure, does not contradict the requirements of Articles 83, 86 of the Agro-Industrial Complex of the Russian Federation and the Law on State Forensic Expertise;

- the expert who conducted the evaluation study has a higher professional education in the specialty "Accounting and audit";

- the expert has a diploma of professional retraining according to the program: Property valuation; Valuation of the enterprise (business);

- the expert has a certificate of advanced training in the program: Management of state and municipal orders; Contract system in the field of procurement of goods, works and services;

- the expert has a certificate of a forensic expert in the program: Judicial evaluation examination;

- the expert has a certificate of advanced training in the program: Basic principles and practice of organizing procurement of products for public needs;

- the expert has a certificate of advanced training in the program: Accountant of an enterprise with various forms of ownership;

- the expert has 10 years of work experience in the specialty, the experience of expert work is 1 year^[10].

The practicing experts themselves, who are entrusted by courts and law enforcement agencies with conducting a cost examination, are also trying to find the right name for this type of examination. When it comes to cultural values or works of fine art, the term "forensic appraisal examination" is not suitable, because to determine the value of a painting, icon, graphic image, architectural masterpiece, it is necessary to apply some methods used in commodity expertise, computer-technical expertise, construction and technical expertise and other types of expertise. At the same time, experts assessing the value of an object of fine art must simultaneously and equally possess all the tools accumulated from different types and kinds of expertise in order to be competent in determining the market or other value of the object under study, but programs for training specialists of this level have not yet been created.

This can also explain the absence of a forensic assessment in the list of types and genera of examinations approved by the Ministry of Justice of the Russian Federation and formed for state institutions of forensic examination^[11].

Law enforcement agencies conducting criminal investigations and courts conducting criminal proceedings turn to professional appraisers to determine the amount of damage and, depending on the expert result, to qualify the act and make a fair and reasonable decision on the case. The correct assessment of works of art makes it possible to distinguish crimes qualified under Articles 158 and 164 of the Criminal Code of the Russian Federation, i.e. theft from theft of objects of special value^[12].

So, in 2020, the Nyandom District Court considered a criminal case against citizens V. and D., who committed a crime qualified under Article 164 of the Criminal Code of the Russian Federation. Law enforcement agencies collected evidence of the defendants' involvement in the theft of icons, and the cost and artistic value were established by an expert institution. The proof that the criminals knew that they were encroaching on an object of special artistic value was the documents confirming that the citizen had a higher education in the specialty "Theology", as well as the topic of his final qualifying work: "Church iconography of Moscow Russia of the XIV – XV centuries." During the search of Citizen D.'s car, notes were found on the subjects "Comparative Theology", "Liturgy of the Presanctified Gifts" and a list of icons indicating their sizes and images depicted on the icons. During the examination, it was found that the icons are of special artistic value, as they have features that distinguish them from a number of similar objects. Such features include inscriptions on icons made by icon painters and the size of icons. There are no such icons in free circulation on the antique market or on the market of cult items. The special artistic value of the studied icons, according to the expert's conclusion, was due not only to their value, but also to their significance for history, science, art and culture.

The expert's opinion was recognized by the court as relevant and admissible evidence, since the expert study was conducted in accordance with the requirements of the Law on State Forensic Expertise and the Criminal Procedure Code of the Russian Federation (CPC RF). The qualification of the specialist is beyond doubt, the study was conducted within the scope of the questions posed by the investigation and falling within the competence of the specialist. According to the content, the expert's conclusion meets the requirements of Article 204 of the Code of Criminal Procedure of the Russian Federation, the expert's conclusions are scientifically substantiated, properly motivated and do not cause doubts ^[13].

As can be seen from the above example from judicial practice, the expert determined the cost of the studied icons in relation to ordinary civil turnover, without taking into account the specifics of the type of legal proceedings in which an evaluation examination was needed. This is not an isolated case, experts practice this approach and even coordinate with the interested person the results of the upcoming expert study. The expert opinions do not describe properly conducted research, and the conclusions are not sufficiently substantiated.

It is possible to propose two solutions to the problem associated with procedural gaps that damage the objectivity of expert opinions on the research of objects of fine art and cultural heritage.

The first option is the comprehensive training of a specialist, which should consist of higher education in the specialty "Forensic examination" and additional special education in several specialties that provide the expert with tools for conducting research of materials, documents and other objects. Given the importance of the objectivity of the expert opinion for judicial proceedings, it can be concluded that the court and law enforcement agencies are obliged to find out and verify the sufficient competence of the specialist entrusted with the examination.

The objectivity of expert research of works of art is important not only for justice, but also for the protection of the constitutional rights of participants in legal proceedings, which is very important for the rule of law. The observance of constitutional rights in the framework of legal proceedings, even in one case, no matter civil, administrative or criminal, is an indicator of the level of development of the whole country as a rule of law state.

The second solution to the problem is to appoint a comprehensive forensic examination of works of art. Until 2017, there was a National standard regulating the procedure for conducting a comprehensive forensic examination of cultural property, which step-by-step explained the actions of experts in the study of works of art. In accordance with this standard, uniformity was ensured in the conduct of expert research of cultural values in criminal, civil, arbitration and administrative proceedings, and, most importantly, the independence of experts was ensured. Despite the fact that the standard was approved by the Federal Agency for Technical Regulation and Metrology of the Russian Federation (Rosstat), it was developed by the Russian Federal Center for Forensic Examination, i.e. by knowledgeable and experienced people who combined all knowledge and took into account all the nuances when developing requirements^[14].

Currently, it is necessary to develop a new standard that would be applied in any type of legal proceedings. It is clear that the comprehensive examination of works of art should involve experts-tracologists, experts-material scientists (gemologists, metallologists, fiber scientists), experts-documentologists (handwriting experts, autographers), experts-portraitists, history specialists specializing in individual historical periods, art historians, collectors-researchers with experience.

To implement the first solution to the problem requires the development of comprehensive educational programs, and for the second – the development of a new National standard, similar to the previously existing standard.

Theoretical experts in the field of value examination of works of art argue that to date there is no clear methodology by which the value of an object of cultural heritage could be determined, and which would be generally recognized. Such a methodology could be used in any type of legal proceedings and in civil turnover, while an expert opinion made according to a generally recognized methodology could have an undoubted and unconditional authority^[15].

The methodology of determining the value of works of art only partially coincides with the methodology used in determining the value of mass-produced goods. That is why forensic commodity expertise is not quite suitable for determining the value of unique objects, which are works of art. The process of determining the value of works of art has some peculiarities.

The first feature is the widespread use of the method of comparison with analogues, which consists in the fact that a work of art is compared with similar works, and in comparison, special properties and features of the object under study are highlighted, which make it unique among similar objects. It is difficult to find analogues for works of art on the market, therefore, specialists in certain fields are invited to determine the value of a work of art. Such specialists can be collectors, jewelers, artists, historians, connoisseurs of certain types of art.

The second feature is that factors such as the time of the transaction, the demand for such works of art or for the authors of such works of art, the economic situation prevailing in the country at the time of the expert study are important for determining the value of a work of art.

It should be taken into account that works of art are outside the usual civil circulation because of their uniqueness. Art dealers, collectors, specialists participate in the transactions, and the transactions themselves are made at auctions, where the number of participants is limited, at exhibitions, in private galleries. The limited commodity turnover is due to the lack of price benchmarks that experts could be guided by when determining the cost. The lack of information on prices is currently being made up through the compilation of indexes, price guides, the use of Internet resources, the provision of statistical reports, etc.

Thus, it can be concluded that at present there are a large number of problems in the field of expert determination of the value of works of art.

Firstly, there is no understanding of what kind of expertise should be appointed by the court, law enforcement agencies or other public authorities to determine the value of a work of art. This gap can be filled by the development of a new examination, which would be called "judicial value examination of works of art.

Secondly, it is not clear which specialist should determine the cost of a particular object. This problem can be solved by fixing the rule that the value of a work of art should be determined only within the framework of a comprehensive forensic examination. Depending on the work of art, the courts could independently form a group of specialists whose research could lead to the determination of the objective value of the object.

Thirdly, we need a methodology acceptable for determining the value of any work of art. To do this, experienced specialists should be involved, who would develop standard requirements for the expert study of each type of works of art and for the preparation of an expert opinion.

At this stage of the development of expert activity related to the study of works of art, it is important to systematize the accumulated knowledge in reference books, statistical reports and other sources of an encyclopedic nature. It is also necessary to develop recommendations to the Ministry of Science and Higher Education for the preparation of educational programs for the training of experts specializing in works of art.