When the Association of Restorers came into being shortly after November 1989 one of the main motives for its formation was the awareness of the absolute necessity and immediacy of finding solutions to a whole series of problems concerning the legislative standing of the field of restoration work, as well as the need for a basic systematic change in the concept of care for the cultural heritage as a whole. This awareness was based not only on intimate knowledge of existing practices, but also and in particular on harsh conflicts with the totalitarian power structures which came to a head practically immediately after the passing of the new Law on State Care for the Cultural Heritage in 1987 – a Law which could not be evaluated from the viewpoint of the preservation of the cultural heritage and the viewpoint of actual restoration otherwise than as a Law of liquidation. This was a struggle in which the restorers´profession fought with all its strength to defend its right to a bare existence.

We were convinced that, in the formation of a new legal code in this sphere, we could make a fundamental contribution in many matters to the legislative and executive bodies of the new democratic state and that we had a certain moral right and also duty to formulate our ideas and intentions, that our duty did not lie »only« in the awareness and fulfilment of the responsibilities of individual restorers for individual works entrusted to them, but also in the fulfilment of the joint responsibilities of the restorers´profession as a whole for the entire cultural heritage of this country. The fact that a legal standard is, in a legal state, a quite fundamental prerequisite for the professional execution of any human activity unless there exist such solid and unsurpassable habitual criteria that the form of a written law is unnecessary, which is unfortunately not our case, need not be elaborated in greater detail.

We were convinced also that the protection of the cultural heritage would hold from the very beginning a suitable position in the structure of values and priorities of a cultural democratic state. By protection I do not mean some kind of lieutenancy of paternalistic state power, but rather humble awareness of one´s joint responsibility for the fate of things in the coming into being of which we have no merit whatsoever, but which, thanks to their unique and inimitable qualities, form in a quite considerable manner and essentially the consciousness of each one of us, having in this way a basic significance for the identity of society and the state, and which, apart from their spiritual cultural significance, also have undoubted economic importance, helping to create, again in a fundamental and inimitable manner, the attraction of our countryside, villages and towns for the economically extremely lucrative sphere of the tourist trade.

We were also aware of the paradox of the results of care for the cultural heritage in the past and the unrepeatable opportunities arising from these, a paradox lying in the fact that, although most of our cultural and historical heritage has been neglected and devastated in a horrifying way, nevertheless, thanks to this programmed disinterest of the regime, it is basically authentic. Even long decades of ignorance cannot destroy an historical work as much as an inexpert repair taking a few weeks and leading inevitably to the destruction of the very foundation of the historical value as a whole and in details. Works of art, including architecture, which are the object of restoration, bearing in their material basis a number of concealed spiritual significances and values for the perception and approximation of which an emotive artistic approach is needed as well as a rational analysis, represent in the above context the most vulnerable values – and this is a further reason why we put the requirement of the formulation of legally clear and professionally based regulations for the execution of the activity of restorers in one of the first places.

Practically in parallel with the establishment of the Association of Restorers we began to consider the organisation of this symposium with the conviction – today I may call it a naive conviction – that at it we would acquaint you with the concrete results of our efforts and that thus we should contribute our part also to the promotion and respecting of the professional status of restorers, aimed at the legislative distinction of the restorer´s profession on a European level, as it is formulated, for instance, in the programme of the European Confederation of Conservation Organisations (ECCO).

My role at this moment and in this place is all the more unrewarding in that all I can do is state that it turned out that our possibilities were insufficient, that our expectations were not fulfilled, that an absolute minimum has been done so far in the sphere of legislation of care for the cultural heritage and often what has been done is very problematical. The devastation of the cultural heritage continues, although now it is no longer caused by the directive system of class-ideological selection, but by the dictates of money or the lack of it and the raising of economic aspects above other values which cannot be promoted promptly and efficiently with the present state of legislation. With this a priori weakening of one level, the level of protection of public interest in the preservation of the cultural heritage, a weakening which has, besides the legislative level, also further aspects, one cannot even expect the achievement of desirable and harmonising positively compromising solutions. I am aware of the certain categorical generalisation of this statement, nevertheless, exceptions to it rather only prove the rule.

The legal situation which was today to have been described as belonging to the past is still very much present. Professor Stretti spoke here of the basic professional postulates of the Czech school of restoration on which we attempted to create the legal concept of the execution of the restorer´s activity. The basic starting-point for this was the requirement of the personal responsibility of the restorer for the work entrusted to him with all that arises from this, the standing of the restorer of works of art as a creative artist carrying out his activity as the performance of a freelance profession, because we do not consider restoring on the material side as purely business activity, and the establishment of a professional body, a chamber, which would be a guarantor in relation to owners of cultural works and bodies of state administration as regards the professional ability of individual restorers, having the appropriate authority to do so and bearing the appropriate responsibility for its decisions.

The existing regulation of restoration in the Law on State Care for the Cultural Heritage, the coming-into-being and nature of which we have already mentioned briefly in the introduction, and its executive decree was intended to create a legal basis for a long-term, ideologically motivated attempt at the socialisation of the field and its degradation to the level of a mere craft or technique, for it reserved the right to carry out restoration only to organisations established for this purpose by the Ministry of Culture of the time or possibly also others which received special authorisation for this activity. This completely negated the basic principle of the personal, legal and professional responsibility of the restorer. Therefore, right at the beginning of 1990 the Association of Restorers, together with the State Institute for Care of the Cultural Heritage and other specialised unit caring for the cultural heritage, initiated the establishment of the professional Commission for Restoration of the Ministry of Culture of the Czech Republic in connection with the then intended amendment to the Cultural Heritage Law. This amendment was to have given the Commission a legal basis for giving authorisation to carry out restoration activity to individual physical persons and also to anchor new criteria for obtaining this authorisation which would meet requirements for the qualification of restorers. Through the delays of legislative procedure, however, and the subsequent non-acceptance of the amendment, which due to the delays came into conflict with newly passed connected laws, this concept was destroyed. From the very beginning, nevertheless, we saw the issuing of authorisation for restoration activity by the Ministry of Culture as a transitory, temporary measure, especially for the following reasons:

  

– The process of granting authorisation for restoration activity must be, in our opinion, guaranteed by the absolute objectivity of the expert consideration of the ability of the applicant on the basis of clearly specified qualification criteria, laid down by the Law itself. These criteria, in addition, must take into account the objective possibility of acquiring professional preparation in individual restorer´s specialisations, a possibility depending on the existence or absence of specialised schools. For this activity no administrative body of state administration has or can have the appropriate professional capacity; here it is necessary to stand in with the cooperation of a voluntary professional gremium which has, however, only an advisory vote. This makes the authority and responsibility of individual stages of official procedure completely illegible. The qualification criteria cannot, then, be tackled in their whole width and complexity by the broadly conceived cultural heritage Law, but only by an independent legal standard.

– The issuing of authorisation necessarily become a single formal act if retrospective means of control are not created at the same time. The present structure of care for the cultural heritage is not capable of ensuring this either organisationally or professionally.

– The carrying out of restoration activity should be governed by certain sublegal but nevertheless basic ethical and professional principles, formulated in the internationally recognised Code of Ethics. This pledge cannot be demanded as one of the conditions for the granting of authorisation by a body of state administration, but only by a professional organisation which would accept it as binding for all its members while respecting all democratic principles.

These and a number of other reasons led the Association of Restorers to the elaboration of a draft Law on the Restoration Chamber, on exactly the same principles as are founded a whole series of similar professional chambers today already anchored in the Legal Code – at random one might mention the Medical, Veterinary and Advocates´Chambers, those of commercial lawyers, experts, interpreters, auditors, architects, responsible engineers and many others. The draft law was elaborated for practically a year with consultations with a wide professional public, the Ministry and other bodies of state administration at regional level. In the final form it represented a complex proposal for the legal regulation of the restoration of works of art, corresponding to the simultaneously prepared draft of the new Law on Cultural Heritage, in the creation of which the Association of Restorers also participated intensively. The draft Law on the Chamber defines restoration for the first time in our Legal Code and in agreement with the internationally recognised definitions it clearly defines the basic qualification requirements for authorisation to carry out restoration activity, establishes the Chamber of Restorers as an independent guild organisation of restorers of works of art which, in the framework of its activity, shares in the fulfilment of public interest in the protection of the cultural heritage, in particular through guaranteeing the professional and ethical abilities of restorers – for this purpose in transferred activity in the execution of state administration it considers and confirms the fulfilment of conditions for the carrying out of the activity of a restorer and keeps a register of persons authorised to carry out this activity, as well as a number of other functions. It will also introduce the institution of a specialised restoration examination and oath, with which the restorer will pledge to fulfil the basic moralethical professional postulates. It further formulates the regulations for the recognition of the authorisation of a restorer as an expression of special and exceptional professional skill in a given specialisation. In relation to owners it conceives a completely new institution of the right of owner of work of art to its restoration and thus guarantees these persons the fulfilment of their legal responsibility of care for these works of cultural-historical value even when, in spite of all efforts, the execution of restoration activity has been repeatedly refused them.

The draft Law thus conceived also corresponds to the responsibility of the state for the cultural heritage as declared in the preamble to the Constitution of the Czech Republic. We are convinced that because the state could fulfil this function, not just formally in a declaration, but practically, it must, sooner or later, delegate some highly specialised professional guaranteeing to professionally competent institutions without depriving itself in so doing of the possibility of influencing the activity of these institutions – by the execution of legislative power it itself sets die rules of the game and has the right to amend these rules at any time if they are unsuitable, through executive power it plays a direct part in the making of decisions by the competent bodies of the chamber without, however, the occurrence of illegible splintering of authority and the responsibility arising from it, legal power then deals with the failure to respect the set rules.

The draft law in the form of principles, in keeping with the legislative process, was discussed in the committees of the Czech National Council in the first half of 1992. On the basis of the objections made we elaborated a paragraphed version which, however, was not discussed due to the occupation of Parliament with more important laws and the approaching elections. At least a minimal amendment was adopted to the Law on State Care for the Cultural Heritage which enabled the execution of restoration by physical persons instead of organisations. The authorisation to restore continues, then, to be issued by the Ministry of Culture on the basis of the opinion of a professional commission which has also created its criteria for the consideration of individual applications. These criteria, however, are not legally based and it is a paradox that practically anyone who appeals against the first possible refusal to award authorisation and fulfils the absurd qualification requirements still applying from the unchanged executive decree of the Law on Care for the Cultural Heritage, has in fact a legal right to the awarding of authorisation. This system has proved its own nonviability and we believe that it will perhaps in the foreseeable future be replaced by a new system based on the indicated approximations. Certain signs perhaps justify us in this hope. The time which has been and still is to be lost, however, and the damage arising from this cannot be replaced. It should be added that this was uselessly wasted time and unnecessary damage, even allowing for the immense burden imposed on responsible bodies by the general transformation of all levels of contemporary life. Perhaps it is a form of professional deformation, nevertheless I consider that attention could and should have been devoted earlier to questions of care for the cultural heritage.

The preparation and promotion of the Law on the Chamber were not the only activities of the Association in the legislative sphere. No less important was our cooperation in the creation of a completely new Cultural Heritage Law with which the draft law of the chamber was directly connected and a number of other activities which there is no room to mention here – with the exception of one. In cooperation with the Union of Artists and die Law Faculty of Charles University a Bill was elaborated and submitted on the express inclusion of the restoration of works of art in the Copyright Law, formulating the right of restorers as a moral right to protection of authorship – in other words, legal recognition of the creative artistic nature of this activity of restorers. This definition, if it is accepted, will be the fulfilment of almost fifty years of effort by the restorers´ profession and a basic prerequisite for further steps.

I am sure that my very brief and general information has given you at least a basic idea of the intentions and aims of the Association of Restorers in the legal sphere. I also hope that at some future symposium I shall be able to acquaint you not with ideas, but with reality, or that it will not be necessary to deal with these long solved questions at all and we shall be able to talk about the professional problems of restoration itself.

  author
Martin Pavala, AHVT A 051