Good mood to you, dear readers of our blog. Today I want to talk to you about how the legislation applied to amateurs of instrument search and black diggers should be interpreted correctly. Please do not confuse these two concepts, although sometimes it is difficult to draw a line between them.
And so, for more than three years I tried to independently understand the current legislation regarding instrumental search in our country. Interpretations, formulations, your own vision, legislative acts and a large number of shoveled court cases. And so, in the end, I came to the conclusion that the logic of the law can be understood on the basis of at least one ideal criminal case against black diggers.
What's the difficulty? And the fact is that almost all court cases involving diggers took place at the request of the accused in a special order. That is, the defendants admitted their guilt even at the investigation stage, and therefore there was no need for the investigation to carry out full-fledged investigative measures.
A separate line in court rulings includes cases where the accused trusted lawyers who had no experience in handling cases in the field of criminal justice. This is when lawyers deliberately delayed investigative actions, wanting to drag out three months, hoping for the case to be closed after the statute of limitations had expired. And then, suddenly, lawyers and their clients suddenly learned that the statute of limitations for administrative cases in the field of OKN is one year.
But, about this somehow separately. In the meantime, let’s move straight to that very ideal criminal case, which I still managed to find in the unified database of court decisions.
Verdict No. 1-35/2014 dated May 26, 2014 Otradnensky District Court (Krasnodar Territory) Clickable link.
How did it all start?
On September 17, 2013, the OMVDRF in the Otradnensky district of the Krasnodar Territory received a call from a local resident. The citizen reported that behind the clearing on the outskirts of the station. It’s convenient, there’s a UAZ car, people are carrying out excavations. Since in that area there is the territory and boundaries of the protection zones of the archaeological monument – “Arba Settlement”, police officers, consisting of five people, went to the site to carry out operational activities.
Explanation of the situation. As we can see, in this case, the basis for action on the part of the police was a telephone call from a citizen and the understanding that excavations were being carried out within the boundaries of the protected zone of the archaeological heritage site.
Arriving at the scene, police officers in a forest area on the outskirts of the station. Two citizens and a UAZ car were found conveniently. Citizens were drinking tea while sitting on the ground; a shovel was found next to the car. Police officers asked citizens to present documents, after which they informed that they would conduct a search of the car. Why was the UAZ sealed, and two police officers went to the nearest village to get witnesses. An hour later, the police returned bringing two witnesses – a man and a woman.
In the presence of witnesses, a search was carried out in the car. As a result, two metal detectors, three or two shovels and a crowbar with traces of white clay were discovered. The final conclusion of the court states that there were two metal detectors. One of them is a ground detector of the MINELAB brand, and the second metal detector turned out to be a very rare model of a depth detector, the Vallon EL-1301 brand. In addition to metal detectors, several iron objects were found in the car, with traces of recent removal from the ground. But the main find during the search were two bronze cross-shaped amulets and a bronze bracelet.
“On the rear wheel of the UAZ car, three metal objects were found, in the form of two round “wheels from a ship,” and one object in the form of a wrist bracelet, the ends of which had thickenings. Everything discovered was confiscated in the presence of witnesses.”
Explanation of the situation. Absolutely ideal actions by police officers in terms of conducting a search of a vehicle. Even if the witnesses must be of different genders.
The detained citizens explained for the record that they were not engaged in illegal excavations, but had arrived in the area for the purpose of collecting scrap metal. Police officers inspected the area about 100 meters from the place of detention; unburied holes were found, “he understood that the holes were fresh by the color of the soil, the earth was on the surface of fresh grass, the grass under the ground was not withered, but green” (Here , to the question of whether or not it is necessary to bury holes behind oneself??? Food for thought) During a further inspection of the area on the bank of the stream, several more fresh holes were discovered. The coordinates of the holes were recorded using GPS
Explanation of the situation. More than enough facts were collected to expose the criminal activities of citizens. Let me explain for those who are a little ignorant of the topic and still believe that such “diggers” do nothing wrong. After all, quote: “It would have rotted in the ground anyway, but at least people would see.” Dear, in the same Britain, where, as we know, instrumental search is legalized, for carrying out excavations at archaeological sites you can get a 10-year prison sentence, and no mitigating circumstances.
What do we see in this case? Two people arrived in the area of protected zones of archaeological sites. They have (for two of them) a ground metal detector, a deep metal detector, three shovels and one crowbar. If anyone doesn’t know, I’ll explain – this is the most common method for identifying burial mounds and ground burial grounds.
What happened next?
The detained citizens refused. And they said: “that he did not carry out excavations, he was collecting mushrooms and wanted to mow grass, he does not know where exactly the excavations were carried out. It is known from Y. Mishukov that metal detectors, shovels, crowbar, and the UAZ car itself belong to him. When asked where the ancient metal objects were found, Y. Mishukov said that in a forest area, when collecting ferrous metal by detecting it with a metal detector, and then digging it out of the ground, since digging ferrous metal is not prohibited.”
For this reason, the investigation had to carry out work to collect evidence of the guilt of the detainees. As a result, you and I have the opportunity to understand the legal scheme and form of exposing guilt.
To conduct an examination at the crime scene, the investigator invited a specialist certified by the Ministry of Culture in the field of identifying archaeological objects. I want to focus on this point. I had the opportunity to sift through dozens of administrative and criminal cases involving diggers. And, in only two of them, the investigation invited specialists who have the legal right to carry out this type of examination to conduct an examination. According to the law on forensic examination, only persons who are certified to conduct this type of examination , issued by the relevant department, can act as experts in court. The examination itself can be carried out exclusively on the basis of scientific methodology approved by the relevant department.
A specialist from the Department of State Security of the OKN, who went to the scene, examined the crime scene and confirmed that illegal excavations were carried out in the security zone of the archaeological site “Arba Settlement”. Also, subsequently, the State Security Department of the OKN received a conclusion that as a result of illegal activities (excavations), damage was caused to the archaeological site in the amount of 418,259 rubles 52 kopecks. It’s unclear where these numbers came from, but that’s not the point. And the fact is that the criminal article in the field of offenses regarding the preservation of cultural heritage objects can only be applied if damage has been detected on a large scale .
“The corpus delicti is material. Criminal liability arises if this entails the destruction or damage of a cultural heritage object on a large scale (causing harm, the cost of restoration work to eliminate which exceeds five hundred thousand rubles , and in relation to archaeological heritage objects – the cost of measures required in accordance with the law Russian Federation, for the preservation of an archaeological heritage site, exceeding five hundred thousand rubles).”
General Prosecutor's Office of the Russian Federation LETTER dated December 6, 2018 N 36-10-2018 link is clickable
Small clarification. In 2013, major damage was determined to be 300,000 rubles. That is why in the case we are considering the amount of 418,259 rubles 52 kopecks appears.
Additional evidence of the suspects' guilt. The investigation carried out an examination of the clay on the bracelet and amulets, as well as on the shovels and crowbar. The samples taken were compared with clay from the Arba Settlement and the examination confirmed the identity. The metal detector also revealed the fingerprints of one of the detainees.
What's the result? The court recognized the defendant Yu.V. Mishukov. guilty of committing a crime under paragraph “a” of Part 3 of Art. 243.2 of the Criminal Code of the Russian Federation and sentenced him to one year of suspended imprisonment with confiscation of metal detectors and shovels. The seized items (two amulets and a bracelet) should be transferred to the museum.
The court did not satisfy the claims of the injured party for damages in the amount of 418,259 rubles 52 kopecks. “However, the case materials do not fully support the claims, and therefore additional calculations must be made.” It is not known whether the Department for the Protection of OKN was able to recover at least some amount from the accused in subsequent civil suits.
Here, our dear readers, we have dealt with such an interesting matter. As final wisdom, I would like to give a short excerpt from a court case
“It is not possible to present the person who provided operationally significant information about the excavations for questioning as a witness, due to the fact that he is a person providing covert assistance to police officers.”
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