Good mood dear readers of our blog.
I myself have been interested in instrument searching for almost five years, so I began studying the legislative framework in the field of treasure hunting and instrumental searching immediately after mastering the instructions for a metal detector. There was plenty of time to study and understand all the legal subtleties, and therefore I came a long way from denying the logic of the law and anger, to understanding that the law is absolutely logical and fair. Are you surprised??? But first things first.
I will answer the eternal question that is repeated in numerous projections. So is it possible to dig with MD or not, and if so, where, how and why???
My answer is – if you can read this note to the end and understand what is being said. Then it will be difficult to accuse you of breaking the law, because the law in the field of instrument search is competent and logical. If not, then even expensive lawyers will not help you. Because, judging by the statistics of court decisions, in our country, real experts in the field of archeological laws can be counted on the fingers of one hand.
Important: I am not a lawyer and do not have specialized education in the field of law. Therefore, this article is for entertainment and narrative purposes only. And the plot of the article is based solely on the analysis of existing judicial practice.
So, Article 243.2 of the Criminal Code of the Russian Federation , it makes no sense to provide the full text here; I think that those who wanted to understand it read the definitions and text of this article several dozen times. That’s exactly what I did, each time trying to understand where the logic of this very article could be found.
All these concepts: Cultural layer, open sheet, traces of human existence over 100 years old, archaeological object, special means, acts committed by a group of people. All this led to the realization that any digger in a village garden can easily and naturally be caught red-handed and brought under criminal charges.
And so, a couple of months ago, I again sorted through the database of court decisions in search of interesting judicial practice under the mentioned article. 243.2 of the Criminal Code of the Russian Federation . I’ll say right away that I didn’t save the link to that very case, but now I couldn’t find it again, because in the SudAct electronic database there is complete chaos, the database is crooked, and even knowing the case number, it can be impossible to find the case itself. So I will tell you briefly the essence of that interesting matter.
About five years ago, the state Inspectorate for the Protection of OKN in one of the southern regions of the Russian Federation filed a lawsuit against an organization that, under a contract, laid a fiberglass cable using the trench method. At the same time, according to the Inspectorate’s specialists, the contractor destroyed seven mounds at once. Actually a typical situation. There are several dozen such cases in the SudAct per year. But the analysis itself on that occasion was atypical.
The State Inspectorate, through the court, demanded 13 million rubles from the contractor to carry out rescue archaeological work. To this, in court they were told that for a start it would be nice for the police to open a criminal case into the destruction of archaeological sites. Employees of the State Inspectorate went to the district Ministry of Internal Affairs to submit an application. And then the question arose, under what article should I write a statement??? These mounds are marked as mounds only on the AKR. And, as we know, AKR is just a scientific reference book and has no legal force.
We decided, let's file under Art. 243.2 of the Criminal Code of the Russian Federation . Since the crime under this article is not the search and (or) seizure of archaeological objects itself, but the damage or destruction of the cultural layer. To which, the State Inspectorate was provided with inspection reports of the area and the damaged land plot; signs of a cultural layer, broken ceramics and traces of the existence of a person over 100 years old were “identified”. The regional Department of the Ministry of Internal Affairs accepted the application, opened a criminal case, and three days later, by decision of the head of the Department of the Ministry of Internal Affairs, the case was closed.
Why??? Because, according to the head of the Ministry of Internal Affairs, a criminal case under Article 243.2 of the Criminal Code of the Russian Federation can be initiated only if damage is confirmed on a large scale – 500,000 rubles or more . As a result, the State Inspectorate lost all cases against the contractor. And at that moment I thought
Was it really possible???
I thought about it and began to search and revise again, in general, the legislation along the entire branch of Article 243 of the Criminal Code of the Russian Federation
And, here, in the light of a new perspective, I read Article 243.1 of the Criminal Code of the Russian Federation where there is a Note “Damage to objects of cultural heritage … (reduction) … is recognized as causing harm, the cost of restoration work to eliminate which exceeds five hundred thousand rubles, and in relation to objects of archaeological heritage – the cost of measures, necessary in accordance with the legislation of the Russian Federation for the preservation of an archaeological heritage site, exceeding five hundred thousand rubles .
Do you understand what I'm talking about now??? If yes, then read on, if not, then read the note again from the beginning until the puzzle comes together in your head.
However, I already had a small discussion on this topic with another sofa specialist in the comments, although what is there, I myself am the same sofa specialist and such discussions help to get to the point.
So what was the essence of that discussion. It was politely pointed out to me that in 243.2 of the Criminal Code of the Russian Federation there is no mention of “an object of archaeological heritage” but there is the concept of “cultural layer.” Therefore, the Note from Art. 243.1 of the Criminal Code of the Russian Federation does not work here. Well, it’s clear that a cultural layer and an archaeological site are different things.
So??? Yes??? No not like this!!!
Since, there is Article 3 of the Federal Law No. 73 of June 25, 2002 (as amended on February 24, 2021) “On objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation,” which states that:
An object of archaeological heritage means traces of human existence in past eras, partially or completely hidden in the ground or under water…(abbreviation)…including fortifications, mounds, ground burial grounds…(abbreviation)… cultural layers classified as objects of archaeological heritage.
That is, we see that the cultural layer is legally equated to an object of archaeological heritage, which means the Note to Art. 243.1 of the Criminal Code of the Russian Federation fully fits the definition of a crime under Art. 243.2 of the Criminal Code of the Russian Federation, well, or it should fit . In addition, we see that traces of human existence are an archaeological object, and not some hundred-year-old coins.
If these arguments seem far-fetched to you, I will present another document. Download link is active.
Letter from the General Prosecutor's Office of the Russian Federation “On methodological recommendations “Features of qualification and investigation of crimes under Art. 243 and 243.1″
I recommend downloading this letter to a separate folder on your computer and studying it a little. Can be read several times. And then you will understand that in order to initiate a criminal case against a citizen or a group of people, it is not enough to simply write that the cultural layer is traces of human existence. It is necessary that the law clearly establishes the concepts of these very traces, and most importantly, there must be a scientific method for determining and identifying the cultural layer approved by the relevant department.
But, most importantly, the law must clearly state what exactly constitutes a crime . Here is how the criminal offense against an archaeological site was revealed.
“The corpus delicti is material . Criminal liability arises if this entails the destruction or damage of a cultural heritage site 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 sites – 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 )”
The above Letter from the Prosecutor General's Office is interesting because the compilers of this methodological manual, and these are doctors, candidates and professors of legal sciences at the All-Russian Scientific Research Institute of the Ministry of Internal Affairs of the Russian Federation, were unable to determine what exactly constitutes a crime under Art. 243.2 of the Criminal Code of the Russian Federation
We draw conclusions:
- Criminal liability for acts within the boundaries of the OAN or OKN occurs only if damage is detected on a large scale – more than 500,000 rubles. This is important to understand, because recently, in one of my notes, I gave an example of how a citizen of the Russian Federation was sentenced to two years probation with a fine and confiscation of an MD for digging near an abandoned dilapidated church. It turned out that the church has been an object of OKN for 50 years.
- The concept of “cultural layer” is not disclosed by law, since there is no explanation of what “Traces of human existence” is. This explanation is not found either in the by-laws or even in specialized scientific literature. Thus, during archaeological exploration, ancient maps, archival documents, or even chronicles are considered to be traces of human existence.
- Completed crime under Art. 2 of the Criminal Code of the Russian Federation is not the search and (or) seizure of archaeological objects, but damage or destruction of the cultural layer . At the same time, there is one by-law document according to which the destruction of the cultural layer is the digging of pits and trenches. More on this document below.
- There are completely no methods or legally required rules for identifying the cultural layer. You need to understand and understand that you cannot just come to court and say that a cultural layer was identified on such and such a plot of land. Even if this is said by an academician with 50 years of continuous experience in field work. Any examination must be carried out on the basis of a scientific methodology or methodological manual approved by the relevant department . (The only exception is the examination of land plots intended for construction. But, there, in this area, there is its own magic of objects)
- The methodology for identifying objects of archaeological heritage (OAN) is approved by the Regulations “On the procedure for conducting archaeological field work and drawing up scientific reporting documentation.” According to this method, any land plot that a certified archaeologist points his finger at during archaeological exploration work can instantly and immediately become identified as an OAN. However, as we learned above, criminal liability for actions at an identified archaeological site occurs only when major damage in the amount of more than 500,000 rubles is identified. To identify this damage in relation to the OAN, a whole procedure is prescribed and its essence is that it will first be necessary to prove as part of the commission that the archaeological object has been destroyed in such a way that immediate rescue archaeological work is required. And the cost of these works exceeds half a million rubles. And, since now there are a huge number of private archaeological companies on the service market that are ready to carry out archaeological rescue work for 300 and even 200 thousand rubles… Well, then you understand the logic. And one more thing, I almost forgot. The concept of types and types of natural and man-made destruction of archaeological sites, that is, what can be recognized as the destruction of the OAN, is spelled out in the above-mentioned Regulations on the procedure for carrying out archaeological work.
This is how the analysis of legal concepts turned out, if you have reached this line and understand what was being discussed, I will be very glad to answer comments if you still have questions. Don't forget to like and subscribe to the channel.
