A series of notes on our blog on the topic “The Law on Treasure Hunters and Diggers. Bad advice from social networks” aroused interest among our readers, and also received a considerable number of opinions in the comments. Very often in the comments one could find advice or recommendations that, supposedly, if as a version of the arrest an explanation is put forward that I dig with metal and am not engaged in any archaeological activities, then there is no violation of the law, which means there is a reason to draw up an administrative protocol no violation either. I had not previously examined the topic of metal mining from the point of view of real administrative cases, so I decided to read what, and how, actually in judicial practice? Therefore, I bring to your attention an analysis of two, in my opinion, interesting court decisions. All links are clickable.
Case No. 12-32/2019 Maysky District Court (Kabardino-Balkarian Republic)
Citizen Tivyakov O.G. against the local police department commissioner
Содержание статьи:
In August 2019, citizen Tivyakov O.G. filed a complaint with the Maysky District Court of the KBR, in a statement he asked to cancel the decision of the magistrate of court district No. (data seized).
According to the case materials: DD.MM.YY (data withdrawn), citizen Tivyakov was detained by a local police officer in an agricultural field, not far from an abandoned farm. The detainee explained that he collects scrap metal and does not carry out archaeological activities. However, Tivyakov was escorted to the Department of Internal Affairs, where a protocol was drawn up. Attached to the protocol were photographs from the site of the “archaeological excavations” and explanations from the district police officer himself. That, allegedly, the detained citizen was carrying out illegal archaeological excavations at the archaeological site “Nizhny Dzhulat Settlement”. No archaeological objects were found on the detainee, and no evidence of destruction of the cultural layer was recorded.
Then the materials of the administrative case were transferred to the magistrate. The judge reviewed the materials and ruled that citizen Tivyakov is guilty under Article Part 1 of Art. 7.15. And, impose an administrative penalty on him in the form of a fine in the amount of 1,000 rubles with confiscation of items and equipment used to conduct illegal archaeological activities.
Citizen Tivyakov did not agree with the magistrate’s ruling and filed a complaint with the district court. District Judge Skripnik A.V., having considered the complaint, found out (how it was, it’s not clear, but something like this) that in response to a request to the regional inspection for the protection of OKN, they were unable to clarify the cadastral boundaries of the archaeological site “Gorodishche” “Lower Julat”. Therefore, the judge reasonably and absolutely within the framework of the current law found that the activities of citizen Tivyakov do not fall within the definition of archaeological excavations. The magistrate's decision to impose administrative liability was cancelled. And the previously confiscated metal detector, shovel and backpack must be returned to citizen Tivyakov.
A comment. As I have repeatedly written earlier in comments on the discussion of this topic, magistrates and courts of first instance do not particularly bother when considering administrative cases on the topic of illegal archeology. There, according to existing judicial practice, 99% are indictments. And this is the logic of the judges. If a person really considers himself innocent, then let him file a complaint with a higher court. Oh, they’ll definitely sort it out there. Who? What? And How?
Case No. 5-320/2019 Tosnensky City Court (Leningrad Region)
The judge is against common sense, or is it still the right judge???
The case concerns FULL NAME2, DD.MM.YYYY year of birth, registered and residing at:
, single, no dependents, not working. Citizen, DD.MM.YYYY (data taken) carried out excavation work on a site 4 km from the village of Perekhod, using a black Fiskars shovel and a Minelab metal detector. From the case materials, it is not entirely clear how and in what format the conversation between citizen FULL NAME 2 took place and the police officers who arrived at the excavation site and recorded the fact that FULL NAME 2 was carrying out excavation work at the site.A few days later, FULL NAME2 received an invitation from a police officer to arrive the next day at the Department of Internal Affairs to draw up an administrative protocol. FULL NAME2 did not come to the police. At the trial, the citizen explained that he could not come to draw up the administrative protocol due to the fact that he was notified only 24 hours in advance, which violated his rights.
The trial itself .
FULL NAME2 came to the meeting with defender FULL NAME5. In response to the judge’s questions, FULL NAME2 explained that he was in that very field for the purpose of collecting scrap metal. A, also indicated that there are no objects of cultural and archaeological heritage in this territory, and therefore asked to terminate the administrative case against him due to the lack of corpus delicti. Additionally, FULL NAME2 explained that the shovel and metal detector seized from him do not belong to him, but to his brother, for which the relevant documents were provided (which documents are not indicated in the case).
Further along the text of the resolution there is a long part listing the articles of the law and legislative definitions of archaeological activity, archaeological excavations and archaeological exploration, as well as the very concept of an open sheet. It was immediately understood that the judge was literally pulling the activities of FULL NAME2 into archaeological exploration by the ear. Like, so and so, I admit that there were no archaeological objects in that field and there are none, so the accused could not conduct archaeological excavations there, but he could carry out archaeological exploration, which he accordingly did in violation of the existing law.
And, here, I cannot pass without comment. Well, the fact that the judge ignored the legislative explanation of the term “archaeological exploration” is understandable. Because archaeological exploration, like archaeological excavations, can only be carried out within the boundaries of an existing archaeological heritage site. But the fact that the lawyer FULL NAME5 did not notice this substitution is a clear indicator that he was paid money in vain, unless, of course, this is a family friend and he did not work for a glass of beer.
As a result. Resolution:
Guilty of carrying out archaeological work without obtaining an open sheet. A fine of 2,000 rubles and confiscation of a metal detector with a shovel. The judge simply and simply ignored the information that the metal detector belonged to a third party.
But still…
I was ready for righteous anger, and that, here again, the arbitrariness of the judiciary, but then my eyes caught on the last paragraph before the title “Resolved.” I quote: “in the village
there is a military cemetery where soldiers of the Soviet Army who died in battles with the Nazi invaders during the Great Patriotic War of 1941-1945 are buried, which is a monument associated with the Great Patriotic War, subject to state protection »And, here, I cannot understand or give any comments. On the one hand, it is not clear whether the accused was digging on the territory of a military burial. Or, in this way, the judge decided to add reasoning to her Resolution. And, in reality, to that very burial, from the place where FULL NAME2 communicated with the police officers, the distance is several kilometers.
This is such an interesting and controversial judicial practice.
