Противодействие незаконному обороту археологических предметов в Российской Федерации: проблемы правового регулирования и правоприменения

Abstract

To date, extensive judicial practice in cases of administrative offenses qualified under Article 7.15.1 of the Administrative Code of the Russian Federation cannot be called unambiguous. It has exposed a number of fundamental problems that need to be resolved. 1. The problem of identification by a specialist or expert of things seized from a person suspected of making a transaction with archaeological objects. The relevance of this problem arises from the uncertainty of the definition of "archaeological objects", as well as the absence of any universal methodology for classifying movable things as archaeological objects. The expert's opinion on the belonging of a thing to the number of archaeological objects, regardless of the circumstances of acquisition, is based on its age. The presence of oxides and impurities on the object is interpreted as proof of its origin from the cultural layer. However, such an approach to the identification of antique items removed from the cultural layer or from the person against whom the proceedings on an administrative offense are being conducted is far from indisputable. 2. Turnover of archaeological objects. In the descriptive and motivational part of judicial acts, archaeological objects are often defined as having the status of things withdrawn from circulation. At the same time, the presumption of State ownership applies to archaeological objects lying on the surface of the earth, in the ground or under water. Based on a systematic analysis of the norms regulating relations regarding the turnover of archaeological objects, it can be concluded that the federal legislator, in strictly stipulated cases, allowed the possibility of civil turnover of a certain part of the movable archaeological heritage. In this regard, archaeological objects should be classified as objects of civil rights, limited in circulation. 3. The objective side of the administrative offense. The basis for initiating a case of an administrative offense under Article 7.15.1 of the Administrative Code of the Russian Federation should be the fact of a transaction with an archaeological object. Otherwise, the proceedings initiated in the case are subject to termination due to the absence of an event of an administrative offense or the composition of an administrative offense. At the same time, judicial practice abounds with examples of judicial decisions in the absence of the fact of the transaction. 4. Recognition of the right of ownership of individuals and legal entities to movable antiquities by virtue of the statute of limitations. With regard to things in private possession, created in the recent past (XIX – XX centuries), as well as numismatic and other collections whose belonging to archaeology, taking into account the information feature, is very doubtful, the right of private ownership should be recognized due to the acquisition prescription.