6.3. CRIMES AGAINST CULTURAL VALUES: CONCEPT, SIGNS, SYSTEM

Klebanov Lev Romanovich, Candidate of Law, Associate Professor. Position: Senior Fellow, Criminal Law and Criminology Sector. Place of employment: Institute of State and Law of the Russian Academy of Sciences. E-mail: [email protected]

Resume: The article is devoted to the problems of criminal protection of cultural values. Such crimes constitute a single system, have specific features, including a single object and subject. The article examines the objective and subjective signs of such crimes, reveals the concept of cultural values \u200b\u200band monuments of history and culture, which makes it possible to distinguish between the specific and generic objects of such crimes.

Keywords: criminal law, criminal protection of cultural values, crimes against cultural values, the subjective side of the crime, the objective side of the crime, the object of the crime, the system of crimes.

CRIMES AGAINST CULTURAL VALUES: NOTION, INDICATIONS, SYSTEM

Klebanov Lev Romanovich, PhD at law, associate professor. Position: senior researcher of sector of criminal law and criminology. Place of employment: Institute of state and law of Russian Academy of sciences. E-mail: [email protected]

Annotation: The article says about problems of criminal law in the process of defense of cultural values. Such crimes build united system; have specific indications, including one object. In the present article object and subject indications are discussed, terms of “cultural values” and “monuments of history and culture” are clarified, that give the opportunity to distinguish their family and sort objects.

Keywords: criminal law, criminal law defense of cultural values, crimes against cultural values, subject site of crime, object site of crime, object of crime, system of crimes.

In Strategy national security The culture of the Russian Federation until 2020 was named among the strategic priorities of the country's sustainable development in the period of globalization1. This document identifies the goals of ensuring national security in the sphere of culture, the main threats to such security (the force of mass culture products, focused on the spiritual needs of marginalized strata, as well as illegal encroachments on cultural objects) and the means of strengthening it) 2.

One of the directions of the cultural policy of Russia, according to the Concept of long-term socio-economic development of the Russian Federation for the period up to 2020, is, among other things, the preservation and popularization of cultural heritage peoples

1 The article was prepared within the framework of the research project " Legal liability for causing damage to immovable monuments of history and culture as a means of preserving the national cultural heritage ”No. 11 -03-00213a, supported by a grant from the Russian Humanitarian Science Foundation.

2 See: Approved by the Decree of the President of the Russian Federation of 12.05.2009 No. 537. // Rossiyskaya Gazeta. 19.05.2009.

Russia3 (italics mine - L.K.). Russian President D.A. In this regard, Medvedev noted the following: "Throughout our centuries-old history, Russian culture has been and remains the greatest value that forms the national consciousness of the Russian people ... Preservation and enhancement of the cultural heritage of Russia and all peoples of our country is a priority state task."

The basis, foundation of any culture and the core of cultural heritage will be cultural values, whose meaning is truly unique and multifaceted.

They play a decisive, in many ways, role in the education of patriotism and civic position;

allow you to study and understand the thousand-year history of Russia and its peoples;

familiarize people with an understanding of the outstanding achievements of world and domestic art; help preserve the originality and spiritual uniqueness of the peoples of Russia in the era of globalization and prevent cultural assimilation;

strengthen state-confessional relations and contribute to the improvement of the spiritual and religious climate; positively affect the state of mind of a person; promote friendly dialogue between cultures of different peoples and countries;

play an important role for the development of such a sphere of national and international economy as tourism5.

The preservation, use and enhancement of the cultural wealth of our country is inconceivable without proper legal regulation. Cultural values \u200b\u200bhave formed and continue to form in the literal sense of the word a huge legal framework, which includes acts of a different order. Among the threats to cultural values, criminal threats will stand out, and therefore the issue of their criminal protection is acute. Every day, 450,500 works of painting, sculpture, antiques, religious worship, archaeological values \u200b\u200band other works and cultural monuments of different eras are stolen in the world6. According to O.V. Davletshina, in the West, culture is considered “crime zone number three” after drug trafficking and arms trade7. V.V. Kulygin, referring to the data of Interpol, believes that crimes of this category in terms of the amount of illegal income received have taken the second place, yielding "leadership" to the drug business8.

The current criminal legislation of the Russian Federation at the present stage of its development distinguishes the following types of criminal acts encroaching on cultural values: theft of items of special value (Art. 164 of the Criminal Code of the Russian Federation); smuggling of cultural property (part 2 of article 188 of the Criminal Code of the Russian Federation);

3 Approved by the order of the Government of the Russian Federation dated November 17, 2008 No. 1622-r.

4 iK1_: // Iyr: // \\ mmm.headpit.gi

5 See: V.V. Vershkov. Criminal liability for failure to return

introduction into the territory of the Russian Federation of objects of artistic, historical and archaeological heritage of the peoples of the Russian Federation and foreign countries: Author's abstract.

diss. Cand. jurid. sciences. M. 2005.- S. 10-11.

6 See: V.P. Panov. Cooperation of states in the fight against international crimes. - M .: Jurist, 1993 .-- S. 49.

7 See: O. V. Davletshina The criminal market for cultural property and the fight against it in the Southern Federal District // Problems of the fight against the criminal market, economic and organized crime. - M .: Ross. criminologist association, 2001.

8 See: V.V. Kulygin. Possibilities of optimization of criminal law protection of cultural values \u200b\u200b// Russian judge. -2003. - No. 5. - P. 40.

non-return to the territory of the Russian Federation of items of artistic, historical and archaeological heritage of the peoples of the Russian Federation and foreign countries (Article 190 of the Criminal Code of the Russian Federation); destruction or damage to monuments of history and culture (Art. 243 of the Criminal Code of the Russian Federation).

A feature of the above-mentioned crimes that infringe on cultural values \u200b\u200bis the lack of a uniform understanding of the subject of such crimes. As S.A. Pridanov and S.P. Shcherba, “instead of a single and clear concept, we get an abundance of misleading definitions ...” 9. The overwhelming majority of researchers of this problem, justified, propose to replace this variety of objects with one generic one - “cultural prices-10

At the same time, it should be emphasized that crimes against cultural property can be classified under other articles of the Criminal Code of the Russian Federation, which is clearly evidenced by official statistics. As a rule, these are norms providing for criminal liability for theft: theft, robbery, robbery, fraud. However, it is possible that acts, where the object is cultural value, may be misappropriation or embezzlement, causing property damage by deception or abuse of trust, deliberately or through negligence, destruction or damage to property11. So, for example, if you study the structure of theft of artistic, historical and cultural values \u200b\u200bin 2006, you can see that thefts in this structure make up 86.5% 12.

In addition, the Criminal Code contains other norms that do not directly name cultural values \u200b\u200bas the subject of a crime, but these crimes can be committed against them too.

The most striking example is article 356 of the Criminal Code of the Russian Federation "Use of prohibited means and methods of war" in terms of plundering national property. This act is included in the group of war crimes, which, in turn, are classified as crimes against the peace and security of mankind. This refers, in particular, to the plundering of national property in the occupied territory as a form of war crimes. Under such property

9 See: S.A. Pridanov, S.P. Shcherba. Crimes infringing on the cultural values \u200b\u200bof Russia: qualification and investigation. Moscow: LLC Publishing House "Yurlitinform". 2002 .-- S. 29.

10 See, for example: S.N. Molchanov. On the use of the concepts of "cultural values" and "cultural heritage (heritage)" in international law // www.smolchanov.narod.ru; Zyabkin A.I., Spitsyn A.V. Problems of international legal protection of cultural values \u200b\u200b// Problems of legal relations in the social and cultural environment: Scientific notes of the Faculty of Law. -SPb: Publishing house of SPb GUP, 2002. - Issue. 8. - P. 24 .; Boguslavsky M.M. International protection of cultural property. - M., 1979 .; Sabitov T.R. Protection of cultural property: criminal law and criminological aspects: Author's abstract. diss. .kand. jurid. sciences. Chelyabinsk. 2002 .-- S. 12.

11 See, for example, Criminal attacks on cultural property in Russia. Ministry of Internal Affairs of the Russian Federation. GIATs. M.2007. - S. 8 .; I.I. Lukashuk, A.V. Naumov. International criminal law: Textbook. - M .: Spark, 1999 .-- S. 179

12 See: Criminal Attacks on Cultural Property in

Russia. - P. 9.

in international criminal law, property is understood primarily as cultural values13.

By crimes against cultural values, we mean socially dangerous unlawful offenses committed guilty, the subject of which such values \u200b\u200bare.

The study of a large array of normative and doctrinal sources allowed us to give our own author's definition of cultural values \u200b\u200bas the subject of a corresponding crime.

Cultural values, in our opinion, are tangible movable and immovable objects of a religious or secular nature, created by man or by nature or by man and nature, which have a special historical, scientific, architectural, artistic, archaeological, paleontological, anatomical, mineralogical, documentary, urban planning, numismatic , philatelic and other cultural significance for a part of society, the whole society and the state, regardless of the form of ownership of them and the time of their creation.

Based on the results of studying the criminal legislation of foreign countries (37 states in total) on responsibility for encroachments on cultural values, which are a mandatory sign of corpus delicti, we proposed the following system of these crimes.

1. Illegal export of cultural property abroad without special permission or export of cultural property that has not been registered (for example, the legislation of Bulgaria, Germany, Great Britain, Italy, Poland, Mexico). 2. Theft of cultural property in various forms, including theft and fraud (for example, the legislation of Austria, Germany, Italy, Kazakhstan, China). 3. Destruction or damage of cultural property, both intentional and careless (for example, the legislation of Austria, Azerbaijan, Armenia, Belgium, Denmark, Spain, Lithuania, Uzbekistan). 4. Violation of special rules in the performance of various types of work (repair, construction, etc.), resulting in the destruction or damage to cultural property, primarily immovable (for example, the legislation of Great Britain, Spain, Italy, Portugal).

5. Illegal archaeological excavations (eg legislation of Bulgaria, Italy, China, Estonia).

6. Violation of the special order of alienation of cultural property (for example, the legislation of Bulgaria, Italy, China). 7. Smuggling of cultural property (for example, the legislation of Armenia, China, Moldova). 8. Appropriation of found cultural property or failure to report such property (for example, the legislation of Bulgaria, Spain, Ukraine). 9. Failure to return to the territory of the state temporarily exported cultural values \u200b\u200bwhen their return is mandatory (for example, the legislation of Azerbaijan, Bulgaria, Georgia, Kyrgyzstan, the Republic of Belarus, Tajikistan). 10. War crimes, when attacks on cultural property are a violation of the rules and regulations of war and armed conflicts (for example, the legislation of Armenia, Bulgaria, Georgia, Spain, Lithuania, Poland). 11. Other crimes infringing on cultural values, for example, desecration of

13 See: R.A. Adelkhanyan War crimes in international law. M., 2003 .-- S. 151.

monuments of history and culture (Criminal Code of the Republic of Belarus), deliberately illegal approval by an official of a project of works aimed at demolishing buildings or structures that are cultural values \u200b\u200b(Criminal Code of Spain), illegal exhibiting of cultural values \u200b\u200b(French Law on Historical Monuments of 1913).

In the domestic literature also stands out separate system crimes infringing on cultural values14, and it should be noted that in many respects the systems of crimes in domestic and foreign criminal legislation coincide.

If we start from the current norms of the Criminal Code of the Russian Federation, where cultural values \u200b\u200bare directly indicated as an object, then we can distinguish the following objective and subjective signs of such acts.

The generic object of such crimes is social relations arising from the creation, recreation, use, possession, disposal, preservation, popularization and promotion of cultural values \u200b\u200b(both movable and immovable).

Within the framework of this generic object, it is possible to distinguish such a specific object as social relations arising from the creation, recreation, use, possession, disposal, preservation, popularization and propaganda of historical and cultural monuments. Monuments of history and culture are characterized as such cultural values \u200b\u200bthat are recognized as such by the competent state bodies, which entails putting them on state registration and providing them with special state protection.1 Historical and cultural monuments can be not only immovable, but also movable objects: such a conclusion follows from the analysis of the norms of Part I of the Civil Code of the Russian Federation (Art. 233), the Law of the Russian Federation "On the Export and Import of Cultural Property" dated 15.04.1993 No. 4804-1 (article 9), the Federal Law "On Cultural Heritage Objects (Historical Monuments and culture) of the peoples of the Russian Federation "dated June 25, 2002 No. 73-FZ (Article 3), Federal Law" On librarianship "dated December 29, 1994 No. 78-FZ.

The objective side of such crimes is characterized by both action and inaction. Some crimes can be committed only through active actions: theft of cultural property (Art. 164 of the Criminal Code of the Russian Federation) and their smuggling (Part 2 of Art. 188 of the Criminal Code of the Russian Federation). The act provided for, Art. 190 of the Criminal Code of the Russian Federation is characterized only by inaction: we are talking about a continuing crime, which consists in the failure of the person authorized to temporarily export cultural property to fulfill his obligations to return these values \u200b\u200bto the territory of the Russian Federation.

In some cases, an act can be characterized by both action and inaction: we are talking about the destruction or damage of cultural property. Destroy or destroy any item

14 See: I.E. Martynenko. Problems of improving the criminal legislation providing for liability for crimes against the historical and cultural heritage. // Traditions and innovations in comprehending the history of state and law. Moscow: 2009.

15 See, for example: M. V. Vasilyeva, I. V. Savelieva. Monuments of history and culture as objects of civil protection // Soviet state and law. No. 10. 1985. - S. 106-107 .; Alexandrova M.A. Civil legal regime of cultural property in the Russian Federation. Author's abstract. diss ... cand. jurid. sciences. St. Petersburg. 2007. - P.7.

it is possible not only through active actions. For example, a common threat to the preservation of immovable historical and cultural monuments is the failure of the owners of monuments to fulfill the requirements of protection obligations, which entails the destruction or damage of cultural heritage objects (they do not take any measures to restore the monument, do not maintain it in proper condition, etc.). So, for example, the prosecutor's office of the city of Dobryanka (Perm region) sent with letter No. 15 to the city police department the material of the Regional Center for the Protection of Monuments in the Perm Region for making a decision in accordance with Art. 109 of the Code of Criminal Procedure of the RSFSR on the initiation of a criminal case on the fact of criminal inaction (my italics - L.K.) leading to the destruction of the historical and cultural monument of the city of Dobryanka, the building "Office of the factory" .16

The compositions of the above crimes are constructed both according to the type of material (theft of cultural property, destruction or damage to cultural property) and the type of formal (smuggling of cultural property, non-return of cultural property to the territory of the Russian Federation).

In some cases, the obligatory signs will be the place of the crime (in case of smuggling - the customs border of the Russian Federation) and the time of the crime (if the values \u200b\u200b\\ u200b \\ u200bare not returned to the territory of Russia - the time interval between the expiration of the period that is released for the return of the exported items to Russia, and the return to the territory RF exported items and surrender of the guilty person, or his detention, or the return of valuables by third parties) 17.

The subject of crimes is a sane natural person who has reached the age of 16. In some cases, a special subject is required - if cultural property is not returned to the territory of Russia, such a subject is only the person who, in accordance with the law and a special permit, has the right to temporarily export these values, and who is obliged to return them within the specified time. If the owner of a historical and cultural monument fails to fulfill his obligations, which has led to its destruction or damage, the subject is the person who has entered into the corresponding protective obligation.

Subjective side crimes are characterized only by willful guilt. In such crimes as theft of cultural property, their smuggling and non-return to the territory of the Russian Federation, intent can only be direct. Unfortunately, as the study of the investigative and judicial practice shows, in many cases, when qualifying the offense, such an unshakable fundamental principle of criminal law as the principle of guilt is violated, when the perpetrator did not realize that he was infringing on the cultural value, due to the fact that this object was kept by him as a personal thing, and which, in his opinion, was of no value. A mandatory sign of the intellectual element of intent is the awareness of all the legally significant characteristics of the subject of the crime, and in our case, the awareness that the subject of the crime being committed is precisely the cultural value.

16 See: iK1_: // b | jr: // heritage.perm.ru/news/protect

17 See: L.R. Klebanov Criminal legal protection of cultural property. Under scientific. ed. A.V. Naumova. M .: INFRA-M Norma. 2011 .-- S. 261.

In the literature, there remains a controversial issue regarding the form of guilt for the destruction or damage of historical and cultural monuments. Some authors believe that the form of guilt in this case can only be intentional, others - both intentional and careless. We believe that in this case one should agree with A.V. Naumov is that if the disposition of the article of the Special Part does not specify the form of guilt, the crime provided for by this article can only be intentional18. It is noteworthy that in the criminal legislation of some states there are already examples of differentiation of criminal liability for these acts, depending on the form of guilt. For example, the Criminal Code of the Republic of Belarus contains norms that provide for criminal liability for both deliberate destruction, destruction or damage to monuments of history and culture (Article 344), and for their careless counterparts (Article 345). In addition, it is unlikely that the legislator would begin to combine under one "roof" both intentional and careless acts, which would in no way contribute to the differentiation of criminal responsibility.

Within the framework of one article, for obvious reasons, it is impossible to cover all the problems that arise when studying this group of crimes. The author hopes that the issues raised by him will not leave indifferent interested specialists engaged in the study of crimes that infringe on cultural values, which will entail relevant discussions and discussion.

List of references:

Adelkhanyan R.A. War crimes in international law. M., 2003.

Alexandrova M.A. Civil legal regime of cultural property in the Russian Federation. Author's abstract. Diss. Cand. jurid. sciences. St. Petersburg. 2007.

Boguslavsky M.M. International protection of cultural property. - M., 1979.

Vasilyeva M.V., Savelyeva I.V.Monuments of history and culture as objects of civil protection // Soviet state and law. No. 10. 1985.

Vershkov V.V. Criminal liability for non-return to the territory of the Russian Federation of objects of artistic, historical and archaeological heritage of the peoples of the Russian Federation and foreign countries: Author's abstract. Diss. Cand. jurid. sciences. M. 2005.

Davletshina O.V. The criminal market for cultural property and the fight against it in the Southern Federal District // Problems of the fight against the criminal market, economic and organized crime. - M .: Ross. criminological. association, 2001.

Zyabkin A.I., Spitsyn A.V. Problems of international legal protection of cultural values \u200b\u200b// Problems of legal relations in the socio-cultural environment: Scientific notes of the Faculty of Law. - SPb: Publishing house of SPb GUP, 2002. - Issue. 8.

Klebanov L.R. Criminal legal protection of cultural property. Under scientific. ed. A.V. Naumova. M .: INFRA-M Norma. 2011.

V. V. Kulygin Possibilities of optimization of criminal law protection of cultural values \u200b\u200b// Russian judge. - 2003. - No. 5.

Lukashuk I.I., Naumov A.V. International criminal law: Textbook. - M .: Spark, 1999.

Martynenko I.E. Problems of improving the criminal legislation, providing for liability for crimes against historical and cultural heritage. // Traditions and innovations in comprehending the history of state and law. Moscow: 2009.

Molchanov S.N. On the use of the concepts of "cultural values" and "cultural heritage (heritage)" in international law // www.smolchanov.narod.ru

A.V. Naumov Russian criminal law. Course of lectures: in 3 volumes. T. 1. M .: Wolters Kluwer. 2007.

V.P. Panov Cooperation of states in the fight against international crimes. - M .: Jurist, 1993.

Criminal attacks on cultural values \u200b\u200bin Russia. Ministry of Internal Affairs of the Russian Federation. GIATs. M.2007.

Pridanov S.A., Shcherba S.P. Crimes infringing on the cultural values \u200b\u200bof Russia: qualification and investigation. M .: "Yurlitinform" publishing house. 2002.

Sabitov T.R. Protection of cultural values: criminal law and criminological aspects: Author's abstract. diss. ... Cand. jurid. sciences. Chelyabinsk. 2002.

Literature list:

Adelchanian R.A. War crimes under the international law. M.2003

Aleksandrova M.A. Civil law regime of cultural values \u200b\u200bin the Russian Federation. SPb. 2007

Boguslavskii M. International defense of cultural values. M. 1979.

Vasilieva M.V., Savelieva I.V. Monuments of history and culture as objects of civil law defense // Soviet state and law. N. 10. 1985

Vershkov V.V. Criminal responsibility for failure to return to territory of Russian Federation of articles of artistic, historical, and archeological weal of peoples of Russian Federation and foreign countries. M. 2005.

Davletshina O.V. Criminal market of cultural values \u200b\u200band struggle against it in South federal district // Problems of struggle against criminal market, economic and organized criminality. M. 2001.

Ziabkin A.I., Spicyn A.V. Problems of international law defense of cultural values \u200b\u200b// Problems of law relationship in social-culture area. SPb. 2002.

Klebanov L.R. Criminal law defense of cultural values. M. INFRA-M Norma. 2011.

Kulygin V. Opportunities of optimization of criminal law defense of cultural values \u200b\u200b// Russian judge. 2003. N. 5

Lukashuk I.I., Naumov A.V. International criminal law. M. 1999.

Martynenko I.E. Problems of improving the criminal legislation, stating criminal responsibility for crimes against historical-culture heritage.// Traditions and innovations in understanding the history of state and law. M. 2009.

Molchanov S.N. About using of terms “cultural values” and “cultural heritage” in international law. // www.smolchanov.ru

Naumov A.V. Russian criminal law. Course of Lectures. V. 1. M. Wolters Kluwer. 2007.

Panov V.P. Cooperation of states in the struggle against international crimes. M. Jurist. 1993.

Crimes against cultural values. M. MVD of Russian Federation. 2007 /

Pridanov S.A., Sherba S.P. Crimes against criminal values \u200b\u200bof Russia: qualification and investigation. M. 2002.

Sabitov T.R. Defense of cultural values: criminal law and criminological aspects. Cheliabinsk. 2002.

18 See: A.V. Naumov. Russian criminal law. Course of lectures: in

3 vol. T. 1. M .: Wolters Kluwer. 2007.- S. 372.

In the XX century. mankind is faced with the problem of encroachments on the national and cultural heritage of countries and peoples, committed on a very large scale both by citizens of the country from where the values \u200b\u200bare stolen, and by foreigners.

Monuments of history and culture - these are objects of material culture, including those associated with historical events in the life of the people, possessing artistic, scientific or other cultural value and registered in the state lists of historical and cultural monuments.

Objects of material culture can be both movable (historical values, including those obtained as a result of archaeological excavations; artistic values \u200b\u200b- old books, paintings, musical instruments; collectibles, etc.), and immovable (buildings, structures). All of them are subject to protection in accordance with the named laws.

The 1954 UN Convention "On the Protection of Cultural Property in the Event of Armed Conflict" defines the subject of criminal encroachment - cultural values, which are understood as:

• a) values, movable or immovable, which are of great importance for the cultural heritage of each people, such as: monuments of architecture, art or history, religious or secular, archaeological sites, architectural ensembles that, as such, are of historical or artistic interest, works of art , manuscripts, books, other items of artistic, historical or archaeological significance, as well as scientific collections or important collections of books, archival materials or reproductions of values;
• b) buildings, the main and actual purpose of which is the preservation or display of movable cultural property specified in paragraph "a", such as: museums, large libraries, archives, as well as shelters intended to preserve movable cultural property in the event of an armed conflict ;
• c) centers in which there is a significant amount of cultural values, the so-called "centers of concentration of cultural values".

The Convention extends its effect to the case of the occupation by one state of the territory of another state, while imposing on the occupying state the obligation to ensure the protection and preservation of cultural property of the occupied state. The provisions of the Convention apply regardless of whether the armed conflict is of an international character.

It should be noted that in peaceful time Convention in Art. 4 imposes obligations to respect cultural property located both on its own territory and on the territory of another state and to suppress any acts of theft or vandalism. In addition, in peacetime, the duty is also imposed on educating the personnel of the armed forces in the spirit of respect for the cultural values \u200b\u200bof other peoples.

Intentional destruction of cultural property listed in this Convention, including those under special protection, not caused by military necessity, is recognized as a war crime in accordance with sub. "b" IX paragraph 2 of Art. 8 of the Rome Statute.

In the 1970 Convention on Measures to Prohibit and Prevent the Illicit Import, Export and Transfer of Ownership of Cultural Property, cultural property is considered to be of a religious or secular nature, considered by each state as significant for archeology, prehistoric times, history, literature, art and science. These include:

• a) rare collections and specimens of flora and fauna, mineralogy, anatomy and objects of interest to paleontology;
• b) values \u200b\u200brelating to history, including the history of science and technology, the history of wars and societies, as well as those associated with the life of national leaders, thinkers, scientists and artists and with major national events;
• c) archaeological finds (including ordinary and secret) and archaeological discoveries;
• d) constituent parts of dismembered artistic and historical monuments and archaeological sites;
• e) antiques more than 100 years old, such as inscriptions, minted coins and seals;
• f) ethnological materials;
• g) artistic values: canvases, paintings and drawings entirely by hand on any basis and from any materials (except for drawings and industrial products decorated by hand); original works of sculptural art from any materials; original engravings, prints and lithographs; original art selections and montages from any materials;
• h) rare manuscripts and incunabula, old books, documents and publications of particular interest (historical, artistic, scientific, literary, etc.), separately or in collections;
• i) postage stamps, tax and similar stamps, separately or in collections;
• j) archives, including phono, photo and film archives;
• k) furniture more than 100 years old and old musical instruments.

In the Convention, cultural values \u200b\u200bconstituting the cultural heritage of each state include:

• a) cultural property created by individuals or groups of individuals who are citizens this state, and cultural values \u200b\u200bthat are important for this state and created on the territory of this state by foreign citizens or stateless persons living in the territory of this state;
• b) cultural values \u200b\u200bfound on the national territory;
• c) cultural values \u200b\u200bacquired by archaeological, ethnological and natural science expeditions with the consent of the competent authorities of the country where these values \u200b\u200boriginate;
• d) cultural property acquired as a result of voluntary exchanges;
• e) cultural property received as a gift or legally purchased with the consent of the competent authorities of the country from which these values \u200b\u200boriginate.

States are obliged to suppress, prevent illegal import, export and transfer of ownership of cultural property, which are understood as actions committed in violation of the rules adopted by the states in accordance with this Convention (Articles 2-3). To this end, the Convention provides for the obligations of the state:

• establish one or more national services for the protection of cultural heritage, the responsibilities of which should include taking various necessary measures to identify, suppress, prevent illegal import, export and transfer of ownership of important cultural property;
• establish an appropriate certificate, by which the exporting state certifies the granting of a permit for the export of one or more cultural property;
• to prohibit the export from its territory of cultural values, to which the above certificate is not attached;
• to bring such a ban to the attention of the public and, in particular, persons who may export or import cultural property;
• take, in accordance with national legislation, all necessary measures to prevent museums and other institutions located on their territories from acquiring cultural property originating from another State party to the Convention that was illegally exported after the entry into force of this Convention. Whenever possible, inform the State where this cultural property originates and which is a party to this Convention of the proposal to return such cultural property;
• to prohibit the import of cultural property stolen from a museum, or a religious or secular historical monument or similar institution of another state party to the Convention, provided that such value is listed in the inventory of items belonging to this institution;
• at the request of a State party, take measures to discover and return any such cultural property imported after the entry into force of the Convention in both States concerned, provided that the requesting State pays just compensation to the bona fide purchaser or to a person who has a valid right to this value;
• to bring to criminal or administrative responsibility all persons who have violated the prohibition on the export of cultural property from their territory without permits, as well as the prohibition on the import of stolen cultural property.

In the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage, the concept of "cultural heritage" includes:

• monuments: works of architecture, monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, caves and groups of elements that are of outstanding universal value in terms of history, art or science;
• ensembles: groups of isolated or combined structures whose architecture, unity or connection with the landscape is of outstanding universal value from the point of view of history, art or science;
• points of interest: works of man or the joint creation of man and nature, as well as areas, including archaeological points of interest, of outstanding universal value in terms of history, aesthetics, ethnology or anthropology.

Natural heritage in the Convention means:

• natural monuments created by physical and biological entities or groups of such entities, which are of outstanding universal value in terms of aesthetics or science;
• geological and physiographic formations and strictly limited areas representing the range of threatened animal and plant species of outstanding universal value in terms of science or conservation;
• natural sites of interest or strictly limited natural areas of outstanding universal value in terms of science, conservation or natural beauty.

The Convention provides for the obligations of states to ensure the identification, protection, preservation, popularization and transmission, to future generations of the cultural and natural heritage located on its territory.

At the VIII UN Congress on the Prevention of Crime and the Treatment of Offenders (Havana, 1990), a Model Treaty was adopted on the prevention of crimes related to the encroachment on the cultural heritage of peoples in the form of movable values. This treaty provides a concept and a list of movable cultural property, similar to those in the Convention on Measures Aimed at Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970. By a Model Treaty, states are obliged to apply criminal sanctions:

• to persons and institutions responsible for the illegal import or export of movable cultural property;
• to persons and institutions knowingly acquiring stolen or illegally imported movable cultural values \u200b\u200bor carrying out transactions in connection with them;
• to persons and institutions entering into an international criminal conspiracy to acquire, export or import movable cultural property by illegal means.

Within the framework of the Council of Europe, the European Convention on Offenses Relating to Cultural Property 1985 was adopted (not ratified by the Russian Federation. - Our note, - A.N.). The Convention provides a list of protected cultural property, similar to that provided for in international conventions - the Convention on Measures Aimed at Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970, the 1972 Convention on the Protection of the World Cultural and Natural Heritage and Model contract United Nations on the Prevention of Crimes Associated with Encroachment on the Cultural Heritage of Nations in the Form of Values \u200b\u200b1990

Appendix 3 to the 1985 Convention on Cultural Property Offenses lists some 30 possible offenses against cultural property. Basically they relate to theft (theft, fraud, appropriation, embezzlement, robbery, robbery); illegal acquisition of cultural property, knowingly obtained by criminal means; destruction or damage to cultural property; illegal export or import of cultural property; violation of regulations related to the implementation of archaeological excavations.

The Convention enshrines the territorial, personal criminal jurisdiction the state, and also provides for a real principle of operation of the law in space in cases of an act committed outside the territory of the state:

if the cultural property against which this criminal act is directed belongs to the state or one of its citizens;

if it is directed against the cultural property originally found on its territory.

Illegal traffic in pornographic materials

Latin words porno (indecent) and grafire (to write) formed the basis of the concept meaning an indecent depiction of sexual relations. The subject of the crime - pornographic material... A material or object is pornographic if it is aimed at arousing lust (gross, sensual sexual attraction) and if it depicts a person's sexual behavior in an obviously cynical form and does not have significant literary, artistic or scientific value.

Child pornography deserves a special criminal legal assessment. According to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (Russia does not participate in it), child pornography is any image by any means of a child committing real or simulated sexually explicit acts, or any image the genitals of the child mainly for sexual purposes.

The objective side of this crime includes not only a visual image, but other possible ways of displaying sex life: making objects of pornographic content, writing works in which sex life is depicted in an openly naked, indecent form, including films and video films.

In crime, as in all social phenomena, there are boundaries that no society can cross. Therefore, pornography as a morally unnatural phenomenon has caused a general demand for its prohibition, which has led to the need to conclude a number of international agreements.

The first such agreement was the 1910 Agreement, concluded by 15 states in Paris. It dealt with the exchange of information in order to facilitate the search for criminals, as well as familiarization with the legislation and legal proceedings. The question of specific types of crimes related to the distribution of pornography was not then raised.

In 1923, in Geneva, International convention on the suppression of the circulation of pornographic publications and the sale of them. This act contains more complete list criminal acts: 1) production, storage of pornographic publications for the purpose of their sale, distribution or public display; 2) import, transport, export (personally or through another person) for the above purposes of such publications or their release into circulation; 3) trade, distribution, public display, rental of pornographic publications; 4) announcement or announcement of the ways through which these publications can be obtained.

Collection of existing treaties, agreements and conventions concluded by the USSR with foreign states... Issue 9.Moscow, 1938. P. 100–107.

Introduction

cultural value legal protection

Relevance of the research topic. At present, Russia is facing an acute problem of preserving its cultural heritage from criminal encroachments. This is evidenced by the increased by the beginning of the XXI century. the number of cases of theft, illegal resale and smuggling of cultural property abroad.

Therefore, the Law of the Russian Federation of July 1, 1994 "On Amendments and Addenda to the Criminal Code of the RSFSR and the Criminal Procedure Code of the RSFSR" was quite justified in supplementing Russian criminal legislation with three new norms providing for liability for encroachments on cultural property. In the Criminal Code of the Russian Federation of 1996, this rule-making initiative was further developed, and the above-mentioned criminal law norms were improved.

However, despite the adoption of these measures, the number of such crimes remains significant. The prevalence of such socially dangerous acts on the territory of our country is due to the fact that the objects of its cultural heritage are the most profitable means of capital investment. A significant difference in prices for cultural property in Russia and the far abroad is an incentive for the smuggling of stolen property. These and other such criminal acts cause irreparable damage to the cultural heritage of Russia. As a result of such crimes, our society is deprived of a part of its culture and is no longer able to pass on all its wealth to subsequent generations.

Meanwhile, the norms of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code) on liability for crimes infringing on cultural values \u200b\u200bneed further serious improvement. In particular, the issue of determining the subject of criminal encroachments has not been resolved in legislation, which significantly complicates their qualification by law enforcement agencies. A significant gap in the criminal law is also the lack of responsibility for the seizure of cultural property as a result of illegal archaeological excavations, despite the high level of public danger and the widespread occurrence of this act.

These are just some of the problems that need to be solved in order to preserve the cultural heritage of our country.

The purpose and objectives of the study. The purpose of this work is to study the criminal law and criminological aspects of the protection of cultural property and to develop, on this basis, specific proposals for improving the norms of criminal legislation and preventive measures aimed at protecting cultural property from criminal encroachments.

During the research, the following tasks were solved:

to investigate the dynamics and structure of this type of crime, to find out the reasons and conditions for their commission, to study the personality of the offender and to develop special criminological measures to prevent crimes that infringe on cultural values;

to make a criminal-legal, logical-structural analysis of the concept of the subject of criminal encroachments on cultural values \u200b\u200band to differentiate it from the objects of other crimes;

make a comprehensive analysis of the norms of the Criminal Code providing for liability for encroachment on cultural property;

to carry out a comparative legal study of the problems of the protection of cultural property under international law and the criminal legislation of some foreign states;

to develop specific conclusions, proposals and recommendations for improving the domestic criminal legislation in the part related to the protection of cultural property.

Object and subject of research. The object of this study is social relations arising in connection with the protection of cultural values \u200b\u200bfrom criminal encroachments. The subject of the research is: quantitative and qualitative characteristics of crimes that infringe on cultural values; the reasons and conditions for their commission; criminal law measures to combat them and special criminological measures to prevent them; the identity of the offender; the practice of applying the rules providing for criminal liability for encroachments on cultural property; the provisions of the science of criminal law in the field of protection of cultural property.

Research methodology and technique. The methodological basis of the research is the dialectical-materialistic approach to the knowledge of social phenomena and processes, conceptual provisions modern science theories of state and law. In the course of the research, the following methods were used: logical-legal, comparative-legal, historical-legal, systemic-structural, interviewing, questioning, analysis of documents, statistical materials. In addition, the achievements of a number of sciences were used: constitutional, criminal, civil, administrative, international law, as well as philosophy, cultural studies and axiology.

The normative basis of the work was: the Constitution of the Russian Federation of 1993, codified legal acts and other laws of the Russian Federation (RSFSR), international recommendations and conventions.

The theoretical basis of the research was formed by the works of domestic and foreign authors in the field of legal regime and protection of cultural values. In this case, the work of the following scientists should be highlighted: Boguslavsky, M.V. Vasilyeva, L.N. Galenskaya, V.G. Gorbachev, A.I. Gurov, CM. Kochoi, V.M. Pervushin, V.G. Rostopchina, I. V. Savelyeva, A.P. Sergeeva, L.A. Steshenko, V.M. Raw, SP. Shcherba, S.A. Yani.

The main provisions, conclusions and proposals for the defense:

Due to the fact that in Art. 164, 190 and 243 of the Criminal Code appear in different formulations of the subject of crimes, it is proposed to unify the terminology used in them, i.e. replace the concepts of the subject of crime used in them with the term "cultural values", and also fix in Art. 243 of the Criminal Code the concept of cultural values \u200b\u200bas unique material results of human activity that have important historical, scientific, artistic or other cultural significance.

The main object of theft of items of special value (Art. 164 of the Criminal Code) is public morality. Therefore, the rule of responsibility for this crime should be transferred to Chapter 25 of the Criminal Code "Crimes against public health and public morality."

The main object of destruction or damage to natural complexes or objects taken under state protection (Art. 243 of the Criminal Code) is environmental safety. Responsibility for the same act is provided for by Art. 262 of the Criminal Code. Consequently, the specified norm from Art. 243 of the Criminal Code must be deleted.

The design of the composition of theft of items of particular value excludes the possibility of being held liable under Art. 164 of the Criminal Code of the person guilty of extortion of these items. To eliminate this deficiency, it is proposed to provide for criminal liability for extortion of cultural property within the framework of this article. It is advisable to single out cultural values \u200b\u200bas the subject of the main corpus delicti. Theft or extortion of items of particular value should be attributed to the qualifying features of this composition. It is proposed to separate the qualifying signs of theft or extortion of cultural property by a group of persons by prior conspiracy and by an organized group in various parts of the article, as well as supplement it with other qualifying and especially qualifying signs. The qualifying feature, expressed in the theft or extortion of cultural property, resulting in their destruction, destruction or damage, must be excluded from this article. As a result, a new version of Art. 164 of the Criminal Code.

It is proposed to strengthen responsibility for the acquisition or sale of cultural property, knowingly for the guilty obtained by criminal means, for which in paragraph "b" Part 2 of Art. 175 of the Criminal Code indicate them as the subject of a crime.

The expediency of including in Art. 214 of the Criminal Code of the qualifying feature, expressed in the commission of the acts specified in part 1 of this article, in relation to cultural property.

Part 2 of Art. 243 of the Criminal Code, it is necessary to provide for increased criminal liability for the destruction or damage of cultural property by arson, explosion, or in any other generally dangerous way, or which, through negligence, entailed the death of a person or other grave consequences.

To supplement the Criminal Code with articles on responsibility: 1) for illegal seizure of cultural property that does not have an owner, or whose owner is unknown; 2) careless destruction or damage to cultural property.

Chapter 1. The concept of "cultural values" and criminal law aspects of the fight against encroachments on them

1 Cultural values \u200b\u200bas a subject of a crime: concept and signs

The problem of protecting cultural property is also a legal problem, since without proper legal protection their safe existence and legal turnover are impossible.

The Universal Declaration of Human Rights (Art.27) enshrines the right to freely participate in cultural life society, in scientific progress and enjoy its benefits, enjoy art. The International Covenant on Economic, Social and Cultural Rights (1966) provided the right to education, creativity, and enjoyment of the benefits of culture. In accordance with the Charter of UNESCO (United Nations Educational, Scientific and Cultural Organization) (1945), the tasks of the Organization are to contribute to the strengthening of peace and security by expanding cooperation between peoples in the field of education, science and culture in the interests of ensuring universal respect, justice, legality and human rights, as well as the fundamental freedoms proclaimed in the Charter of the Organization, for all peoples without distinction of race, sex, language or religion.

The main law of the country - the Constitution of the Russian Federation contains Art. 44, according to which, as already mentioned, everyone has the right to take part in cultural life and use cultural institutions, to have access to cultural values. At the same time, everyone is obliged to take care of the preservation of the historical and cultural heritage, to protect the monuments of history and culture. According to Art. 12 Fundamentals of the legislation of the Russian Federation on culture of October 9, 1992 N 3612-1 everyone has the right to familiarize themselves with cultural values, to access state library, museum, archival funds, and other collections in all areas of cultural activity.

We note right away that the legal framework governing the protection of cultural property is quite extensive and contradictory. Today, there are about 200 normative acts of the international and national levels, which regulate relations regarding cultural values. In this regard, some specialists raised the problem of harmonization and even codification of legislation on cultural property. Moreover, this primarily refers to the already existing regulations. As noted by I.V. Dyakov, “perhaps raising the question of the development of the Cultural Code may not seem entirely correct, nevertheless, if we take into account the existence of the Land, Forest, Water and other codes, this idea no longer seems too radical. Codification of disparate regulations governing relations in the cultural sphere, in a single normative document would significantly simplify law enforcement. " In addition, in modern legal literature, there is already a mention of a new and extremely promising industry - international cultural law.

The problem of protecting cultural property has long turned from an internal to a transnational one and worries many countries, especially those whose cultural heritage is rich and unique. This problem is no less acute for countries importing cultural property.

Among the threats to cultural values, there are also criminal ones, which means that the proper provision of such values \u200b\u200bis impossible without the use of criminal law measures.

Every day in the world, 450 - 500 archaeological values, works of painting, sculpture, antiques, religious worship and other cultural monuments of different eras are stolen. According to O.V. Davletshina, in the West, culture is considered "crime zone number three" after drug trafficking and the arms trade. V.V. Kulygin, referring to the data of Interpol, notes that crimes of this category in terms of the amount of illegal income received, and did come to second place, yielding the "leadership" to the drug business.

The current criminal legislation of the Russian Federation identifies the following types of criminal acts that infringe on cultural values: theft of items of particular value (Art. 164 of the Criminal Code of the Russian Federation); non-return to the territory of the Russian Federation of items of artistic, historical and archaeological heritage of the peoples of the Russian Federation and foreign countries (Article 190 of the Criminal Code of the Russian Federation); destruction or damage to monuments of history and culture (Art. 243 of the Criminal Code of the Russian Federation).

It should be emphasized that crimes against cultural property can also be qualified under other articles of the Criminal Code of the Russian Federation, which is clearly evidenced by official statistics. As a rule, these are norms that provide for criminal liability for theft: theft, robbery, robbery, fraud. However, it is possible that acts where the object is cultural value may be misappropriation or embezzlement, causing property damage through deception or abuse of trust, deliberate or negligent destruction or damage to property. So, for example, if you study the structure of theft of artistic, historical and cultural values \u200b\u200bin 2006, you can see that thefts in this structure make up 86.5%.

In addition, the Criminal Code of the Russian Federation contains other norms that do not directly name cultural values \u200b\u200bas the subject of a crime, but these crimes can be committed against them too.

The most striking example is Art. 356 "Use of prohibited means and methods of war" of the Criminal Code of the Russian Federation in terms of plundering national property. This act is included in the group of war crimes, which, in turn, are classified as crimes against the peace and security of mankind. This refers, in particular, to the plundering of national property in the occupied territory as a form of war crimes. In international criminal law, such property is understood primarily as cultural property. The Second Protocol (1999) to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) in chap. 4 defines crimes against cultural property. According to paragraph 1 of Art. 15 any person commits an offense within the meaning of the Protocol if he: makes cultural property under enhanced protection an object of attack; uses cultural property under enhanced protection or adjacent sites to support hostilities; destroys or appropriates on a large scale cultural property protected in accordance with the provisions of the Convention and this Protocol; makes cultural property protected in accordance with the provisions of the Convention and this Protocol an object of attack; commits acts of theft, robbery or misappropriation or acts of vandalism against cultural property protected in accordance with the provisions of the Convention. In paragraph 2 of Art. 15 stipulates that each party shall take such measures as may be necessary to establish as criminal offenses, in accordance with its domestic law, the acts provided for in this article, and to establish appropriate penalties for such offenses.

It should be noted that all the above-mentioned norms of the Criminal Code of the Russian Federation are blanket, while blanketness of criminal legal norms can be expressed in reference not only to internal regulations, but also to international ones. A.V. Naumov divides the international legal blanketness of the norms of Russian criminal law into explicit and implicit. With an obvious blanketness in the text of the disposition itself, a reference is made directly to the norms of international law (Article 356 of the Criminal Code of the Russian Federation), with an implicit criminal prohibition due to the obligation of Russia arising from international treaties, while these treaties are not directly mentioned in the text. In this case, we can talk about the so-called common crimes. Studying the origin of the norms on criminal responsibility for encroachments on cultural property, it is necessary to emphasize that it was the international criminal law that acted as the "initiator" of their protection, primarily during the period of wars and armed conflicts, during which such values \u200b\u200bwere irreparably damaged.

For example, the Greek historian Polybius spoke about the need to protect religious values \u200b\u200bduring wars: “Future victors should learn not to plunder the cities they have captured and not to inflict grief on other peoples - decorating their native land ... The laws and the right of war oblige the winner to destroy and destroy fortresses, fortifications, cities, people, ships, resources and everything else belonging to the enemy in order to undermine his power and increase the power of the victor.Although some benefit can be derived from this, no one can deny that surrendering oneself to the senseless destruction of temples, statues and other sacred structures is an act of madness. "

In the following centuries, the situation remained practically unchanged. Cities, villages, castles and even churches were destroyed. The Sharu Synod (989) declared that places of worship and cult objects were to be protected, but this protection was tied to their sacred character, and not to belonging to works of art. The first signs of a desire to protect cultural values \u200b\u200bprecisely as the results of human labor, and not only in connection with their cult character, appeared in the Renaissance, in the 16th - 17th centuries. Yakov Pshilusky, for example, argued that each participant in hostilities should show respect for works of art and not only in connection with their religious nature.

Starting with the Peace of Westphalia (1648), which ended the Thirty Years' War, an increasing number of provisions can be found providing for the return of seized trophies to their places of origin, first only archives, and then works of art displaced during the battles. In his work "The Law of Nations, or Principles of Natural Law" Emmer de Wattel writes that "for whatever reason the country is devastated, these buildings that glorify the human race and do not strengthen the power of the enemy, for example temples, tombs, public buildings and all buildings of outstanding beauty must be spared. What is the use of destroying them? These are the acts of a notorious enemy of humanity, senselessly depriving people of these monuments of art and examples of architecture ... ".

The Hague Convention on the Laws and Customs of War on Land (1907), as well as the annex to it in the form of the Regulation on the Laws and Customs of War on Land, provided for the protection of cultural property. According to Art. 27 Provisions during sieges and bombings, all necessary measures must be taken to spare as much as possible, in particular, temples, buildings serving the purposes of science, art and charity, historical monuments, so that such buildings and places do not simultaneously serve military purposes. The besieged are obliged to mark these buildings and places with special visible signs, about which the besiegers should be notified in advance. Similar requirements were contained in the Hague Convention on Bombardment by Naval Forces in Time of War (1907).

One of the most significant international legal acts providing for the protection of cultural property during the war was the Roerich Pact of April 15, 1935, or the Treaty on the Protection of Artistic and Scientific Institutions and Historical Monuments. It was signed in the White House (USA) by representatives of 21 American states. The pact specifically provided for the protection of historical monuments, educational, cultural and scientific missions, their employees, property and collections during the conduct of hostilities. In particular, in Art. 1 of this Covenant stated that historical monuments, museums, scientific, artistic, educational and cultural institutions are considered neutral and as such enjoy the respect and patronage of the warring parties. The same respect and patronage applies to historical monuments, museums, scientific, artistic, educational and cultural institutions and in times of peace. According to Art. 2 of the Covenant, the neutrality, protection and respect to be accorded to monuments and institutions referred to in Art. 1, are recognized in all territories as objects of sovereignty of each of the signatory and acceding states, regardless of the nationality of these monuments and institutions.

The most important international legal instrument was the above-mentioned Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which defined the concept of "cultural property". The protection of these values \u200b\u200bincludes their protection and respect. The belligerents are obliged to refrain from any hostile act directed against these values \u200b\u200blocated on the territory of another country. Thus, for example, Additional Protocol I to the 1954 Convention prohibits: a) to commit any hostile acts directed against those historical monuments, works of art or places of worship that constitute the cultural and spiritual heritage of peoples; b) use such facilities to support military efforts; c) make such objects objects of reprisals.

As S.A. Pridanov and S.P. Shcherba, "instead of a single and clear concept, we get an abundance of misleading definitions ...". At the same time, the aforementioned researchers believe that the concept of "cultural values" is universal in relation to all those mentioned in the above four articles. Hence S.A. Pridanov and S.P. Shcherba conclude that the definitions of the subject of the crime in Art. Art. 164, 188 (part 2), 190, 243 of the Criminal Code of the Russian Federation and the concept of "cultural values" are related to each other as a part and a whole or as synonymous concepts. In their opinion, these definitions can be used synonymously and considered interchangeable. Partly with this definition S.N. Molchanov, pointing out that the term "cultural values" is the most universal concept. A similar opinion was expressed by A.I. Zyabkin and A.V. Spitsyn, and even earlier M.M. Boguslavsky. The same position, apparently, is shared by T.R. Sabitov, E.V. Medvedev, O. V. Davletshina and a number of other researchers.

We support the view that general concept the subject of crimes will be the concept of "cultural values", but the current legislation (international and national) and legal literature contain many definitions of cultural values \u200b\u200bthat do not coincide with each other.

The rich "palette" of definitions is partly due to the ambiguity of the term "culture", as well as contradictions and gaps in positive legislation regulating relations with regard to cultural values. The author studied, among other things, 20 international and Russian normative acts that contained definitions of cultural values, historical and cultural monuments and cultural heritage, as well as their types. Based on the results of research of all sources, the following can be concluded. The subjects in respect of which the regulation by the above-mentioned normative acts is carried out are cultural values \u200b\u200bonly of a material nature, and it is precisely such cultural values \u200b\u200bthat become the subject of crimes under Art. 164, art. Art. 190 and 243 of the Criminal Code of the Russian Federation.

It should be emphasized that the results of our survey once again demonstrate the lack of a common understanding of the subject of the crimes we are analyzing. The questionnaire offered seven options for a unified definition of the subject. The largest number of respondents chose the following: "objects or documents of special historical, scientific, artistic or cultural value" - 18%; "cultural values" - 26%; "items of artistic, historical and archaeological heritage of the peoples of the Russian Federation and foreign countries" - 14%; "monuments of history and culture, natural complexes and objects taken under state protection; objects or documents of historical or cultural value" - 20%.

It should be noted that monuments of history and culture can relate not only to immovable, but also to movable cultural values. We find confirmation of this in Art. 3 of the Law on Cultural Heritage Sites, which states that such monuments may include movable items of archaeological heritage. In addition, this conclusion suggests itself based on the content of some other norms. So, for example, the last paragraph of Art. 7 of the Law of the Russian Federation of April 15, 1993 N 4804-1 "On the export and import of cultural property" names movable objects taken by the state under protection as monuments of history and culture as objects falling under this Law. Another proof of the above point of view is contained in the Civil Code of the Russian Federation, in Art. 233 "Treasure". According to this article, a treasure is money or valuable objects buried in the ground or otherwise hidden, the owner of which cannot be established or, by virtue of the law, has lost the right to them. The second paragraph of this article establishes the rules of behavior for persons who have found a treasure that contains things related to monuments of history and culture.

An analysis of law enforcement practice shows that even if there is a direct indication of blanket norms on the recognition of a particular object as cultural value, at the same time it is not recognized by the court as the subject of the relevant crimes. A clear confirmation of this is the practice of applying Art. 164 of the Criminal Code of the Russian Federation with regard to the theft of orders and medals. Most often, the Order of the Red Star, the Patriotic War, medals "For Courage", "For Military Merit", "For Victory over Germany" are stolen. The courts, considering criminal cases on the theft of these orders and medals, do not agree with the qualification of such acts under Art. 164 of the Criminal Code of the Russian Federation, which was carried out by the bodies of preliminary investigation, and change it, depending on the method of theft, into theft, fraud, robbery or other crime against property. The stolen awards represent a certain cultural value, but do not have special value, since they are massive, not unique, they are not characterized by rarity and uniqueness. In particular, on the basis of this circumstance, the Judicial Collegium for Criminal Cases of the Tambov Regional Court overturned the verdict of the district court in terms of the conviction of the accused under Art. 164 of the Criminal Code of the Russian Federation for the theft of the Order of the Red Star. In its definition, the judicial board indicated that this order has the number 1595893, and this indicates a lack of special value.

At the same time, in accordance with the previously valid Appendix 1 to the Order of the Ministry of Culture of the Russian Federation of July 21, 1999 N 528 "On the approval of the List of cultural values \u200b\u200bfalling under the Law of the Russian Federation of April 15, 1993 N 4804-1" On the export and import of cultural values \u200b\u200b"orders and medals were among the cultural values \u200b\u200bfalling under the said Law (clause 8). Appendix 1 to the Order of the Federal Service for Supervision of Mass Communications, Communications and Protection of Cultural Heritage of March 14, 2008 N 117 states only about old orders and medals.

Interview with police investigators who incorrectly qualified the theft of orders and medals under Art. 164 of the Criminal Code of the Russian Federation, showed that in their decisions they were guided by the old application. Moreover, an expert examination was appointed in these criminal cases, which recognized the stolen orders and medals as cultural values.

We believe that when formulating the concept of "cultural values" it is necessary to proceed from a number of legislative acts and the doctrinal base, which will allow synthesizing normative and theoretical provisions into a single concept.

The normative acts regulating relations with regard to cultural values, defining them, have chosen the so-called “brown” method, when the legislator lists the items related to such values. Despite the advantages of this method in practice, attempts to determine the essence of an object through an exhaustive or open list of its types, as a rule, turn out to be untenable. One cannot but agree with V.G. Bespalko, noting the following: "It is obvious that the values \u200b\u200bof both material and spiritual culture are characterized by such a variety of forms of their objectification that it is not possible to compile and consolidate their full list in legislation, especially in the current century of rapidly developing science, technology, new species and methods of creative activity, their compilation, etc. The expression of the concept of cultural values \u200b\u200bin the law through their list subject to broad interpretation is generally meaningless, since it becomes incomprehensible to mention in legal norms some types of results of human creative activity and ignore others. "

In connection with the above, we can give our own definition of cultural property as the subject of a crime.

Cultural values \u200b\u200bare tangible movable and immovable objects of a religious or secular nature, created by man or by nature or by man and nature, which have historical, scientific, architectural, artistic, archaeological, paleontological, anatomical, mineralogical, documentary, urban planning, numismatic, philatelic and other cultural significance for a part of society, for the whole of society and the state, regardless of the form of ownership of them and the time of their creation, protected by the means of the criminal law of the Russian Federation. 60% of the respondents agreed with this definition.

Let us now consider in more detail the signs of cultural values.

Cultural values \u200b\u200bare material objects. In them the creative principle of man or nature is embodied. Only material materialized objects can be subjects of the crimes we study that infringe on cultural values. In this regard, we propose to combine tangible tangible objects (cultural values) and intangible fruits of cultural development into a single concept of "cultural heritage", while repeating again, we note that the concept of "cultural values" covers only material objects. The Belarusian legislation can partly serve as an example of this. Thus, the Law of the Republic of Belarus of June 4, 1991 N 832-XII "On Culture in the Republic of Belarus" refers to the "historical and cultural heritage, to which belong material and spiritual values \u200b\u200bthat have invariable historical significance for the people of Belarus, regardless of copyright, property rights to them, the time of their creation and location, including outside the Republic of Belarus. " Similarly, dividing values \u200b\u200binto material and spiritual, the law of the Republic of Belarus of November 13, 1992 N 1940-XII "On the protection of historical and cultural heritage" defines the historical and cultural heritage.

Cultural property is movable and immovable items. They can also include objects that are firmly connected to the ground, i.e. objects, the movement of which is impossible without disproportionate damage to their purpose (paragraph 1 of clause 1 of article 130 of the Civil Code of the Russian Federation). These can be religious buildings (for example, churches, mosques, synagogues, etc.), old palaces, castles, mansions, museum buildings (for example, the Hermitage), etc. For example, the Law of the Republic of Tatarstan of October 2, 1996 N 755 "On the use of cultural and historical values" directly in the text itself divides cultural values \u200b\u200binto movable and immovable. This Law includes historical monuments (buildings, structures, places associated with the most important events in the life of the people, society and the state) to immovable values; archaeological monuments (fortifications, ramparts and other fortifications, burial mounds, remains of ancient settlements, fortifications, industries); monuments of architecture and urban planning (historical centers, kremlin, quarters, squares, streets, embankments); monuments of art (sculptural monuments, steles, obelisks); historical and architectural ensembles and complexes; land for historical and cultural purposes; historical settlements (cities and other settlements in the Republic of Tatarstan that have outstanding historical, architectural, landscape and other value).

Cultural property can be religious or secular. Speaking about the religious nature of cultural values, one cannot but mention icons and other religious items stolen from churches, monasteries, houses of worship. Such thefts, in addition to the actual material damage, cause great harm to the feelings of believers, since the stolen objects are desecrated by the very fact of the crime. The theft from the Donskoy Monastery of the ark with the relics of Novgorod saints, which caused a great public outcry, is very indicative. The deed was qualified under Art. 158 "Theft" of the Criminal Code of the Russian Federation. As the head of the press service of the Moscow Patriarchate, Archpriest V. Vigilyansky, noted, "the ark does not represent any material value. A small ark is less than a book. It cannot be sold, this ... product is worth nothing ... And the relics of Novgorod saints - who are they? may be needed ?! What should a thief do with the relics ?! Is this madness? Blasphemy? Satanism? " Immovable cultural values \u200b\u200bof a religious nature are also being attacked - during the times of militant state atheism, ethnic conflicts and wars in certain countries, buildings intended for worship are destroyed and damaged. For example, since 2000 more than 150 Orthodox churches have been destroyed on the territory of Kosovo, including those included in the UNESCO World Cultural Heritage List. The Director General of UNESCO called on the world community to help restore these shrines.

Differentiation of religious values \u200b\u200bdepending on their origin exists in many axiological classifications. Thus, one of the criteria for the classification of values \u200b\u200bpresented by M. Scheler was the degree of closeness to God. In the context of this classification M. Scheler singled out religious values, i.e. all values \u200b\u200bassociated with God: faith, reverence, worship, etc. It should be emphasized that according to the Law on Cultural Heritage Sites, monuments can also have religious significance (churches, churches, kirchs, mosques, synagogues, Buddhist temples, pagodas, etc. etc.).

Cultural values \u200b\u200bcan be completely man-made, created by man and nature, or only by nature. In order to be convinced of this, it is enough to refer to Art. 7 of the Law "On the Export and Import of Cultural Property" and the aforementioned Appendix 1 to the Order of the Federal Service for Supervision of Mass Communications, Communications and Protection of Cultural Heritage No. 117 of March 14, 2008, which lists such cultural values \u200b\u200bas rare specimens and collections flora and fauna; subjects of interest to anatomy, paleontology, and mineralogy; the remains of fossil organisms and (or) their parts (including their prints), regardless of preservation; samples and collections of minerals (except synthetic) rocks and natural non-crystalline substances of terrestrial and extraterrestrial origin. The same provision was developed (but only in part) by the above-mentioned Law of the Republic of Tatarstan "On the use of cultural and historical values". So, for example, cultural and historical heritage in accordance with this Law is a set of cultural and historical values \u200b\u200bcreated by man or nature, as well as phenomena of the spiritual life of a people, society or outstanding personalities that have a historical, scientific and technical, artistic, natural and ecological, ethnological or other cultural significance. As it is easy to see, the Law assumes that material objects created only by nature can act as cultural values. In Art. 1 ch. 1 The 1976 UNESCO Recommendation on the International Exchange of Cultural Property states that "cultural property" means objects that are an expression or evidence of human creativity or the evolution of nature and which, in the opinion of the competent institutions of individual states, represent or may represent historical, artistic, scientific or technical value or interest.

For example, collections of meteorite fragments from the Sikhote-Alin Nature Reserve are annually sold abroad. The staff of the reserve collected (officially) about 15 kg. In 2006, at the Torfyanovka customs post, customs officers stopped an attempt to export meteorites to Finland: under the seats and in the door trim pockets of a Volkswagen minibus, 4 kg of meteorite fragments were found that belonged to cultural values, the export of which is prohibited outside Russia. At the Pulkovo customs office in the mail to the United States of one of the Russian companies, there were 104 kg of meteorite fragments. As a result of operational-search activities in the company's office and at a private person in own home customs officials and the FSB discovered another 200 kg of meteorite fragments worth more than $ 300,000.

It should be noted that today the recognition of only nature's creations as cultural values \u200b\u200bis controversial. Some authors (for example, A.P. Sergeev, T.R.Sabitov, RB Bulatov) consider as cultural values \u200b\u200bonly that which is created by man.

Objects for the recognition of their cultural values \u200b\u200bmust have religious, historical, scientific, architectural, artistic, archaeological, urban planning, paleontological, anatomical, mineralogical and other cultural significance for a part of society, the entire society and the state.

Revealing this sign of cultural value, we can quote the words of G.A. Rusanov that cultural value should carry its historical, artistic or scientific significance on a global scale, on the scale of one state or administrative entity within a region. V.G. Bespalko, speaking about the social significance of cultural values, understands by it the objectively existing special value of an object for the whole society, and not for one person or some group of people with their subjective assessments in the perception and determination of the meaning of a particular thing. It is noteworthy that Art. 142 of the former Civil Code of the RSFSR, cultural value was understood as "property of significant historical, artistic or other value to society."

The categories of cultural property can vary depending on their importance. According to Art. 4 "Categories of historical and cultural significance of cultural heritage sites" of the Law on cultural heritage sites, all cultural heritage sites are divided into three categories: federal, regional and local (municipal) heritage.

Cultural values \u200b\u200bare recognized as such, regardless of the form of ownership, the regime which applies to them. So, for example, immovable monuments of history and culture, in accordance with the current legislation, can be privatized, with the exception of cases provided for by law. Consequently, cultural property can also be privately owned. According to Art. 14 "Property rights in the field of culture" Fundamentals of the legislation of the Russian Federation on culture, each person has the property right in the field of culture. The right of ownership extends to objects of historical and cultural significance, collections and collections, buildings and structures, organizations, institutions, enterprises and other objects.

Cultural values \u200b\u200bcan be recognized as such regardless of the time of their creation, unless otherwise provided by law. This means that objects created in the modern period can also be recognized as cultural values.

In some cases, the legislation itself establishes the age of attribution to cultural property, as mentioned above. According to the aforementioned Appendix 1 to the Order of the Federal Service for Supervision of Mass Communications, Communications and Protection of Cultural Heritage, cultural values \u200b\u200binclude coins, bonds, banknotes and securities created more than 50 years ago. Many researchers emphasize its antiquity (antiquity) as an obligatory feature of cultural values, but, as L.L. Kruglikov, this feature is optional. This is confirmed by the following case.

The Povolzhsk customs administration has detained a piano made in 1896 by the Schimmel company, manufactured in Germany, which was allowed for export by the order of the Ministry of Culture of Russia. In the letter of the Ministry of February 12, 1999 N 119-03-30 "On the establishment of the artistic, historical or scientific value of objects made in the last century" it is indicated that, despite the fact that this instrument was made more than 100 years ago, it does not apply to the category of unique and rare musical instruments, and therefore does not fall within the scope of Art. 7 of the Law of the Russian Federation "On the Export and Import of Cultural Property" (the Law refers to unique and rare musical instruments). When the Ministry of Culture or its territorial bodies make decisions on the possibility of exporting cultural property from the Russian Federation, the results of a comprehensive and thorough examination are taken into account, which determines, among other things, the place and time of production. However, in itself, the time limit for the creation of an object (100 years) is not a reason for prohibiting it from being exported abroad. Only in cases where the special artistic, historical or scientific significance of the declared for export of cultural property is established is the need to restrict ownership of these items within the Russian Federation. They are prohibited from being exported from the country with simultaneous registration and entry into the Federal Register of Cultural Property.

In Art. 7 of the Law "On the Export and Import of Cultural Property" lists the categories of items covered by this Law. In particular, these are original sculptural works, including reliefs, rare manuscripts and documentary monuments; unique and rare musical instruments; original art compositions, etc. Unlike some other categories (for example, "old coins", "old books"), the legislator does not introduce the adjective "old" in relation to the mentioned objects. Consequently, the Law allows situations when masterpieces created in times close to modern times can be recognized as of particular cultural value. We can find confirmation of our point of view in the Fundamentals of the Legislation of the Russian Federation on Culture, a number of articles of which involve creative activity. For example, Art. 10 The Right to Creativity establishes that everyone has the right to all types of creative activity in accordance with their interests and abilities. Creative activity, in turn, involves the creation of cultural values \u200b\u200band their interpretation. It follows from this that the creation of cultural values \u200b\u200bcan also be carried out by our contemporaries. In addition, Art. 17 Fundamentals grants the right to export abroad the results of their creative activities. In accordance with this rule, citizens of the Russian Federation have the right to export abroad for the purpose of exhibiting, other forms of public presentation, as well as for the sale of the results of their creative activity in the manner determined by the legislation of the Russian Federation. This also confirms the validity of our point of view: modern creators of such values \u200b\u200bcan create cultural values \u200b\u200band export them abroad.

The validity of our position is also confirmed by the provisions of the Federal Law of May 13, 2008 N 68-FZ "On the centers of the historical heritage of the presidents of the Russian Federation who have ceased to exercise their powers." According to this Law, such centers are called upon, in particular, to assist in the study of the modern history of Russia. In accordance with paragraph 2 of part 2 of Art. 3 "Objectives and subject of the Center's activities" The Center, among other things, creates, stores, uses and publicly presents, in the manner prescribed by the legislation of the Russian Federation, museum items related to the life and social and political activities of the President of the Russian Federation, who has ceased to exercise his powers. A museum collection is being formed at the Center. As stated in Art. 8 of the Law, the museum collection of the Center is formed from objects related to the life and socio-political activities of the President of the Russian Federation, who has ceased to exercise his powers, as well as from objects that relate to the period of exercise of his powers, have historical significance and fall into the categories of objects defined in st. 7 of the Law "On the Export and Import of Cultural Property".

The formation of the museum collection of the Center is carried out at the expense of museum items donated to the Center during its creation by the Administration of the President of the Russian Federation, the Government of the Russian Federation, the President of the Russian Federation, who has ceased to exercise their powers, or by his heirs, owners of such items and (or) acquired by the Center.

The Museum collection of the Center is included in the Museum Fund of the Russian Federation in accordance with the procedure established by the legislation of the Russian Federation on the Museum Fund of the Russian Federation and museums in the Russian Federation.

In turn, the Federal Law of May 26, 1996 N 54-FZ "On the Museum Fund of the Russian Federation and Museums in the Russian Federation" in Art. 3 "Basic concepts" under a museum object means cultural value, the quality or special features of which make it necessary for society to preserve, study and publicize it. According to the same Law, a museum collection is an aggregate of cultural values \u200b\u200bthat acquire the properties of a museum object only when they are combined together by virtue of the nature of their origin, or species relationship, or other characteristics.

As you can see, items related to the modern history of Russia are also cultural values.

At the same time, the Law on Cultural Heritage Objects in paragraph 7 of Art. 18 establishes a rule according to which the Unified State Register of Cultural Heritage Objects (Historical and Cultural Monuments) of the peoples of the Russian Federation may include identified cultural heritage objects, from the moment of their creation or from the moment of historical events associated with which at least 40 years have passed, with the exception of memorial apartments and memorial houses, which are associated with the life and work of prominent personalities who have special merits to Russia, and which are considered identified cultural heritage sites immediately after the death of these persons.

Cultural values \u200b\u200bare protected by the means of Russian criminal law, which establishes responsibility for criminal attacks on them.

Today, as mentioned above, there are three norms of the Criminal Code of the Russian Federation, which specifically protect cultural values: theft of items of special value (Art. 164 of the Criminal Code of the Russian Federation); non-return to the territory of the Russian Federation of items of artistic, historical and archaeological heritage of the peoples of the Russian Federation and foreign countries (Article 190 of the Criminal Code of the Russian Federation); destruction or damage to monuments of history and culture (Art. 243 of the Criminal Code of the Russian Federation). Answering the question “What crime infringing on cultural values \u200b\u200bhave you met most often in your professional activity?”, 40% of the respondents named a crime under Art. 164 of the Criminal Code of the Russian Federation; 20% - a crime under Art. 243 of the Criminal Code of the Russian Federation (in the latter case, the respondents, apparently, meant the destruction or damage to immovable monuments of history and culture).

Cultural values \u200b\u200bare a criminogenic feature of a number of offenses and, acting as the subject of a crime, allow to distinguish from each other related formulations crimes.

2 Improvement of Russian criminal legislation concerning the protection of cultural property

The most problematic from the point of view of improving the legislative structures in the Criminal Code of the Russian Federation are the compositions of theft of items of special value, and the destruction or damage of historical and cultural monuments.

Criminal liability for theft of items of particular value exists in the criminal legislation of Russia since the entry into force of the Law of the Russian Federation of July 1, 1994 "On Amendments and Addenda to the Criminal Code of the RSFSR and the Criminal Procedure Code of the RSFSR", i.e. since July 15, 1994 1 At present, it is provided for by Art. 164 of the Criminal Code of the Russian Federation.

In the legal literature, this crime is considered one of the most dangerous crimes against property. The high degree of public danger of such acts is beyond doubt. However, the legislator's approach to defining the object of encroachment seems to be controversial.

Based on the location of Art. 164 in the Criminal Code of the Russian Federation, the generic object of the considered type of theft is the sphere of the economy, the specific object is property relations.

A.V. Gaidashov also singles out an additional object: "a complex of social relations affecting the material and spiritual culture of society, since harm is caused not only to property relations, but also to the entire cultural heritage of the country."

CM. Kochoi does not dispute the need to highlight an additional object of the named crime, but considers public morality as such. In his opinion, “the basis for such a conclusion may be the decision of the legislator to include the destruction or damage of monuments of history and culture (Art. 243 of the Criminal Code of the Russian Federation) - a crime that is closest in its subject to theft, provided for by Art. 164 of the Criminal Code of the Russian Federation, - in the chapter "Crimes against public health and public

morality. "" SM Kochoi also expressed doubts about the advisability of the legislator distinguishing the main objects of these two crimes.

It is worth agreeing with the last conclusion of the named author. But the real damage from the theft of items or documents of special value is caused primarily not to the country's economy and not to property relations, but to the complex of social relations in the field of the spiritual culture of society. This is the reason for the selection by the legislator of these acts in a special corpus delicti. Therefore, theoretically, these relations should be considered the main object of the considered thefts.

Other authors came to the same conclusion. They are convinced that it “has priority over other objects - state property or personal property of citizens, and therefore the legal assessment of theft of historical and cultural monuments, in principle, should be determined by this very object. " For the same reasons, the main object will be the same for the destruction or damage of historical and cultural monuments. Therefore, taking into account the provisions of the current Criminal Code, the main object of theft, as well as the destruction or damage of cultural property will be one and the same sphere - public morality.

It should be noted that the theft of weapons and drugs at one time was qualified as one of the crimes against property. The obviousness of the specifics of the objects of each of these encroachments prompted the legislator to classify the theft or extortion of weapons, ammunition, explosives and explosive devices (Article 226 of the Criminal Code of the Russian Federation) as crimes against public safety, and theft or extortion drugs or psychotropic substances (Article 229 of the Criminal Code of the Russian Federation) - to crimes against public health and public morality. At present, all over the world, including in Russia, theft of cultural property in terms of the degree of public danger is put on a par with illegal operations with weapons and drugs.

In this regard, we consider it appropriate to place an article providing for criminal liability for theft of cultural property in Ch. 25 of the Criminal Code of the Russian Federation "Crimes against public health and public morality."

The objective side of the crime is expressed in the illegal gratuitous confiscation of objects or documents of special historical, scientific, artistic or cultural value, regardless of the method of theft. Theft can be committed in any form by theft, robbery, robbery, fraud, embezzlement or embezzlement.

The question arises whether the extortion of items of particular value can be qualified under Art. 164 of the Criminal Code of the Russian Federation? Under this article, only embezzlement can be qualified, and extortion does not apply to such because it lacks, mainly, a material feature (the onset of socially dangerous consequences of the act). Therefore, the question posed should be answered in the negative.

However, the logic of the legislator remains incomprehensible regarding the neglect of the opportunity to qualify the extortion of cultural property under Art. 164 of the Criminal Code. Meanwhile, special compositions of embezzlement (Articles 221, 226, 229 of the Criminal Code) provide for both theft and extortion of property. In addition, if the extortion of cultural property is committed without qualifying signs (part 1 of article 163 of the Criminal Code), then the upper limit of the sentence in the form of imprisonment for the convicted person will be no more than four years, while the lower limit of the punishment in the form of imprisonment for theft, fraud, misappropriation or embezzlement, robbery or robbery in accordance with Art. 164 CC is six years. The indicated difference seems to us unjustified, in connection with which we consider it necessary to highlight the extortion of cultural values \u200b\u200btogether with their theft in a special composition.

Controversial in the legal literature is the question of at what stage of deliberate criminal activity the theft should be considered complete, if it was committed by robbery, at the stage of the attack with the aim of stealing it or at the time of its illegal seizure.

Supporters of the first point of view argue that when the considered theft is committed by robbery, the crime is over at the moment of taking possession of the stolen property, i.e. as with theft, robbery, fraud, etc. 6. They refer to the fact that in note 1 to art. 158 of the Criminal Code says that embezzlement is understood as the unlawful gratuitous seizure and (or) circulation of someone else's property in favor of the culprit or other persons, which caused damage to the owner or other owner of this property. Therefore, for qualification under Art. 164 of the Criminal Code, the presence of damage caused by the seizure of property is necessary. Adherents of a different point of view believe that this crime is over at the moment of the attack, regardless of whether the perpetrator was able to seize items of special value, since the composition of the robbery is formal.

The Plenum of the Supreme Court of the RSFSR in paragraph 16 of its resolution of March 22, 1966 "On judicial practice in cases of robbery and robbery" explained that "robbery is recognized as completed from the moment of taking possession of the property, and robbery - from the moment of attack with the aim of taking possession of property, combined with violence dangerous for the life and health of the victim, or with the threat of such violence ”. Indeed, the high degree of social danger of robbery, the presence of an additional object, which is a person's health, do not allow formalizing its composition as material. Therefore, in any case, this crime must be recognized as completed from the moment indicated in the above explanation of the Plenum of the Supreme Court of the RSFSR.

In the disposition of Art. 164 of the Criminal Code refers to the theft of items or documents of particular value, which means that it is also about robbery, since robbery is considered a theft at the legislative level (paragraph 4 of the footnote to Art. 158 of the Criminal Code). This paragraph states that “a person previously convicted of embezzlement or extortion in articles of this chapter, as well as in other articles of this Code, is a person who has a conviction for one or more crimes provided for in Articles 158-164, 209, 221, 226 and 229 of this Code ”.

In this case, in our opinion, the legislator conditionally attributed robbery to one of the types of theft. In reality, robbery cannot be considered a theft, since, in accordance with Art. 162 of the Criminal Code, it is considered only "attack for the purpose of theft", and the presence of seizure of property for qualification under this article is not required. However, it can be assumed that the legislator, using the wording “theft of objects or documents” in Art. 164 of the Criminal Code, with the same degree of convention, allowed "theft by robbery" without taking possession of property. From this point of view, the commission of a crime under Art. 164 of the Criminal Code, by robbery can be considered completed from the moment of such an attack (from the moment of the threat of violence).

The existence of such “conventions” in the RF Criminal Code seems unacceptable. In our opinion, robbery at the legislative level should not be recognized as theft.

Taking into account the experience of separating extortion from embezzlement, we propose to change the wording given in note 4 to Art. 158 of the Criminal Code for the following:

"A person previously convicted of embezzlement, robbery or extortion in the articles of this chapter, as well as in other articles of this Code, is a person who has a conviction for one or more crimes provided for in Articles 158-164, 209, 221, 226 and 229 of this Code" ...

As noted above, criminal liability under Art. 164 of the Criminal Code occurs regardless of the method of theft. This provision raises certain objections. So, according to the sanction of this article, a person who stole objects or documents by theft, and a person who committed this crime by robbery, in principle, can be sentenced to the same punishment - in the form of imprisonment for a period of six to ten years with or without confiscation of property. ... Thus, for the legislator it is indifferent that, in contrast to theft, for example, robbery, has an additional object, since in this case the human health is also subject to criminal encroachment. The different degrees of public danger are also indicated by the sanctions provided for various methods of committing theft. For example, the maximum punishment in the form of imprisonment for theft in the main team is three years, for robbery - four years, and for robbery - eight years.

Lack of necessary differentiation of criminal liability under Art. 164 of the Criminal Code allows some authors to assert that the theft of items or documents of particular value, containing signs of paragraph "c" part 3 of Art. 161 of the Criminal Code, or clause "b", "c" or "d" part 2, or clause "c" or "d" part 3 of Art. 162 of the Criminal Code, you need to qualify for the totality of crimes. The rationale for this is the fact that the sanctions of these articles in comparison with the sanctions of Part 1 of Art. 164 of the Criminal Code are more stringent.

Other authors believe that in this case there should be a qualification of the specified act as one crime. For example, if “an attack was made to steal items of particular value, causing grievous harm health of the victim, then ... there is one crime under paragraph. "in" Part 3 of Art. 162 of the Criminal Code of the Russian Federation ". The above opinion is justified by the fact that in this case the criminal has intent to commit one theft, therefore there are no legal grounds for bringing him to justice for two crimes.

In the latter case, the argumentation seems more convincing to us. However, the existence of a situation in which such contradictions arise cannot be considered normal.

Unlike Art. 164 of the Criminal Code, in other special compositions of embezzlement (Articles 221, 226, 229 of the Criminal Code), the differentiation of criminal liability is provided depending on the use of violence against the victim. So, the qualifying feature in them is the use of violence that is not dangerous to life or health, or the threat of such violence. The sign of the use of violence dangerous to life or health, or the threat of such violence is recognized as especially qualifying.

Therefore, we consider it appropriate on the example of Art. 221, 226, 229 of the Criminal Code to differentiate criminal liability for theft of cultural property.

Attention is drawn to the lack of the legislative structure of the corpus delicti under Art. 164 of the Criminal Code. It consists in the absence of differentiation of criminal liability depending on the presence of qualifying features in the theft under consideration, which are expressed in the commission of a crime by a group of persons by prior conspiracy or by an organized group.

Undoubtedly, the theft of cultural property by an organized group is more dangerous than the same act committed by a group of persons by prior conspiracy. It is this fact that is taken into account by the legislator when constructing the offenses contained in Art. 158-163, 165 UK. Therefore, the differentiation of criminal liability depending on the type of group in Art. 164 CC would be appropriate.

A similar problem takes place in connection with the application of paragraph "b" of Part 2 of Art. 164 of the Criminal Code, which provides for stricter liability for repeated commission of the theft in question. In accordance with the footnote to Art. 158 of the Criminal Code, the commission of a crime is recognized as repeated if it was preceded by the commission of one or more crimes under Art. 158-166, 209, 221, 226, 229 UK.

However, in Art. 158-165 of the Criminal Code (except for Art. 164 of the Criminal Code), in addition to the qualifying sign of repeated occurrence, there is also a particularly qualifying sign - the commission of theft by a person who has been convicted of theft or extortion two or more times.

The absence of the latter in the theft of items or documents of special value, in our opinion, is unjustified. These two signs have a different degree of public danger, therefore, criminal liability under Art. 164, depending on their presence, also needs differentiation.

Do not forget that every icon, canvas or statue is part of the cultural heritage of any country to which they belong, and sometimes of the whole world.

Some items or documents acquire special value only over time. So, during the life of the author, the paintings of Van Gogh were simply not given importance, but now they are simply priceless. Therefore, the theft of cultural property that does not have the status of particularly valuable should also be made a special crime, as well as theft of especially valuable items.

Destruction or damage to historical and cultural monuments is one of the crimes against public morality (Article 243 of the Criminal Code). The public danger of these acts is that these actions not only cause property damage to the state, but also harm objects of national pride, symbols of historical and cultural traditions. The social danger of this crime is aggravated by the fact that, due to the uniqueness of many monuments, it is extremely difficult and sometimes impossible to restore them.

Monuments can be damaged by negligence. In this case, this act does not constitute corpus delicti under Art. 243 of the Criminal Code of the Russian Federation. However, if the damage is caused on a large scale (the damage can have a cost estimate and amount to an amount five hundred times higher than the minimum wage), then criminal liability may arise under Art. 168 of the Criminal Code for the destruction or damage of property by negligence.

The destruction or damage of especially valuable objects or monuments of all-Russian significance is the only qualifying sign of a crime under Art. 243 of the Criminal Code of the Russian Federation. However, legislative experience shows that the destruction or damage of any property, committed in a generally dangerous way or entailing any serious consequences, is much more dangerous than the same actions, but without these signs. This is due to the fact that in this

in this case, there is an encroachment on two more objects - human life and health, as well as public safety.

The high degree of public danger of deliberate destruction or damage to property, committed in a generally dangerous way or entailing any serious consequences, is evidenced by the sanctions of Art. 167 of the Criminal Code. The maximum term of punishment in the form of imprisonment, provided for by the sanction of Part 1 of this article, is two years. When a crime is committed by arson, explosion or any other generally dangerous method, or if the acts specified in Part 1 of Article entailed the death of a person by negligence or other grave consequences, according to Part 2 of Article, the maximum term of imprisonment will be five years.

In this regard, it seems appropriate to provide in Art. 243 of the Criminal Code a qualified corpus delicti containing signs of an act committed by arson, explosion or other generally dangerous method, or if it entailed the death of a person or other grave consequences by negligence.

It seems that the maximum punishment in the form of imprisonment for the destruction or damage of historical and cultural monuments in the presence of the above signs should be stricter than for the same acts in relation to ordinary property (part 2 of article 167 of the Criminal Code), i.e. over 5 years old. This can be proved by the fact that in this case an encroachment is committed on another object - public morality. In our opinion, the optimal term for this would be the maximum sentence of imprisonment of 7 years.

Thus, the above analysis of some aspects of criminal liability for encroachments on cultural property made it possible to conclude that the provisions of Art. 164 and 243 of the Criminal Code are not logically perfect. Consequently, the improvement of the norms contained in these articles will help to increase the effectiveness of the criminal law protection of the cultural heritage of Russia.

Chapter 2. Criminal law characteristics of encroachments on cultural values \u200b\u200band problems of improving criminal legislation

2.1 Some hallmarks of theft of cultural property

Every day in the world, 450-500 works of painting, sculpture, antiques, religious worship, archaeological values \u200b\u200band other cultural works of different eras are stolen. According to O.V. Davletshina, in the West, culture is considered "crime zone number three" after drug trafficking and the arms trade. V.V. Kulygin, referring to the data of Interpol, believes that crimes of this category in terms of the volume of illegal income received have taken the second place, yielding "leadership" only to the drug business.

In our country, according to the studies carried out, works of art worth about 4 billion US dollars are stolen annually. More than 45 thousand works of art are on the wanted list. Every month this mournful list is replenished with another 2 thousand new items. More than 200 joint criminal organizations involved in the smuggling of cultural property have been identified in Russia to date. In the countries of Western Europe, according to the operational data of the Ministry of Internal Affairs of Russia and the State Customs Committee of Russia (now the Federal Customs Service of the Russian Federation), there are 40 organized groups of smugglers specializing in the export of cultural property from Russia.

In such conditions, the importance of legal measures to prevent theft of cultural property increases, among which criminal law measures stand out.

The Criminal Code of the Russian Federation, as you know, contains a special rule that establishes criminal liability for the theft of objects or documents of special historical, scientific, artistic or cultural value, regardless of the method of theft (part 1 of article 164 ). In accordance with Part 2 of Art. 164 of the Criminal Code of the Russian Federation, criminal liability arises for theft committed by a group of persons by prior conspiracy or by an organized group (clause "a" ), or entailing the destruction, damage or destruction of objects and documents specified in part 1 of this article (clause "c" ).

As you know, the effective application of a legal norm depends, first of all, on the accuracy and clarity of its wording, which means that there should be no ambiguity in the understanding of the terms set out in the norm. Unfortunately, it should be recognized that by this Art. 164 The Criminal Code of the Russian Federation just cannot "boast".

In the criminal law literature, discussions have already arisen regarding the subject of the outlined crime, the moment of the end of the theft of cultural property, its subjective side, etc. IN this article we would like to refer to the qualifying feature of theft set forth in clause "c" part 2 of Art. 164 Of the Criminal Code of the Russian Federation. An analysis of the relevant sources allows us to assert that among researchers there is no unity in understanding a number of objective and subjective signs of the crime provided for by this paragraph.

The peculiarity of the theft of cultural property, which entailed their destruction, damage or damage, is the presence of additional consequences that are not covered by the main structure of theft of cultural property. As noted by N.A. Lopashenko, "in p." In "part 2 of article 164 a composition with two levels of consequences is provided: the first level is inherent in any theft - this is the infliction of property damage to the owner or other legal owner as a result of the seizure of the subject of theft by the perpetrator and its conversion to their own benefit or the benefit of other persons; the second level is specific to this theft and consists in the irrecoverable loss of the theft item or causing damage to it. "

The listed consequences relating to a thing of special value should occur as a result of theft, i.e. the necessary causal relationship must be established between theft and the consequences.

Taking into account the fact that paragraph "in" Part 2 of Art. 164 The Criminal Code of the Russian Federation provides for the occurrence of additional criminal consequences, a natural question arises: what will be the form of guilt in relation to the destruction or damage of items of particular value?

The solution to this issue presents certain difficulties. As G.L. Krieger, "the mercenary essence of theft is not very consistent with the deliberate destruction of especially valuable items. Indirect intent can be assumed only in cases where for the sake of one item another especially valuable item is destroyed or damaged."

The question of the form of guilt in relation to the additional consequences provided for in clause "c" part 2 of Art. 164 The Criminal Code of the Russian Federation has not been resolved and currently remains open. Thus, some researchers argue that such consequences are covered only by a deliberate form of guilt. A.N. Ignatov, for example, notes that a crime can only be committed with direct or indirect intent. According to B.V. Volzhenkin, the onset of the consequences is covered mainly by indirect intent.

However, according to Part 2 of Art. 24 Of the Criminal Code of the Russian Federation, an act committed only through negligence is recognized as a crime only if it is specifically provided for by the relevant article. Consequently, in the case we are considering, there cannot be only careless guilt, since this is not directly stated: the form of guilt in relation to the consequences provided for in paragraph "in" part 2 of Art. 164 Of the Criminal Code of the Russian Federation, not specified at all.

In such cases, some authors in the literature express the following point of view: if with respect to the consequences that have occurred, the fault is not specified in the text of the article of the Special Part , then their offensive is covered by both willful and careless guilt. So, for example, V.V. Luneev notes the following: "If ... a crime is committed intentionally, but there are consequences caused by negligence, then an indication of careless guilt in the article is not required. For example, violation of the rules for the maintenance of public order and ensuring public safety (Art. 343 of the Criminal Code of the Russian Federation) can only be intentional, but causing harm to rights and legitimate interests citizens (part 1 ) or serious consequences (part 2 ) may be completely or partially negligent, but these consequences are covered by these compositions, although there is no mention of negligence in the article. "

If the legislator believed that such an act could be committed with two forms of guilt, then it was necessary to formulate the considered feature as follows: "2. The same act: ... c) entailing by negligence the destruction or destruction of objects or documents specified in part one of this article ". Consequences in the form of destruction or damage to items of particular value can arise when cultural property is removed, during transportation, when stored improperly (in particular, when the temperature storage regime is violated), etc.

An example of the onset of such consequences by negligence can be the following case from foreign practice of protecting cultural values.

In January 1999, Gao Yun-piao, the leader of a criminal group that stole a stone Buddha from the Tang Dynasty (618-907 AD), was executed in China. During the abduction, the statue shattered into three parts. The deed was qualified by the court as theft of rare cultural property under aggravating circumstances. Gao's accomplices, in turn, were sentenced to imprisonment for various terms.

However, if the destruction or damage is considered intentional, then it will be necessary to admit that the culprit, stealing the cultural property, wants the consequences in the form of its destruction or damage, or deliberately admits such consequences or is indifferent to them. But if a person confiscates such value with the aim of destroying it or damaging it (for example, for psychological reasons), and not for selfish purposes, then there is no part of the theft. Responsibility comes under Art. 167 Of the Criminal Code of the Russian Federation or, if there are grounds for that, under Art. 243 Of the Criminal Code of the Russian Federation.

If the perpetrator first steals an object of cultural value, and then, failing to sell it, damages or destroys, then such actions should be qualified according to the totality of crimes under Art. 164 and 167 (or, if there are grounds, under Art.243 ) Of the Criminal Code of the Russian Federation. This can be illustrated by the fate of the painting by J.L. Jerome "Pool in a Harem", stolen from the Hermitage in 2001. The theft was widely publicized, and it became impossible to sell the painting. It, cut into four parts, was anonymously transferred to the reception of the leader of the Communist Party faction in the State Duma G. Zyuganov. In January 2007, the painting returned to the Hermitage. But in this case, the deed is covered by an independent rule on liability for the destruction or damage to items of particular value (or for the destruction or damage to property). According to G.N. Borzenkov, the destruction or damage of the items of theft "form a qualifying feature when these consequences occurred as a result of theft, but are not an independent act (Art. 243 of the Criminal Code)."

Claim that the specified in clause "c" part 2 of Art. 164 Of the Criminal Code of the Russian Federation, the consequence (and then only in the form of damage) is covered by intent, it seems that it is possible if the method of theft of property is associated with damage to the stolen values. For example, attackers cut the canvas before seizing it to make it easier to take out.

The unity of approaches regarding the determination of the form of guilt in the event of the onset of the consequences specified in clause "c" part 2 of Art. 164 The Criminal Code of the Russian Federation is unlikely to be achieved in the foreseeable future. We believe that in this case it is impossible to do without the intervention of the legislator or (more likely) the Supreme Court of the Russian Federation, because such contradictions may arise in connection with the application of similar prescriptions of other norms. In such a situation, it is necessary to firmly know what form of guilt is possible in relation to the consequences that have occurred in the form of destruction or damage to the stolen values.

We believe that clarifications from the side, for example, of the same Supreme Court of the Russian Federation, would remove disputes among scientists and law enforcement officers, which would make it possible to increase the efficiency of the relevant criminal law regulations.

2 Some aspects of the criminal-legal characteristics of the criminal non-return of cultural property from abroad (Article 190 of the Criminal Code of the Russian Federation)

In the Law of the Russian Federation of 15.04.1993 N 4804-1 "On the Export and Import of Cultural Property" (as amended on 01.07.2011 ) and other normative acts, the terms "objects of artistic, historical and archaeological heritage" are not used. However, under such items it is customary to understand the categories of items falling under the aforementioned Law (see Art. 7 of the specified Law).

According to the law RF "On the export and import of cultural property" authorized body state control for the export and import of cultural property (currently - the Ministry of Culture of Russia) draws up a list of cultural property subject to this Law. Scroll cultural property subject to the Law, the export of which is carried out on the basis of certificates for the right to export cultural property from the territory of the Russian Federation, approved by order Rossvyazokhrankultura of March 14, 2008 N 117.

According to Art. 190 The Criminal Code may qualify for failure to fulfill the obligation to return to the territory of the Russian Federation only such cultural values \u200b\u200bthat were temporarily exported outside its borders on a legal basis. The legal grounds for export should be recognized not only as formal observance of the permitting procedure for the export of cultural property, which culminates in the issuance of an appropriate certificate and the conclusion of an agreement. The assessment of exportation as illegal is also influenced by the fact that a person, concluding an agreement providing for the return of cultural property within the period specified in it, is not going to return the value.

In Art. 27 The RF Law "On the Export and Import of Cultural Property" defines the subjects entitled to the temporary export of cultural property, and the purpose of the export. In Art. 9 this Law specifies which categories of cultural property are not subject to export. Export of cultural property not subject to Art. 9 of the Law, can be carried out in accordance with the decision on the possibility of their export, taken by state bodies determined by this law (Article 17 Law).

The crime is considered completed after the expiration of the period before which the person who received permission for the temporary export of cultural property was obliged, according to the agreement, to return the values \u200b\u200bto the territory of the Russian Federation (for the subject, subjects, etc. of such an agreement, see Article 27 Of the RF Law "On the Export and Import of Cultural Property"). The person is responsible if objective circumstances do not prevent him from fulfilling his obligations to return the valuables within the period specified in the contract.

The subjective side is characterized by direct intent.

The subject of the crime is a person who is obliged, in accordance with the above-mentioned agreement, to return valuables to Russia.

If the person who is obliged to return the items to the territory of the Russian Federation, not being the owner of the temporarily exported property, commits theft of these items while abroad, then he should be liable both under the article being commented and for a crime against property (taking into account Part No. 1 article 12 UK). However, if the export of cultural property abroad according to the intention of the infringer was only a part of the objective side of theft, then the act is qualified only as theft, since the actions that are part of the objective side of the crime cannot be regarded as a temporary export of values \u200b\u200bcommitted on legal grounds.

Criminal liability for non-return from abroad of objects of artistic, historical and archaeological heritage of the peoples of the Russian Federation and foreign countries, temporarily exported from the Russian Federation, is established by Art. 190 Of the Criminal Code of the Russian Federation. The crime is classified as serious and poses a serious threat to the safety of cultural heritage.

Thus, the objects of criminal encroachment under Art. 190 Of the Criminal Code of the Russian Federation, cultural values \u200b\u200btemporarily exported by special permission from the Russian Federation are considered, which are the property of the peoples of the Russian Federation or foreign countries and possess artistic, historical or archaeological value, the return of which from abroad to deadline mandatory in accordance with Russian law.

For the timely detection and effective investigation of non-return of cultural property from abroad, it is of particular importance that investigators and operational personnel have sources of typical initial information about the preparation or commission of such crimes. The range of these sources is predetermined by the specifics of legal relations associated with the temporary export of cultural property abroad, and includes statements:

) owners of valuables or their representatives, heads of state and municipal museums, galleries and other cultural institutions who own valuables on the right of operational management (they may contain information about objects of criminal encroachment and their forensically significant signs, persons who were entrusted with taking measures necessary for the return of temporarily exported valuables, possible reasons for not taking such measures, etc.);

) heads of higher, control and audit and supervisory bodies that check the actual availability of cultural property in subordinate or supervised cultural institutions, as well as in physical and legal entitieswho are the owners of such valuables (it may contain information about the identified shortage of valuables and their signs, the absence or dubious nature of documents confirming the fact of their return to the Russian Federation, persons bearing personal responsibility for their safety, etc.);

) heads of Rosokhrankultura or its territorial bodieswho issued certificates for the right of temporary export of cultural property (they may report non-compliance with the purposes of temporary export of valuables, failure by their owner to take measures for re-import into the Russian Federation, failure to provide information to Rosokhrankultura about the reasons excluding the possibility of return of values, or their questionable nature, established by experts replacement of originals of cultural values \u200b\u200bwith their copies upon return to the Russian Federation after temporary export, etc.);

) researchers, custodians of funds and other employees of cultural institutions, in which cultural values \u200b\u200bwere located before being exported abroad (they may talk about facts that have become known to them by the nature of the service, the fact of non-return of cultural values \u200b\u200btemporarily exported abroad from their institution, rejection by the administration any measures aimed at their return, etc.).

Thus, due to the specifics of the legal nature and the mechanism for committing a crime under Art. 190 The Criminal Code of the Russian Federation, the most complete, accurate and reliable initial information about its preparation or commission can be contained either in the materials of the administrative-jurisdictional, criminal-procedural or operational-search activities of the customs authorities, or in the materials control activities Rosokhrankultura. It is no coincidence that customs control was recognized as an organizational basis for identifying and investigating the criminal non-return of cultural property.

As for the way of committing the crime, enshrined in Art. 190 Of the Criminal Code of the Russian Federation, as an element of its forensic characteristics, then in the very general view it can be characterized as a criminal inaction in the form of failure to fulfill the legal obligation to timely and fully re-import from abroad to the territory of the Russian Federation by the established date of temporarily exported from it objects of artistic, historical or archaeological heritage. To disguise his criminal inaction, the guilty subject may resort to a number of tricks, all kinds of ways to conceal the crime. A peculiar combination of the method of action with the method of concealing it predetermines the specificity of the mechanism for committing the criminal non-return of cultural values, which is also determined by a special procedure for their temporary export abroad, the presence of strict systemic control by the authorities state power represented by Rosokhrankultura and customs authorities for the fulfillment of the obligation to timely re-import temporarily exported cultural values \u200b\u200band other factors. As a rule, intellectual or physical concealment is a necessary condition for the use of one or another method of committing the criminal non-return of cultural property.

3. Destruction or damage of historical and cultural monuments

Objects with a combination of two characteristics are recognized as monuments of history and culture:

) cultural significance;

) special legal status.

Firstly, these are objects of the material world (buildings, memorable places and objects) associated with historical events in the life of the people, the development of society and the state, works of material and spiritual creativity (art and literature) that have a historical, artistic, scientific or other cultural value.

Secondly, they must be registered as such and included in the list (set) of objects of historical and cultural federal (all-Russian) significance. Such a list is approved by the President of the Russian Federation on the proposal of the Government of the Russian Federation.

Natural monuments are unique, irreplaceable natural complexes of special nature conservation, scientific, cultural, aesthetic, recreational and health-improving value, completely or partially withdrawn from economic use, as well as objects of natural or cultural origin, in respect of which a special protection regime has been established (Federal law dated February 15, 1995 N 33-FZ "On specially protected natural areas"). These include:

state nature reserves;

national parks;

natural parks;

state nature reserves;

natural monuments;

dendrological parks and botanical gardens;

territories and water areas suitable for the organization of treatment and prevention of diseases, as well as for recreation of the population and possessing natural medicinal resources.

Objects and documents of historical or cultural value are objects and documents related to events in the life of peoples, the development of society and the state, history and science, crafts and technology, related to the life and work of prominent personalities.

The crime is ended from the moment of destruction or damage to the object specified in the law.

The subjective side of the crime is characterized by direct intent.

The subject of the crime is a person who has reached the age of 16.

Part 2 the article provides for a qualified type of crime: destruction or damage to especially valuable objects or monuments of all-Russian significance. These may include objects and monuments included in the list (set) of objects of historical and cultural heritage of federal (all-Russian) significance.

In criminal law science, the destruction, damage and destruction of cultural values \u200b\u200bduring their theft are defined as follows.

A.V. Naumov understands by the destruction of these objects and documents as a result of a perfect theft bringing them into complete disrepair, expressed in the loss of their cultural value. When destroyed, such a change in the properties of these objects and documents occurs, in which, although their special value decreases and they become partially unusable for their intended use, they can be restored, for example, by restoration. Damage to these items and documents, according to A.V. Naumova, is a kind of destruction.

A.P. Sevryukov also understands the destruction of items or documents that have special value as making them completely unusable, when these items completely lose their value. Destruction is synonymous with destruction. Damage - causing such harm to objects that does not exclude the possibility of their use for their intended purpose, does not destroy their special value, but lowers it.

B.V. Yatselenko considers the destruction of objects of crime as making them completely unusable for their intended use (burning, dissolving in acid, etc.). Destruction, according to B.V. Yatselenko, such a change in the properties of objects of crime is recognized, in which they become partially unsuitable for their intended use. If destroyed, an object or document can be restored. Like A.V. Naumov, B.V. Yatselenko considers the damage to these items or documents as a kind of destruction.

Yu.Yu. Tkachev notes that the term "damage" is synonymous with damage, since it follows from their interpretation in Russian, and therefore believes that it would be more correct to use the term "damage". This proposal seems rational, since such a concept is more familiar to both the Criminal Code itself (for example, Art. 167 and 168 The Criminal Code of the Russian Federation provides for liability for willful or reckless destruction or damage to property) and for the law enforcement officer. Moreover, as A.P. Rezvan and A.S. Sentsov, this decision will allow observing the principle of uniformity of terminology when constructing criminal law norms that infringe on cultural values, since Art. 243 The Criminal Code of the Russian Federation "Destruction or Damage of Historical and Cultural Monuments" uses the term "damage" to describe the same consequences.

Regarding such terms as "destruction" and "destruction", in the literature, as follows from the above, there is also no consensus of opinion.

So, for example, A.P. Rezvan and A.S. Sentsov see destruction as a kind of destruction. A.P. Sevryukov, in turn, considers these concepts as synonymous.

Yu.Yu. Tkachev writes that "from the point of view of the interpretation of the Russian language, destruction is synonymous with destruction. The criminal law in clause" c "of Art. 164 The Criminal Code shares these concepts. "At the same time, Yu.Yu. Tkachev believes that destruction should be considered as a special case of destruction, but in this case we cannot talk about the synonymy of these terms, since destruction is actually considered a type of destruction. the author here also makes a reservation that while maintaining both concepts ("destruction" and "destruction") in the text of the law, the term "destruction" should be applied to situations of destruction of buildings, structures, architectural ensembles, sculptures, sculptural compositions, bas-reliefs, monuments, etc. p., previously acted as the subjects of theft, provided for by Article 164 of the Criminal Code.

Analyzing the above position of Yu. Tkachev, it should be said that the criterion by which the objects of destruction will be "selected" is not entirely clear. One can only assume that the term "destruction" will mean harmful consequences for monuments of monumental art, old mansions, etc. items that are made of stone, brick, and other building materials. Although if a fragment is chipped off from any sculpture, then such a consequence can be regarded as damage. If this sculpture turned out to be completely broken and split, then such consequences can be regarded as destruction.

It seems that in such a tricky situation, one should still be guided by the rules of the Russian language, which really consider the concepts of "destruction" and "destruction" as synonyms. This allows us to consider destruction as destruction. This conclusion is confirmed by the dispositions of other articles.

For example, Art. 281 "Sabotage" refers to the commission of actions aimed at destroying or damaging certain items. On this occasion, S.S. Boskholov and S.V. Maximov note the following: "Under the destruction of ... objects we mean bringing them into complete disrepair."

In general, in the text of the article, the term "destruction" should be mentioned, which will also correspond to the principle of uniformity of terminology when creating criminal law norms, since the previously mentioned Art. 243 The Criminal Code of the Russian Federation also operates with the concept of "destruction". N.А. also advocates the use of the terms "destruction" and "damage". Lopashenko * (17). In order to increase the efficiency of the norm, the legislator should, as already mentioned, state clause "in" part 2 of Art. 164 Of the Criminal Code of the Russian Federation in a new edition, providing for the destruction and damage of stolen valuables as consequences.

Thus, the following conclusions can be drawn: destruction (destruction) of cultural values \u200b\u200bis bringing such values \u200b\u200binto complete disrepair using various methods, their destruction, which entails a complete loss of their properties and unsuitability for their intended use. Damage to cultural property is bringing them by means of various methods into a state in which they lose part of their properties, become partially unusable for their intended use, but must be restored.

In this regard, it should be emphasized that there is a point of view according to which the attitude towards the consequences that have occurred in the form of destruction or damage to cultural property can be both deliberate and careless. This position is adhered to, for example, by N.A. Lopashenko. A.P. Sevryukov, noting that in the event of the destruction, damage or destruction of cultural values, additional qualifications under Art. 167 and 168 not required.

A.V. Naumov, who directly says that in cases where the disposition of the article of the Special Part does not specify the form of guilt, the corresponding crime can only be intentional.

In favor of this point of view, the following arguments can be advanced.

The legislator, as you know, must differentiate criminal liability depending on the form of guilt in relation to the criminal consequences. Consequently, careless destruction or damage to cultural property should be punished less severely than their intentional counterparts, therefore, combine such acts under the "roof" of one paragraph of the relevant part of Art. 164 no reason. In this regard, one can agree with T.A. Lesnievski-Kostareva, who writes the following: "In the theory of criminal law (as well as in the Criminal Code of the Russian Federation itself - L.K.), cases of careless attitude to qualifying circumstances in an intentional crime are called a double form of guilt. Such guilt, in our opinion, is possible only in intentional crimes, entailing two consequences - immediate and more distant.In such cases, the deliberate act of the perpetrator entails a conscious and desired first consequence and an unwanted, but included in the scope of foresight, a more distant consequence. , and including the qualifying circumstances, must be uniform. " As it is easy to see, the legislator, providing for the onset of consequences due to negligence, always reflects this fact in the disposition of the article and directly names an incautious form of guilt.

Conclusion

The modern development of Russia is taking place under the noticeable influence of the processes of globalization. These processes are largely irreversible and can affect the states included in them, both positively and negatively. The threats of globalization are diverse, but among them the threats in the sphere of culture stand out. This is primarily the universalization and unification of cultures. The development of globalization threatens states with a distinctive culture with spiritual impoverishment and submission to a single world order of development set by Western apologists for globalization, and above all the United States.

The loss of national identity as a result of globalization processes in the sphere of culture can lead to the loss of the opportunity to position oneself as active subjects of the new global world order. In this regard, the provision of national security in the field of culture and the protection of cultural values \u200b\u200bare of particular relevance.

In the period of globalization, Russia should be able to defend, promote, spread its cultural values \u200b\u200band influence to other countries and regions, create a positive image of the nation and incentives for mutual exchanges, and pursue an independent cultural policy both within the country and outside. A balanced cultural policy presupposes equality, respect and preservation of every culture and every cultural value; development by each people of its culture; balance between technical and moral and intellectual progress of the people and the state (the principle of equality of all branches of culture); respect for the cultural identity of peoples; mutually beneficial cultural exchanges.

Ensuring national security in the field of culture also consists in implementing constitutional law citizens for access to cultural values \u200b\u200band the constitutional obligation of everyone to take care of the preservation of cultural values, to protect them, as well as in the implementation of the rights of the Russian Federation and its people to preserve and develop their cultural and national identity, protect, restore and preserve the historical and cultural environment without any outside interference.

Considering the huge number of definitions of the word "culture", it is advisable to consider this phenomenon from the position of the axiological school, which asserts that culture is a combination of material and spiritual values. This school is the most widespread in cultural studies. Thus, we can conclude that it is cultural values \u200b\u200bthat become the foundation of any culture. This study examined the problems associated with material cultural values.

The protection of cultural property involves various measures, among which legal ones stand out. This is explained both by the importance of the object of protection and by a very extensive regulatory and legal framework, which includes about 200 normative acts of a domestic and international nature (the problem of protecting cultural property has long become transnational).

In addition, cultural values \u200b\u200bare protected by various branches of law, among which criminal law measures deserve special attention.

For the first time, cultural values \u200b\u200bwere protected in international agreements concerning the rules and customs of war. Modern national criminal legislation contains three norms that are specifically designed to protect cultural values: theft of items of particular value (Art. 164 of the Criminal Code of the Russian Federation); non-return to the territory of the Russian Federation of items of artistic, historical and archaeological heritage of the peoples of the Russian Federation and foreign countries (Article 190 of the Criminal Code of the Russian Federation); destruction or damage to monuments of history and culture (Art. 243 of the Criminal Code of the Russian Federation), although crimes that infringe on cultural values \u200b\u200bmay be qualified under other articles of the Criminal Code of the Russian Federation.

A specific feature of crimes that infringe on the cultural values \u200b\u200bof the Russian Federation is the lack of a uniform understanding of the subject of such crimes, which does not contribute to the effectiveness of protecting these values. This state of affairs is observed not only at the national but also at the international level. An analysis of the relevant norms of the Criminal Code of the Russian Federation, international legal documents and doctrinal provisions allows us to conclude that cultural values \u200b\u200bwill be the general subject of crimes. This is reflected in the author's definition of cultural values.

Based on the results of a comparative legal analysis of the protection of cultural property, the following conclusions can be drawn.

The criminal legislation of almost all studied countries has the ability to protect cultural property from criminal encroachments. Based on the peculiarities of the national criminal legislation, the countries studied by us can be divided into three groups:

a) countries whose criminal legislation contains separate chapters specially designed for the protection of cultural property. This is China, partly Spain. Along with a separate paragraph "On crimes concerning historical heritage" (Articles 321 - 324), the Spanish Criminal Code contains, as we know, other norms found in other chapters and sections that protect cultural values;

b) countries whose criminal legislation includes norms that directly provide for liability for encroachments on cultural property, but does not have separate sections and chapters specifically devoted to the protection of such values \u200b\u200b(such countries are the overwhelming majority);

c) countries, whose criminal legislation does not contain norms, where cultural property is indicated as an object of encroachment (for example, Japan, Sweden). However, the criminal law of these countries can protect such values \u200b\u200bthrough criminal articles, for example for crimes against property.

Foreign criminal legislation protecting cultural property can be either codified or uncodified. In some countries these two species coexist, for example in Germany and Poland.

In many countries, it is prohibited to export cultural values \u200b\u200babroad without special permission, which is established at the level of individual regulatory acts (Great Britain, Germany, Italy, France, Spain). Some states, such as Bulgaria and Ukraine, criminalize the appropriation of found cultural property.

For a number of countries, for example for all CIS countries, the obligation to protect cultural property directly follows from the prescriptions of national constitutions.

The most severe punishment, up to life imprisonment and the death penalty, for some attacks on cultural property is contained in the criminal law of China. In China, liability is also provided for legal entities for such attacks.

In the criminal codes of some states, liability for encroachment on cultural property is equated to liability for one of the types of war crimes (Lithuania, Latvia, Poland, Spain, Armenia).

To improve the current criminal legislation on liability for encroachments on cultural property, it is necessary to create a special section "Crimes against cultural property" within the framework of the Criminal Code of the Russian Federation. Such a step by the legislator would look quite logical, given the direction of such criminal encroachments. All four norms are united by an object - cultural values, which will form the basis for constructing a generic object. After all, a genus is a homogeneous group, where the object is a universal feature.

The generic object of crimes infringing on cultural values \u200b\u200bcan be called social relations arising from the creation, recreation, use, possession, disposal, preservation, popularization and promotion of cultural values \u200b\u200b(both movable and immovable).

The direct objects will be various benefits, depending on what specific crime is being committed. An additional mandatory direct object is social relations arising from the exercise of the right to access to cultural property.

Practically all provisions of the criminal law providing for liability for encroachments on cultural property need, in our opinion, improvement. Note that there are a lot of proposals for such improvement, so you should be especially careful when creating certain criminal law regulations and choose the most optimal option for their improvement.

The study also showed that in criminal law science and in the daily activities of law enforcement agencies, a number of provisions of the relevant norms of the Criminal Code of the Russian Federation are interpreted ambiguously, which can lead to wrong qualifications deed and entail, in turn, violation of the rights and freedoms of citizens. There should be no "double" interpretation of the norms protecting cultural values. The contradictions between different approaches to the qualification of certain acts could be eliminated at the level of decisions of the Plenum of the Supreme Court of the Russian Federation.

Gaps and contradictions in characterizing the subjective aspect of such crimes are of particular concern. For example, the situation with the form of guilt of destruction and damage to historical and cultural monuments is not clearly defined. As already indicated in the work, some scientists believe that this act can only be committed intentionally, while the other part believes that it can be covered by an imprudent form of guilt. Such contradictions are unacceptable and must be eliminated.

Such an unshakable and fundamental principle of criminal law, as the principle of guilt, can also be violated, and, as evidenced by the investigative and judicial practice, it is violated when qualifying crimes that infringe on cultural values: often persons who did not realize that they are encroaching on cultural values, prosecuted precisely for such crimes. At the same time, even at the level of special examinations, it is not always possible to unambiguously resolve the issue of recognizing a particular subject of a crime as cultural value: there are examples when the same thing was recognized by different experts as having cultural value and as not having such.

The reference in such cases to the fact that ignorance of the law does not absolve one from liability (this postulate is not fixed anywhere at all) contradicts the principle of guilt, when the consciousness of a person should cover all the legally significant characteristics of the subject of a crime. This problem is especially acute when establishing the form of guilt in cases of encroachment on various categories of cultural values \u200b\u200b(especially valuable objects or monuments of all-Russian significance).

We offer a special section "Crimes against cultural values" of the Criminal Code of the Russian Federation, "which will demonstrate the state's concern for the preservation of its cultural wealth. As emphasized in the study, criminal law has a symbolic meaning in the sense that it demonstrates its will to protect certain goods.

Taking into account the content of the work, such a section could contain the following norms protecting cultural property: theft of cultural property; misappropriation of cultural property without the purpose of theft; extortion of cultural property; failure to return to the territory of the Russian Federation temporarily exported cultural property subject to mandatory return; intentional destruction or damage of cultural property; destruction or damage to cultural property by negligence; exhibiting of cultural values, knowingly obtained by criminal means; desecration of cultural values. Special mention should be made of the latter deed.

Based on the provisions of the European Convention on Offenses in Relation to Cultural Property (1985), it is advisable to criminalize the use of cultural property obtained by criminal means in the activities of museums during displays at exhibitions. For example, a museum acquires cultural value that was knowingly acquired by criminal means, and exhibits this value. In addition, he earns income from such illegal exhibiting.

The inclusion of an independent section "Crimes against cultural property" in the Criminal Code of the Russian Federation will, in our opinion, more effectively protect cultural property from criminal encroachments. The need to structurally isolate the criminal law provisions providing for liability for encroachments on cultural values \u200b\u200bis also said in the works of other researchers.

The protection of cultural property is currently one of the most pressing tasks facing the state. At the same time, it would be unreasonable to place all the burden of protecting these benefits only on criminal law, as well as to exaggerate the importance of law in general in regulating relations in the sphere of culture.

The current legislation, which positively regulates the circulation of cultural property, is contradictory, gap-free and requires improvement. Nevertheless, one cannot but mention the interest shown by scientists in the protection of national culture and cultural values. The idea of \u200b\u200bcreating a normative codified act in the field of culture arose. Experts speak of international cultural law as a young, but very promising industry. In legal science, the formation of the principles of this right began, which is designed to help optimize legal means of protecting cultural values \u200b\u200band cultural sovereignty.

Protecting cultural sovereignty is a national security issue for Russia. A country that has failed to preserve millennial cultural values \u200b\u200bcan hardly count on a worthy place in the new global world.

Bibliography

Normative acts

1. The Constitution of the Russian Federation // SZ RF. 2009. N 4. Art. 445.

2. Declaration on State Sovereignty of the RSFSR dated June 12, 1990 N 22-1 // Bulletin of the RSFSR. 1990. N 2. Art. 22.

1948 Universal Declaration of Human Rights // International law in documents. M., 1982.

1999 Second Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of May 14, 1954 (not ratified). URL: # "708840.files / image001.gif"\u003e

The outrageous situation in Syria and Iraq, associated with the destruction and plundering of historical monuments and archaeological sites by the Islamists, as well as the smuggling of items of cultural or religious value, finally forced the UN to have its say on this matter. Last Friday, the Security Council adopted a corresponding resolution. The document, prepared by Italy and France in the light of the threat posed by the activities of the Islamic State group banned in Russia, was supported by all 15 member states of the Security Council, including our country, TASS reports.

In the adopted resolution, the Security Council condemned the destruction of cultural monuments, objects of religious worship and artifacts, as well as "plundering and smuggling of cultural property from archaeological sites, from museums, libraries, archives and other objects in armed conflicts, in particular by terrorist groups." The members of the Security Council noted that the militants used the money from the sale of artifacts to prepare terrorist attacks, and also warned that individuals and organizations that enter into deals with IS, Jabhat al-Nusra (both banned in the Russian Federation) and other groups included in the UN sanctions lists themselves may be included in these lists.

The document provides a number of recommendations to prevent the destruction of the cultural heritage of states in the context of armed conflicts. In particular, countries are encouraged to take preventive measures to preserve monuments and values, including by establishing safe areas... In addition, states are encouraged to strictly regulate the export and import of artifacts by introducing mandatory certification in accordance with international standards... Countries are also encouraged to create special units that will specialize in combating the smuggling of valuables.

For the first time, deliberate attacks on cultural heritage sites are classified as war crimes in the adopted resolution, in addition, the document includes provisions according to which UN peacekeeping operations will be instructed to assist the authorities of countries in ensuring the preservation of monuments and other objects of historical or religious value. Until now, only peacekeepers in Mali have been vested with such powers, as an exception.

The members of the Security Council also took note of the idea of \u200b\u200bcreating an emergency fund for UNESCO heritage, as well as an international fund for the protection of endangered cultural heritage in conflict conditions, which was announced at a conference in Abu Dhabi on December 3. In the past, the UN Security Council has already paid attention to the problem of the destruction of monuments, including in Resolution 2199, adopted in 2015. However, that document was aimed generally at combating the financing of the Islamists and also related to the illegal purchases of oil from the militants. The new resolution, numbered 2347, applies not only to terrorists, but to all participants in hostilities.

Source: Electronic catalog of the branch department in the direction of "Jurisprudence"
(Faculty of Law Libraries) M. Gorky SPbSU

Cultural values \u200b\u200bas an object of criminal law protection /

N.I. Minkina.

Minkina, N.I.
2003 Annotation:Published: Siberian Legal Bulletin. - 2003. - No. 3. Full text of the document:

Minkina N.I.

Cultural values \u200b\u200bas an object of criminal law protection

Recently, more and more often one can hear and read serious reports about the "dehumanization" of the population of our country, about "democorrection" and the general spiritual impoverishment of Russia. The mass media are often viewed as “the school of the beginning criminal,” where aggression and the cult of violence are promoted as natural means of interpersonal communication. Thus, the devaluation of cultural values \u200b\u200band the expansion of the subculture of the underworld take place, when sexual promiscuity, tough individual pragmatism, thirst for profit, passion for "empty" and meaningless, but "beautiful" life are cultivated.

Cultural values, created by mankind for centuries and passed down from generation to generation, today need special protection and protection, as well as preservation and development.

Cultural values \u200b\u200bthroughout the history of mankind have been assessed by different scientists in different ways: from philosophical, cultural, legal and other points of view. It seems that the fundamental definition is the philosophical understanding of cultural values \u200b\u200bas objectified results of human creativity, which, as the result of universal labor, serve as a link between different generations of people and are always of a concrete historical nature, being a factor in the formation of a personality type necessary for society.

It is generally accepted that cultural values \u200b\u200bare only material values \u200b\u200bthat are identified with the concept of "monuments of history and culture." However, in the specialized literature, judgments about an unjustifiably narrowed approach to understanding cultural values \u200b\u200bhave already been expressed more than once.

At the legislative level, different content is put into the understanding of cultural values; nevertheless, most often it comes down to the following acceptably broad interpretation. Cultural values \u200b\u200bare moral and aesthetic ideals, norms and patterns of behavior, languages, dialects and dialects, national traditions and customs, historical toponyms, folklore, arts and crafts, works of culture and art, results and methods of scientific research of cultural activities, which have a historical -cultural significance of buildings, structures, objects and technologies that are unique in the historical and cultural relation of the territory and region (Article 3 of the Fundamentals of the Legislation of the Russian Federation on Culture of October 19, 1992).

Thus, the listed cultural values \u200b\u200bmay have a spiritual character and (or) be materialized. Historical and cultural monuments are only one of the manifestations of the cultural values \u200b\u200bof society. Earlier in the law, they included buildings, memorial sites and objects related to historical events in the life of the people, the development of society and the state, works of material and spiritual creativity, representing historical, scientific, artistic or other cultural value (Article 1 of the Law of December 15 1978 "On the protection of monuments of history and culture"). From the standpoint of the current legislation, "monuments of history and culture" are "objects of cultural heritage" subject to state protection in accordance with the Federal Law of June 25, 2002 "On objects of cultural heritage (monuments of history and culture) of the peoples of the Russian Federation." Moreover, all objects of cultural heritage of the federal, regional and local significance are subdivided into several categories: monuments, ensembles, places of interest and works of landscape architecture and landscape gardening art.

At the same time, the author's scientific understanding of the terms under consideration often differs from legislative definition... So, researchers of this phenomenon interpret its content in different ways. Some understand cultural values \u200b\u200bas monuments of culture and history, which are unique material works of a religious or secular nature, which, due to significant historical, scientific, artistic or other cultural value, are registered with the state and are subject to a special legal regime.

According to others, the concept of "cultural values", which is close to "cultural heritage", is more capacious in its semantic meaning due to the fact that it includes both works of art and various types of spiritual creative activities of a person.

Undoubtedly, the interpretation of cultural values \u200b\u200bshould not be limited only to material values, it also includes various spiritual benefits that are significant for society. However, even such a legal doctrine of cultural values, with minor differences in the understanding of individual scholars, seems to be narrowed to a certain extent.

According to Art. 2 of the Constitution of the Russian Federation ( 1993) a person, his rights and freedoms are the highest value of the state.

In addition to human life, his right to freedom of movement, inviolability, including private life, and other rights and freedoms, the integrity of society and the state, as well as much more, these are also cultural values \u200b\u200bof Russia, which are currently not given due attention. but the importance of which is indisputable for the full and safe existence of the individual, society and state.

It turned out to be remarkable the only case, identified during a survey of criminals, one of whom said that in understanding cultural values, one should also invest "the peace of each person", since "this is also a value."

Based on this broad interpretation of cultural values, it can be argued that crime is a set of encroachments on cultural values \u200b\u200bof a society that are different in nature and degree of significance. Accordingly, human and civil rights and freedoms, property, public order, environment, constitutional order RF, the security of the entire world community on the basis of the provisions provided for in Art. 2 of the Criminal Code of the Russian Federation, should be recognized as cultural values \u200b\u200bin the broad sense of the word, protected by the country's criminal law.

Cultural values \u200b\u200bproper, the understanding of which basically coincides with the meaning of historical and cultural monuments, have a special legal regime, and encroachments on them by the legislator are provided for in the country's Criminal Law in the form of separate corpus delicti. Among the main such crimes are the following.

1) Art. 164 of the Criminal Code of the Russian Federation (theft of objects or documents having a special historical, scientific, artistic or cultural value, regardless of the method of theft), the simple (unqualified) composition of which in the criminal law is classified as a serious crime.

This crime is a special composition of theft, committed in various forms, for example, in the form of theft, robbery, robbery, fraud or appropriation, in relation to an object subject to special protection by criminal law means.

2) Art. 190 of the Criminal Code of the Russian Federation (not returning to the territory of the Russian Federation objects of artistic, historical and archaeological heritage of the peoples of the Russian Federation and foreign countries), also belongs to the category of grave crimes.

Recognition of this or that item as a cultural property is a state assessment of the cultural and value value of this item by referring it to the objects of "cultural heritage".

3) Art. 243 of the Criminal Code of the Russian Federation (destruction or damage to monuments of history, culture, natural complexes or objects taken under state protection, as well as objects or documents of historical or cultural value), the compositions of which are considered by the legislator to be crimes of small and medium gravity.

Obviously, whether this or that object (public building, structure or objects) has historical and cultural significance can only be found out with certainty after some time. Places related to important events in the life of the country and peoples, can receive the status of monuments only in the future tense. In the present tense, whether this other object is a cultural or historical monument is established in the expert opinion.

In some cases, this group of crimes can also include:

4) Art. 214 of the Criminal Code of the Russian Federation - vandalism as desecration of buildings or other structures, damage to property on public transport or in other public places;

5) Art. 244 of the Criminal Code of the Russian Federation - desecration of the bodies of the dead or destruction, damage or desecration of burial sites, grave structures or cemetery buildings intended for ceremonies in connection with the burial of the dead or their commemoration.

The subjects of modern vandalism, which came to us from abroad, most often become young people infected with the “bacilli” of spiritual simplicity, aggression and cruelty. Its essence is expressed in the destruction of generally accepted material and spiritual cultural values. As pointed out by the researchers, the Cartesian statement operates here: “I destroy, it means I exist”, thereby there is a demonstrative opposition of the criminal and the subculture supported by him, the society and the culture of behavior adopted in it.

It should be noted that all the crimes listed by the legislator are placed in various chapters of the Criminal Code of the Russian Federation, respectively, in his opinion, they encroach on various public objects:

1) crimes against property (Art. 164 of the Criminal Code of the Russian Federation);

2) crimes in the field of economic activity (Art. 190 of the Criminal Code of the Russian Federation);

3) crimes against public safety (Art. 214 of the Criminal Code of the Russian Federation);

4) crimes against public health and public morals (Art. 243 and Art. 244 of the Criminal Code of the Russian Federation).

However, the subject of these crimes is the same. They are objects of the material world that have an exceptional feature, expressed in the property of their special social significance, which, along with others, include cultural monuments. Moreover, the subject of a crime is not necessarily limited to one unit, it can be entire collections, a variety of such items.

Having determined the place in various chapters of the Criminal Code of the Russian Federation for the elements of crimes that infringe directly on cultural values, the legislator thereby indicated the main object of the encroachment of each of the crimes. Meanwhile, it is clear that, according to the proposed concept, cultural values \u200b\u200bare common to all the selected offenses, and at the same time, an additional object in relation to the object that the legislator chose to highlight. It is not necessary that only cultural and historical monuments in our usual sense will act as such, such can be structures of various purposes, but which represent a certain social significance, where human labor is invested and where human creativity is manifested.

By analogy, not only "individual burials" are proposed to be considered as "monuments" (Article 3 of the Federal Law of June 25, 2002 "On objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation"), but in general, all burials are memorable places that are significant in the life of every person. And for any civilized society, such places are a certain social memory. The human attitude to such "shrines" is a manifestation of our culture. Accordingly, deviations from the framework of generally accepted cultural behavior should fall into the area of \u200b\u200bcriminal law protection.

It is necessary to understand that our historical and cultural national heritage is much broader and deeper than the concepts of "cultural heritage" or "monuments of history and culture" established by criminal legislation.

In this regard, it is advisable that the state took under special protection, along with cultural and historical monuments, objects of Art. 214 and Art. 244 of the Criminal Code of the Russian Federation, having toughened criminal liability for these crimes, where imprisonment as an alternative punishment is not provided in simple offenses. Special proposals for eliminating state underestimation of the designated crimes deserve special attention from both scientists and practitioners.

It should be emphasized that the qualification of the offense under one of the above articles does not require additional qualification under another article of the Criminal Code of the Russian Federation, which belongs to the same category of crimes under consideration. So, the destruction or damage of historical or cultural monuments, as well as other objects established by law, taken under special protection by the state, is qualified under Article 243 of the Criminal Code of the Russian Federation. Destruction or damage to public facilities not related to those provided for in the criminal norm of Art. 243 of the Criminal Code of the Russian Federation to objects, the legislator is considered as acts of vandalism (Art. 214 of the Criminal Code of the Russian Federation).

Desecration of buildings and structures is an action punishable under Art. 214 of the Criminal Code of the Russian Federation. However, if we are talking about the desecration of burial places, grave structures or cemetery buildings, then this is an independent corpus delicti under Art. 244 of the Criminal Code of the Russian Federation. At the same time, if the guilty persons are excavating ancient burials recognized as monuments of history and culture, then their illegal actions will be qualified under Art. 243 of the Criminal Code of the Russian Federation.

So, the relationship between these crimes is obvious, and the legislator's position on classifying these criminal acts as multi-subject crimes is rather conventional.

The unification in culture of many aspects of human life has predetermined the characterization of encroachments on the spiritual (cultural) values \u200b\u200bof society as multi-object crimes.

The difference between all crimes that infringe on cultural values \u200b\u200bis noteworthy: in some cases, for example, under Art. 164 or Art. 190 of the Criminal Code of the Russian Federation, the subjects of crimes, as a rule, do not suffer harm. Such items are not harmed, and they remain integral, since the main purpose of such an illegal action is to change the owner and the territorial movement of this value. In other cases, for example, under Art. 214, 243 and 244 of the Criminal Code of the Russian Federation, antisocial actions represent a kind of barbarism, sometimes - senselessly cruel destruction of historical and (or) cultural monuments and structures of value.

Such crimes are united not only by their characterization as uncivilized, immoral and immoral actions, which is suitable for any crime, but by the lack of respect for the cultural values \u200b\u200bthat have developed in society for centuries and the lack of respect for the existing memorial sites, the historical and (or) cultural heritage of the entire people ( or attitude to these circumstances at an indifferent level, for example, in certain forms of complicity in a crime).

All analyzed crimes affect the sphere of culture and public morality, i.e. the rules (norms) of behavior, ideas, traditions prevailing in society, including ideas and views about duty, honor and respect for existing cultural values.

In this regard, the main general purpose of Art. Art. 164, 190, 214, 243 and 244 of the Criminal Code of the Russian Federation is an obstacle on the part of the state to complete or partial loss of cultural values \u200b\u200bin their broad sense.

Turning to the criminological analysis of the above-mentioned basic crimes against cultural property, it is necessary to dwell on the following main points.

In the overall structure of crime in Russia, such crimes constitute an insignificant part. However, their share, according to the available indicators, is growing. If in 1999 crimes infringing on cultural property accounted for 0.063% of the total structure of crime, then in 2000 this figure rose to almost 1%.

Despite the small proportion of the crimes under consideration, they have an increased public danger, since often the damage caused entails an irreparable loss for the national culture. Therefore, most often such crimes cause a serious public response. We are talking not only about sensational abductions, removal of masterpieces of world and national culture, but also about acts of vandalism, abuse of graves, etc.

With a decrease in the total number of registered crimes in the country (in 1999 - 3,001,748 crimes, in 2000 - 2,952,367 and in 2001 - 2,968,255), the dynamics of the categories of crimes under consideration generally tends to increase, with the exception of the crime under Art. 190 of the Criminal Code of the Russian Federation (See Table 1.).

Table 1.

Types of crimes	Register crimes in the RF Increase over the previous year, in%
Theft of items of special value (Article 164 of the Criminal Code of the Russian Federation)
Failure to return to the territory of the Russian Federation items of artistic, historical and archaeological heritage of the peoples of the Russian Federation and foreign countries (Article 190 of the Criminal Code of the Russian Federation)
Vandalism (Article 214 of the Criminal Code of the Russian Federation)

The dynamics of crimes against cultural values \u200b\u200bon the territory of such a constituent entity of the Russian Federation as the Irkutsk region, in contrast to the all-Russian tendencies in the period from 1997 to 2000, has a wave-like character: in 1997, the Internal Affairs Directorate of the Irkutsk region registered 21 such crimes; in 1998 the lowest indicator was recorded - 12; in 1999 this indicator reached its highest level - 32; in 2000 - 18 (See Table 2.). Moreover, the share in the total mass of registered crimes of this category ranges from 0.018% in 1998 to 0.041% in 1999.

table 2

The number of registered crimes in the Irkutsk region
Theft of items of special value (Article 164 of the Criminal Code of the Russian Federation)
Failure to return to the territory of the Russian Federation objects of artistic, historical and archaeological heritage of the peoples of the Russian Federation and foreign countries (Article 190 of the Criminal Code of the Russian Federation)
Vandalism (Article 214 of the Criminal Code of the Russian Federation)
Destruction or damage of monuments of history and culture (Article 243 of the Criminal Code of the Russian Federation)
Desecration of the bodies of the deceased and their burial places (Article 244 of the Criminal Code of the Russian Federation)
Total crimes infringing on cultural values \u200b\u200bin the Irkutsk region
Share of crimes affecting cultural values \u200b\u200bin Irkutsk region,%

10 years ago, in 1993, on the territory of Russia, as indicated in the literature, there were about 1735 museums, which contained a total of over 27 million various monuments of material and spiritual culture. As of 2001, over 100 million various monuments of material culture were already stored in the museums of our country. Also, a huge number of works of art as a historical value are concentrated in private collections and collections.

According to some estimates, only in the city of Irkutsk, which has the status of a "historical city of the Trans-Urals" and is included in the "Tentative List of World Cultural Heritage Sites of the Russian Federation" as a unique urban development complex of objects of archeology, history, architecture of wooden architecture and natural landscape, are under state protection 501 monuments and 797 buildings of historical and artistic value.

The issue of the protection of cultural and historical monuments has always worried our country. Prior to the entry into force of the Criminal Code of the Russian Federation on January 1, 1997, close attention was paid to Art. 230 (intentional destruction, destruction and damage of monuments of history and culture) and Art. 87-2 of the Criminal Code of the RSFSR (non-return to the territory of the Russian Federation of items of artistic, historical and archaeological heritage of the peoples of the Russian Federation and foreign countries).

Nevertheless, the number of such crimes in the country, as can be seen from the data presented (See Table 1), is constantly growing, which signals the need for a deep study of this issue and the adoption of necessary measures to reduce the level of this type of crime.

In the Irkutsk region, according to the latest data from the IC of the Internal Affairs Directorate of the Irkutsk region, there were either no such crimes at all, or they were registered in a single amount (see Table 2).

It is noteworthy that in 2001 a precedent was set in the Irkutsk region when persons guilty of damaging the local memorial - the monument to the fallen soldiers and the Eternal Flame in Usolye-Sibirskoye - were sentenced to 5 years in prison. Then 101 tables (aluminum plates) with the names of local residents who died in the Great Patriotic War were removed.

Some interest in this case represents the verdict itself, passed on April 23, 2001, according to which the guilty persons were sentenced to the specified period under Article 158 of the Criminal Code of the Russian Federation (theft). Moreover, despite the fact that, as indicated in the court verdict, the criminals “encroached on the most sacred for the Russian people - the memory of the people who gave their lives in the fight against the Nazi invaders for the independence of our Motherland ... the court finds it possible not to apply an additional punishment in the form of confiscation of property ". However, the court immediately ruled "to hand over the plates with the names of the Great Patriotic War participants to the city administration."

Although the encroachment on the same monument on April 28, 2001, but already by other persons and under different circumstances, was judicially recognized as a crime under Art. 243 of the Criminal Code of the Russian Federation. This circumstance no longer leaves any doubt that we are talking about a monument taken under state protection.

Based on such results, it is obvious that facts of this kind will not fall under the statistical information of crimes that infringe on cultural values \u200b\u200bproper. So, a difficulty arises - the presence of a certain proportion of distorted statistical data.

As can be seen from the above data of local practice, the outcome of the investigation and trial of a criminal case under Article 243 of the Criminal Code of the Russian Federation does not always end well. The considered category of crimes belongs to the category of those difficult to investigate and prove, therefore a certain part of cases does not reach the courts. In media reports, one can often find information about "the suspension of a criminal case due to the fact that it is difficult to identify the persons who defiled the monument."

Despite the growth of such crimes, the number of identified criminals is decreasing. Russian statistics show that when registering in 1999, 85 facts of crimes under Art. 243 of the Criminal Code of the Russian Federation identified 29 perpetrators of this, while in 2000, when the level of such crimes increased to 95 crimes, and the number of identified persons decreased to 14.

Here, one must not forget about crimes that remain latent for this type of act. This is extremely rare, but it still occurs. Thus, attention is drawn to the case of recordings that defile a work of culture with obscene expressions and anti-Semitic statements - a panel with a portrait of A. Sakharov (in fact, damage to a cultural monument). Surprisingly, the fact about the intentional non-reporting of what happened to the law enforcement agencies. It remains unclear whether a criminal case was initiated on the basis of information from the mass media.

It should be noted separately that acts of vandalism in the legislative sense (Article 214 of the Criminal Code of the Russian Federation) often differ from the understanding of vandalism at the level of everyday consciousness. The titles of the newspaper reports cited as examples indicate that in the mass (public) consciousness, due to the lack of special legal knowledge, there are often no delimitations of Art. 214 and Art. 243 of the Criminal Code of the Russian Federation. From the analysis of the central and local press, it is not difficult to notice the frequency of acts of vandalism, but not every one of them in legal practice is qualified under Art. 214 of the Criminal Code of the Russian Federation.

So, in 1999. 419 crimes are registered in Russia under Art. 214 of the Criminal Code of the Russian Federation, in 2000. 572 acts of vandalism were established, respectively, an increase over the previous year was + 36.5% (See Table 1).

In the Irkutsk region, annually in the period from 1997 to 2000, on average 3-4 acts of vandalism were recorded (See Table 2).

Meanwhile, reports about this in both the central and local press can be found quite often. For example, during the month of May 2002 in the city of Angarsk, Irkutsk Region, two central parks of culture and recreation suffered from vandalism, which in fact, as it is correctly noted, turned into a "war zone" with benches broken in squares, littered bottles and cans from under beer and vodka fountains, in a walking place for dogs, and in summer - in a shelter for homeless people. The criminal-legal assessment of actions to destroy curbstones and fences in parks is provided for by the definition of Art. 214 of the Criminal Code of the Russian Federation. Since these parks are not classified as state, regional or local monuments of history and culture, then criminal acts cannot be qualified under Art. 243 of the Criminal Code of the Russian Federation.

No less public resonance is caused by crimes under Art. 244 of the Criminal Code of the Russian Federation, which are also distinguished by a fairly low level of disclosure. The total number of registered crimes of this type in the country in 1999 was 1294 criminal acts, in 2000. this figure reached 1,985 cases of abuse and desecration of graves (an increase over the previous year was + 53.4%). Moreover, in 1999. identified 203 people who have committed crimes under Art. 244 of the Criminal Code of the Russian Federation, while in 2000 the number of identified perpetrators was 288. As a rule, the considered category of crimes remains unsolved. However, often, since, as already noted, such crimes are most often committed by young inexperienced people, moreover, often in a state of intoxication, they are successfully solved by law enforcement officers.

Of particular concern is the trend towards an increase in the number of thefts of cultural property, which is often accompanied by their subsequent export from the country. If in 1982, 311 such crimes were registered on the territory of the USSR, then in 1997, on the territory of Russia - 3752.

In recent years, the theft of cultural property has become a national disaster: there is a steady trend towards an increase in criminal encroachments on cultural property and other items of special value (Article 164 of the Criminal Code of the Russian Federation). Since 1989 in 2000, as indicated in studies specially conducted on this issue, their number rapidly increased 16 times, and theft from private collections over the same comparative period of time increased more than 22 times.

The sharp increase in theft of privately owned cultural property in private collections is not accidental. It is always easier for professional criminals to commit theft (and they occupy the main share in the theft of valuables), even with an alarm installed in an empty apartment, than to penetrate not only alarm-set, but also guarded museums and other places of storage of historical and cultural values. For example, in August 2002, unidentified persons stole a private collection of antiques of the 18th – 19th centuries (totaling $ 850,000). The theft was committed from the apartment set on the alarm during the absence of the owner through penetration from the neighboring apartment.

Moreover, in 1999. registered 2 facts of non-return of cultural property from abroad, but in 2000. law enforcement agencies of the country established 1 such fact. In this case, the offenders were not identified.

It is necessary to clarify that there are no discrepancies in the statistical information provided. In the latter case, we are talking about the initiated criminal cases, when there are the necessary criminal procedural grounds and grounds for this, and above were general statistics on the theft and export of cultural property - smuggling detected by customs authorities and falling under the administrative legislation of the Russian Federation. Thus, it has been established that in less than 9 years (from 1992 to April 2000) that have passed since the collapse of the USSR, attempts have been made to export more than 50 thousand cultural values \u200b\u200bthrough the customs border of the Russian Federation. At the same time, as pointed out by experts, in practice, when revealing the facts of illegal movement of cultural property across the customs border, preference is given to the administrative-legal norm, and criminal cases are rarely initiated.

The export of cultural property abroad has become one of the most profitable areas of activity of organized criminal groups and in most cases is of a custom-made nature.

Today, more and more people, buying up works of art and antiques, are investing in this way significant funds. There is no doubt that such a situation can lead to the moral decline of the main part of society and the degradation of the very attitude to cultural heritage.

Today, there is an international integration of efforts to combat this type of crime and preserve the cultural heritage of the world community. So, on September 17, 2002. in the A.S. Pushkin, Moscow hosted the second International Conference on the issues of illicit trafficking in cultural property, held under the auspices of UNESCO and the Ministry of Culture of the Russian Federation. However, as noted by the researchers of these problems, with the growth of demand on the market for cultural property in Western countries, the results of such a struggle can be assumed so far without any particular results. At the same time, there are certain shifts in this issue, which can be traced from the reports in the media. So, for example, relatively recently a particularly valuable monument of Old Russian art was returned to Russia - the 15th century icon "Transfiguration of the Lord", which, according to some information, was stolen back in 1957. from the iconostasis of the Winter Rogozhskaya Sloboda Church of the Moscow Old Believer Metropolis, and then taken abroad by a Mexican diplomat as part of his collection.

In connection with the creation in the system of the Ministry of Internal Affairs of Russia of a special criminal investigation unit for stolen cultural property, as well as the adoption of a number of necessary legislative acts, in the country as a whole in recent years, the detection of theft of cultural property has improved from 31.8% in 1992 to 56.5 % in 2000

However, the problem of combating this type of crime continues to remain relevant, being complicated by the fact that places of concentration and storage of items of cultural, historical and scientific value, as a rule, are poorly protected from criminal encroachments.

According to the official data of crimes under Art. 190 of the Criminal Code of the Russian Federation, in the Irkutsk region is not registered, while isolated cases of theft of items of special value (Art. 164 of the Criminal Code of the Russian Federation) have been established. Thus, in 1997 and in 1999, 3 such crimes were registered each, and in 1998 and in 2000 - 2 each (See Table 2). Thus, in total in the period since 1997. to 2000 on the territory of the region, 10 cases of theft of items of special value were recorded. For an objective assessment of the indicated data, one should take into account the rather high latency of the considered category of crimes.

So, it is not difficult to notice that the realities of today show the decomposition of the culture of society, the lack of its value and significance among the majority of the country's population, therefore, there is an urgent need to strengthen state control and develop measures to preserve cultural values, including by criminal means. However, it is important to understand that in the current situation, the shortcomings of the narrowed understanding of “cultural values” in criminal law, in fact, only as “monuments of history and culture”, played an important role. It seems most correct to consider historical and cultural monuments and cultural values, respectively, as a part and a whole. This approach will make it possible to fairly expand the group of crimes that infringe on the cultural values \u200b\u200bof society itself. Despite the fact that both in Russia and in the Irkutsk region this type of crime has an insignificant share in the overall structure, it sometimes causes not always removable and irreparable damage to the entire country. In this regard, this category of crimes deserves a separate independent study.

Boguslavsky M. M. International protection of cultural values. M., 1979. S. 67–69.

For more details, see: Popov V.A., Kuznetsova I.A. Foreign studies of youth vandalism // Pedagogy. 1997. No. 6. P. 111-114.

The use of the phrase “crimes against cultural property” is not accidental. As it turned out, for the first time this term was used at the international congress of criminologists from socialist countries in Havana (November 1989). For more details, see: G. Sarkisov. International Relations of Lawyers: Congress of Criminologists // Sots. legality. 1990. No. 5.P. 66.

For the initial data for the calculation, see in more detail: Laws of crime, strategy of struggle and the law / Ed. A.I.Dolgovoy. M., 2001. S. 533-545.

It should be noted that similar statistical data for 2001 and 2002. were not found. Meanwhile, certain conclusions can be drawn from the indicated information.

In the Irkutsk region, one of these was the encroachment on the Amurskoe (Lisikhinskoe) cemetery, where on the night of May 13-14, 1998, according to law enforcement agencies, 139 memorial graves were destroyed. (For more details see: Jews of Irkutsk are alarmed // CM-number one. 1998. No. 94. P. 11).

Lelyukh VF Modern problems of deviance and penitentiary practice (socio-theoretical essays). Irkutsk, 2001.S. 64.

Kuznetsova N.I., Rostopchin V.G. The concept of cultural values. M., 1993. S. 3-4; Bulatov RB Concept and protection of cultural values: theoretical and legal aspect // Law enforcement activity and legal state. Issue 3. SPb., 1994. S. 58–59.

Bratanov V.V. Theft of cultural property: criminal law and criminological aspects: Author. dis. for a job. uch. Art. Cand. jurid. sciences. Nizhniy Novgorod, 2001. S. 3-4.

A pensioner suffered // Ros. newspaper. 2002.22 August. S. 1; My tongue is my enemy // Tribune. 2002.12 September. S. 5.

Laws of crime, strategy of struggle and law / Ed. A.I.Dolgovoy. M., 2001.S. 537.

According to the Main Directorate for Combating Smuggling of the State Customs Committee of the Russian Federation, office work No. 08-313 / 5481; 09-05 / 5685. For more details see: Martynenko I.E.Contraband of historical and cultural values \u200b\u200b// Advocate practice. 2002. No. 1. P. 34–37.)

For more details see: Bulatov R.B. Cultural values \u200b\u200bas an international legal category // ATS on the way to the rule of law: Coll. works of adjuncts and applicants / Under total. ed. V.P.Salnikov. Issue 2. SPb., 1993. S. 14–18.

Davletshina O.V. The criminal market for cultural property and the fight against it in the Southern Federal District // Problems of the fight against the criminal market, economic and organized crime: Materials of the conf. M., 2001.S. 85.

Bratanov V.V. Theft of cultural values: criminal law and criminological aspects: Author's abstract. dis. for a job. uch. Art. Cand. jurid. sciences. Nizhniy Novgorod, 2001. S. 3-4.

The source of information:
ISU Law Institute. Siberian Legal Bulletin. (