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164 CC RF of thelower courts in the jurisdictions of the Altai Territory, the Vologda, Vladimir,Irkutsk regions, the Karachay-Cherkess Republic, the Krasnoyarsk Territory, aswell as the Moscow, Nizhny Novgorod, Novosibirsk, Omsk, Rostov, Ryazanregions, the Republic of Bashkortostan, the Republic of Dagestan, the Republic ofTatarstan, Saratov, Smolensk regions for the period 2014-2017;- 44 judicial decisions of the court proceedings pursuant to Part 1 of Art.7.14.1 of the Code of Administrative Offenses of the Russian Federation, for theperiod 2015-2017 in the jurisdictions of the Belgorod, Vladimir, Kaliningrad,Kaluga regions, Krasnodar, Krasnoyarsk Territories, Nizhny Novgorod regions,the Perm Territory, the Republic of Bashkortostan, Tambov and Tomsk regions;- judicial decisions of the Plenum of the Supreme Court of the RussianFederation: No.
29 of 27.12.2002 "On judicial practice in cases of theft, robberyand armed robbery"; from 26.01.2010 No. 1 "On the application by courts of thecivil legislation regulating relations for obligations as a result of causing harm tothe life or health of a citizen"; from 18.10.2012 № 21 "On the application by courtsof the legislation on liability for violations in the field of environmental protectionand natural resources management"; from 30.11.2017 No. 48 "On judicial practicewith regard to cases of fraud, misappropriation, and embezzlement"; fromNovember 30, 2017 No. 49 "On specific issues of the application of legislation oncompensation for damage caused to the environment";7- review of judicial practice in the cases related to unauthorized construction(approved by the Presidium of the Supreme Court of the Russian Federation onMarch 19, 2014);- results of surveys conducted by questioning and interviewing of 33 judges,prosecutors and investigators (Moscow, Moscow region), 14 lawyers, and 55scientists.The scientific novelty of the study is determined by the fact that this is oneof the first monographic works dedicated to the criminal law protection of theobjects of cultural heritage after the significant change in the body of law of theCriminal Code of the Russian Federation (articles 243-243(3) CC RF) wasintroduced in 2013 concerning the protection of cultural heritage objects in thelight of the provisions of international legal acts, the Constitution of the RussianFederation, the Criminal Code of the Russian Federation, and other normative legalacts of the Russian Federation in accordance with public policy consideration andthe corresponding positions of the sociohumanitarian sciences.In addition, the results of the conducted research include:- on the basis of the identified characteristics of the object of culturalheritage, its definition has been formulated and a classification of such objects isgiven achieving clarity in the definitions of crimes under Art.
243-243(3) CC RF;- the scope of crimes included in the mechanism of criminal law protectionof cultural heritage objects was determined and the degree of completeness of theirprotection was assessed;- it proposed a new approach to the definition of the direct object of crimesthat are committed with regard to the objects of cultural heritage, which has boththeoretical and practical significance, since it allows to distinguish offenses withsimilar material elements from one another;- proposals have been made as to the improvement of criminal legislation(Articles 243, 243(3) CC RF) to promote uniformity of law enforcement in thefield of criminal law protection of objects of cultural heritage;- recommendations on the application of criminal legislation in judicial andinvestigative practice have been developed.As the Dissertation presentation, the following scientific statements,conclusions and recommendations are being submitted:81. The core concept underlying the definition of and object of culturalheritage is the concept of cultural heritage, which is a collection of material andnon-material objects of anthropogenic nature, created in the past and possessingboth cultural and historical value.
For the purposes of criminal law, the object ofcultural heritage should be defined as a complex anthropogenic object ofimmovable property of cultural significance, which is entered in the Unified StateRegister of Cultural Heritage Objects of the Russian Federation and which isowned by the state, municipal government or a private owner.2. The object of cultural heritage, as a specific expression of the generalmeaning of cultural heritage, has the following characteristics: its materiality,immovable nature, cultural value, anthropogenicity, conformity to the ageaccession criterion, a legally designated status of the object of cultural heritage.For the purposes of criminal-law, the following features have legalsignificance:- the immovable nature of the object of cultural heritage (and associated withit movable objects and archaeological objects until the moment of their inclusioninto the Museum Fund of the Russian Federation) - this feature is the theoreticalbasis for distinguishing objects of crime specified in Art.
243 CC RF ("objects ofcultural heritage" and "cultural values"), as well as for clarification on thedifferences of substantive elements of criminal conduct under Art. 243 CC RF andother substantive elements of similar laws with respect to protecting culturalheritage (Articles 164, 190, 226(1), 243, 243(2), 243(3) of the Criminal Code ofthe Russian Federation);- the anthropogenic character of the object of cultural heritage - thetheoretical basis for delineation of the subject matter of crimes, classified underArt. 243 and Art.
262 CC RF and thus for separating the objects of the crimeagainst public morality and environmental crimes;- the cultural value of the cultural heritage objects - a) is of fundamentalimportance as the basis for assigning the object to the status of an object of culturalheritage; b) quantitatively, it is the basis for classifying objects of cultural heritageaccording to the level of their cultural value for the differentiation of criminalpenalties depending on the type of the object (Part 1 and Part 2 of Art. 243 CCRF);- the formal designation of the status in the Unified State Register ofCultural Heritage Objects of the Russian Federation - is a practical basis for the9recognition by law-enforcement agencies of specific objects of crime for the properqualification of conduct under Art.
243- 243(3) CC RF;- the nature of property law and the form of ownership of the object ofcultural heritage - the feature is taken into account when determining the subject ofthe crime under Art. 243(1) CC RF (an owner, a legal owner of the culturalheritage object.)3. Criminal liability under Art. 243(1) CC RF is only applicable in thecircumstances if the object is destroyed or damaged "on a large scale," which canbe assessed or calculated on the basis of the cost of restoration work.
For effectiveand uniformed enforcement, the clarifications of the highest court authority arerequired with respect to the procedure for calculating damages caused to the objectof cultural heritage. This can be achieved by one of the following methods or acombination thereof: 1) by average market value of restoration works andmaterials used at the time the crime was committed; 2) by means of an expertassessment of the diminution value of the market price of the object or monument;3) by means of an expert comparing assessment of the expenses actually incurredin restoring the monument and the fair market value of such works at the time ofthe commission of the crime.4.
Based on the literal interpretation of the current version of the statutorynorm containing in Art. 243 CC RF, it can be concluded that to constitute a crime,the act can be committed either with intent or by negligence. Such a languagecreates an ambiguity, a defect of the legal construction, and as a consequence ofequivocal interpretation, it leads to an unreasonable increase in the punishment fora general wrongdoer who has damaged a historical and cultural monument bynegligence (in case of a negligent owner or other legal owner of the culturalheritage object), as opposed to the punishment of a willful conduct of an offenderresponsible under Art.
243(1) CC RF. This conclusion serves as a foundation forthe proposal to limit the elements of the crime to the willful, intentional conductand make it the determinative element of the crime under Art. 243 CC RF.5. The substantive elements of the crime formulated in Art. 243 CC RF arematerial elements, since the terms "destruction" and "damage" within theframework of this statute characterize both an act of public endangerment and anact of endangerment consequence to the general public. The state of mind elementconstituting intent includes the offender’s knowledge of the object of crime, theawareness of the results of the acts as to the specific features of the object of crimecharacterized as an object of cultural heritage.6. As a matter of law, in the Russian Federation, the objects that areencompassed in the Unified State Register of Cultural Heritage Objects of theRussian Federation have been the only objects that are covered by the criminal law10protection, which fact substantially limits the government’s jurisdiction preventingits power of criminal prosecution of individuals who committed crimes againstforeign historical and cultural monuments including those of internationalsignificance.
To overcome the legislative gap, it is proposed to include the objectsof cultural heritage inscribed on the World Heritage List that are located outsidethe territory of the Russian Federation in the subject matter of the crime under Part2 of Art. 243 CC RF.7. The language describing the criminal liability under art. 243(3) CC RFcontradicts the principle of uniformity in the construction of norms of law.
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