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The federal legislation has adopted the Convention’s approach toclassify the objects of cultural heritage by types and developed a morecomprehensive classification.The analysis of the 1954 Convention for the Protection of Cultural Propertyin the Event of Armed Conflict (The Hague Convention) made it possible to clarifythe distinction between the movable and immovable property of cultural heritage,as well as helps to identify the scope of the substance of criminal acts, determiningthe mechanics of the criminal law protection of the objects of cultural heritage: in18addition to Art. 243-243(3) CC RF, it also is governed by Art.356 CC RF.However, although the subject matter of a crime under Art. 356 CC RF, amongother things, includes the national property, which can also include culturalheritage, the object of the above-noted substantive elements of the crime cannot beconsidered analogous to the object of substantive elements of the offenses that arebeing discussed in this dissertation research paper.The ratification by the Russian Federation of the European Convention onthe Protection of the Archaeological Heritage of 1992 serves as the basis foramending the specialized national legislation regulating the safeguarding of objectsof cultural heritage.
These changes entailed the need for criminal sanctions forviolation of prohibitions and requirements introduced in the provisions of thefederal law relating to the sphere of culture. In this regard, an analysis of thearticles of the European Convention allows identifying the international legal basisfor the criminalization of acts punishable under Art. 243(2)-243(3) CC RF.Chapter II “The substantive characteristics of the criminal offensesagainst objects of cultural heritage” is dedicated to the analysis of thesubstantive elements of the crimes as part of the mechanism for criminal-lawprotection of the objects of cultural heritage.Section 1 “The characteristics of the objects of crimes committed against theobjects of cultural heritage” specifically examines the objects of crimes under Art.243-243(3) CC RF.The public morality, as a substantive element of a criminal act, is examinedboth from the viewpoint of criminal liability and from the standpoint ofphilosophy.
The author proposes the definition of the term public morality as anobject of a crime: formulated as the aggregate of values and norms that regulateshuman behavior accumulating sensory and practical collective social experienceinherited through generations.This definition leads to a theoretical conclusion that the immediate object ofthe criminal offenses in question is directly connected to its subject matter –namely, the objects of cultural heritage, identified objects of cultural heritage, andcultural values. The commonality of cultural heritage and public morality can beexpressed as follows: first, both categories are part of the culture of mankind;secondly, the cultural heritage, being a concentrated expression of humanexperience, fulfills the same function as public morality - the transfer of culturalcapital through time; thirdly, morality, as well as cultural heritage, is a category of19axiological property, aimed at capturing, preserving, creating and disseminating aparticular kind of values.Therefore, the violation of laws protecting the cultural heritage is closelyrelated to the violations of the public morality in two aspects – first, as a violationof the morality norms, intended to protect cultural heritage, and second, as adestruction of the foundation of public morality which forms its own values interms of historical, cultural and other contexts.Based on the approach as described above, an understanding of the newinterpretation of the direct object for each type of offenses against objects ofcultural heritage has been developed.Section 2 “The criminal-law characteristics of the substance of the criminaloffenses under Article 243 of the Criminal Code of the R.
F.” provides the analysisof the objective standard, the subjective standard and the object as the substantiveelements of the offense punishable under Art.243 of the Criminal Code.The substance of the offense in question should be considered material, asthe causing destruction and damage to monuments, certainly and predictablyresults in the negative change in the subject matter of the offense and includes boththe conduct and the consequence.The fact of destruction of an object of cultural heritage should constitute thecessation of physical existence of the object; whereas the fact of damage – thepartial loss of value.The conducted analysis of the subjective standard leads to conclude that theabove described criminal offense requires committing the crime with the elementof fault, criminal intent (act intentionally and recklessly); which leads to concludethat this crime cannot be committed by negligence.
The mental component of theintent within the criminal act under Art.243 CC RF is that the perpetrator is awareof: a) the existence of the morality norms in the sphere of spiritual and cultural life;b) the cultural value of the subject matter of the crime; c) the actual content andsocial assessment of the committed act – namely, his/her actions to destroy ordamage the cultural heritage object.In order to eliminate inconsistencies in the legal interpretation of thelanguage in Art.243 CC RF, it is proposed to amend the statute by appropriatelegislation and make the intentional form of conduct a single necessary elementrequired under Art.243 CC RF and it is proposed accordingly to revise thelanguage of the Art.243 CC RF.20Section 3 “The criminal law characteristics of the substantive elements ofthe crime under Art.243(1) of the Criminal Code of the R.F.” presents the analysisof the objective standard, the subjective standard, and the object as the substantiveelements of the criminal offense under Art.243(1) CC RF.The section examines the possibility of limiting the subject matter of thecrime to the protected object of cultural heritage – which possesses the specificfeatures of the object of cultural heritage that provided grounds for including thelatter into the Unified State Register of the Cultural Heritage Objects (Monumentsof History and Culture) of the Peoples of the Russian Federation which are subjectto the mandatory preservation.
It is concluded that the subject matter of the crimeunder Art.243(1) of the Criminal Code constitutes an object of cultural heritage inits entirety, since a subject designated for preservation, as a singled out object,existing apart from the object of cultural heritage, cannot be considered as asubject matter of the crime from the criminal law perspective.The quantitative criterion for determining the harm caused by a crime iscriticized; the thesis on the need for clarification by the highest court on theprocedure for calculating the damage caused by one of the following methods ortheir combination is expressed: 1) the average market value of restoration worksand materials spent at the time of the crime; 2) expert assessment of thediminution value of the market price of the monument at the time of the crime; 3)expert evaluation of the comparison of actually incurred expenses for therestoration of the monument to the market value of such works at the time of thecommission of the crime.The subject of the offense under Art.
243(1) CC RF is very specific – it is anindividual, who undertakes the legal responsibilities to follow regulations forprotection and usage of the objects of cultural heritage (an owner, other legalowner, other individuals). In addition, as the subject of the crime, some otherindividuals should be considered, such as individuals with the rights to manage theproperty in furtherance of a trust instrument, legal representatives of minors- heirsof the estate, individuals conducting restoration work, individuals developingproject documentation, and an agency providing security service on the site of theobject of cultural heritage.The State Construction Inspection is an inherent part involved in thepreservation of a cultural object in cases where an object of cultural heritagerequires interference with its structural characteristics.
The importance offollowing instructions and adhering to construction regulations emphasizes the role21of the inspection. Violations of such regulations may also trigger the criminalliability under Art. 243(1) CC RF.Section 4 “The criminal-law characteristics of the substance of the criminaloffenses under Articles 243(2) and 243(3) CC RF” examines the objectivestandard, the subjective standard and the subject, an offender as the substantiveelements of the crime punishable under Art.243(2) and 243(3) CC RF.The search for items that constitutes a criminal act punishable underArt.243(2) CC RF occurs when the actions are directed at finding, uncovering theobjects at the sites of their depository.
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