1Редчиц М.А_Summery_131018 (Уголовно-правовая охрана объектов культурного наследия)

National Research UniversityHigher School of EconomicsRedchits Mariia AleksandrovnaTHE CRIMINAL LAW PROTECTIONOF THE CULTURAL HERITAGE OBJECTSPhD Dissertation Summaryfor the purpose of obtainingPhilosophy Doctor in Law HSEAcademic supervisor:Gracheva Yulia Victorovna,Doctor of Science, assistant professorMoscow - 2018The thesis was completed at the Department of Criminal law of the Faculty of Lawof the National Research University ‘Higher School of Economics’The text of the thesis is deposited and available on the website of the HigherSchool of Economics: https://www.hse.ru/sci/diss/12.00.08 – Criminal Law and Criminology; Criminal ProcedureAcademic SecretaryDissertation Council in LawDoctor of Science, assistant professorIrina Alexandrovna Emelkina2The relevance of the research topic. In connection with the existingprovisions of the international acts ratified by the Russian Federation in 2013, theCriminal Code of the Russian Federation was amended to incorporate the efforts toprotect the cultural heritage objects by criminal law - new statutes, Articles 243(1)- 243(3) of the Criminal Code have been enacted and the disposition of the normset forth in Art.

243 CC RF has been revised. These newly introduced statutorychanges to the body of criminal law require scientific study and carefulconsideration. Prior to these changes, the terminology with respect to the field ofsafeguarding cultural heritage of the country used in the Criminal Code of theRussian Federation was excessively convoluted and muddled. To this day, it hasbeen supplemented by a number of new terms set forth in Federal Law No.

73-FZof 25.06.2002 on the "Objects of Cultural Heritage (Monuments of History andCulture) of the Peoples of the Russian Federation." However, the absence ofuniversal legal terminology in the legislation leads to controversial legislativedecisions, which causes the exigency for unification of the current system ofconcepts that apply to criminal law. When formulating new substantive elementsof crimes, the legislators used inconsistent techniques of legal construction of theterms.Official statistics show a clear imbalance between the number of registeredcrimes and convictions under Art.

243-243(3) of the Criminal Code of the RussianFederation. Of the registered crimes, only about 10% come to court. This, inparticular, may indicate insufficient development of criminal liability issues underthese articles, or defects in legislative techniques that impede law enforcement.Changes made to the criminal law in 2013 and 2014 did not change the statistics ofjudicial practice. From this we can conclude that these amendments did not meetthe requirements of practice. When constructing new compositions, the legislatorused the techniques of legal techniques, which caused various assessments in theliterature.All this testifies to the need for a comprehensive theoretical analysis of thestatutory norms with regard to the mechanism of criminal law protection of theobjects of cultural heritage, as well as development of the appropriate,scientifically sound recommendations for the improvement of a number ofprovisions of the Criminal Code of the Russian Federation for its effectivepractical application.The state of scientific development of the research topic.

To this moment,the issue of criminal law protection of the objects of cultural heritage in theRussian Federation is one of the least developed themes of study. In the context of3the recent enactments of the revised criminal statutes of the Criminal Code of theRussian Federation governing the sphere of cultural heritage, the main body ofdevelopments on the topic is related to the legislative provisions of past years andis dedicated to the criminal law protection of cultural assets of value.In the Soviet period, this topic was researched and developed by legalscholars such as M.M. Boguslavsky, M.V. Vasilyeva, I.Yu.

Dyachenko, RASabitov, A.P. Sergeev and other researches.The more recent works related to the period of the previous version of Art.243 CC RF were prepared by E. Alexandrov, I.B. Afonin, O.V. Davletshina, Ya.S.Kalininskaya, E.V. Medvedev, T.R. Sabitov, A.V. Sumachev, A.S. CherepashkinAS and others.The problems of protection of cultural heritage in the period after theintroduction of amendments to the Criminal Code of the Russian Federation in2013 have been studied in the works of I.O.

Anisimova, V.V. Baburina, N.M.Bogolyubova, E.I. Georgian, Yu.V. Nikolaeva, A.V. Sumatchev. However, theseworks do not examine in detail the new version of Art. 243 CC RF and thesubstantive elements of the offenses provided for in Art. 243(1) – 243(3) CC RF.The candidate's dissertation of O.M. Martysheva was the only academic workdedicated to the issues of criminal liability for destruction and damage of objects ofcultural heritage and cultural assets, in which work the author delineated conceptscharacterizing the categories of cultural heritage, put forward theoretical provisionsabout the subject matter of crimes against objects of cultural heritage, consideredthe problems in applications of Art.

243 CC RF, studied the substantive elementsof offences under Art. 243-243(3) CC RF, and distinguished substantive elementsin similar crimes.It is required to examine the changes introduced into the Criminal Code asthe international legal basis for the protection of the cultural heritage objects aswell as the system of new concepts associated with the cultural heritage,introduced in the Criminal Code.The object and subject matter of the study.

The object of the study is thepublic policy considerations arising in connection with the safeguarding culturalheritage objects by the criminal law.The subject matter of the study can be identified by the following:- the statutory norms of the current criminal legislation providing forresponsibility for criminal acts against cultural heritage;4- the international law, civil law, administrative law, and norms of otherbranches of law that serve the public interest in the field of protection of culturalheritage objects;scientific works (articles, monographs, dissertations, abstracts ofdissertations), which deal with the protection of cultural heritage and culturalvalues;- statistical data and judicial criminal-law practice with regard to the casesinvolving crimes committed against the cultural heritage.The aim and objectives of the study.

The aim of the dissertation paper is todevelop scientifically substantiated recommendations for the improvement of thecriminal-law statutory norms and practices on the basis of a comprehensiveanalysis of the issues of criminal law protection of cultural heritage objects on thegrounds of public policy requirements for criminalization of the conductinterfering with the protection of objects of cultural heritage, the most significantand debatable issues of criminal liability with respect to the objects of culturalheritage.This purpose is served by achieving the following objectives:- formulation of the concept of "object of cultural heritage" on the basis ofidentifying its features, the relationship of the concept of "object of culturalheritage" with the concepts of "cultural heritage", "identified cultural heritageobject", "archaeological heritage object", "archaeological object", "cultural layer" ,"cultural values" for the purpose of identifying and disclosing crimes against thecultural heritage;- analysis of international legal acts regulating the protection of culturalheritage objects ratified by the Russian Federation for establishing internationallegal basis for amending national legislation and criminalizing conduct pursuant toArt.

243(1)1-243(3) CC RF and defining a mechanism for criminal law protectionof the cultural heritage objects in the Russian Federation pursuant to Art. 243243(3) CC RF;- study of the criminal law characteristics of material elements of offenseswith regard to the protection of cultural heritage objects;- development of scientifically grounded recommendations on the changes tobe introduced in the existing statutory norms of the criminal legislation that5regulate the protection of cultural heritage and on the improvement of theirpractical application;Methodology and methods of research.

As a methodological basis of thedissertation research, the general scientific and other scientific methods ofperception and understanding are used, including: analysis, synthesis, formal legalmethod, comparative legal method, questionnaire surveys, method of legalstatistics, etc.The legal normative basis of the research consists of: the Constitution ofthe Russian Federation, the Criminal Code of the Russian Federation, the CivilCode of the Russian Federation, the Code of Administrative Offenses of theRussian Federation, the special legislation of the Russian Federation aimed atprotecting the cultural heritage (Federal Law No.

73-FZ of 25.06.2002 "On objectsof cultural heritage (monuments of history and culture) of the peoples of theRussian Federation," the "Fundamental legislation of the Russian Federation onculture, " the Decree of 09.10.1992 No. 3612-1, Federal Law No. 54-FZ of26.05.1996 "On the Museum Fund of the Russian Federation and Museums in theRussian Federation," the Law of the Russian Federation No. 4804-1 of 15.04.1993"On Export and Import of Cultural Property", etc.), by-laws, international law (theConvention on the Protection of the World Cultural and Natural Heritage, theEuropean Convention on the Protection of the Archaeological Heritage, theEuropean Convention on the Protection of the Architectural Heritage of Europe,etc.), the criminal legislation of foreign countries (the Criminal Codes of Spain,Belgium, and France.)The theoretical base of the research consists of the works of nationallyrecognized and foreign scholars examining various issues of criminal law,administrative law, constitutional law, civil law, as well as philosophy and culturalstudies.The empirical basis of the study includes:- statistics of the Russian Ministry of Internal Affairs – a cumulativecriminal reporting information of the "Combined Report on Crime" for the periods2010-2017, providing data on the number of registered and investigated criminalcases, as well as the number of indictments and judgments on crimes classifiedunder Art.

243-243(3) of the Criminal Code of the Russian Federation;6- statistical data of the Judicial Department of the Supreme Court of theRussian Federation for 2010-2017 on the number of convictions in cases involvingthe crimes classified under Art. 243-243(3) CC RF, according to which: from 2010to 2017, pursuant to Art.

243 CC RF, thirty-five (35) convictions were adjudicated,whereas for the period the new revisions of Art. 243 CC RF have been in effectsince 2014 – thirteen (13) convictions; for the period from 2013 to 2017 underArt.243(2) CC RF – twenty one (21) convictions were pronounced, under Art.243(1) and 243(3) CC RF – zero (” 0”) convictions;- 26 judgments of criminal prosecutions under Art. 243, 243(2) CC RF(comprising 37% of the total number of sentences) of the lower courts, appealsdepartments, and appeals courts in the jurisdictions of the Arkhangelsk, Vologda,Volgograd, Vladimir, Kaliningrad, Kostroma regions, as well as Krasnodar, Perm,Primorsky Kray, Pskov, Rostov regions, the Republic of Crimea, the RepublicTatarstan, Samara, Sakhalin, Tambov regions for the period of 2010-2017;- 25 convictions in cases involving crimes under Art.